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

Filing 402

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 in 11-16577 petition for rehearing en banc (from 02/07/2012 opinion). Date of service: 02/21/2012. [8075746] [10-16696, 11-16577] --[COURT UPDATE: Per counsel, amended document description for memorandum to reflect the correct date. Resent NDA. 02/21/2012 by DB] (CJC)

NOS. 10-16696 & 11-16577
DECIDED FEBRUARY 7, 2012
(CIRCUIT JUDGES STEPHEN REINHARDT, MICHAEL HAWKINS & N.R. SMITH)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN PERRY, et al.,
Plaintiffs-Appellees,
v.
EDMUND G. BROWN, Jr., et al.,
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendant-Intervenors-Appellants.
On Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 JW (Honorable James Ware)

APPELLANTS’ PETITION FOR REHEARING EN BANC

Andrew P. Pugno
LAW OFFICES OF ANDREW P. PUGNO
101 Parkshore Drive, Suite 100
Folsom, California 95630
[phone]; [phone] Fax
Brian W. Raum
James A. Campbell
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
[phone]; [phone] Fax

Charles J. Cooper
Counsel of Record
David H. Thompson
Howard C. Nielson, Jr.
Peter A. Patterson
COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
[phone]; [phone] Fax

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

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... iii
STATEMENT ............................................................................................................1
INTRODUCTION .....................................................................................................2
ARGUMENT ...........................................................................................................10
I.

THE PANEL MAJORITY MISAPPLIED ROMER V. EVANS. ....................................10

II.

THE PANEL MAJORITY’S DECISION CONFLICTS WITH
CRAWFORD V. BOARD OF EDUCATION. .............................................................20

III.

THE PANEL MAJORITY’S DECISION CONFLICTS WITH BINDING
PRECEDENT OF THE SUPREME COURT AND THIS COURT AND WITH
THE UNIFORM CONCLUSION OF EVERY OTHER APPELLATE COURT
TO ADDRESS A FEDERAL CONSTITUTIONAL CHALLENGE TO THE
TRADITIONAL DEFINITION OF MARRIAGE. ......................................................23

IV.

THE PANEL MAJORITY’S HOLDING THAT PROPOSITION 8 DOES NOT
REASONABLY RELATE TO THE STATE’S INTEREST IN RESPONSIBLE
PROCREATION AND CHILDREARING CONFLICTS WITH THE DECISIONS
OF OTHER COURTS AND CONTRAVENES BINDING PRINCIPLES OF
RATIONAL-BASIS REVIEW. .............................................................................26
A.

B.

That Proposition 8 Restored the Traditional Definition
of Marriage Does Not Render It Irrational..........................................32

C.
V.

The Traditional Definition of Marriage Reflected in
Proposition 8 Bears a Rational Relationship to Society’s
Vital Interest in Responsible Procreation and Childrearing................26

That Proposition 8 Did Not Eliminate Domestic Partnerships
Does Not Render It Irrational..............................................................36

THE PANEL MAJORITY ERRED IN HOLDING THAT PROPOSITION 8
IS NOT RATIONALLY RELATED TO ANY OTHER LEGITIMATE STATE
INTERESTS.......................................................................................................43
i

VI.

THE PANEL ERRED IN AFFIRMING THE DENIAL OF PROPONENTS’
MOTION TO VACATE.......................................................................................48

CONCLUSION........................................................................................................51

ii

TABLE OF AUTHORITIES
Page

Cases

Adams v. Howerton, 673 F.3d 1036 (9th Cir. 1982)......................................1, 25, 29
Andersen v. King County, 138 P.3d 963 (Wash. 2006) ...............................18, 29, 30
Baker v. Nelson, 409 U.S. 810 (1972) .................................................................1, 23
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ...............................................25, 29
Board of Trustees v. Garrett, 531 U.S. 356 (2001) .............................................8, 35
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ................. passim
Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ...................................30, 35
Conaway v. Deane, 932 A.2d 571 (Md. 2007) ..................................................18, 29
Coyote Publ’g, Inc. v. Miller, 598 F.3d 592 (9th Cir. 2010) ...................................43
Crawford v. Board of Education, 458 U.S. 527 (1982)................................... passim
De Burgh v. De Burgh, 250 P.2d 598 (Cal. 1952)...................................................27
Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995).......................................25
District Attorney’s Office v. Osborne, 129 S. Ct. 2308 (2009) .................................6
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993)..............................................47
Heller v. Doe, 509 U.S. 312 (1995) ................................................................. passim
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ..........................................8, 29, 31
In re City of Houston, 745 F.2d 925 (5th Cir. 1984) ...............................................51
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ..........................................29
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ........................................13, 25, 29
In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. Ct. App. 2010)...................18
Johnson v. Robison, 415 U.S. 361 (1974) .........................................1, 30, 33, 35, 40
Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973)......................................................25
Katzenbach v. Morgan, 384 U.S. 641 (1966) ..........................................................42
Lawrence v. Texas, 539 U.S. 558 (2003).................................................................19
Leroy v. City of Houston, 592 F. Supp. 415 (S.D. Tex. 1984) ................................51
Lewis v. Harris, 908 A.2d 196 (N.J. 2006)..............................................................38
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) ........................50
iii

Loving v. Virginia, 388 U.S. 1 (1967) .....................................................................27
Maynard v. Hill, 125 U.S. 190 (1888) .....................................................................44
Michael M. v. Superior Court, 450 U.S. 464 (1981) .........................................31, 48
Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) ..................................29, 31
Nguyen v. INS, 533 U.S. 53 (2001)..........................................................................32
Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979) ....................................19
Romer v. Evans, 517 U.S. 620 (1996) ............................................................. passim
SASSO v. Union City, 424 F.2d 291 (9th Cir. 1970) ...............................................48
Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) .....................................25, 29
Standhardt v. Superior Court of Ariz., 77 P.3d 451
(Ariz. Ct. App. 2003) .......................................................................18, 25, 29, 31
Strauss v. Horton, 46 Cal. 4th 364 (Cal. 2009) ............................................... passim
Tully v. Griffin, Inc., 429 U.S. 68 (1976).................................................................24
United States Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) ..............................12
United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980)......................47, 48
United States v. Alabama, 574 F. Supp. 762 (N.D. Ala. 1983) ...............................51
United States v. Alabama, 571 F. Supp. 958 (N.D. Ala. 1983) ...............................51
United States v. Alabama, 828 F.2d 1532 (11th Cir. 1987).....................................51
United States v. Salerno, 481 U.S. 739 (1987) ........................................................12
Vacco v. Quill, 521 U.S. 793 (1997)........................................................................35
Vance v. Bradley, 440 U.S. 93 (1979) ...............................................................31, 35
Williams v. North Carolina, 317 U.S. 287 (1942)...................................................44
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005)...........................................29
Wright v. Lane County Dist. Court, 647 F.2d 940 (9th Cir. 1981)..........................24
Zablocki v. Redhail, 434 U.S. 374 (1978) .................................................................8
Statutes and Legislative Materials
1 U.S.C. § 7 ..............................................................................................................34
28 U.S.C. § 455..........................................................................................................1
28 U.S.C. § 455(a) ...................................................................................................50
iv

CAL. CONST. art. I, § 7.5.............................................................................................2
HAW. CONST. art. I, § 23 ..........................................................................................34
HAW. REV. STAT. § 572B .....................................................................................6, 34
N.J. STAT. § 26:8A....................................................................................................34
NEV. REV. STAT. § 122A............................................................................................6
OR. REV. STAT. § 106.300..........................................................................................6
R.I. GEN. LAWS § 15-3-1 ..........................................................................................34
Committee on the Judiciary Report on the Defense of Marriage Act,
H.R. Rep. No. 104-664 (1996)...........................................................................28
Other
About Us – Equality California, at
http://www.eqca.org/site/pp.asp?c=kuLRJ9MRKrH&b=4025493 ...................16
BARACK OBAMA, THE AUDACITY OF HOPE 222 (2006)............................................19
BERTRAND RUSSELL, MARRIAGE & MORALS 77
(Liveright Paperbound ed., 1970) ......................................................................27
Dan Levine, Gay Judge Never Thought to Drop Marriage Case, REUTERS,
Apr. 6, 2011, at http://www.reuters.com/article/2011/04/06/us-gaymarriagejudge-idUSTRE7356TA20110406 ....................................................................49
M.V. LEE BADGETT, WHEN GAY PEOPLE GET MARRIED 13 (2009).....................4, 45
Official Voter Information Guide 56 .......................................................................48
Sherif Girgis, Robert P. George, & Ryan T. Anderson, What is Marriage?,
34 HARV. J.L. & PUB. POL’Y 245 (2011) ............................................................27
THE FEDERALIST NO. 10 (Clinton Rossiter ed., 2003) .............................................51
The Meaning & Significance of Marriage in Contemporary Society 5, in
CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A
CHANGING INSTITUTION (Kingsley Davis ed., 1985) ...........................................9
The Pew Forum on Religion & Public Life, An Argument for Same-Sex
Marriage: An Interview with Jonathan Rauch (Apr. 24, 2008) .......................45
1 WILLIAM BLACKSTONE, COMMENTARIES *410 .......................................................9
William J. Doherty, et al., Responsible Fathering,
60 J. MARRIAGE & FAMILY 277 (1998)..............................................................41
WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD 18-19 (2008) ..........44
v

