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

Filing 415

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Eagle Forum Education & Legal Defense Fund. Date of service: 03/05/2012. [8091247] (LJJ)

Nos. 10-16696 & 11-16577

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 U.S. DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA,
CIVIL NO. 09-CV-2292-JW, HON. JAMES WARE
OPINION FILED FEBRUARY 7, 2012
(REINHARDT, HAWKINS, N.R. SMITH (DISSENTING))
BRIEF FOR AMICUS CURIAE EAGLE FORUM
EDUCATION & LEGAL DEFENSE FUND IN
SUPPORT OF APPELLANTS’ PETITION FOR
RECONSIDERATION AND REHEARING EN BANC
Lawrence J. Joseph, Cal. S.B. #154908
1250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Counsel for Amicus Curiae Eagle Forum
Education & Legal Defense Fund

CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the FEDERAL RULES

OF

APPELLATE

PROCEDURE, amicus curiae Eagle Forum Education & Legal Defense
Fund makes the following disclosures:
1)

For non-governmental corporate parties please list all parent

corporations: None.
2)

For non-governmental corporate parties please list all

publicly held companies that hold 10% or more of the party’s stock:
None.
Dated: March 5, 2012

Respectfully submitted,

/s/ Lawrence J. Joseph
Lawrence J. Joseph, Cal. S.B. #154908
1250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Counsel for Amicus Curiae Eagle
Forum Education & Legal Defense
Fund

i

TABLE OF CONTENTS
Corporate Disclosure Statement ................................................................. i
Table of Contents ........................................................................................ ii
Table of Authorities ...................................................................................iii
Identity, Interest and Authority to File .................................................... 1
Statement of the Case ................................................................................ 1
Constitutional Background ........................................................................ 4
Summary of Argument ............................................................................... 6
Argument .................................................................................................... 7
I.

En Banc Review Is Necessary to Resolve a Split in
Authority on Non-Mutual Judgments’ Binding Nature
on Sovereign States ........................................................................... 7
A.
B.

II.

Preclusion Principles Prevent Plaintiffs’ and
CCSF’s Reliance on Marriage Cases ....................................... 8
The Panel Majority’s Romer Rule Does Not Apply
to Mere Judgments Generally or Marriage Cases
Specifically .............................................................................. 12

En Banc Review Is Necessary to Resolve a Split in
Authority on the Application of Rational-Basis Review
under Equal Protection ................................................................... 18

Conclusion ................................................................................................. 22

ii

TABLE OF AUTHORITIES
CASES
149 Madison Avenue Corp. v. Asselta, 331 U.S. 795 (1947) ................... 10
Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ............................ 7, 20
Amador Valley Joint Union High Sch. Dist. v. State
Bd. of Equalization, 22 Cal.3d 208 (1978) ........................................ 17
Atonio v. Wards Cove Packing Co., Inc.,
810 F.2d 1477 (9th Cir. 1987) (en banc) .............................................. 7
Baker v. Gen. Motors Corp., 522 U.S. 222 (1998) ................................. 9-10
Balen v. Peralta Junior College Dist., 11 Cal.3d 821 (1974) .................. 14
Bernhard v. Bank of America, 19 Cal.2d 807 (1942) ................................ 8
Bolling v. Sharpe, 347 U.S. 497 (1954) .................................................... 20
Bowen v. Board of Retirement, 42 Cal.3d 572 (1986) .............................. 14
Bowens v. Superior Court, 1 Cal.4th 36 (1991) ................................. 11, 15
Buckley v. Valeo, 424 U.S. 1 (1976).......................................................... 20
City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958).................. 9
Crawford v. Board of Education, 458 U.S. 527 (1982)............................ 13
Crosby v. Patch, 18 Cal. 438 (1861) ........................................................... 4
Duke Power Co. v. Carolina Envtl. Study Group, Inc.,
438 U.S. 59 (1978) .............................................................................. 10
F.C.C. v. Beach Communications, Inc., 508 U.S. 307 (1993) .................. 19
Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394 (1981)...................... 8
Fourco Glass Co. v. Transmirra, 353 U.S. 222 (1957) .............................. 4
Hammond v. U.S., 786 F.2d 8 (1st Cir. 1986) ................................... 10, 11
Helene Curtis, Inc. v. Assessment Appeals Bd.,
76 Cal.App.4th 124 (1999) ................................................................... 9
Heller v. Doe, 509 U.S. 312 (1993) ........................................................... 19
High Tech Gays v. Defense Indus. Sec. Clearance Office,
895 F.2d 563 (9th Cir. 1990) .............................................................. 20

