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

Filing 32

Submitted (ECF) Amicus brief for review. Submitted by Liberty Institute, et al. Date of service: 09/23/2010. [7484702]--[COURT UPDATE: Corrected docket text to reflect content of submission. 09/23/2010 by RY] (KJS)

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

Doc. 32

No. 10­16696 In The Kristin Perry, et al., Plaintiffs­Appellees, v. Arnold Schwarzenegger, et al., Defendants, and Dennis Hollingsworth, et al., Defendants­Intervenors­Appellants Appeal from the United States District Court for the Northern District of California Civil Case No. 09­2292 VRW The Honorable Judge Vaughn R. Walker BRIEF OF LIBERTY INSTITUTE, ASSOCIATION OF MARYLAND FAMILIES, CALIFORNIA FAMILY COUNCIL, CENTER FOR ARIZONA POLICY, CITIZENS FOR COMMUNITY VALUES, CORNERSTONE ACTION, CORNERSTONE FAMILY COUNCIL, DELAWARE FAMILY POLICY COUNCIL, FAMILY ACTION COUNCIL OF TENNESSEE, THE FAMILY FOUNDATION, THE FAMILY POLICY COUNCIL OF WEST VIRGINIA, FAMILY POLICY INSTITUTE OF WASHINGTON, FLORIDA FAMILY POLICY COUNCIL, GEORGIA FAMILY COUNCIL, ILLINOIS FAMILY INSTITUTE, INDEPENDENCE LAW CENTER, IOWA FAMILY POLICY CENTER, LOUISIANA FAMILY FORUM ACTION, MASSACHUSETTS FAMILY INSTITUTE, MICHIGAN FAMILY FORUM, MINNESOTA FAMILY COUNCIL, MISSOURI FAMILY POLICY COUNCIL, MONTANA FAMILY FOUNDATION, NEW JERSEY FAMILY FIRST, NEW JERSEY FAMILY POLICY COUNCIL, NORTH CAROLINA FAMILY POLICY COUNCIL, OKLAHOMA FAMILY POLICY COUNCIL, OREGON FAMILY COUNCIL, PALMETTO FAMILY COUNCIL, PENNSYLVANIA FAMILY INSTITUTE, WISCONSIN FAMILY ACTION, AND WYWATCH FAMILY ACTION AS AMICI CURIAE IN SUPPORT OF APPELLANTS AND REVERSAL Kelly J. Shackelford, Counsel of Record Jeffrey C. Mateer Hiram S. Sasser, III Justin E. Butterfield Liberty institute 2001 W. Plano Parkway, Suite 1600 Plano, Texas 75075 (972) 941­4444 Attorneys for Amici Curiae

United States Court of Appeals for the Ninth Circuit

Dockets.Justia.com

Circuit Rule 26.1 Disclosure Statement 1. The full name of every party that the attorneys represent in this case: Liberty Institute, Association of Maryland Families, California Family Council, Center for Arizona Policy, Citizens for Community Values, Cornerstone Action, Cornerstone Family Council, Delaware Family Policy Council, Family Action Council of Tennessee, The Family Foundation, The Family Policy Council of West Virginia, Family Policy Institute of Washington, Florida Family Policy Council, Georgia Family Council, Illinois Family Institute, Independence Law Center, Iowa Family Policy Center, Louisiana Family Forum Action, Massachusetts Family Institute, Michigan Family Forum, Minnesota Family Council, Missouri Family Policy Council, Montana Family Foundation, New Jersey Family First, New Jersey Family Policy Council, North Carolina Family Policy Council, Oklahoma Family Policy Council, Oregon Family Council, Palmetto Family Council, Pennsylvania Family Institute, Wisconsin Family Action, and WyWatch Family Action 2. Thenamesofalllawfirmswhosepartnersorassociateshaveappeared for the party in this case or are expected to appear: Kelly J. Shackelford, Jeffrey C. Mateer, Hiram S. Sasser III, and JustinE.ButterfieldareattorneyswithLibertyInstitute,apublicinterestlawfirminTexas. 3. For all amici curiae that are corporations: i. ii. Identify all parent corporations for all amicus parties: None. List any publicly held company that owns 10% or more of any amicus party's stock: None. s/ Kelly J. Shackelford Kelly J. Shackelford

