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

Filing 410

Filed (ECF) Appellees Paul T. Katami, Kristin M. Perry, Sandra B. Stier and Jeffrey J. Zarrillo in 11-16577 response to Petition for Rehearing En Banc (ECF Filing) ,Petition for Rehearing En Banc (ECF Filing) for rehearing by en banc only (all active, any interested senior judges). Date of service: 03/01/2012. [8086429]. [10-16696, 11-16577] (TO)

Nos. 10-16696 & 11-16577
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_________________________
KRISTIN M. PERRY, et al.,
Plaintiffs-Appellees,
v.
EDMUND G. BROWN, JR., et al.,
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendants-Intervenors-Appellants.
_________________________
On Appeal From The United States District Court
For The Northern District Of California
Opinion Filed February 7, 2012
(Reinhardt, Hawkins, N.R. Smith (dissenting))
____________________________________________________
APPELLEES’ RESPONSE TO
PETITION FOR REHEARING EN BANC
____________________________________________________
DAVID BOIES
BOIES, SCHILLER & FLEXNER LLP
333 Main Street
Armonk, New York 10504
[phone]
JEREMY M. GOLDMAN
BOIES, SCHILLER & FLEXNER LLP
1999 Harrison Street, Suite 900
Oakland, CA 94612
[phone]

THEODORE B. OLSON
Counsel of Record
MATTHEW D. MCGILL
AMIR C. TAYRANI
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
[phone]
THEODORE J. BOUTROUS, JR.
CHRISTOPHER D. DUSSEAULT
THEANE EVANGELIS KAPUR
ENRIQUE A. MONAGAS
JOSHUA S. LIPSHUTZ
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
[phone]

Attorneys for Plaintiffs-Appellees
Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo

TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................................................... 1
FACTUAL AND PROCEDURAL BACKGROUND .............................................. 1
ARGUMENT ............................................................................................................. 5
I.

THE PANEL DECISION IS A CORRECT APPLICATION OF
SETTLED SUPREME COURT PRECEDENT.............................................. 5
A.

The Panel Decision Tracks The Analysis In Romer And
Reaches The Same Conclusion For The Same Reasons. ......................5

B.

Crawford Supports The Panel‟s Analysis. ............................................9

II.

THE PANEL DECISION DOES NOT CONFLICT WITH ANY
DECISION OF THIS COURT OR ANY OTHER COURT OF
APPEALS. ..................................................................................................... 11

III.

REHEARING MAY REQUIRE THE COURT TO REACH
ALTERNATIVE
GROUNDS
FOR
AFFIRMANCE
ADDRESSED IN THE DISTRICT COURT OPINION. ............................. 13

IV.

ANY FURTHER DELAY IRREPARABLY HARMS GAY AND
LESBIAN CALIFORNIANS. ....................................................................... 16

CONCLUSION ........................................................................................................ 18

i

TABLE OF AUTHORITIES

Page(s)
Cases
Adams v. Howerton,
673 F.2d 1036 (9th Cir. 1982) ....................................................................... 11, 12
Associated Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equity,
950 F.2d 1401 (9th Cir. 1991) ..............................................................................17
Baker v. Nelson,
409 U.S. 810 (1972) .............................................................................................10
Bowers v. Hardwick,
478 U.S. 186 (1986) .............................................................................................14
Christian Legal Soc’y v. Martinez,
130 S. Ct. 2971 (2010) .........................................................................................14
Citizens for Equal Prot. v. Bruning,
455 F.3d 859 (8th Cir. 2006) ......................................................................... 12, 13
Crawford v. Bd. of Educ.,
458 U.S. 527 (1982) .........................................................................................9, 10
Dep’t of Agric. v. Moreno,
413 U.S. 528 (1973) ...............................................................................................7
Evans v. Romer,
854 P.2d 1270 (Colo. 1993) (en banc) ...................................................................6
Goldberg v. Kelly,
397 U.S. 254 (1970) .............................................................................................17
Goldie’s Bookstore, Inc. v. Superior Court,
739 F.2d 466 (9th Cir. 1984) ................................................................................17
Hernandez-Montiel v. INS,
225 F.3d 1084 (9th Cir. 2000) ..............................................................................14
High-Tech Gays v. Def. Indus. Sec. Clearance Office,
895 F.2d 563 (9th Cir. 1990) ..................................................................... 4, 11, 14