iii

In re Consolidated U.S. Atmospheric Testing Litig.,
820 F.2d 982 (9th Cir. 1987) .......................................................... 6, 10
In re Marriage Cases, No. S147999 (June 4, 2008) ................................... 2
In re Marriage Cases, 43 Cal.4th 757 (2008) ................................... passim
Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988) ................... 19
Katzberg v. Regents of University of California,
29 Cal.4th 300 (2002) ......................................................................... 16
Lawrence v. Texas, 539 U.S. 558 (2003) .................................................. 12
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973) ............ 19
Lofton v. Sec’y of Dept. of Children & Family Services,
358 F.3d 804 (11th Cir. 2004) ............................................................ 21
Loving v. Virginia, 388 U.S. 1 (1967) ...................................................... 20
Martin v. California Mut. B. & L. Ass’n, 18 Cal.2d 478 (1941) .............. 14
McClung v. Employment Development Dep’t,
34 Cal.4th 467 (2004) ......................................................................... 15
Merrill v. Navegar, Inc., 26 Cal.4th 465 (2001)......................................... 4
Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) ................ 19
Montana v. U.S., 440 U.S. 147 (1979) ....................................................... 9
New York Central R.R. Co. v. White, 243 U.S. 188 (1917) ...................... 10
Nordlinger v. Hahn, 505 U.S. 1 (1992) .................................................... 19
Nougues v. Douglass, 7 Cal. 65 (1857) ..................................................... 17
Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) ................................. 8
People v. Bunn, 27 Cal.4th 1 (2002) ......................................................... 15
People v. Ceja, 49 Cal.4th 1 (2010)............................................................. 4
Perry v. Brown, __ F.3d __, 2012 WL 372713 (9th Cir. 2012) ........ passim
Romer v. Evans, 517 U.S. 620 (1996)............................................... passim
Rose v. State of California, 19 Cal.2d 713 (1942) .................................... 11
S. Cent. Bell Tel. Co. v. Alabama, 526 U.S. 160 (1999) .......................... 10
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942)............... 12

iv

Southern Service Co. v. Los Angeles County, 15 Cal.2d 1 (1940) ........... 10
State of Idaho Potato Comm’n v. G & T Terminal Packaging, Inc.,
425 F.3d 708 (9th Cir. 2005) ............................................................ 6, 9
Strauss v. Horton, 46 Cal.4th 364 (2009) ............................... 2-3, 6, 11, 17
Taylor v. Sturgell, 553 U.S. 880 (2008) ..................................................... 8
The Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801) ............................ 10-11
Turner v. Safley, 482 U.S. 78 (1987) ........................................................ 12
U.S. v. Mendoza, 464 U.S. 154 (1984) ....................................................... 9
Vandenberg v. Superior Court, 21 Cal.4th 815 (1999) ............................ 10
Waterman S.S. Corp. v. U.S., 381 U.S. 252 (1965) ................................... 4
Western Pacific R. Corp. v. Western Pacific R. Co.,
345 U.S. 247 (1941) .............................................................................. 7
Willcox v. Edwards, 162 Cal. 455 (1912) ................................................. 10
STATUTES
U.S. CONST. amend V, cl. 4 ....................................................................... 20
U.S. CONST. amend. XIV................................................................. 7, 13, 20
U.S. CONST. amend. XIV, §1, cl. 4 ............................................................ 20
CAL. CONST. art. I, §1 .................................................................................. 4
CAL. CONST. art. I, §7(a) ....................................................................... 5, 16
CAL. CONST. art. I, §7.5 (Proposition 8”) .......................................... passim
CAL. CONST. art. I, §24 .......................................................................... 5, 16
CAL. CONST. art. III, §3 ......................................................................... 5, 17
CAL. CONST. art. XVIII, §1 ....................................................................... 5-6
CAL. CONST. art. XVIII, §2 ....................................................................... 5-6
CAL. CONST. art. XVIII, §3 ................................................................. 5-6, 16
CAL. CONST. art. XVIII, §4 ....................................................................... 5-6
CAL. FAMILY CODE §308.5 (Proposition 22”) ....................................... 2-3, 6