STATEMENT
The panel majority’s decision conflicts with decisions of the United States
Supreme Court and this Court, see, e.g., Baker v. Nelson, 409 U.S. 810 (1972);
Crawford v. Board of Education, 458 U.S. 527 (1982); Johnson v. Robison, 415
U.S. 361 (1974); Adams v. Howerton, 673 F.3d 1036 (9th Cir. 1982), and
consideration by the en banc court is therefore necessary to secure and maintain
uniformity of the court’s decisions.
This proceeding involves a question of exceptional importance: whether the
Fourteenth Amendment to the United States Constitution prohibits a State from
limiting marriage to opposite-sex couples. The panel majority’s holding that
California must recognize same-sex relationships as marriages conflicts not only
with the binding authority cited above, but also with the decisions of every other
state and federal appellate court to address this question. See, e.g., Citizens for
Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006).
This proceeding also involves the exceptionally important questions of
whether the district court judge violated 28 U.S.C. § 455 by presiding over this
case seeking the redefinition of marriage to include same-sex couples without
disclosing the existence of his long-term committed same-sex relationship and

1

whether vacatur of the district court judge’s decision is required to remedy the
violation.
INTRODUCTION
In this case a divided panel struck down California’s Proposition 8 on the
ground that there was no conceivable rational justification for a majority of the
State’s voters to have supported restoring the traditional definition of marriage as a
union “between a man and a woman.” CAL. CONST. art. I, § 7.5. The panel
majority held that the question of Proposition 8’s constitutionality is directly
controlled by Romer v. Evans, 517 U.S. 620 (1996), which invalidated a
constitutional amendment by which Colorado imposed, as the Supreme Court put
it, an “unprecedented” and “comprehensive” ban on all “legislative, executive, or
judicial actions at any level of state or local government designed to protect the
named class [of] homosexual persons or gays and lesbians,” id. at 624. The
Colorado amendment was so unrelated to any conceivable legitimate state purpose
that it could be explained only as a “bare . . . desire to harm” gays and lesbians by
making them “stranger[s] to [the] laws.” Id. at 634-35.
The panel majority’s reliance of Romer, however, cannot be reconciled with
the simple truth, acknowledged by the panel majority itself, that the very issue
resolved in California, at least for now, by Proposition 8 is “currently a matter of
2

great debate in our nation, and an issue over which people of good will may
disagree, sometimes strongly.” Op. 6 (emphasis added). Indeed, the panel
majority specifically disavowed any suggestion “that Proposition 8 is the result of
ill will on the part of the voters of California.” Op. 72. But the panel majority
nonetheless insists that Proposition 8 serves no conceivable legitimate state interest
and that support for the initiative is inexplicable on any grounds other than
“disapproval of gays and lesbians as a class,” and of “same-sex couples as a
people.” Op. 72, 73. The “sole purpose” of the initiative’s supporters, according
to the panel majority, was to publicly proclaim the “lesser worth” of gays and
lesbians as a class and to “dishonor a disfavored group.” Op. 73, 76.
This charge is false on its face, and leveling it against the People of
California is especially unfair. First, it is difficult to see how the panel majority’s
charge differs from the one that it was at pains to disavow. Is it even remotely
plausible that a person of good will, who bears gays and lesbians no ill will and
who has no “desire to harm” them as a class, could nonetheless harbor a bare
desire to dishonor them as a class? Second, disapproving of the fundamental
redefinition of marriage to include same-sex couples is plainly not the same as
disapproving same-sex couples as a people. Do President Obama and a host of
other prominent champions of equal rights for gays and lesbians support the
3

traditional definition of marriage solely to disapprove of gays and lesbians as a
class and to dishonor same-sex couples as a people? The reality is simply that
“[t]here are millions of Americans,” as one of the Plaintiffs’ own expert witnesses
has acknowledged, “who believe in equal rights for gays and lesbians ... but who
draw the line at marriage.” M.V. LEE BADGETT, WHEN GAY PEOPLE GET MARRIED
175 (2009) (ER 1351)1 (quoting Rabbi Michael Lerner).
Nowhere is this truer than in California, which has enacted into law some of
the Nation’s most sweeping and progressive protections of gays and lesbians,
including a domestic partnership law that confers on same-sex couples virtually all
of the same substantive benefits and protections as marriage. Far from dishonoring
same-sex couples as a people, California officially recognizes and protects their
committed relationships through its domestic partnership laws, which were
proposed and championed by the State’s leading gay rights advocates and
organizations. Californians draw the line at redefining marriage to include samesex couples not because they disapprove of gays and lesbians as a class, but
because they believe that the traditional definition of marriage continues to
meaningfully serve society’s legitimate interests.

1

Unless otherwise specified, citations to briefs and excerpts of record refer
to materials filed in No. 10-16696.
4

Thus, there is irony, to say the least, in the panel majority’s determination
that one of the Nation’s most gay-friendly states adopted Proposition 8 for no other
reason than to publicly dishonor its gay and lesbian citizens and proclaim them less
worthy as a class. But the panel majority takes the point well beyond irony, and
common sense, in determining that Proposition 8 is uniquely more vulnerable to
constitutional challenge than the 28 other state constitutional amendments
reaffirming the traditional opposite-sex definition of marriage, including those that
also prohibit any official recognition same-sex relationships at all. Proposition 8
stands apart from all other state marriage amendments, the panel majority
emphasized, because of its “relative timing,” Op. 42, and because it “changes the
law far too little to achieve any of the effects it purportedly was intended to yield,”
Op. 76-77. Having been adopted a few months after the California Supreme
Court’s decision in the Marriage Cases interpreted the State Constitution to extend
the right to marry to same-sex couples, Proposition 8’s “unique and strictly limited
effect” was to “take away” from committed same-sex couples only the right to “the
official designation of ‘marriage,’ ... while leaving in place all of [marriage’s]
incidents.” Op. 6.
But surely California’s generous domestic partnership laws do not put
Proposition 8 on a weaker constitutional footing than the marriage laws of the
5

federal government and the numerous states that provide little or no recognition or
protection to same-sex couples and their families. Indeed, the panel majority’s
suggestion that these laws uniquely doom California’s ability to maintain the
traditional definition of marriage creates a regrettable disincentive for those States
to adopt civil union or domestic partnership laws and calls into question the
constitutionality of the traditional definition of marriage in other States in this
Circuit that have adopted such laws, such as Hawaii, see HAW. REV. STAT. § 572B,
Nevada, see NEV. REV. STAT. § 122A, and Oregon, see OR. REV. STAT. § 106.300.
As a practical matter, then, the panel majority’s ruling will “pretermit other
responsible solutions” to the complex issues raised by same-sex relationships,
District Attorney’s Office v. Osborne, 129 S. Ct. 2308, 2322 (2009), and will force
States to make an all or nothing choice between retaining the traditional definition
of marriage without any recognition of same-sex relationships and radically
redefining an age-old institution that continues to play a vital role in our society.
Nor is there any merit, legal or logical, in the panel majority’s theory that
“[w]ithdrawing from a disfavored group the right to obtain a designation with
significant societal consequences is different from declining to extend that
designation in the first place, regardless of whether the right was withdrawn after a
week, a year, or a decade.” Op. 41-42. To the contrary, under rational basis
6

review, the “relative timing” of such events is wholly irrelevant. If a person of
good will can rationally oppose in good faith the State’s redefinition of marriage to
include same-sex couples before the State has done so, that same person’s
opposition, for the same reasons, obviously does not somehow become irrational
the moment after the State has done so. And the panel majority’s “relative timing”
theory is refuted by, rather than “govern[ed]” by, the Supreme Court’s decision in
Romer. Op. 46-47. True, the Colorado constitutional amendment at issue there
effectively repealed a handful of municipal ordinances extending certain
antidiscrimination protections to gays and lesbians. But the timing of the
amendment’s adoption played no role in the Court’s analysis: the amendment was
held facially invalid, and thus was void throughout the State, not just in those cities
that had previously passed antidiscrimination ordinances. Nor did the Romer
Court’s decision leave any doubt at all that the amendment would have been struck
down regardless where it came from, including a state lacking any preexisting legal
protections, state or local, for gays and lesbians. Indeed, the panel majority’s
reading of Romer would bring the case squarely into conflict with Crawford v.
Board of Education, which expressly “reject[ed] the contention that once a State
chooses to do ‘more’ than the Fourteenth Amendment requires, it may never
recede.” 458 U.S. 527, 535 (1982) (emphasis added).
7

In short, it matters not at all that adoption of Proposition 8 reversed, rather
that preempted, the California Supreme Court’s decision in the Marriage Cases:
the initiative was either rationally related to a legitimate state interest or it was not.
And the answer to that dispositive question turns on whether opposite-sex couples
“possess distinguishing characteristics relevant to interests the State has authority
to implement” in regulating marriage. Board of Trustees v. Garrett, 531 U.S. 356,
366-67 (2001).
This is not a hard question. Indeed, because of the distinguishing
procreative characteristics of heterosexual relationships, until quite recently “it
was an accepted truth for almost everyone who ever lived, in any society in which
marriage existed, that there could be marriages only between participants of
different sex.” Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). And marriage
has existed in virtually all societies, from the ancients to the American states,
because it serves a vital and universal societal purpose—a purpose, indeed, that
makes marriage, as the Supreme Court has repeatedly emphasized, “fundamental
to the very existence and survival of the [human] race.” Zablocki v. Redhail, 434
U.S. 374, 384 (1978) (quotation marks omitted). That existential societal purpose
is, and has always been, to channel potentially procreative relationships into