ii

TABLE OF AUTHORITIES
(continued)
Page(s)
Johnson v. Robison,
415 U.S. 361 (1974) .............................................................................................10
Loving v. Virginia,
388 U.S. 1 (1967) .................................................................................................15
Lyng v. Nw. Indian Cemetery Protective Ass’n,
485 U.S. 439 (1988) .............................................................................................15
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) ................................................ 2, 14, 15, 16
Preminger v. Principi,
422 F.3d 815 (9th Cir. 2005) ................................................................................17
Romer v. Evans,
517 U.S. 620 (1996) ..................................................................................... passim
United States v. Virginia,
518 U.S. 515 (1996) ...............................................................................................8
United States v. Washington,
593 F.3d 790 (9th Cir. 2010) (en banc) ................................................................14
Rules
Fed. R. App. P. 35 ....................................................................................................18

iii

INTRODUCTION
It has been more than three years since Proposition 8 eliminated the right of
gay and lesbian Californians to marry, and nearly three years since Plaintiffs first
sought vindication of their constitutional rights in federal court. Two federal
courts have already found Proposition 8 unconstitutional. As a panel of this Court
recognized, the substantial, ongoing injury that Proposition 8 imposes on gay men
and lesbians every single day is an expression “through the public law, [of] a majority‟s disapproval of them and their relationships.” Slip op. at 77. Yet Plaintiffs—along with thousands of other gay and lesbian Californians—still suffer the
daily indignity and humiliation of having the State designate their relationships as
second-class pairings unworthy of the name “marriage.” Proponents now ask this
Court to hear the case all over again, an unnecessary step where, as here, the panel
decision reflects a straightforward application of settled Supreme Court precedent
and does not conflict with any decisions from this Court or any other court of appeals. Plaintiffs therefore respectfully request that this Court deny Proponents‟ petition and issue its mandate forthwith.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs are gay and lesbian Californians who are in committed, long-term
relationships and who wish to marry. As a direct result of Proposition 8, Plaintiffs
were denied this right solely because their prospective spouses are of the same sex.
1

On May 22, 2009, Plaintiffs filed their complaint alleging that, by denying them
the right to marry the person of their choice, Proposition 8 violates their rights to
equal protection and due process of law under the Fourteenth Amendment of the
United States Constitution.
On August 4, 2010, the district court ruled in Plaintiffs‟ favor, declaring
Proposition 8 unconstitutional under the Fourteenth Amendment and directing that
a permanent injunction issue against its enforcement. Perry v. Schwarzenegger,
704 F. Supp. 2d 921, 1003-04 (N.D. Cal. 2010). The district court found that
“Proponents‟ evidentiary presentation was dwarfed by that of plaintiffs” and that
Proponents “failed to build a credible factual record to support their claim that
Proposition 8 served a legitimate government interest.” Id. at 932. The court concluded that “Proposition 8 fails to advance any rational basis in singling out gay
men and lesbians for denial of a marriage license” and “does nothing more than
enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.” Id. at 1003. Proponents obtained a stay of the judgment pending appeal. Dkt. 14.
A panel of this Court affirmed the district court‟s decision on February 7,
2012, holding that “Proposition 8 serves no purpose, and has no effect, other than
to lessen the status and human dignity of gays and lesbians in California, and to of-

2

ficially reclassify their relationships and families as inferior to those of oppositesex couples.” Slip op. at 5. The panel decision focused on the “unprecedented”
and “unusual” nature of Proposition 8, which “has no practical effect except to
strip” gay men and lesbians of a right that California‟s Constitution had previously
guaranteed. Id. at 46; see also id. at 40 (“Before Proposition 8, California guaranteed gays and lesbians both the incidents and the status and the dignity of marriage.
Proposition 8 left the incidents but took away the status and dignity.”). Thus, the
question confronting the panel was whether “the People of California ha[d] legitimate reasons for enacting a constitutional amendment that serves only to take away
from same-sex couples” the status and dignity state law previously accorded their
relationships. Id. at 40.
As the panel majority explained, the answer to that question is governed
squarely by Supreme Court precedent—specifically, Romer v. Evans, 517 U.S. 620
(1996). See slip op. at 42 (“This is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and
lesbians under state law.”). Because “Proposition 8 is remarkably similar to” the
Colorado constitutional amendment struck down by the Supreme Court in Romer,
the panel held, “Romer governs our analysis” and “compels that we affirm the
judgment of the district court.” Id. at 44-46.