v

RULES AND REGULATIONS
FED. R. APP. P. 29(c)(5) ............................................................................... 1
OTHER AUTHORITIES
Ballot Pamphlet, Gen. Elec. (Nov. 4, 2008) ........................................ 14-15

vi

IDENTITY, INTEREST AND AUTHORITY TO FILE
Amicus curiae Eagle Forum Education & Legal Defense Fund
(“Eagle Forum”), a nonprofit Illinois corporation, files this brief with the
consent of all the parties.1 Founded in 1981, Eagle Forum has
consistently defended federalism and traditional American values,
including marriage defined as the union of husband and wife. Through
its affiliates and their chapters, Eagle Forum represents an active
California chapter that supports Proposition 8. For these reasons, Eagle
Forum has a direct and vital interest in the issues before this Court.
STATEMENT OF THE CASE
Four individual plaintiffs – two same-sex couples – (collectively,
“Plaintiffs”) and plaintiff-intervener City and County of San Francisco
(“CCSF”) seek to establish the federal right of same-sex couples to call
their unions a “marriage.” The State defendants declined to defend
California law – which provides that “[o]nly marriage between a man
and a woman is valid or recognized in California.” CAL. CONST. art. I,
By analogy to FED. R. APP. P. 29(c)(5), the undersigned counsel
certifies that: counsel for amicus authored this brief in whole; no
counsel for a party authored this brief in any respect; and no person or
entity – other than amicus, its members, and its counsel – contributed
monetarily to this brief’s preparation or submission.
1

1

§7.5 (“Proposition 8”); CAL. FAMILY CODE §308.5 (“Proposition 22”) –
thereby prompting Proposition 8’s ballot proponents to intervene as
defendants. Plaintiffs prevailed below, and the Proponents appealed.
Two California Supreme Court decisions serve as the litigation
backdrop to this litigation. First, In re Marriage Cases, 43 Cal.4th 757
(2008) (“Marriage Cases”), invalidated Proposition 22 – which the
People enacted in 2000 – as contrary to the 4-3 majority’s interpretation
of generally worded privacy and equal-protection provisions of
California’s Constitution. Before Marriage Cases became final, the same
4-3 majority denied a request to stay the court’s proceedings to allow
the People to vote on Proposition 8, which already had qualified for the
November 2008 ballot. In re Marriage Cases, No. S147999 (June 4,
2008).2 Second, Strauss v. Horton, 46 Cal.4th 364 (2009), upheld
Proposition 8 – which the People enacted that November – as
abrogating Marriage Cases with the marriage-specific constitutional
amendment quoted above.

The order is available on the California Supreme Court’s website
at http://www.courts.ca.gov/documents/NR31-08.PDF (last visited Mar.
5, 2012).
2

2

Against that backdrop, the panel majority in this litigation
analogizes to Romer v. Evans, 517 U.S. 620 (1996), in which the U.S.
Supreme Court overturned Colorado’s “Amendment 2” on Equal
Protection grounds for depriving homosexuals, with no rational basis
(and thus apparent animus), the same access to government that all
citizens enjoyed under prior law. This analogy is inapposite for two
reasons. First, the Colorado amendment selectively withdrew from
homosexuals broad political rights expressly guaranteed by both the
federal and Colorado constitutions. Here, by contrast, the prior “law”
that Proposition 8 surgically abrogated is a mere non-party judgment
that due process precludes the Plaintiffs from pressing, either by res
judicata or stare decisis.3 Second, unlike the holding in Romer for
Colorado’s Amendment 2, controlling authority establishes a rational
basis for Proposition 8.