8

enduring, stable unions for the sake of responsibly producing and raising the next
generation.
Before the recent movement to redefine marriage to include same-sex
relationships, it was commonly understood and acknowledged by lawmakers,
courts, and scholars of all times and places that the institution of marriage owed its
very existence to society’s vital interest in responsible procreation and
childrearing. Indeed, no other purpose can plausibly explain the ubiquity of the
institution. Blackstone put it well: the relation “of parent and child ... is
consequential to that of marriage, being its principal end and design; and it is by
virtue of this relation that infants are protected, maintained, and educated.” 1
WILLIAM BLACKSTONE, COMMENTARIES *410. Marriage has served this universal
societal purpose throughout history by providing, in the words of sociologist
Kingsley Davis, “social recognition and approval ... of a couple’s engaging in
sexual intercourse and bearing and rearing offspring.” The Meaning &
Significance of Marriage in Contemporary Society 5, in CONTEMPORARY
MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING INSTITUTION (Kingsley
Davis ed., 1985) (ER 428).
In light of all this, it is hardly surprising that every state and federal appellate
court decision, including binding decisions of the Supreme Court and this Court, to
9

address the validity of traditional opposite-sex marriage laws under the Federal
Constitution has upheld them as rationally related to the state’s interest in
responsible procreation and child-rearing. As the Eighth Circuit said in upholding
Nebraska’s marriage amendment in 2006, the state’s interest in “ ‘steering
procreation into marriage’ ... justifies conferring the inducements of marital
recognition and benefits on opposite-sex couples, who can otherwise produce
children by accident, but not on same-sex couples, who cannot.” Citizens for
Equal Prot. v. Bruning, 455 F.3d at 867.
The panel majority erred in breaking with the uniform and binding precedent
upholding the constitutionality of laws adopting the traditional definition of
marriage, and the Court, sitting en banc, should rehear this profoundly important
case.
ARGUMENT
I.

THE PANEL MAJORITY MISAPPLIED ROMER V. EVANS.
The panel majority attempted to decide this case without addressing the

central question it presents: whether the United States Constitution requires a State
to redefine marriage to include same-sex couples. According to the panel majority,
it could address Proposition 8’s constitutionality on “narrow grounds” because the
amendment’s “unique and strictly limited effect” was only to “take away” from
10

committed same-sex couples “the official designation of ‘marriage,’ … while
leaving in place all of its incidents.” Op. 6. The panel majority concluded that the
Supreme Court’s decision in Romer v. Evans, 517 U.S. 620 (1996), directly
“governs” and “controls” this case, Op. 45, 46, because it struck down a
“remarkably similar” constitutional amendment—Colorado’s Amendment 2, Op.
44. This conclusion, however, rests on a patently implausible reading of Romer.
1.

The root of the panel majority’s error is its assertion that Romer

turned on the timing of Colorado’s Amendment 2 rather than its substance. This is
how the panel majority framed the dispositive issue: “The relevant inquiry in
Romer was not whether the state of the law after Amendment 2 was constitutional
…. The question, instead, was whether the change in the law that Amendment 2
effected could be justified by some legitimate purpose.” See Op. 50.
But nothing in the Supreme Court’s decision suggests that Amendment 2
would have been valid had it only been enacted before Aspen, Boulder, and
Denver passed ordinances banning discrimination on the basis of sexual
orientation, or that a constitutional amendment identical to Amendment 2 would be
valid in a State that had no preexisting local laws protecting gays and lesbians from
discrimination. Indeed, this notion cannot be reconciled with the fact that the
Supreme Court struck down Amendment 2 on its face—it was found
11

unconstitutional as applied to all gays and lesbians in Colorado, not merely to
those who lived in the handful of jurisdictions that had previously enacted legal
protections against discrimination on account of their sexual orientation. See
United States v. Salerno, 481 U.S. 739, 745 (1987).2
The panel majority defends its reading of Romer by arguing that “there was
no doubt that the Fourteenth Amendment did not require antidiscrimination
protections to be afforded to gays and lesbians.” Op. 50. Perhaps this argument
would have some force if Amendment 2 had simply repealed antidiscrimination
laws not required by the Federal Constitution. But as the Romer Court
emphasized, Amendment 2 “in explicit terms [did] more than repeal or rescind
[such] provisions.” 517 U.S. at 624 (emphasis added). Instead, it imposed a
“broad and undifferentiated disability on a single named group” by prohibiting “all
legislative, executive, or judicial actions at any level of state or local government
designed to protect the named class [of] homosexual persons or gays and lesbians.”
2

The panel majority also cites United States Dep’t of Agric. v. Moreno, 413
U.S. 528 (1973), as another case in which “the Supreme Court forbade … the
targeted exclusion of a group of citizens from a right or benefit that they had
enjoyed on equal terms with all other citizens.” Op. 51. But as in Romer, there is
no indication in Moreno that the timing mattered. To the contrary, it was the
“challenged statutory classification (households of related persons versus
households containing one or more unrelated persons)” in the Food Stamp Act that
the Court found irrational, Moreno, 413 U.S. at 534 (emphasis added), not that the
Act previously treated the two classes equally before withdrawing benefits from
one.
12

Id. at 624, 632. This “[s]weeping and comprehensive” provision broadly made “a
general announcement that gays and lesbians shall not have any particular
protections from the law.” Id. at 627, 635 (emphasis added). It “identifie[d]
persons by a single trait and then denie[d] them protection across the board,” id. at
633, thus “deem[ing] a class of persons a stranger to [the] laws,” id. at 635. It
was these “peculiar,” exceptional,” “unusual,” and indeed “unprecedented”
characteristics of Amendment 2 that concerned the Court, id. at 632-33, not the
fact that it happened to repeal a handful of local antidiscrimination laws.
And although it is irrelevant under Romer that a sharply divided California
Supreme Court recognized a state constitutional right to same-sex marriage for a
very brief period before the adoption of Proposition 8, this short-lived state
constitutional right was attributable not to the People of California, who have been
steadfast in their support for traditional marriage, but to a 4-to-3 majority of the
California Supreme Court, which reversed a state court of appeals decision
upholding a statutory initiative measure, Proposition 22, that embraced the
traditional definition of marriage in precisely the same terms as Proposition 8.
Claiming to give effect to “the people’s will,” the California Supreme Court
expressly overturned the People’s will, invalidating Proposition 22, which was
adopted in 2000 by 61.4 percent of those People. See In re Marriage Cases, 183
13

P.3d 384, 450 (Cal. 2008); id. at 459 (Baxter, J., concurring and dissenting).
Certainly nothing in Romer so much as hints that the Federal Constitution bars the
People of a State from restoring a longstanding law that has been briefly set aside
by their courts.
Further, the decision in the Marriage Cases was issued after Proponents had
collected the necessary signatures to qualify Proposition 8 for the ballot and did not
become final until after Proposition 8 had been officially qualified for the ballot.
See Strauss v. Horton, 46 Cal. 4th 364, 395, 397 (Cal. 2009); Doc. No. 8-1 at 6.
Indeed, the California Supreme Court refused to stay its decision pending the
People’s vote. See Strauss, 46 Cal. 4th at 397. But for this refusal, same-sex
relationships would have never been recognized as marriages in California.
Thus, in declaring a state constitutional right to same-sex marriage in the
Marriage Cases, the California Supreme Court not only overturned the statutory
will of the People in Proposition 22, it also refused to defer its decision until the
constitutional will of the People could be expressed on Proposition 8 at the ballot.
And that decision, according to the panel majority in this case, rendered the will of
the People irrelevant in any event; for once the California Supreme Court redefined
marriage to include same-sex couples, the People of California were powerless, as
a matter of federal constitutional law, to exercise their reserved right to “amend
14

the[ir] Constitution through the initiative process when they conclude that a
judicial interpretation or application of a preexisting constitutional provision
should be changed.” Strauss, 46 Cal. 4th at 454.
2.