3

The panel did not decide whether heightened scrutiny applies to laws, like
Proposition 8, that target gay and lesbian individuals for disfavored treatment. Slip
op. at 44 n.13 (citing Romer, 517 U.S. at 631-32; High-Tech Gays v. Def. Indus.
Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990)). Nor did the panel decide whether same-sex couples have a fundamental right to marry under the U.S.
Constitution. See slip op. at 46-47. Rather, just like Romer, the panel applied rational basis review, conducting an exhaustive analysis of the various rationales advanced by Proponents and their amici in support of Proposition 8. Id. at 55-70.
After assuming arguendo the legitimacy of the governmental interests supposedly
animating Proposition 8, the panel found that Proponents had failed to “explain
how rescinding access to the designation of „marriage‟ is rationally related” to any
of those interests. Id. at 60. “As in Romer,” the panel therefore concluded that
“[Proposition 8] was enacted with only the constitutionally illegitimate basis of
„animus toward the class it affects,‟” id. at 48 (quoting Romer, 517 U.S. at 632),
and found “Proposition 8 to be unconstitutional on this ground.” Id. at 79-80.

4

ARGUMENT
I.

THE PANEL DECISION IS A CORRECT APPLICATION OF
SETTLED SUPREME COURT PRECEDENT.
The panel decision reflects a correct and straightforward application of set-

tled Supreme Court precedent. Proponents have never explained how eliminating
the ability of gay and lesbian couples to have their relationships designated as marriages—and relegating them to separate and unequal domestic partnerships—
advances any legitimate governmental interest. As the panel recognized, doing so
achieves nothing except the marginalization of gay and lesbian individuals and
their relationships. Long before Romer, the Supreme Court held that marginalizing
a group of citizens for its own sake violates the Fourteenth Amendment to the U.S.
Constitution. The panel decision correctly applies that settled law to hold that
Proposition 8 is unconstitutional.
A.

The Panel Decision Tracks The Analysis In Romer And
Reaches The Same Conclusion For The Same Reasons.

Proponents claim that “[t]he 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.” Pet. at 11. But Romer‟s plain language belies Proponents‟ argument,
demonstrating that the timing of the Colorado amendment was an important factor
in understanding its substance and effect:

Just like Proposition 8, Colorado

Amendment 2 repealed provisions that previously advanced non-discriminatory
5

treatment of gay men and lesbians, raising the specter that it was motivated by an
improper purpose.
In Romer, the Supreme Court began by explaining that “the impetus for the
amendment and the contentious campaign that preceded its adoption came in large
part from ordinances that had been passed in various Colorado municipalities . . .
which banned discrimination.” 517 U.S. at 623-24. “Amendment 2 repeals these
ordinances to the extent they prohibit discrimination on the basis of” sexual orientation. Id. at 624 (emphasis added); see also id. at 626 (“„The immediate objective
of Amendment 2 is, at a minimum, to repeal existing statutes . . . that barred discrimination based on sexual orientation.‟”) (quoting Evans v. Romer, 854 P.2d
1270, 1284 (Colo. 1993) (en banc)). As the Court explained, “[t]he amendment
withdraws from homosexuals, but no others, specific legal protection” and “imposes a special disability upon those persons alone.” Id. at 627, 631 (emphasis added).
Because “laws of th[is] kind” uniquely reduce the status of a minority group
by stripping away legal rights and privileges previously accorded, the Court examined the various “rationale[s] the State offer[ed]” to justify the constitutional
amendment, which included “other citizens‟ freedom of association,” “the liberties
of landlords or employers who have personal or religious objections to homosexuality,” and the state‟s “interest in conserving resources to fight discrimination

6

against other groups.” 517 U.S. at 634-35. After finding that the amendment was
“far removed from these particular justifications,” such that it was “impossible to
credit them,” the Court was left with “the inevitable inference that the disadvantage
imposed is born of animosity toward the class of persons affected.” Id. (citing
Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)); see also id. at 635 (“We
must conclude that Amendment 2 classifies homosexuals not to further a proper
legislative end but to make them unequal to everyone else.”).
The panel here performed the same analysis, and because Proposition 8
made gay men and lesbians “unequal to everyone else” with respect to the availability of civil marriage, reached the same conclusion. The fact that Proposition 8
“rescind[s] access [of same-sex couples] to the designation of „marriage,‟” slip op.
at 60, the panel reasoned, suggests it was motivated by animus against gay men
and lesbians rather than some legitimate governmental aim. Id. at 42 (“The action
of changing something suggests a more deliberate purpose than the inaction of
leaving it as it is.”).
The panel then examined the fit between Proposition 8 and the purported
state interests that Proponents and their amici claim it serves: “responsible procreation and childrearing,” “encourag[ing] heterosexual couples to enter into matrimony,” “bolster[ing] the stability of families headed by one man and one woman,”