The Plaintiffs here were parties to neither Marriage Cases nor
Strauss, while CCSF and the State defendants were parties to both. The
proponents of Proposition 22 were denied leave to intervene in Marriage
Cases, 43 Cal.4th at 790-9 & n.8, and the proponents of Proposition 8
(appellants here) were granted leave to intervene in Strauss, 46 Cal.4th
at 398-99. Although CCSF was party to Marriage Cases, Strauss bars
CCSF under claim preclusion from challenging Proposition 8.

3

3

CALIFORNIA CONSTITUTIONAL BACKGROUND
“From the beginning of California statehood, the legal institution
of civil marriage has been understood to refer to a relationship between
a man and a woman,” Marriage Cases, 43 Cal.4th at 792-93, as borne
out by textual references in the first Constitution, id. (citing art. XI, §12
of the California Constitution of 1849), and the rule against inferring
repeal of the common law by implication. People v. Ceja, 49 Cal.4th 1,
10 (2010). Over time, these express textual references to husband-wife
marriage came out of the Constitution without any indication that
California

had

adopted

or

allowed

same-sex

marriage:

“[a]ll

presumptions are against a repeal by implication.” Merrill v. Navegar,
Inc., 26 Cal.4th 465, 487 (2001) (interior quotations omitted, alteration
in original); Crosby v. Patch, 18 Cal. 438, 441-42 (1861); cf. Fourco Glass
Co. v. Transmirra, 353 U.S. 222, 227 (1957) (“it will not be inferred that
Congress, in revising and consolidating the laws, intended to change
their effect unless such intention is clearly expressed”); Waterman S.S.
Corp. v. U.S., 381 U.S. 252, 269 (1965).
Since 1972, California’s Constitution has recognized privacy as an
inalienable right. CAL. CONST. art. I, §1. In pertinent part, California’s

4

due process and equal protection clauses provide that “[a] person may
not be deprived of life, liberty, or property without due process of law or
denied equal protection of the laws.” CAL. CONST. art. I, §7(a). With the
adoption of Proposition 8, the California Constitution explicitly limits
valid and recognized marriages to those between “a man and a woman.”
CAL. CONST. art. I, §7.5. Finally, in addition to the foregoing, the
Constitution’s

Declaration

of

Rights

also

provides

that

“[t]his

declaration of rights may not be construed to impair or deny others
retained by the people.” CAL. CONST. art. I, §24.
With

regard

to

governmental

structure,

the

California

Constitution adopts the familiar three branches of government, but
places all three under the sovereignty of the People. First, the
Constitution cabins each branch of government to its respective role:
The powers of state government are legislative,
executive, and judicial. Persons charged with the
exercise of one power may not exercise either of
the others except as permitted by this
Constitution.
CAL. CONST. art. III, §3. Second, the People reserved the right to change
their Constitution, CAL. CONST. art. XVIII, §3, which they could do by
“amendment” (as with Proposition 8), CAL. CONST. art. XVIII, §§1, 3, or

5

by “revision” CAL. CONST. art. XVIII, §§1, 2, 4; see also Strauss, 46
Cal.4th at 445.
SUMMARY OF ARGUMENT
Under principles of preclusion, Plaintiffs cannot assert nonmutual preclusion against the sovereign State of California or against
the Proponents who defend Proposition 8 in California’s shoes. Under
the California Constitution as it stands today, Plaintiffs could not
possibly prevail against Proposition 8 or Proposition 22, which renders
Romer inapposite. Moreover, claim preclusion bars CCSF from
challenging Proposition 8 here, after CCSF’s loss in Strauss. The panel’s
decision to the contrary conflicts with Circuit precedent on non-mutual
preclusion against sovereign states. State of Idaho Potato Comm’n v. G
& T Terminal Packaging, Inc., 425 F.3d 708, 714 (9th Cir. 2005); see
also In re Consolidated U.S. Atmospheric Testing Litig., 820 F.2d 982,
988-89 (9th Cir. 1987) (“No person has a vested interest in any rule of
law entitling him to insist that it shall remain unchanged for his
benefit”) (interior quotations omitted). The application of preclusion
principles to this litigation and the irrelevance of Romer to mere
judgments are discussed in Section I, infra.