Putting aside the red herring of its timing, it is plain that Proposition 8

differs sharply from Amendment 2 in every material respect. See Dissenting Op.
17 (“There are several ways to distinguish Romer from the present case.”).
First, far from being “unprecedented in our jurisprudence,” Romer, 517 U.S.
at 633, or alien to “our constitutional tradition,” id., it is difficult to think of a law
with deeper roots in California’s and our Nation’s history and practices than one
defining marriage as the union of a man and a woman, a definition that endures in
the overwhelming majority of the States, most often through constitutional
provisions much like Proposition 8. See Prop. Br. 49 n.23. Indeed, it is the right
claimed by the Plaintiffs—a federal constitutional right to marry a person of the
same sex—that is “exceptional,” “unusual,” and “unprecedented in our
jurisprudence.” Nor is it in any way “unprecedented” or “unusual” that in
restoring the traditional definition of marriage the People of California exercised
their reserved right, as they have many times before, to “amend the[ir] Constitution
through the initiative process when they conclude that a judicial interpretation or
application of a preexisting constitutional provision should be changed.” Strauss,
15

46 Cal. 4th at 454. To the contrary, as the California Supreme Court itself
recognized, “examples of past state constitutional amendments that diminished
state constitutional rights … refut[e] the description of Prop. 8 as unprecedented.”
Id. at 449.
Second, far from imposing a “broad and undifferentiated disability on a
single named group” or denying that group “protection across the board,” Romer,
517 U.S. at 632-33, Proposition 8 “simply … restore[d] the traditional definition of
marriage as referring to the union between a man and a woman,” Strauss, 46 Cal.
4th at 409; see also, e.g., Op. 6 (acknowledging Proposition 8’s “strictly limited
effect”). Apart from this, Proposition 8 leaves undisturbed all the numerous state
laws that make California, in the words of its “largest statewide lesbian, gay,
bisexual, and transgender rights advocacy organization,” a State “with some of the
most comprehensive civil rights protections in the nation [for LGBT individuals].”
About Us – Equality California, at
http://www.eqca.org/site/pp.asp?c=kuLRJ9MRKrH&b=4025493. Indeed, through
Proposition 8 the People of California achieved their “purpose” of “restor[ing] the
traditional definition of marriage,” Strauss, 46 Cal. 4th at 409, in the narrowest
possible manner. Thus, as the California Supreme Court itself recognized in
Strauss, there is simply no comparison between Proposition 8, with its narrow
16

purpose and effect, and a law, such as Colorado’s Amendment 2, that “sweepingly
… leaves [a minority] group vulnerable to public or private discrimination in all
areas without legal recourse.” Id. at 446.
The panel majority, however, turns Proposition 8’s virtue into its vice,
reasoning that its narrowness “makes it even more suspect” than Amendment 2.
Op. 46. This assertion simply cannot be reconciled with Romer. A critical part of
the Romer Court’s reasoning was that Amendment 2’s “sheer breadth is so
discontinuous with the reasons offered for it that the amendment seems
inexplicable by anything but animus toward the class that it affects.” Romer, 517
U.S. at 632 (emphasis added). Proposition 8, by contrast, achieves its “purpose” of
“restoring the traditional definition of marriage” in a manner calculated to have the
least possible impact on the wide array of legal rights that California accords to
gays and lesbians through domestic partnerships, antidiscrimination provisions,
and other laws. Particularly in this context where a “much more sweeping” option
was proposed and available, see Strauss, 46 Cal. 4th at 409 n.8, Proposition 8 thus
evinces Californians’ solicitude for both traditional marriage and the rights of
committed same-sex couples, not an irrational desire to harm gays and lesbians.
The panel majority’s attempt to distinguish Citizens for Equal Protection v.
Bruning fails for similar reasons. In Bruning, the Eighth Circuit rejected a Romer17

based challenge to an amendment to the Nebraska Constitution that not only
defines marriage as the union of a man and a woman but also forbids recognition
of “the uniting of two persons of the same sex in a civil union, domestic
partnership, or other similar same-sex relationship.” 455 F.3d at 863. The Eighth
Circuit specifically “reject[ed] the district court’s conclusion that the Colorado
enactment at issue in Romer is indistinguishable” from Nebraska’s marriage
amendment and held that the latter’s “focus is not so broad as to render Nebraska’s
reasons for its enactment ‘inexplicable by anything but animus’ towards same-sex
couples.” Id. at 868.3 Remarkably, the panel majority implies that Proposition 8
rests on weaker constitutional footing than the Nebraska law because Proposition 8
“left intact California’s laws concerning family formation and childrearing by
same-sex couples,” Op. 57 n.20, an ironic conclusion given Romer’s unmistakable
focus on Amendment 2’s inexplicable breadth. See also infra Part IV.C.
Third, Proposition 8 does not single out a “named class” for disparate
treatment. See Romer, 517 U.S. at 624. Rather, it simply preserves the definition
of marriage that has prevailed throughout human history. Proposition 8’s impact
3

Other decisions have likewise rejected Romer-based challenges to laws
limiting marriage to opposite-sex couples. See In re Marriage of J.B. & H.B., 326
S.W.3d 654, 680 (Tex. Ct. App. 2010); Standhardt v. Superior Court of Ariz., 77
P.3d 451, 464-65 (Ariz. Ct. App. 2003); Andersen v. King County, 138 P.3d 963,
980-81 (Wash. 2006) (plurality) (applying state constitution); cf. Conaway v.
Deane, 932 A.2d 571, 625-26 (Md. 2007) (same).
18

on same-sex couples, in other words, is “essentially an unavoidable consequence of
a … policy that has in itself always been deemed to be legitimate,” Personnel
Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 n.25 (1979), not evidence of animus
toward gays and lesbians.
3.

To its credit, the panel was unwilling to join the Plaintiffs and the

district court in defaming the People of California by attributing their support for
traditional marriage to “a bare … desire to harm a politically unpopular group.”
Romer, 517 U.S. at 634. Indeed, the panel majority disclaimed any “suggest[ion]
that Proposition 8 is the result of ill will on the part of the voters of California.”
Op. 72. As Justice O’Connor emphasized, legitimate and nondiscriminatory
“reasons exist to promote the institution of marriage” as the union of a man and a
woman. Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O’Connor, J., concurring
in judgment). As we discuss more fully below, the animating purpose of marriage
is bound up in the uniquely procreative nature of opposite-sex relationships, and it
can be and is supported by countless people of good faith who harbor no ill will
toward gays and lesbians and their relationships. See, e.g., BARACK OBAMA, THE
AUDACITY OF HOPE 222 (2006) (“I believe that American society can choose to
carve out a special place for the union of a man and a woman as the unit of child
rearing most common to every culture.”); see also Op. 6 (recognizing that
19

redefining marriage to include same-sex couples is “an issue over which people of
good will may disagree”).
In short, the panel majority’s attempt to align this case with Romer fails.
The fatal flaw in Amendment 2 was its inexplicable breadth, its exceptionally
harsh and unprecedented character, and the resulting “inevitable inference” of
“animosity” that it raised, Romer, 517 U.S. at 634, not the fact that it worked a
change in preexisting law.
II.

THE PANEL MAJORITY’S DECISION CONFLICTS WITH CRAWFORD V. BOARD
OF EDUCATION.
In Crawford v. Board of Education, the Supreme Court emphatically

“reject[ed] the contention that once a State chooses to do ‘more’ than the
Fourteenth Amendment requires, it may never recede.” 458 U.S. at 535. Not only
would such a rule be “destructive of a State’s democratic processes and of its
ability to experiment,” id., it would affirmatively “discourage[] the States from
providing greater protection” to their citizens than the Fourteenth Amendment
requires, id. at 539. In particular, the Court refused to “interpret the Fourteenth
Amendment to 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.” Id. at 540.

20

Crawford essentially was this case: it involved an equal protection
challenge to a California constitutional amendment (Proposition 1) that superseded
in part a decision of the California Supreme Court interpreting the State
Constitution to go beyond the mandates of the Federal Constitution (approving
mandatory busing to remedy de facto segregation). See Strauss, 46 Cal. 4th at 448
(identifying Proposition 1 as a precedent for Proposition 8). Here, as there,
“having gone beyond the requirements of the Federal Constitution, the State was
free to return in part to the standard prevailing generally throughout the United
States.” Crawford, 458 U.S. at 542. Thus, the fact that the voters promptly
withdrew a benefit that had been briefly extended to same-sex couples by a sharply
divided California court is utterly irrelevant to Proposition 8’s validity under the
Federal Constitution.
The panel majority’s principal answer to Crawford is its insistence that
Romer controls when a right is “withdrawn” rather than simply not extended in the
first instance. Op. 54. But as we have shown, Romer lends no support to this
argument. And Crawford refutes it. The relevant inquiry is whether the repealed
law was “required by the Federal Constitution in the first place,” 458 U.S. at 538,
which is precisely the question the panel majority here labored to avoid.

21

The panel majority’s other attempts to distinguish Crawford fare no better.
First, the Crawford Court’s findings that Proposition 1 did not draw a racial
classification and was not motivated by race, see Op. 53, meant only that it was not
subject to strict scrutiny, see Crawford, 458 U.S. at 536. These findings are of
little moment here, where the panel majority purported to apply rational-basis
review.
Second, the panel majority emphasizes that even after Proposition 1,
California’s Constitution still provided a “more robust ‘right to desegregation than
exists under the Federal Constitution,’ ” Op. 53 (quoting Crawford, 458 U.S. at
542), and that Proposition 1 simply removed one means of remedying a violation
of that right. As an initial matter, this hardly distinguishes Crawford from this
case. Proposition 8, like Proposition 1, was “less than a ‘repeal’ ” of any provision
of the California Constitution, Crawford, 458 U.S. at 541 (emphasis added), for the
California Constitution continues to guarantee a broad range of rights to gays and
lesbians, including the right “to establish … an officially recognized and protected
family … entitled to the same respect and dignity accorded a union traditionally
designated as marriage,” Strauss, 46 Cal. 4th at 411. More fundamentally, the
lesson of Crawford is that a state is no less free to withdraw state constitutional
rights that exceed federal constitutional requirements than it was to extend them in
22

the first place. Whether a state withdraws such an extra-constitutional right
entirely or only partially is for it to decide. See Crawford, 458 U.S. at 542
(California “could have conformed its law to the Federal Constitution in every
respect” rather than “pull[ing] back only in part.”).
Third, the panel majority notes that Colorado relied on Crawford while
defending Amendment 2 before the Supreme Court. See Op. 54 & n.18. This is
true, but it is hardly surprising that the Romer Court ignored Crawford. For as
explained above, Amendment 2 did “more than repeal or rescind”
antidiscrimination laws that went beyond the requirements of the Federal
Constitution. Romer, 517 U.S. at 624 (emphasis added). And it is this “more” that
clearly distinguished Amendment 2 from Proposition 1, and distinguishes it from
Proposition 8. Crawford, not Romer, is the controlling precedent here.
III.