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Table of Contents Circuit Rule 26.1 Disclosure Statement ......................................................i Table of Contents ..........................................................................................ii Table of Authorities .................................................................................... iii Interest of Amici Curiae ................................................................................ 1 Introduction .................................................................................................. 2 Summary of Argument ............................................................................... 2 Argument....................................................................................................... 4 I. Initiatives promote the will of the people better than government solely by the elite. .............................. 4 II. Self-government is foundational to California's sovereignty and should not be lightly overruled ....................8 Conclusion .................................................................................................. 14 CertificateofCompliancewithFed.R.App.P.Rule32(a)...................15 CertificateofService .................................................................................. 16

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Table of Authorities Cases Civil Rights Cases, 109U.S.3(1883) ...............................................................................10 Dred Scott v. Sandford, 60U.S.393(1857) ...............................................................................9 Kiernan v. Portland, 112P.402(Ore.1910) .....................................................................7,8 In re Winship, 397U.S.358(1970) ..................................................................... 10, 11 Constitutional Provisions U.S. Const. amend. X ................................................................................. 12 other authorities DeclarationofIndependence(U.S.1776) .........................................12, 13 Mark A. Graber, Dred Scott and the Problem of ConstitutionalEvil(2006) ...............................................................10 John G. Matsusaka, For the Many of the Few (BenjaminI.Pageed.,paperbacked.2008) ............................ 5,6,7 Michelle Minkoff et al., Proposition 8 Campaign Contributions, L.A. Times, http:/ projects.latimes.com/prop8/ / (lastvisitedSeptember21,2010)......................................................9 2RecordsoftheFederalConventionof1787 (M.Farranded.,1911) ....................................................................... 4

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Interest of the Amici Curiae1 LibertyInstituteisanon-profitlawfirmdedicatedtothepreservation of civil rights and the promotion of individual liberty. Liberty Institute represents clients across the country whose rights have been trampled by those in authority. One of the most important civil rights for individual liberty is the right to self-government. The district court decisionbelowthreatensthatrightforthepeopleofCalifornia.Thejudicialactivismexemplifiedbythedistrictcourtthreatensthecivilrights of many of Liberty Institute's clients across the country. If the district court'sdecisionisupheld,thecoreprinciplesthatLibertyInstitutefights for will be weakened. The remaining thirty-one amici are Family Policy Councils--statelevel organizations formed to invest in the future of America's families. These Family Policy Councils conduct policy analysis, promote responsible and informed citizenship, and advocate for family ideals. Much of the Family Policy Councils' advocacy and work is promoting legislative change, both directly and by encouraging the citizenry to work for change. Advocating for legislative change requires that the people be self-governing and have the power to change the laws or advocate that 1 Thisbriefisfiledwiththeconsentofalltheparties. 1

their legislators change the laws. The district court's decision makes this power mere pretense, undermining the efforts of the Family Policy Councils and all who would advocate for legislative change. Introduction In brushing aside the will of the people of California--declared in two separate initiatives--for the novel idea that marriage may be between other groups than one man and one woman, the District Court sacrificed"themostfundamentalindividuallibertyofourpeople":the right to self-government. Empirical study demonstrates that the initiative process accurately reveals the will of the majority. Allowing the District Court's ruling to stand effectively imposes an arbitrary form of government upon California never chosen by or consented to by the people. Summary of the Argument The United States' government consists of checks and balances designed to limit the power of the various parts of the government, ensuring it follows the will of the people. As an additional check, many state and local governments provide for an initiative process by which the people may more directly express their will. Distinguished USC

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professor Dr. John G. Matsusaka spent ten years performing empirical research to determine whether the initiative process accurately represents the will of the people or whether special interests subvert initiative processes. Dr. Matsusaka's research led him to the following conclusion: "Notasinglepieceofevidencelinkstheinitiativetononmajoritypolicies as the special interest subversion hypothesis would predict. ... [B]ased onthefacts,theinitiativeservesthemanyandnotthefew." Twice, California used its initiative process to establish that the traditionaldefinitionofmarriageshouldbeusedinthatstate.Astheinitiative process correctly serves as a check and balance against governmental appropriation of power, the District Court's abrogation of California's Proposition8isanti-majoritarian.Attimesthroughoutournation'shistory, courts have subjugated the will of the people to the judges' own desires, often with disastrous results. Doing so is anti-democratic and ignores that self-governance is an important and essential part of liberty. SuchactionsbyunelectedjudgesdisregardthattheBillofRightsprovides that those powers not granted to the United States are reserved to the states and the people. These precepts are foundational to liberty and courts should not discard them as the whims of an elite few change.