6

Even if Romer applied, Proposition 8 still would survive because
society’s interest in responsible procreation and childrearing provides a
rational basis for preferring traditional marriage over other familial
arrangements. The panel’s decision to the contrary conflicts with
Circuit precedent on the rational basis for statutes that favor
traditional marriage. Adams v. Howerton, 673 F.2d 1036, 1042 (9th Cir.
1982). Proposition 8’s rational basis is discussed in Section II, infra.
This Court has the obligation to “avoid[] or resolv[e] intra-circuit
conflicts,” Western Pacific R. Corp. v. Western Pacific R. Co., 345 U.S.
247, 271 (1941), which this Court has held to require en banc review.
Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1478-79 (9th Cir.
1987) (en banc). Under Wards Cove, it falls to the en banc Court to
resolve the splits in authority identified in this brief and by the
Proponents.
ARGUMENT
I.

EN BANC REVIEW IS NECESSARY TO RESOLVE A SPLIT
IN
AUTHORITY
ON
NON-MUTUAL
JUDGMENTS’
BINDING NATURE ON SOVEREIGN STATES
The panel majority’s Romer gambit seeks to duck the Plaintiffs’

core question – and the district court’s express holding – that the
Fourteenth Amendment requires states to provide same-sex marriage.
7

This gambit fails both because these Plaintiffs cannot rely on nonmutual estoppel to invalidate Proposition 8 and because Romer does not
apply to non-mutual judgments.
A.

Preclusion Principles Prevent Plaintiffs’ and CCSF’s
Reliance on Marriage Cases

In civil cases, the doctrine of res judicata bars parties or those in
privity with them from relitigating a cause of action finally determined
by a court of competent jurisdiction (claim preclusion) or any issues
actually determined in such a prior proceeding (issue preclusion or
collateral estoppel). Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (“[t]he
preclusive effect of a judgment is defined by claim preclusion and issue
preclusion, which are collectively referred to as ‘res judicata’”); In re
Russell, 12 Cal.3d 229, 233 (1972). In general, both California and
federal courts recognize non-mutual preclusion. Bernhard v. Bank of
America, 19 Cal.2d 807, 810 (1942); Parklane Hosiery Co. v. Shore, 439
U.S. 322, 326 & n.4 (1979). Under res judicata, prior holdings are
binding on the parties, even if they are wrong. See, e.g., Federated Dept.
Stores, Inc. v. Moitie, 452 U.S. 394, 399 & n.3 (1981). The general rules
of res judicata have two caveats relevant here.
First, although mutual collateral estoppel is available against the

8

government, Montana v. U.S., 440 U.S. 147, 153 (1979), the U.S.
Supreme Court has rejected non-mutual estoppel against the federal
government. U.S. v. Mendoza, 464 U.S. 154 (1984). Under Mendoza,
only parties to the prior litigation against the federal government can
assert preclusion against the federal government. California and this
Circuit apply Mendoza to protect state governments from non-mutual
preclusion: “Mendoza’s rationale applies with equal force to [an]
attempt to assert nonmutual defensive collateral estoppel against … a
state agency.” Idaho Potato Comm’n, 425 F.3d at 714; Helene Curtis,
Inc. v. Assessment Appeals Bd., 76 Cal.App.4th 124, 133 (1999). Under
the circumstances, Plaintiffs cannot assert the preclusive effect of
Marriage Cases on the State of California.4
Second, although non-parties can assert non-mutual collateral
estoppel against parties bound by prior litigation, it violates due process
to bind anyone to litigation in which the person to be bound did not
participate. Baker v. Gen. Motors Corp., 522 U.S. 222, 237-38 & n.11

Because the Proponents stand in the shoes of California, they are
not bound any more than California. See City of Tacoma v. Taxpayers of
Tacoma, 357 U.S. 320, 340-341 (1958).