7

“proceeding with caution when considering changes to the definition of marriage,”
“protecting religious liberty,” and “protect[ing] our children from being taught in
public schools that same-sex marriage is the same as traditional marriage.” Slip
op. at 56, 63-64, 66-68 (internal quotation marks omitted). After carefully considering the parties‟ arguments, the trial court‟s factual findings, the California Supreme Court‟s findings and interpretation of Proposition 8, and the campaign literature distributed to voters, id. at 55-70, 75-77, the panel concluded there is no
“conceivably plausible” relationship between Proposition 8 and the rationales proffered in litigation. Id. at 60; see also id. at 63 (“[T]he People of California could
not reasonably have conceived such an argument to be true.”) (internal quotation
marks omitted); id. (Proponents‟ argument “lacks any such footing in reality”).
The panel was therefore left with the same “„inevitable inference . . . of animosity‟” that doomed the amendment in Romer. Id. at 72 (quoting Romer, 517 U.S. at
1

634).

1

Proponents repeatedly point to “California‟s generous domestic partnership
law[],” which they say “confers on same-sex couples virtually all of the same substantive benefits and protections as marriage,” as proof that California‟s
“gay-friendly” voters could not have acted with animus in enacting Proposition 8.
Pet. at 4-5 (emphasis added). But there is no Virtually Equal Protection Clause in
the U.S. Constitution, and minorities need not be satisfied with mere graciousness
from the majority. See United States v. Virginia, 518 U.S. 515, 554 (1996).
8

B.

Crawford Supports The Panel’s Analysis.

Proponents say “Crawford, not Romer, is the controlling precedent here,”
and that “Crawford essentially was this case.” Pet. at 21, 23 (citing Crawford v.
Bd. of Educ., 458 U.S. 527 (1982)). But Crawford itself demonstrates that Proponents are wrong.
Crawford involved an amendment to the California Constitution instructing
state courts to stop ordering the busing of students—which they had previously required as a means of desegregating schools—unless the Fourteenth Amendment of
the U.S. Constitution required it. 458 U.S. at 529. Unlike Proposition 8, the
amendment at issue in Crawford did not reduce or eliminate the substantive rights
of any particular group. The Supreme Court was crystal clear on this point:
[T]he Proposition simply removes one means of achieving the statecreated right to desegregated education. School districts retain the obligation to alleviate segregation regardless of cause. And the state
courts still may order desegregation measures other than pupil school
assignment or pupil transportation.
Id. at 544 (emphasis added). Further, the amendment at issue in Crawford could
not have violated the U.S. Constitution because, by its own terms, it required state
courts to take whatever actions were constitutionally required. See id. at 535 (“It
would be paradoxical to conclude that by adopting the Equal Protection Clause of
the Fourteenth Amendment, the voters of the State thereby had violated it.”).

9

In fact, Crawford supports the panel‟s approach in this case because it, even
before Romer, recognized that “if the purpose of repealing legislation is to disadvantage a . . . minority, the repeal is unconstitutional for this reason.” 458 U.S. at
539 n.21. Crawford, just like Romer and the panel decision here, therefore examined the purposes allegedly served by the amendment—for example, “the educational benefits of neighborhood schooling”—by looking at the state court‟s findings and campaign literature. Id. at 543-44. Unlike Romer and this case, however,
there was ample evidence in Crawford to demonstrate that Proposition I was “not
motivated by a discriminatory purpose.” Id. at 545. The panel decision here—
based on a different record concerning a different ballot proposition purportedly
justified by different interests—does not even implicate, much less contradict,
2

Crawford‟s case-specific conclusion.

