Kristin Perry, et al v. Arnold Schwarzenegger, et al
Filing
371
Filed (ECF) Appellants Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight and ProtectMarriage.com - Yes on 8, A Project of California Renewal citation of supplemental authorities. Date of service: 09/14/2011. [7893451] (CJC)
Cooper & Kirk
Lawyers
A Professional Limited Liability Company
Charles J. Cooper
ccooper@cooperkirk.com
1523 New Hampshire Avenue NW
Washington, D.C. 20036
(202) 220-9600
Fax (202) 220-9601
September 14, 2011
ELECTRONICALLY FILED
Ms. Molly C. Dwyer
Clerk of Court
United States Court of Appeals
for the Ninth Circuit
James R. Browning U.S. Courthouse
95 Seventh Street
San Francisco, CA 94119-3939
Re:
Perry v. Brown, 10-16696 (Reinhardt, Hawkins, N.R. Smith)
(argued December 6, 2010)
Dear Ms. Dwyer,
I write on behalf of Appellants in response to the September 9, 2011 Fed. R. App.
P. 28(j) letter filed by Appellees. That letter brings to this Court’s attention the recent
decision in Diaz v. Brewer, No. 10-16797 (9th Cir. Sept. 6, 2011), a copy of which is
attached to Appellees’ letter.
In Diaz, a panel of this Court affirmed “the district court’s order granting a
preliminary injunction to prevent a state law from taking effect that would have
terminated eligibility for health-care benefits of state employees’ same-sex partners.”
Slip. op. at 16900. That decision did not, however, address the constitutionality of the
traditional definition of marriage as the union of a man and a woman, let alone call into
question the unanimous body of appellate decisions rejecting due process and equal
protection challenges to this definition under the Federal Constitution. See, e.g., Baker v.
Nelson, 409 U.S. 810 (1972); Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982);
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006).
Ms. Molly C. Dwyer
September 14, 2011
Page 2 of 2
Furthermore, California law, unlike the law preliminarily enjoined in Diaz,
provides same-sex domestic partners “the same rights, protections, and benefits” afforded
married spouses. Cal. Fam. Code § 297.5.
Finally, although the Court in Diaz did reject Arizona’s contention that the law at
issue there was “rationally related to the state’s interests in cost savings and reducing
administrative burdens,” Slip. op. at 16908, it did not address, let alone reject, the
compelling interests urged by Appellants in support of Proposition 8 here, including
promoting responsible procreation and childrearing and proceeding with caution when
considering fundamental changes to a vitally important social institution. 1
For all of these reasons, the decision in Diaz has little bearing on this case.
Respectfully submitted,
s/ Charles J. Cooper
Charles J. Cooper
Counsel for Defendant-IntervenorsAppellants Hollingsworth, Knight,
Gutierrez, Jansson, and
ProtectMarriage.com
cc:
1
All Counsel
The Court in Diaz also stated in passing that “[t]he district court properly concluded that
the denial of benefits to same-sex domestic partners cannot promote marriage, since such
partners are ineligible to marry.” Slip. op. 16908-09. Appellants have never sought to
justify Proposition 8 on the ground that it would encourage gay or lesbian individuals to
marry.
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