THE PANEL MAJORITY’S DECISION CONFLICTS WITH BINDING
PRECEDENT OF THE SUPREME COURT AND THIS COURT AND WITH THE
UNIFORM CONCLUSION OF EVERY OTHER APPELLATE COURT TO ADDRESS
A FEDERAL CONSTITUTIONAL CHALLENGE TO THE TRADITIONAL
DEFINITION OF MARRIAGE.
The panel majority’s ruling that Proposition 8 violates the Equal Protection

Clause of the Fourteenth Amendment also contravenes binding Supreme Court
precedent holding that the traditional definition of marriage does not violate that
Amendment. In Baker v. Nelson, 409 U.S. 810 (1972), the Supreme Court
23

unanimously dismissed, “for want of substantial federal question,” an appeal
presenting the same question decided by the panel: whether the Equal Protection
Clause of the Fourteenth Amendment requires a State to recognize same-sex
relationships as marriages. See Jurisdictional Statement at 3, Baker, No. 71-1027
(Oct. Term 1972) (ER 1606). The Supreme Court’s dismissal in Baker was a
decision on the merits that “extends beyond the facts of the particular case to all
similar cases,” Wright v. Lane County Dist. Court, 647 F.2d 940, 941 (9th Cir.
1981), and constitutes “controlling precedent, unless and until re-examined by [the
Supreme] Court,” Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976); see Prop. Br. 4445; Prop. Reply Br. 15-19.
Lower courts are thus foreclosed by Baker from holding that the traditional
definition of marriage violates the Equal Protection Clause or that it lacks a
rational relationship to a legitimate governmental purpose. The panel majority
nevertheless dismisses Baker in a footnote as “not pertinent here” because this case
“is squarely controlled by Romer.” Op. 47 n.14. As we have shown, however, the
panel majority’s reliance on Romer is misplaced, and it matters not at all under the
Fourteenth Amendment whether a State refuses to extend, or withdraws, a state
law right that goes beyond federal constitutional requirements. And even apart
from the panel majority’s misapplication of Romer, its decision that there was no
24

rational basis for Proposition 8 cannot be squared with Baker. Baker necessarily
holds that Minnesota had a rational basis for limiting marriage to opposite-sex
couples, and it necessarily follows that the same rational basis or bases support
California’s restoration of traditional marriage. In short, this case turns entirely on
whether the Fourteenth Amendment permits a State to define marriage as the union
of a man and a woman. Baker squarely controls this question and mandates an
affirmative answer.
This Court’s decision in Adams v. Howerton, 673 F.3d 1036 (9th Cir. 1982),
also mandates an affirmative answer to this question. See Prop. Br. 46. Adams,
however, is not cited even once in the panel majority’s opinion.
Finally, the panel majority’s decision also conflicts with the decisions of
every other state or federal appellate court to address the validity of the traditional
opposite-sex definition of marriage under the Federal Constitution. See In re
Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. Ct. App. 2010); Bruning, 455 F.3d
859; Standhardt v. Superior Court of Ariz., 77 P.3d 451 (Ariz. Ct. App. 2003);
Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995); Singer v. Hara, 522 P.2d
1187 (Wash. Ct. App. 1974); Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973);
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971).
IV.

THE PANEL MAJORITY’S HOLDING THAT PROPOSITION 8 DOES NOT
REASONABLY RELATE TO THE STATE’S INTEREST IN RESPONSIBLE
25

PROCREATION AND CHILDREARING CONFLICTS WITH THE DECISIONS OF
OTHER COURTS AND CONTRAVENES BINDING PRINCIPLES OF RATIONALBASIS REVIEW.
The panel majority’s holding that Proposition 8 does not bear even a rational
relationship with the State’s indisputable interest in responsible procreation and
childrearing conflicts directly with a decision of the Eighth Circuit and a host of
other decisions. The panel majority’s reasoning also contravenes numerous
Supreme Court decisions defining and applying rational-basis review.
A.

The Traditional Definition of Marriage Reflected in Proposition 8
Bears a Rational Relationship to Society’s Vital Interest in
Responsible Procreation and Childrearing.

1.

As Proponents have demonstrated, see Prop. Br. 51-60, an overriding

purpose of marriage in virtually every society is, and has always been, to regulate
sexual relationships between men and women so that the unique procreative
capacity of such relationships benefits rather than harms society. In particular,
through the institution of marriage, societies seek to increase the likelihood that
children will be born and raised in stable and enduring family units by both the
mothers and the fathers who brought them into this world.
Not only has this understanding of marriage and its animating purpose been
uniformly recognized by leading lawyers, philosophers, historians, and social
scientists throughout the ages, see id. 55-57, it has also prevailed in California
26

throughout its history, just as it has everywhere else, see id. 57-59, 64 n.31. In the
words of the California Supreme Court, “the institution of marriage” serves “the
public interest” because it “channels biological drives that might otherwise become
socially destructive” and “it ensures the care and education of children in a stable
environment.” De Burgh v. De Burgh, 250 P.2d 598, 601 (Cal. 1952).
Indeed, prior to the recent movement to redefine marriage to include samesex relationships, it was commonly understood, without a hint of controversy, that
the institution of marriage owed its very existence to society’s vital interest in
responsible procreation and childrearing. That is why, no doubt, the Supreme
Court has repeatedly recognized marriage as “fundamental to our very existence
and survival.” E.g., Loving v. Virginia, 388 U.S. 1, 12 (1967). And certainly no
other purpose can plausibly explain why marriage even exists at all—let alone why
it has existed in every civilized society throughout history. Indeed, if “human
beings reproduced asexually and … human offspring were self-sufficient[,] …
would any culture have developed an institution anything like what we know as
marriage? It seems clear that the answer is no.” Sherif Girgis, Robert P. George &
Ryan T. Anderson, What is Marriage? 34 HARV. J. L. & PUB. POL’Y 245, 286-87
(Winter 2011); BERTRAND RUSSELL, MARRIAGE & MORALS 77 (Liveright
Paperbound ed., 1970) (“But for children, there would be no need of any institution
27

concerned with sex.”); Committee on the Judiciary Report on the Defense of
Marriage Act, H.R. Rep. No. 104-664, at 14 (1996) (“Were it not for the possibility
of begetting children inherent in heterosexual unions, society would have no
particular interest in encouraging citizens to come together in a committed
relationship.”).
2.

Because only sexual relationships between men and women can

produce children, such relationships have the potential to further—or harm—
society’s interest in responsible procreation and childrearing in a way, and to an
extent, that other types of relationships do not. By providing recognition and
encouragement to committed opposite-sex relationships, the traditional definition
of marriage seeks to channel potentially procreative conduct into relationships
where that conduct is likely to further, rather than harm, this vital interest. The
traditional definition of marriage also preserves the abiding link between the
institution and its animating purpose, a purpose that still serves vital interests that
are uniquely implicated by male-female relationships. Not surprisingly, “a host of
judicial decisions” have concluded that “the many laws defining marriage as the
union of one man and one woman and extending a variety of benefits to married
couples are rationally related to the government interest in ‘steering procreation
into marriage.’ ” Bruning, 455 F.3d at 867-68; see also Wilson v. Ake, 354 F.
28

Supp. 2d 1298, 1308-09 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145-47
(Bankr. W.D. Wash. 2004); Adams, 486 F. Supp. at 1124-25; Baker, 191 N.W.2d
at 186-87; In re Marriage of J.B. and H.B., 326 S.W.3d at 677-78; Standhardt, 77
P.3d at 461-64; Singer, 522 P.2d at 1195, 1197. This is true not only of every
appellate court (except the panel majority here) to consider this issue under the
Federal Constitution, but the majority of state courts interpreting their own
constitutions as well. See Conaway v. Deane, 932 A.2d 571, 630-34 (Md. 2007);
Hernandez v. Robles, 855 N.E.2d 1, 7-8 (N.Y. 2006); Andersen v. King County,
138 P.3d 963, 982-85 (Wash. 2006) (plurality); Morrison v. Sadler, 821 N.E.2d 15,
23-31 (Ind. Ct. App. 2005); Standhardt v. Superior Court of Ariz., 77 P.3d 451,
461-64 (Ariz. Ct. App. 2003).
3.