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Argument When the Framers drafted the Constitution, they sought to secure liberty by implementing two systems of checks and balances: one horizontal--the tripartite division of the Federal government into the legislative,executive,andjudicialbranches--andonevertical--theestablishment of a federal republic in which power was divided among the local, state, and national levels. As the Framers expected, political fightingensuedwithinthesedivisionsofpowerwitheachbranchof government and each level of government seeking more power for itself. At the foundation of this governmental structure, however, there is only onesovereign:thecitizenry.AsBenjaminFranklinobserved,"Infree Governments the rulers are the servants, and the people their superiors &sovereigns."2RecordsoftheFederalConventionof1787,at120(M. Ferrand, ed., 1911). With hesitancy and trepidation, then, should the one unelected, national branch of government veto the expressed will of the people. I. Initiatives promote the will of the people better than government solely by the elite. In addition to the tripartite government and federalism, the initiative process functions as an additional check to ensure that government 4

is responsive to the will of the people. The initiative process dates back to1898,whenSouthDakotabecamethefirststatetoimplementthe initiative process. By 1918, nineteen other states provided for the initiativeprocess.JohnG.Matsusaka,FortheManyortheFew4(Benjamin I.Pageed.,paperbacked.2008).Atpresent,24statesand80percentof cities with populations over 100,000 provide some form of the initiative process. Id. at 1 and 8. Currently, an estimated seventy percent of the population of the United States has some access to the initiative process. Id. at 1. Citizens used the initiative process regularly throughout the twentieth century, but a small fraction of times compared with the number of bills passed through the traditional legislative process. For example,"[i]n1999and2000,only35measureswereadoptedbyinitiative compared to more than 10,000 new laws enacted by legislatures." Id. at 30. Despite the relatively few initiatives employed by the citizenry, the existence of the initiative in a state causes the state's policies to more closely abide by the will of the people. Dr. Matsusaka2 spent ten years analyzing the economic policies of each state in the United States and used regression analysis to isolate 2 "John Matsusaka is the Charles F. Sexton Chair inAmerican Enterprise in the Marshall School of Business, Gould School of Law, and Department of Political Science at the University of Southern 5

the effects caused by the existence of the initiative in a given state. Dr. Matsusaka found that, in the early part of the twentieth century, states with the initiative process had slightly more liberal economic policies than non-initiative states, while in the latter part of the twentieth century, states with the initiative had slightly more conservative economic policies than non-initiative states. See id.at73­74.Dr.Matsusaka'sresearch found that in recent years, in states with the initiative process, total government spending lessened, spending shifted from the state government to the local government, and the sources of governmental income shifted from taxes to user fees and charges for services. Id. at 52. The ultimate question, however, is whether these policies are in furtherance of the will of the people or in contravention to the people's will. Dr. Matsusaka compared the results of his economic analysis of state policies California, and President of the Initiative and Referendum Institute at USC. He currently serves as Vice Dean for Faculty and Academic Affairs in the Marshall School. Matsusaka received his Ph.D. in economics from the University of Chicago, and has held visiting appointments at the Hoover Institution at Stanford University, UCLA, Caltech, and theUniversityofChicago.Hisresearchfocusesonthefinancing,governance, and organization of corporations and governments. He has published numerous scholarly articles, serves as a consultant for the White House Council of Economic Advisors, and is the author of For the Many or the Few: The Initiative, Public Policy, and American Democracy (UniversityofChicagoPress,2004)."JohnG.Matsusaka,HomePage of John Matsusaka, http://www-bcf.usc.edu/~matsusak/ (last visited Sept.21,2010). 6

with the results of studies by the Advisory Commission on Intergovernmental Relations, the American National Election Studies, and the Los Angeles Times/ABC News polls. Id.at56­57.Dr.Matsusakafound that the economic policies of states with the initiative better followed the will of the people than did those of states without the initiative. See id.at57­71.AsDr.Matsusakaobserved, Not a single piece of evidence links the initiative to nonmajority policies [as the hypothesis that special interests control the outcomes of initiatives] would predict. ... [T]he factthatacomprehensiveexaminationoffiscalpoliciesfrom the beginning to the end of the twentieth century reveals not a shred of evidence for the special interest subversion viewmakesascompellingarejectionofahypothesisaswe ever get in empirical research. This is the main message of the [research]: based on the facts, the initiative serves the many and not the few. Id. at 114. When the Oregon Supreme Court upheld Oregon's initiative process in 1910, they acknowledged the principle found by Dr. Matsusaka by quoting Thomas Jefferson: On this view of the import of the term `republic,' instead of saying, as has been said, that it may mean anything or nothing, we may say with truth and meaning that governments are more or less republican, as they have more or less of the element of popular election and control in their composition; and believing as I do, that the mass of citizens is the safest depository of their own rights and especially, 7