*

2

*

*

Proponents claim the panel‟s decision conflicts with two other Supreme Court
decisions: Baker v. Nelson, 409 U.S. 810 (1972), and Johnson v. Robison, 415 U.S.
361 (1974). See Pet. at 1. Both the panel majority and dissent, however, agree that
Baker does not control: As Judge N.R. Smith explained, “the constitutionality of
withdrawing from same-sex couples the right of access to the designation of marriage does not seem to be among the „specific challenges‟ raised in Baker.” Slip
op., dissent at 8; see also slip op., majority at 47 n.14. And Johnson, a Vietnamera decision involving Congress‟s decision about which veterans‟ benefits should
be provided to “conscientious objectors” who refused to “serve their country on
active duty in the Armed Forces,” 415 U.S. at 374, has nothing to do with animus
towards a discrete minority group.
10

The panel decision effectively demonstrates that Proponents‟ supposed justifications for Proposition 8—including the promotion of “responsible procreation”
and the purportedly optimal childbearing environment—make no sense. Stripping
gay men and lesbians of the uniquely “cherished status of „marriage,‟” slip op. at
39, obviously does not affect the likelihood that heterosexuals will procreate responsibly or raise their children in Proponents‟ preferred family structure. It only
ensures that gay and lesbian couples will be deprived the “worth and dignity” afforded opposite-sex couples and that their children will be raised by parents who
cannot marry. Slip op. at 73. That ruling is fully consistent with Romer and the
approach taken by the Supreme Court in Crawford.
II.

THE PANEL DECISION DOES NOT CONFLICT WITH ANY
DECISION OF THIS COURT OR ANY OTHER COURT OF
APPEALS.
The panel decision expressly applies Ninth Circuit precedent holding that ra-

tional basis review governs laws targeting gay and lesbian individuals. See slip op.
at 44 n.13 (citing High-Tech Gays, 895 F.2d at 574). Proponents argue that the
panel decision conflicts with Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)),
but they never explain how. See Pet. at 1, 25. Their omission is telling—Adams is
plainly distinguishable. In Adams, the Court held that Congress, acting within its
“plenary power to admit or exclude aliens,” had a rational basis for declining to ex-

11

tend “preferential [immigration] status . . . [to] the spouses of homosexual marriages.” 673 F.2d at 1041-42. Adams had no occasion to address whether the justifications proffered there could rationally support stripping gay men and lesbians of an
immigration status previously accorded to them and relegating them to a disfavored status. See slip op. at 60 (“[I]t is no justification for taking something away
to say that there was no need to provide it in the first place.”). Nor did Adams address laws like Proposition 8 that subject gay and lesbian U.S. citizens to disparate
treatment. See 673 F.2d at 1042 (“[I]n th[e] area of [immigration] law, Congress
. . . may enact statutes which, if applied to citizens, would be unconstitutional.”).
Proponents also incorrectly claim that the panel decision conflicts with the
Eighth Circuit‟s decision in Citizens for Equal Protection v. Bruning, 455 F.3d 859
3

(8th Cir. 2006). See Pet. at 1. The amendment to the Nebraska Constitution at issue in Bruning not only declared that same-sex couples could not be designated as
“married,” but, unlike Proposition 8, also prevented the state from recognizing civil unions, domestic partnerships, or any other same-sex relationship. See 455 F.3d
at 863. Unlike Proposition 8, it also refused to grant Nebraskan same-sex couples
the full “basket of rights and benefits [afforded] to married heterosexual couples.”
3

Proponents point to no other federal appellate decision as conflicting with the
panel decision. They cite decisions from various state appellate courts, see Pet. at
25, but none of those cases involved the elimination or repeal of same-sex marriage rights as this case does.
12

Id. at 867. These important differences do not mean “that Proposition 8 would be
constitutional if only it had gone further,” slip op. at 62, but they do alter the rational-basis analysis because they create an entirely distinct means-end fit between
Nebraska‟s law and its purported purposes. Compare 455 F.3d at 868 (“The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of . . . purposes. The legislature . . . may rationally
choose not to expand in wholesale fashion the groups entitled to those benefits.”),
with slip op. at 46 (“A law that has no practical effect except to strip one group of
the right to use a state-authorized and socially meaningful designation is all the
more „unprecedented‟ and „unusual‟ than a law that imposes broader changes, and
raises an even stronger inference that the disadvantage imposed is born of animosity toward the class of persons affected.”) (internal quotation marks omitted). Thus,
there is no conflict between the conclusion reached by the panel and the conclusion
the Eighth Circuit reached under different circumstances in Bruning.
III.