In breaking with this large and consistent body of appellate authority,

the panel majority reasoned that the traditional definition of marriage as embodied
in Proposition 8 cannot survive rational basis review absent evidence that
“opposite-sex couples were more likely to procreate accidentally or irresponsibly
when same-sex couples were allowed access to the designation of ‘marriage.’ ”
Op. 60. As Proponents demonstrated, however, there plainly is a rational basis for
concern that officially embracing an understanding of marriage as nothing more
than a loving, committed relationship between consenting adults, severed entirely
29

from its traditional procreative purposes, would necessarily entail a significant risk
of negative consequences over time to the institution of marriage and the interests
it has always served. See Prop. Br. 93-104; infra Part V.
More important still, the panel majority’s reasoning clearly contravenes well
settled principles of rational-basis review. For Supreme Court precedent makes
clear 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 v. Robison, 415 U.S. 361, 383 (1974), and, conversely, that
the government may make special provision for a group if its activities “threaten
legitimate interests … in a way that other [group’s activities] would not,” Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985). Thus, the relevant inquiry is
not, as the panel majority would in effect have it, whether restoring the traditional
definition of marriage was necessary to avoid harm to that institution. Rather, the
question is whether recognizing opposite-sex relationships as marriages furthers
interests that would not be furthered, or would not be furthered to the same degree,
by recognizing same-sex relationships as marriages. See, e.g., Andersen, 138 P.3d
at 984; Morrison, 821 N.E.2d at 23, 29; Standhardt, 77 P.3d at 463.4

4

Even where intermediate scrutiny applies, the Supreme Court has rejected
the argument that a classification 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
30

The answer to that question is clear. As a general matter, sexual
relationships between men and women, and only such relationships, can produce
children—often as the unintended result of even casual sexual behavior. And as
courts have repeatedly explained, it is the procreative capacity of heterosexual
relationships—and the very real threat it can pose to the interests of society and to
the welfare of the children conceived unintentionally—that the institution of
marriage has always sought to address. See, e.g., Bruning, 455 F.3d at 867;
Hernandez, 855 N.E.2d at 7; Morrison, 821 N.E.2d at 24-26. Sexual relationships
between individuals of the same sex, by contrast, cannot naturally produce
offspring. Accordingly, such relationships neither advance nor threaten society’s
interest in responsible procreation in the same manner, or to the same degree, that
sexual relationships between men and women do.
As even Plaintiffs’ lead counsel was forced to acknowledge below, same-sex
couples “don’t present a threat of irresponsible procreation” but “heterosexual
couples who practice sexual behavior outside their marriage are a big threat to
irresponsible procreation.” ER 355; see also ER 1785 (Plaintiffs’

(1981) (plurality). Certainly rational-basis review requires no such showing. See
Vance v. Bradley, 440 U.S. 93, 102 n.20 (1979) (holding it “irrelevant … that other
alternatives might achieve approximately the same results”). The inquiry posed by
the panel majority thus confounds rational-basis review with the strictest judicial
scrutiny.
31

acknowledgement that “ ‘responsible procreation’ may provide a rational basis for
the State’s recognition of marriages by individuals of the opposite-sex”). Under
Johnson and Cleburne, that is the end of the matter. Given these biological
realities, as well as marriage’s central concern with responsible procreation and
childrearing, the “commonsense distinction,” Heller v. Doe, 509 U.S. 312, 326
(1995), that our law has always drawn between same-sex couples (who are
categorically incapable of natural procreation, on the one hand) and opposite-sex
couples (who are in general capable of procreation) “is neither surprising nor
troublesome from a constitutional perspective.” Nguyen v. INS, 533 U.S. 53, 63
(2001); see also id. at 73 (“To fail to acknowledge even our most basic biological
differences … risks making the guarantee of equal protection superficial, and so
disserving it.”).
B.

That Proposition 8 Restored the Traditional Definition of
Marriage Does Not Render It Irrational.

In rejecting this analysis, the panel majority claimed that “Johnson concerns
decisions not to add to a legislative scheme a group that is unnecessary to the
purposes of that scheme” but has no application to decisions to “subtract[] a
disfavored group from a scheme of which it already was a part.” Op. 59.5

5

The panel majority also argues that Johnson “concerned only a specific
form of government assistance” and “did not involve a dignitary benefit … such as
32

According to the panel majority, then, while society’s interest in responsible
procreation and childrearing might justify “a failure to afford the use of the
designation of ‘marriage’ to same-sex couples in the first place[,] it is irrelevant to
a measure withdrawing from them, and only them, use of that designation.” Op.
61.
Again, this argument finds no support in Romer. Op. 60. As demonstrated
above, that decision turned not on the timing of Colorado’s Amendment 2 but on
its substance. Further, as Romer emphasized, equal protection analysis focuses on
“the classification adopted,” requiring only “that the classification bear a rational
relationship to an independent and legitimate legislative end.” 517 U.S. at 632-33
(emphasis added). Obviously the rationality of a classification does not turn on the
manner in which it was adopted—if it was reasonable for California to draw a line
between opposite-sex couples and other types of relationships (including same-sex
relationships) before the California Supreme Court’s ruling in the Marriage Cases,

an official and meaningful state designation that established the societal status of
members of the group.” Op. 59 n.21. Johnson upheld Congress’s decision to
provide veterans’ educational benefits to draftees who served on active duty in the
armed forces, but not to conscientious objectors who completed alternative civilian
service. See 415 U.S. at 362. Contrary to the panel majority’s asserted distinction,
there can be little doubt that the rationale of Johnson likewise permits Congress to
afford the “official and meaningful state designation” of “veteran” to those who
completed active duty service in the armed forces, but not to conscientious
objectors who completed alternative civilian service. See also infra Part IV.C.
33

it is also reasonable for California to draw the same line after that short-lived
decision. After all, as that court itself recognized, “the purpose of [Proposition 8]
was simply to restore the traditional definition of marriage as referring to a union
between a man and a woman.” Strauss, 464 Cal. 4th at 409; see also Op. 70
(acknowledging that “[t]his purpose is one that Proposition 8 actually did
accomplish”). And if it is reasonable for Congress and 43 other States to
distinguish between opposite-sex couples and other types of relationships for
purposes of marriage, it is rational for California to do so as well.6
Indeed, Johnson itself represents only one example of the broader principle,
repeatedly affirmed by the Supreme Court, that “[a] statutory classification fails

6

The panel majority also suggests that “[t]he action of changing something
suggests a more deliberate purpose than does the inaction of leaving it as it is.”
Op. 42. But the adoption of Proposition 8 reflected no more a “deliberate purpose”
to define marriage as the union of a man and a woman than did its identically
worded predecessor, Proposition 22, or the recently adopted constitutional
amendments in 28 other States likewise defining marriage as the union of a man
and a woman, see Prop. Br. 49 n.23, or the similar statutes adopted by Congress
and 10 other States, see 1 U.S.C. § 7; Prop. Br. 50 n.24 (Delaware, Illinois,
Indiana, Maryland, Maine, Minnesota, North Carolina, Pennsylvania, West
Virginia, and Wyoming), or the statutes providing an alternative relationship status
for same-sex couples in two other states that maintain the traditional definition of
marriage, see N.J. STAT. § 26:8A; R.I. GEN. LAWS § 15-3-1, or the amendment to
Hawaii’s constitution ensuring the legislature’s power to reserve marriage to
opposite-sex couples (adopted after a decision of the Hawaii Supreme Court
calling that power into question) together with Hawaii’s law providing an
alternative relationship status for same-sex couples, see HAW. CONST. art. I, § 23;
HAW. REV. STAT. § 572B.
34

rational-basis review only when it rests on grounds wholly irrelevant to the
achievement of the State’s objective.” Heller, 509 U.S. at 324 (quotation marks
omitted). Thus, it is well settled that the law may make special provision for a
group if its activities “threaten legitimate interests … in a way that other [group’s
activities] would not,” Cleburne, 473 U.S. at 448, that a law may “dr[aw] a line
around those groups ... thought most generally pertinent to its objective,” Vance v.
Bradley, 440 U.S. 93, 109 (1979), that a classification will be upheld if
“characteristics peculiar to only one group rationally explain the statute’s different
treatment of the two groups,” Johnson, 415 U.S. at 378, and, more generally, that
“[t]he Constitution does not require things which are different in fact or opinion to
be treated in law as though they were the same,” Vacco v. Quill, 521 U.S. 793, 799
(1997) (quotation marks and citations omitted). In short, as the Supreme Court
aptly explained in Board of Trustees v. Garrett, “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 differences does not give
rise to a constitutional violation.” 531 U.S. at 366-67 (quotation marks omitted).
These precedents make clear that because sexual relationships between
individuals of the same sex neither advance nor threaten society’s interest in
responsible procreation and childrearing in the same manner, or to the same
35

degree, that sexual relationships between men and women do, the line drawn by
Proposition 8 between opposite-sex couples and other types of relationships,
including same-sex couples, bears a rational relationship to this interest. Indeed,
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.” Heller, 509 U.S. at 324 (quotation
marks omitted). Accordingly, Proposition 8 readily satisfies rational-basis
scrutiny. See id. In holding otherwise, the panel majority ignored the clear
guidance of binding Supreme Court precedent and subjected Proposition 8 to a
form of judicial scrutiny that bears no semblance to rational-basis review.
C.

That Proposition 8 Did Not Eliminate Domestic Partnerships Does
Not Render It Irrational.

The panel majority also reasons that Proposition 8 lacks any rational
relationship to society’s interest in responsible procreation and childrearing
because it only limits the use of “the designation of ‘marriage,’ while leaving in
place all the substantive rights and responsibilities of same-sex partners.” Op. 6970; see also Op. 76-77 (arguing that Proposition 8 “changes the law far too little to
have any of the effects it purportedly was intended to yield”). But even the panel
majority cannot accept the necessary corollary of this argument, for it elsewhere
protests that it “in no way mean[s] to suggest that Proposition 8 would be
36

constitutional if only it had gone further—for example, by also repealing same-sex
couples’ equal parental rights or their rights to share community property or enjoy
hospital visitation visits.” Op. 62. Nor is the majority’s diffidence on this point
surprising: it is simply inconceivable that California’s extraordinary solicitude for
gays and lesbians and their families uniquely dooms its ability to retain the
traditional definition of marriage, or that Proposition 8 stands on weaker
constitutional footing than would an amendment that restored the traditional
definition of marriage and repealed California’s generous domestic partnership
laws.
1.