thattheevilsflowingfromtheduperiesofthepeople,are lessinjuriousthanthosefromtheegoismoftheiragents,I am a friend to that composition of government which has in it the most of this ingredient. Kiernan v. Portland,112P.402,405(Ore.1910)(quoting15Writings of Thomas Jefferson23). In other words, Dr. Matsusaka found empirically what Thomas Jefferson believed ideologically. The people know what they are doing. Theyarelesslikelytoharmthemselvesthanthe"egoismoftheiragents" is to bring about harm upon them. II. Self-government is foundational to California's sovereignty and should not be lightly overruled. Twice now the people of California have expressed their will that marriageinthestateofCaliforniafollowthetraditionaldefinitionof being between one man and one woman. In March of 2000, Californians usedtheinitiativeprocesstodefinemarriageasbetweenonemanand one woman. When the California Supreme Court struck down this definitionasviolatingCalifornia'sconstitution,thepeopleofCalifornia again used the initiative process in 2008 to pass Proposition 8, a state constitutionalamendmentdefiningmarriageasbetweenonemanand onewoman.InaccordancewithDr.Matsusaka'sfindingsthatinitiatives

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truly express the will of the people and not the will of the best-funded special interest, the people of California passed Proposition 8 despite the opposition to Proposition 8's having raised over three million more dollars than the supporting campaign. Michelle Minkoff et al., Proposition 8 Campaign Contributions,L.A.Times,http://projects.latimes.com/ prop8/(lastvisitedSeptember21,2010). Through the initiative process, the people of California have made their will known. In their state, they want marriage to remain as it has for thousands of years. They spoke twice in eight years, and their will shouldnotbesubvertedbyonejudgeofonebranchofthefederal government's redefining core institutions like marriage to follow the whims of the elite. Historydemonstratesthatanoverzealousjudiciaryactingtoprotect the people from their own ideas has not been good for the United States.In1857,theSupremeCourtoverturnedtheMissouriCompromise in Dred Scott v. Sandford,60U.S.393(1857)("[S]ixofusdeclarethat [the Missouri Compromise law] was unconstitutional."). It has been suggested that at least some members of the Supreme Court inserted themselves in place of the legislative process in Dred Scott to promote

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slavery in a less controversial manner than were the legislature involved--they were trying to save the country from itself. See, e.g., Mark A.Graber,DredScottandtheProblemofConstitutionalEvil41­42 (2006).Again, in the Civil Rights Cases,109U.S.3(1883),theSupreme CourtruledthattheCivilRightsActof1875,prohibitingdiscrimination by public accommodations, was unconstitutional, striking down the will of the people expressed through their representatives and setting civil rights back by eighty years. Had the Supreme Court engaged in judicialrestraintandallowedthecivilrightslawspassedbyCongress to stand, perhaps some or many of the thousands of lives lost to lynchings in the South might have been saved. It is true that the courts did return to these issues generations later and remedy the errors that they implemented, but the Court's actions prove that the elite few do not knowbetterthanthemajority. Judicial activism to impose the views of the "enlightened" judiciary on the masses has another danger, expounded in Justice Black's famous dissent: It can be, and has been, argued that when this Court strikes downalegislativeactbecauseitoffendstheideaof"fundamentalfairness,"itfurthersthebasicthrustofourBillof Rights by protecting individual freedom. But that argument 10

ignores the effect of such decisions on perhaps the most fundamental individual liberty of our people--the right of each man to participate in the self-government of his society. Our Federal Government was set up as one of limited powers, but itwasalsogivenbroadpowertodoallthatwas"necessary andproper"tocarryoutitsbasicpurposeofgoverningthe Nation, so long as those powers were not exercised contrary to the limitations set forth in the Constitution. And the States, to the extent they are not restrained by the provisions in that document, were to be left free to govern themselves in accordance with their own views of fairness and decency. Any legislature presumably passes a law because it thinks the end result will help more than hinder and will thus further the liberty of the society as a whole. The people ... may of course be wrong in making those determinations, but the right of self-government that our Constitution preserves is justasimportantasanyofthespecificindividualfreedoms preserved in the Bill of Rights. The liberty of government by the people, in my opinion, should never be denied by this Courtexceptwhenthedecisionsofthepeople...conflict with the express or necessarily implied commands of our Constitution. In re Winship,397U.S.358,384­85(1970)(Black,J.,dissenting)(emphasis added). The people may be wrong, as they often are. The courts, too, may be wrong, as they often are. But this we know: twice in eight years the people of California declared they want to keep marriage as it has been for time immemorial. Courts should not violate the people's self-governance--the"mostfundamentalindividuallibertyofourpeople"--and impose instead their own views upon the people of California. The Tenth 11

