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

Filing 388

Submitted (ECF) Supplemental brief for review. Submitted by Appellee City and County of San Francisco. Date of service: 12/02/2011. [7986988] (CV)

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN M. PERRY, et al.,
Plaintiffs-Appellees,
CITY AND COUNTY OF SAN
FRANCISCO,
Plaintiff-Intervenor-Appellee,

No. 10-16696
(Argued Dec. 6, 2010)

U.S. District Court
Case No. 09-cv-02292 JW

vs.
ARNOLD SCHWARZENEGGER, et al.,
Defendants,
DENNIS HOLLINGSWORTH, et al.
Defendants-Intervenors-Appellants.

PLAINTIFF-INTERVENOR-APPELLEE
CITY AND COUNTY OF SAN FRANCISCO'S
SUPPLEMENTAL BRIEF
On Appeal from the United States District Court
for the Northern District of California
The Honorable Chief District Judge James Ware
DENNIS J. HERRERA, State Bar #139669
City Attorney
THERESE M. STEWART, State Bar #104930
Chief Deputy City Attorney
CHRISTINE VAN AKEN, State Bar #241755
MOLLIE M. LEE, State Bar #251404
Deputy City Attorneys
City Hall, Room 234
One Dr. Carlton B. Goodlett Place
San Francisco, California 94102-4682
Telephone: [phone]
Attorneys for Plaintiff-Intervenor-Appellee
CITY AND COUNTY OF SAN FRANCISCO

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The City and County of San Francisco joins Plaintiffs' supplemental brief
arguing that, notwithstanding the ruling of the California Supreme Court that
initiative proponents are authorized to assert the State's interest in initiatives when
elected officials do not appeal adverse judgments, Perry v. Brown, No. S189476,
2011 WL 5578873 (Cal. Nov. 17, 2011), Proponents here lack standing to pursue
their appeal of the district court's judgment because they cannot demonstrate they
satisfy Article III's requirements.
In the event this Court disagrees and determines that Proponents in fact have
standing to invoke the Court's appellate jurisdiction, then the Court should consider
the effect of the California Supreme Court's decision not merely on the
jurisdictional issue but on the merits of Proponents' appeal. San Francisco writes
separately to discuss these implications.
If Proponents may assert the State of California's interest in Proposition 8—
as opposed to the interests of a group of activist citizens who fought to pass a
constitutional amendment reflecting their private religious and moral beliefs—then
they surely may not rely on propositions and assertions that are wholly inconsistent
with California law. The California Supreme Court has authoritatively construed
Proposition 8 to leave intact all substantive rights that California's Constitution
previously conferred on same-sex couples: the right to enter into officially
recognized family relationships and the right to have and rear children. Strauss v.
Horton, 207 P.3d 48, 75-76, 102 (Cal. 2009). Nor did Proposition 8 repeal any of
the manifold protections for same-sex couples' family rights that pervade
California's statutory and decisional law.
Yet Proponents' defense of Proposition 8 relies on arguments that are
squarely at odds with California law. For instance, Proponents argue that
California promotes responsible procreation by reserving the most favored

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relationship designation for opposite-sex couples (whether they are fertile or not).
This assertion belies California law in two ways. First, far from favoring married
opposite-sex couples as parents, California affirmatively disavows that marital
status is related to the establishment of parentage, that sexual orientation relates to
one's fitness to be a parent, or that there are different gender roles that parents
should fulfill. Cal. Fam. Code § 7602; Elisa B. v. Superior Court, 117 P.3d 660,
664 (Cal. 2005); K.M. v. E.G., 117 P.3d 673 (Cal. 2005); Marriage of Buzzanca,
72 Cal. Rptr. 2d 280, 285 n.7 (Ct. App. 1998); Carney v. Carney, 24 Cal.3d 725,
736-37; see also Plaintiff-Intervenor-Appellee CCSF's Response Brief at pp. 1117. Second, Proponents' argument ignores the fact that Proposition 8 did not
bestow a distinction on one group of Californians but instead removed a distinction
from another group. Strauss v. Horton, 207 P.3d 48, 63 (Cal. 2009) (holding that
Proposition 8 "carv[ed] out an exception" to the privacy and due process clauses of
the California Constitution). Proponents have yet to articulate a justification for
why removing an honor from lesbians and gay men relates to California's interest
in responsible procreation.
In another instance, Proponents have argued that in passing Proposition 8,
Californians were entitled to rely on purported uncertainty about whether lesbian
and gay couples are equally worthy parents as opposite-sex couples biologically
related to the children they rear. This is not an argument that can credibly be made
on behalf of California, which discards the notions that sexual orientation or
biological ties between parent and child relate to parental fitness—and
Proposition 8 said nothing to the contrary. Strauss, 207 P.3d at 75-76 (holding that
Proposition 8 did not alter constitutional rights that it did not expressly repeal); see
also Plaintiff-Intervenor-Appellee CCSF's Response Brief at pp. 6-7.