As discussed above, the central—indeed animating—purpose of

marriage, always and everywhere, has been to increase the likelihood that children
will be born to and raised by both the mothers and fathers who brought them into
the world by seeking to channel potentially procreative conduct into committed,
lasting relationships. By reserving the name “marriage” to committed opposite-sex
couples, Proposition 8 provides special promotion, encouragement, and support to
those relationships most likely to further society’s vital interest in responsible
procreation and childrearing.
The panel majority’s assertion that reserving the designation “marriage,” as
opposed to the more tangible benefits traditionally associated with this institution,
37

to opposite-sex couples could not even plausibly “encourage heterosexual couples
to enter into matrimony” or “bolster the stability of families headed by one man
and one woman,” Op. 63, cannot be reconciled with its repeated “emphasi[s],”
elsewhere in its opinion, of “the extraordinary significance of the official
designation of ‘marriage,’ ” Op. 37. Indeed, the majority elsewhere insists,
correctly, that “[t]he official, cherished status of ‘marriage’ is distinct from the
incidents of marriage,” and these incidents, “standing alone,” do not “convey the
same governmental and societal recognition as does the designation of
‘marriage.’ ” Op. 39. The panel majority simply cannot have it both ways.
Further, by retaining the traditional definition of marriage, California
preserves the traditional social meaning and public understanding of that
institution, as well as the abiding link between marriage and its vital procreative
purposes. It is simply impossible to “escape the reality that the shared social
meaning of marriage … has always been the union of a man and a woman. To
alter that meaning would render a profound change in the public consciousness of a
social institution of ancient origin.” Lewis v. Harris, 908 A.2d 196, 222 (N.J.
2006). Indeed, Plaintiffs’ own expert conceded at trial that redefining marriage by
law would “definitely ha[ve] an impact on the social meaning of marriage,” and

38

that changing the public meaning of marriage would “unquestionably [have] real
world consequences.” ER 229-31; see also Prop. Br. 94-100; infra Part V.7
2.

That the traditional definition of marriage confers a symbolic benefit

on committed opposite-sex couples does not “dishonor” gays and lesbians as a
class or express official “disapproval of them and their relationships.” Op. 77.8 It
is simply not true that when the government provides special recognition to one
class of individuals, it demeans others who are not similarly situated with respect
to the central purpose of the recognition.
Again, societies throughout human history have uniformly defined marriage
as an opposite-sex relationship not because individuals in such relationships are
virtuous or morally praiseworthy, but because of the unique potential such
relationships have either to harm, or to further, society’s vital interest in
responsible procreation and childrearing. That is why the right to marry has never
been conditioned on an inquiry into the virtues or vices of individuals seeking to
7

The panel majority’s claim that “Proposition 8 in no way alters the state
laws that govern childrearing and procreation” and “makes no change with respect
to the laws regarding family structure,” Op. 61, thus betrays a manifest
misunderstanding of the institution of marriage, which in California, as everywhere
else, is profoundly concerned with childrearing, procreation, and family structure.
By restoring the traditional definition of marriage, the People of California
reaffirmed their most fundamental law regarding these matters.
8
Even then-Attorney General Brown, who embraced nearly every other
allegation made by Plaintiffs, denied that “Prop. 8 was driven by moral disapproval
of gay and lesbian individuals.” ER 1054.
39

marry. Society cannot stop the immoral or irresponsible from engaging in
potentially procreative sexual relationships, but it presumes that even those
individuals are more likely to assume the shared responsibility of caring for any
children that result from their sexual activity if they are married than if they are
not.
Conversely, that same-sex relationships are not recognized as marriages
does not reflect a public judgment that individuals in such relationships are
“inferior” or “of lesser worth as a class,” Op. 73, but simply the fact that such
relationships do not implicate society’s interest in responsible procreation in the
same way that 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, or to call
different things by different names.
3.

The panel majority asserts that “[i]n order to be rationally related to

the purpose of funneling more childrearing into families led by two biological
parents, Proposition 8 would have had to modify … in some way” California’s
laws granting same-sex couples the same rights as opposite-sex couples to form
families and raise children. Op. 57. But the animating purpose of marriage is not
to prevent gays and lesbians from forming families and raising children. Rather, it
is to steer potentially procreative conduct into stable and enduring family units in
40

order to increase the likelihood that children will be raised by the mothers and
fathers who brought them into the world.
Despite the widespread availability of legal contraception, sexual
relationships between men and women commonly result in unintended
pregnancies. And the question in nearly every case of unintended pregnancy is not
whether the child will be raised by two opposite-sex parents or by two same-sex
parents, but rather whether the child will be raised by both its mother and father or
by its mother alone, often relying on the assistance of the State. See, e.g., William
J. Doherty, et al., Responsible Fathering, 60 J. MARRIAGE & FAMILY 277, 280
(1998) (“In nearly all cases, children born outside of marriage reside with their
mothers.”). And there simply can be no dispute that children raised in the former
circumstances do better, on average, than children raised in the latter, and that the
State has a direct and compelling interest in avoiding the public financial burdens
and social costs too often associated with unwed motherhood. See Prop. Br. 78-82,
85-87. Thus, regardless of whatever provisions it may make regarding the families
of gays and lesbians, it is plainly rational for the State to make special provision
through the institution of marriage for the unique social risks posed by potentially
procreative sexual relationships between men and women.

41

4.

It may be true that reserving to opposite-sex couples not only the

name of marriage, but also the benefits traditionally associated with that institution,
would provide additional incentives for individuals to marry and thereby further
advance society’s interest in “steering procreation into marriage.” Bruning, 455
F.3d at 867. But the fact that California could do more to advance this interest
does not mean that what it has done does not rationally serve this interest. Nor
does it mean that this interest is not genuine or legitimate. No principle of law
requires the State to advance each of its legitimate interests to the hilt, or not at all.
To the contrary, especially where rational-basis review is involved, it is well
settled that a law “is not invalid under the Constitution because it might have gone
farther than it did.” Katzenbach v. Morgan, 384 U.S. 641, 657 (1966) (quotation
marks omitted).
Furthermore, while reserving all of the rights traditionally associated with
marriage to opposite-sex couples alone might additionally further the traditional
interests served by marriage, it would do so at the expense of the separate interests
served by California’s domestic partnership laws, which provide official
recognition and protection for same-sex couples and their families. Even where
heightened scrutiny applies, the Constitution “does not require that a regulatory

42

regime singlemindedly pursue one objective to the exclusion of all others.” Coyote
Publ’g, Inc. v. Miller, 598 F.3d 592, 610 (9th Cir. 2010).
Simply put, neither the fact that California could do more to promote
responsible 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 any way suggests that the institution of marriage in California no longer
plays a meaningful role in furthering the vital societal interests it has always
served. After all, it would be ironic, to put it kindly, if California’s generous
domestic partnership laws put Proposition 8 on a weaker constitutional footing
than the marriage laws of the federal government and the numerous states that
provide little or no recognition or protection to same-sex couples and their
families.
V.

THE PANEL MAJORITY ERRED IN HOLDING THAT PROPOSITION 8 IS NOT
RATIONALLY RELATED TO ANY OTHER LEGITIMATE STATE INTERESTS.
Although one need look no farther than society’s compelling interest in

responsible procreation and childrearing to establish Proposition 8’s
constitutionality, Proposition 8 bears a rational relationship to other legitimate
governmental interests as well, and the panel majority erred in rejecting them.9

9

As our amici have demonstrated, these additional legitimate interests
include the religious liberty and educational interests discussed by the panel
43

Foremost among these additional justifications is society’s plainly important
interest in proceeding cautiously when considering a fundamental change to the
very definition of a vitally important social institution. See Prop. Br. 93-104; Prop.
Reply Br. 67-70. Marriage has long been recognized as “the foundation of the
family and of society,” Maynard v. Hill, 125 U.S. 190, 211 (1888), and it is “an
institution more basic in our civilization than any other,” Williams v. North
Carolina, 317 U.S. 287, 303 (1942). It is plainly reasonable for the People of
California to be concerned that fundamentally redefining marriage in a way that
severs its inherent connection with the procreative and childrearing purposes it has
always served could harm marriage’s ability to serve those purposes. Indeed, a
large and interdisciplinary group of prominent scholars recently expressed “deep[]
concerns about the institutional consequences of same-sex marriage for marriage
itself”:
Same-sex marriage would further undercut the idea that procreation is
intrinsically connected to marriage. It would undermine the idea that
children need both a mother and a father, further weakening the
societal norm that men should take responsibility for the children they
beget.
WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD 18-19 (2008); see also
Robert George, et al., What is Marriage?, 34 HARV. J.L. & PUB. POL’Y at 276 (“[I]f
majority. See, e.g., Br. Amicus Curiae of the Becket Fund for Religious Liberty 324; Br. Amicus Curiae for the Hausvater Project 11-16; Op. 66-69.
44