AmendmentoftheBillofRights,whichpromisesthat"[t]hepowersnot delegated to the United States by the Constitution, nor prohibited by ittotheStates,arereservedtotheStatesrespectively,ortothepeople," should be preserved against a judge's own sense of morality that he believes trumps the morality held by the people of California and most Americans for over two hundred years.3 This nation was built upon principles of self-government that the District Court's ruling brushes aside so that a new morality may be forced instead. In the latter half of the eighteenth century, King George III, outsideoftheauthoritygrantedtohimbythecolonialcharters,"refused hisAssenttoLaws"passedbythecolonists;"dissolvedRepresentative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people;" "combined with others to subject [the colonists] to a jurisdiction foreign to [the colonists'] constitution, and unacknowledged by [the colonists'] laws, giving his Assent to their Acts 3 Thedistrictcourtfoundthat"Proposition8findssupport only in such [moral disapprobation]. As such, Proposition 8 is beyond theconstitutionalreachofthevotersortheirrepresentatives,""no matterhowlargethemajoritythatsharesthatview."ER59(emphasis added).Whileitisdubiouswhetherthedistrictcourtcanascertainthe moral views and reason for supporting Proposition 8 of more than seven million California voters, this does not negate that the district court is placing its own morality in place of that of the citizens of California. 12

of pretended Legislation;" "abolish[ed the colonists'] most valuable Laws and alter[ed] fundamentally the Forms of [the colonists'] Governments;" and "suspend[ed the colonists'] Legislatures, and declar[ed] themselves invested with power to legislate for the [colonists] in all caseswhatsoever."TheDeclarationofIndependenceparas.3,7,15,23, and24(U.S.1776).InsignificantpartbecauseoftheCrown'sremoval of the legislative power from the people and vesting of it in persons unconstitutionallyqualifiedtolegislate,andbecausetruegovernments "deriv[e]theirjustpowersfromtheconsentofthegoverned,"thecolonistsconsideredthat"itistheirright,itistheirduty,tothrowoffsuch Government,andtoprovidenewGuardsfortheirfuturesecurity."Id. para. 2. If the district court's decision to abolish the citizens of California's laws and to invest itself with the power to legislate for the people ofCaliforniaisupheld,the"newGuard"isbutfollowingtheoldand we have come full circle.

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Conclusion Fortheforegoingreasons,thejudgmentoftheDistrictCourtfor the Northern District of California must be reversed. September 23, 2010 Respectfully submitted, s/ Kelly J. Shackelford Kelly J. Shackelford Counsel of Record Jeffrey C. Mateer Hiram S. Sasser, III JustinE.Butterfield Liberty institute 2001 W. Plano Parkway, Suite 1600 Plano,Texas75075 Telephone:(972)941­4444 Fax:(972)941­4457 [e-mail] Attorneys for the Amici Curiae

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Certificate of Compliance 1. This brief complies with the type-volume limitation of Fed. R. App. P.32(a)(7)(B)becausethisbriefcontains2,909words,excluding thepartsofthebriefexemptedbyFed.R.App.P.32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P.32(a)(5)andthetypestylerequirementsofFed.R.App.P.32(a) (6)becausethisbriefhasbeenpreparedinaproportionallyspaced typeface using Adobe InDesign with 14 point Palatino. s/ Kelly J. Shackelford Kelly J. Shackelford Counsel of Record Jeffrey C. Mateer Hiram S. Sasser, III JustinE.Butterfield Liberty institute 2001 W. Plano Parkway, Suite 1600 Plano,Texas75075 Telephone:(972)941­4444 Fax:(972)941­4457 [e-mail] Attorneys for Amici Curiae September 23, 2010

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Certificate of Service 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 September 23, 2010. 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. s/ Kelly J. Shackelford Kelly J. Shackelford Counsel of Record Jeffrey C. Mateer Hiram S. Sasser, III JustinE.Butterfield Liberty institute 2001 W. Plano Parkway, Suite 1600 Plano,Texas75075 Telephone:(972)941­4444 Fax:(972)941­4457 [e-mail] Attorneys for Amici Curiae September 23, 2010

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