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Thus, if Proponents are to stand in the shoes of the State, they should not
advance arguments at odds with the State's law and policy. Perhaps equally
important, they should be held accountable to the arguments that they made to
voters in support of Proposition 8. Perry v. Brown, No. S189476, slip op. at 42
(official proponents were likely to "be ... viewed by those whose votes secured the
initiative's enactment" as "reliable and vigorous advocates"). In the election,
Proponents submitted a series of arguments to the voters favor of the measure in
the official voter information guide. ER 1032-33; Cal. Elec. Code § 9067. These
official ballot arguments included that Proposition 8 was necessary to preserve
opposite-sex marriage and to prevent children from being taught that "there is no
difference between gay marriage and traditional marriage" and that "gay marriage
is okay." ER 1032-33. The official ballot arguments also proclaimed that "[g]ays
and lesbians have the right to live the lifestyle they choose," ER 1032 (emph.
added), but not the right to "redefine marriage for everyone else." Id. (emph. in
original). The notion that being gay is merely a "lifestyle" choice has no legal or
empirical support whatsoever, see Hernandez-Montiel v. INS, 225 F.3d 1084, 1093
(9th Cir. 2000) (internal quotation marks omitted) ("[s]exual orientation and sexual
identity are immutable" and "[h]omosexuality is as deeply ingrained as
heterosexuality") (internal quotation marks omitted); Plaintiffs-Appellee's
Response Brief at pp. 62-65, yet the ballot arguments relied on this longdiscredited and offensive stereotype.Proponents have acted as "vigorous
advocates" in this case, but they have not been "reliable ... advocates" for the
reasons they employed to persuade voters to adopt Proposition 8. They have
"abandoned previous arguments from the campaign that had asserted the moral
superiority of opposite-sex couples." Perry v. Schwarzenegger, 704 F. Supp. 2d
921, 931 (N.D. Cal. 2010). They have similarly abandoned arguments that sexual

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orientation is merely a "lifestyle" that gay people choose and that children must be
"protected" from learning about lesbian and gay relationships. But having
persuaded a majority of voters in California on these arguments to adopt
Proposition 8, Proponents at a minimum should explain how such arguments are
rooted in anything other than "[a] purpose to discriminate against" lesbians and gay
men for its own sake. U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534-35
(1973). The only conclusion that logically can be drawn is that their attempt to
distance themselves from the arguments they made to the voters in 2008 reflects
their recognition that those arguments were nothing but an appeal to naked
prejudice that will not withstand equal protection scrutiny. This Court should not
permit Proponents to hide from their official ballot arguments. If the Court agrees
that they are acting as representatives of the people of California and are proper
parties to invoke appellate jurisdiction, it should treat the campaign and ballot
arguments made by Proponents as the State's own statement of its interests in
enacting Proposition 8—and should hold that those interests are not legitimate state
interests under even the least demanding test.

Dated:

December 2, 2011

Respectfully submitted,
DENNIS J. HERRERA
City Attorney
THERESE M. STEWART,
Chief Deputy City Attorney
CHRISTINE VAN AKEN
MOLLIE M. LEE
Deputy City Attorneys
By: s/Therese M. Stewart
THERESE M. STEWART
Chief Deputy City Attorney
Attorneys for Plaintiff-Intervenor-Appellee
CITY AND COUNTY OF SAN FRANCISCO

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