REHEARING MAY REQUIRE THE COURT TO REACH ALTERNATIVE GROUNDS FOR AFFIRMANCE ADDRESSED
IN THE DISTRICT COURT OPINION.
This Court should also deny rehearing because any en banc decision

rejecting the panel‟s approach would need to address numerous alternative grounds
for affirmance relied upon by the district court, none of which the panel reached.

13

As an initial matter, this Court sitting en banc would not be bound by High
Tech Gays‟ conclusion that rational basis review applies. See United States v.
Washington, 593 F.3d 790, 798 n.9 (9th Cir. 2010) (en banc). The district court
rejected Proponents‟ argument that High Tech Gays requires rational basis review
of Plaintiffs‟ Equal Protection claim because High Tech Gays was explicitly
premised on the since-overruled decision in Bowers v. Hardwick, 478 U.S. 186
(1986).

Further, High Tech Gays—which held that sexual orientation is

“behavioral,” not immutable, 895 F.2d at 573—cannot be reconciled with the
Supreme Court‟s holding in Christian Legal Society v. Martinez, 130 S. Ct. 2971,
2990 (2010), that there is no such cognizable distinction between gay identity and
conduct. See also Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000)
(recognizing that “[s]exual orientation and sexual identity are immutable,” and that
“[h]omosexuality is as deeply ingrained as heterosexuality”) (internal quotation
marks omitted); Perry, 704 F. Supp. 2d at 996. This Court, sitting en banc, would
therefore need to decide whether “gays and lesbians are the type of minority strict
scrutiny was designed to protect.” Perry, 704 F. Supp. 2d at 997.
The panel decision also did not address “whether same-sex couples have a
fundamental right to marry” under the Due Process Clause. Slip. op. at 47. But if
the en banc Court were to hold that Proposition 8 survives under the Equal

14

Protection Clause, it would be required to decide that question, which the district
court answered in the affirmative. As the district court explained, the Supreme
Court has characterized the right to marry as one of the most fundamental rights—
if not the most fundamental right—of an individual. Loving v. Virginia, 388 U.S.
1, 12 (1967). Because “Plaintiffs do not seek recognition of a new right,” but
instead simply “ask California to recognize their relationships for what they are:
marriages,” Perry, 704 F. Supp. 2d at 993, the district court concluded that
Proposition 8 “unconstitutionally burdens the exercise of the fundamental right to
marry.” Id. at 991. Indeed, the evidence at trial “did not show any historical
purpose for excluding same-sex couples from marriage.” Id. at 993. The potential
necessity of reaching this constitutional question counsels against en banc review.
Cf. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988).
The panel decision also eschewed reliance on the vast majority of the district
court‟s eighty separate findings of fact. See slip. op at 31-33; Perry, 704 F. Supp.
2d at 953-991. It therefore did not address whether those facts are “adjudicative”
or “legislative,” or the level of deference they should receive—two additional
questions this Court potentially would have to address en banc. Following a threeweek trial, the district court in this case engaged in a lengthy, careful, and thorough
analysis of the evidence presented, which included the testimony of 19 witnesses

15

and more than 900 exhibits. Among other things, the district court‟s findings of
fact examine the painful history of discrimination faced by gay men and lesbians,
their lack of political power (including the frequent successful targeting of them
through ballot initiatives), their ability to contribute equally to society, the
immutability of sexual orientation, the history of marriage, and the animus
underlying the campaign for Proposition 8. These factual findings support, in part,
the district court‟s determination that “Proposition 8 both unconstitutionally
burdens the exercise of the fundamental right to marry and creates an irrational
classification on the basis of sexual orientation.” Perry, 704 F. Supp. 2d at 991.
IV.