marriage is understood as … an essentially emotional union that has no principled
connection to organic bodily union and the bearing and rearing of children … then
marital norms, especially the norms of permanence, monogamy, and fidelity, will
make less sense.”). Even prominent supporters of redefining marriage have found
it “almost inspirational” that “the public has refused to be rushed” and “has come
to understand that we can take our time with this” issue. The Pew Forum on
Religion & Public Life, An Argument for Same-Sex Marriage: An Interview with
Jonathan Rauch (Apr. 24, 2008) (ER872); see also M.V. LEE BADGETT, WHEN
GAY PEOPLE GET MARRIED 13 (2009) (“Change [in marriage law related to samesex couples in the United States] is taking place in a sensible and unsurprising way,
with more liberal states taking the lead and providing examples that other states
might someday follow.”). Surely it is not irrational for Californians to decide to
continue to observe and assess the results of redefining marriage in other
jurisdictions before doing so themselves.
We respectfully submit that the panel majority misunderstands how
Proposition 8 relates to society’s obvious interest in proceeding with great care
when considering fundamental social changes. See Op. 64. In passing Proposition
8, California’s voters used the democratic process to return the issue of the
definition of marriage to the People, following the California Supreme Court’s
45

decision in the Marriage Cases. After Proposition 8, California remains free to
continue its experiment with domestic partnerships and to observe the effects of
redefining marriage in the handful of jurisdictions that have chosen to do so. By
adopting Proposition 8, however, the People of California demonstrated that they
are not yet ready to take that seismic step for their own State, let alone allow
unelected judges to impose that result. This is the genius of our federal system at
work.
The panel majority protests that enshrining the traditional definition of
marriage in the State Constitution is incompatible with the rationale of proceeding
with caution. See Op. 64-65. But the California Supreme Court’s decision in the
Marriage Cases, of course, left the People of California with no choice but to
amend their Constitution if they were to retain control over whether and when
marriage would be redefined in their State. And at any rate, the issue remains
vitally important to large numbers of Californians on both sides, and the notion
that placing the traditional definition of marriage in the California Constitution
forever shields that issue from democratic deliberation has no basis in fact. See
Strauss, 46 Cal. 4th at 386 (“more than 500 amendments to the California
Constitution have been adopted since ratification of California’s current
Constitution in 1879”).
46

The panel majority identifies ways in which Californians purportedly could
have designed Proposition 8 to more closely track this cautionary interest, such as
by including a sunset provision requiring the People to “vote again” to protect the
traditional definition of marriage after a certain period of time. Op. 65. Whether
any such alternatives would serve Californians’ cautionary interest as effectively as
Proposition 8 was for the voters to decide; narrow tailoring arguments such as
those urged by the panel majority plainly have no place in rational basis review.
See, e.g., Heller v. Doe, 509 U.S. at 321; United States R.R. Retirement Bd. v.
Fritz, 449 U.S. 166, 175 (1980).
Also irrelevant under rational basis review is the panel majority’s assertion
that proceeding with caution was not “the reason the voters adopted” Proposition 8
or their “avowed purpose” for doing so. Op. 66. Indeed, “it is entirely irrelevant
for constitutional purposes whether” an interest in proceeding with caution
“actually motivated” the People of California; what matters is that such an interest
is a “conceivable rational basis” for Proposition 8. FCC v. Beach Commc’ns, Inc.,
508 U.S. 307, 315 (1993) (emphasis added). Among other things, this fundamental
precept of rational-basis review is a concession to the reality that it simply is not
possible to psychoanalyze the electorate and to determine which legitimate

47

justification for a ballot measure actually motivated which voter. See, e.g., SASSO
v. Union City, 424 F.2d 291, 295 (9th Cir. 1970).
At any rate, to determine that an interest in proceeding with caution is
consistent with Proposition 8’s stated aims, one need only look to the argument in
favor of Proposition 8 printed in the official Voter Information Guide, which
articulates (a) that marriage is “an essential institution of society”; (b) that its
importance is tied to promoting “the best situation for a child”; and (c) that any
“redefin[ition]” of marriage should be accomplished by the People of California
through “the ballot,” not by “four activist judges.” Official Voter Information
Guide 56 (ER 1032).10
VI.

THE PANEL ERRED IN AFFIRMING THE DENIAL OF PROPONENTS’ MOTION
TO VACATE.
This appeal ought to be resolved without reaching the merits of the

constitutional questions it presents, because the district court judge whose
10

Because “there are plausible reasons”—indeed compelling reasons—for
California’s adherence to the traditional definition of marriage, judicial “inquiry is
at an end.” Fritz, 449 U.S. at 179. Proposition 8 simply “cannot run afoul” of the
Fourteenth Amendment, Heller, 509 U.S. at 320, for “[i]t is a familiar practice of
constitutional law that [a] court will not strike down an otherwise constitutional
statute on the basis of an alleged illicit legislative motive,” Michael M., 450 U.S. at
472 n.7; see also Romer, 517 U.S. at 634-36 (drawing “inference” of animus only
because Amendment 2 was not “directed to any identifiable legitimate purpose or
discrete objective”). Accordingly, the panel majority’s speculation regarding the
subjective motivations of the voters who adopted Proposition 8 was neither
necessary nor appropriate.
48

judgment is under review was disqualified from presiding. His judgment thus must
be vacated and the case remanded to the district court for decision by a new judge.
See generally Prop. Recusal Br.; Prop. Recusal Reply Br.
Unbeknownst to the parties, at all times while presiding over and entering
judgment in this case, former Judge Walker, like Plaintiffs, was a “resident[] of
California … involved in [a] long-term … relationship with [an] individual[] of the
same sex.” Doc. No. 1-1 at 8. By entering an injunction that he clearly understood
to be effective throughout the State of California, see Doc. No. 709 at 9, Judge
Walker effectively conferred upon himself and his partner the right to marry. It
was only after he had entered judgment in this case and retired from the bench that
Judge Walker revealed to the press that he has been in a relationship with another
man for ten years. See Dan Levine, Gay Judge Never Thought to Drop Marriage
Case, REUTERS, Apr. 6, 2011, at http://www.reuters.com/article/2011/04/06/usgaymarriage-judge-idUSTRE7356TA20110406. There is no public record of his
ever having disclosed, to the parties, to the press, or to anyone else, whether he and
his partner are interested in marrying.
These facts, together with Judge Walker’s own findings about marriage and
same-sex relationships, testimony by Plaintiffs’ expert about the likelihood of
same-sex couples in California to marry if given the opportunity, and Judge
49

Walker’s unprecedented and irregular rulings and actions in this case demonstrate
that his participation and his refusal to disclose his long-term same-sex relationship
was contrary to fundamental maxims of judicial propriety. See Prop. Recusal Br.
25-34. At a minimum, these facts inexorably lead to the conclusion that Judge
Walker’s impartiality “might reasonably [have been] questioned,” 28 U.S.C. §
455(a), thus making his presiding over this case unlawful.
The panel reasoned, however, that it could not “possibly be ‘reasonable to
presume,’ for the purposes of § 455(a), ‘that a judge is incapable of making an
impartial decision about the constitutionality of a law, solely because, as a citizen,
the judge could be affected by the proceeding.’ ” Op. 78. As an initial matter, the
notion that to be disqualified from a proceeding under Section 455(a) a judge must
be “incapable of making an impartial decision” is patently erroneous. Again, the
plain text of Section 455(a) makes clear that a judge is disqualified from any
proceeding in which his “impartiality might reasonably be questioned.” See also
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860, 865 (1988).
Indeed, “[t]he very purpose of § 455(a) is to promote confidence in the judiciary by
avoiding even the appearance of impartiality whenever possible.” Id. at 865
(emphasis added).

50

The panel’s reasoning suffers from an even more fundamental flaw,
however, for it contravenes the ancient principle that “[n]o man is allowed to be a
judge in his own cause,” THE FEDERALIST NO. 10, at 74 (Clinton Rossiter ed.,
2003). Thus, far from being irrelevant, the potential impact of the proceeding on
the personal interests of the judge as a citizen is the sine qua non of the
disqualification inquiry.11 See Prop. Recusal Br. 20-25, 36-37, 39-40; Prop.
Recusal Reply Br. 6-8.
CONCLUSION
For these reasons, the Court should rehear this case en banc and reverse the
district court’s decision.

11

The cases cited by the panel merely hold that a “remote, contingent, and
speculative” connection between a judge’s personal interests and a proceeding
does not merit disqualification, not that a judge can sit on a case in which the judge
has a direct personal interest. See United States v. Alabama, 828 F.2d 1532, 1641
(11th Cir. 1987); In re City of Houston, 745 F.2d 925, 931 (5th Cir. 1984). Indeed,
the district court judges in both Alabama and Houston honored their obligation to
disclose personal facts relevant to their potential personal interest in the
proceedings, facts that demonstrated they had no such interest. See United States
v. Alabama, 571 F. Supp. 958, 962 (N.D. Ala. 1983); United States v. Alabama,
574 F. Supp. 762, 764 n.1 (N.D. Ala. 1983); Leroy v. City of Houston, 592 F. Supp.
415, 418 & n.5 (S.D. Tex. 1984); see also Prop. Recusal Br. 40-43.
51

Dated: February 21, 2012

Respectfully submitted,
s/ Charles J. Cooper
Charles J. Cooper
Counsel of Record
David H. Thompson
Howard C. Nielson, Jr.
Peter A. Patterson
COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
[phone]; [phone] Fax

Andrew P. Pugno
LAW OFFICES OF ANDREW P. PUGNO
101 Parkshore Drive, Suite 100
Folsom, California 95630
[phone]; [phone] Fax
Brian W. Raum
James A. Campbell
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
[phone]; [phone] Fax

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

52

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