ANY FURTHER DELAY IRREPARABLY HARMS GAY AND
LESBIAN CALIFORNIANS.
Finally, this Court should deny Proponents‟ petition because rehearing

would only cause further delay and prolong the substantial and irreparable deprivation of Plaintiffs‟ constitutional rights. Two federal courts—the district court and a
panel of this Court—have now held that Proposition 8 is unconstitutional and that
same-sex couples in California must be afforded the right to marry as they were
before Proposition 8 was enacted. Each day that right is denied to Plaintiffs is a
day that can never be returned to them—a wrong that can never be remedied. For
that reason, this Court repeatedly has held that the denial of a constitutional right is
an irreparable injury. See, e.g., Associated Gen. Contractors of Cal., Inc. v. Coal.
16

for Econ. Equity, 950 F.2d 1401, 1412 (9th Cir. 1991); Goldie’s Bookstore, Inc. v.
Superior Court, 739 F.2d 466, 472 (9th Cir. 1984).
Plaintiffs recognize that this case presents exceedingly important constitutional issues, but en banc rehearing by this Court is not warranted and would only
extend the state-sanctioned discrimination being perpetrated on hundreds of thousands of gay and lesbian Californians, and prolong the emotional distress and public indignity being inflicted on them and their families each day as a result of the
deprivation of their rights. Further, because “all citizens have a stake in upholding
the Constitution” and have “concerns [that] are implicated when a constitutional
right has been violated,” Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005),
rehearing would delay the vindication of the shared interest of all Californians in
enforcing the Constitution‟s guarantees and reinforcing this “Nation‟s basic commitment . . . to foster the dignity and well-being of all persons within its borders.”
4

Goldberg v. Kelly, 397 U.S. 254, 264-65 (1970).

4

In the event the judges of this Court vote to rehear this case en banc, Plaintiffs
respectfully request that this Court expedite rehearing to the greatest extent possible. Expedited treatment would be warranted because Plaintiffs will continue to
suffer irreparable harm each day that Proposition 8 remains in force. Therefore, if
rehearing en banc is granted, Plaintiffs request that this Court forgo any further
briefing and instead schedule en banc oral argument on the earliest possible date.
17

CONCLUSION
Appellants‟ petition for rehearing en banc should be denied.

5

Dated: March 1, 2012
/s/ Theodore B. Olson
DAVID BOIES
BOIES, SCHILLER & FLEXNER LLP
333 Main Street
Armonk, NY 10504

THEODORE B. OLSON
Counsel of Record
MATTHEW D. MCGILL
AMIR C. TAYRANI
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036

JEREMY M. GOLDMAN
BOIES, SCHILLER & FLEXNER LLP
1999 Harrison Street, Suite 900
Oakland, CA 94612

THEODORE J. BOUTROUS, JR.
CHRISTOPHER D. DUSSEAULT
THEANE EVANGELIS KAPUR
ENRIQUE A. MONAGAS
JOSHUA S. LIPSHUTZ
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071

5

This Court should also deny Proponents‟ petition for en banc rehearing of Case
No. 11-16577, in which the panel unanimously affirmed the district court‟s denial
of Proponents‟ motion to vacate District Judge Walker‟s decision. See Pet. at 4851. Proponents argue that the panel‟s decision is “erroneous” and “flaw[ed],” id. at
50-51, but they do not explain why it is worthy of en banc review under Fed. R.
App. P. 35. As the panel correctly held, the district court‟s “resolution of the issue
on the basis of the facts was not illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” Slip op. at 79.
18

CERTIFICATE OF COMPLIANCE WITH
CIRCUIT RULES 35-4 AND 40-1
I certify that pursuant to Circuit Rules 35-4 and 40-1 the attached response
to Appellants‟ petition for rehearing en banc is proportionately spaced, has a typeface of 14 points, and contains 4,089 words.
/s/ Theodore B. Olson
Dated: March 1, 2012

19

9th Circuit Case Number(s) Nos. 10-16696 & 11-16577
NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

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CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date)
.
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
Signature (use "s/" format)
*********************************************************************************

CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date)
.
Mar 1, 2012
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:
Please see attached service list.

Signature (use "s/" format)

/s/ Theodore B. Olson

SERVICE LIST

Anthony R. Picarello, Jr.
UNITED STATES CATHOLIC
CONFERENCE
3211 Fourth Street, N.E.
Washington, DC 20017
Lincoln C. Oliphant
COLUMBUS SCHOOL OF LAW
The Catholic University of America
3600 John McCormack Road, NE
Washington, DC 20064
Arthur Bailey, Jr.
HAUSFELD LLP
44 Montgomery Street, Suite 3400
San Francisco, CA 94104

Anita L. Staver
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854
Mathew D. Staver
LIBERTY COUNSEL
1055 Maitland Ctr. Commons, 2nd Fl.
Maitland, FL 32751
Thomas Brejcha
THOMAS MORE SOCIETY
29 S. La Salle Street, Suite 440
Chicago, IL 60603