4

9

(1998); Vandenberg v. Superior Court, 21 Cal.4th 815, 828 (1999).
Similarly, it violates due process for the doctrine of stare decisis to apply
so conclusively that, in effect, it operates as preclusion against nonparties to the prior litigation. S. Cent. Bell Tel. Co. v. Alabama, 526 U.S.
160, 167-68 (1999). It is clear, therefore, that no one – including this
Court – can bind the Proposition 8 proponents to the Marriage Cases
litigation in which they were not parties.
Moreover, as this Court recognized in Atmospheric Testing, 820
F.2d at 988-89, “[n]o person has a vested interest in any rule of law
entitling him to insist that it shall remain unchanged for his benefit”
(quoting Hammond v. U.S., 786 F.2d 8, 12 (1st Cir. 1986) and New York
Central R.R. Co. v. White, 243 U.S. 188, 198 (1917)); Duke Power Co. v.
Carolina Envtl. Study Group, Inc., 438 U.S. 59, 88 n.32 (1978). Under
both federal and California law, such “rights” become vested only when
reduced to a final judgment. Willcox v. Edwards, 162 Cal. 455, 465
(1912); Southern Service Co. v. Los Angeles County, 15 Cal.2d 1, 11-12
(1940); 149 Madison Avenue Corp. v. Asselta, 331 U.S. 795 (1947),
modifying 331 U.S. 199 (1947); The Schooner Peggy, 5 U.S. (1 Cranch)

10

103, 110 (1801).5 Here, Plaintiffs have no judgment to enforce, and they
cannot rely on preclusion or stare decisis.
As it exists today, California’s Constitution provides that “[o]nly
marriage between a man and a woman is valid or recognized in
California.” CAL. CONST. art. I, §7.5. The equal-protection rationale that
guided the Marriage Cases majority is unavailable now, because
Proposition 8 expressly rejects the notion that a same-sex marriage ban
violates equal protection. Bowens v. Superior Court, 1 Cal.4th 36, 45
(1991) (“recent, specific provision [of the Constitution] is deemed to
carve out an exception to and thereby limit an older, general
provision”); Rose v. State of California, 19 Cal.2d 713, 723-24 (1942).
Under the circumstances, Marriage Cases has lost its precedential value
for the proposition that the California Constitution requires same-sex
marriage rights, and Strauss held as much.
When a state or federal court applies the California Constitution
as it is written today to the case of parties, such as Plaintiffs, who
As explained in Hammond, 786 F.2d at 12, the Asselta plaintiffs
prevailed in the Supreme Court but Congress amended the relevant
statute within the time for petitioning the Supreme Court for rehearing,
which enabled the defendants to vacate that near-judgment and prevail.
5

11

cannot rely on res judicata, same-sex marriage obviously cannot be a
constitutional right. How could it be? The Constitution itself denies that
right.6 CAL. CONST. art. I, §7.5. In essence, Proposition 8 abrogates
Marriage Cases, making it unavailable for latter-day plaintiffs.
B.

The Panel Majority’s Romer Rule Does Not Apply to
Mere Judgments Generally or Marriage Cases
Specifically

The panel majority’s expansive reading of Romer would fashion a
rule that, once states grant benefits not required by federal law, states
may not withdraw those benefits, at least not without submitting
themselves to intrusive federal factfinding with regard to motive. While
amicus Eagle Forum agrees with Proponents’ thorough rebuttal of this
expansive view, this Section focuses on the nature of the state “law”
here – a non-preclusive court judgment – versus that of the state law
challenged in Romer.
Although traditional marriage unquestionably is a fundamental
right under the federal Constitution, Turner v. Safley, 482 U.S. 78, 95
(1987) (“the decision to marry is a fundamental right”); Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (“[m]arriage and
procreation are fundamental”), the federal Constitution does not
prohibit California’s denying validity or recognition to same-sex
marriage. Lawrence v. Texas, 539 U.S. 558, 578 (2003) (“The present
case … does not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter”).

6

12

The parties here dispute which Supreme Court precedent should
govern this litigation. Like the panel, Plaintiffs and CCSF look to
Romer as the controlling authority. For their part, the Proponents look
to Crawford v. Board of Education, 458 U.S. 527 (1982), where the U.S.
Supreme Court inter alia 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. Amicus Eagle Forum
respectfully submits that the U.S. Supreme Court recognized in
Crawford the very distinction drawn here and in Section I.A, supra:
non-mutual state-court judgments cannot stymie a sovereign state.
Significantly, Romer nowhere holds that Colorado could not have
simply repealed the local ordinances that prompted Amendment 2.
Instead, the Romer majority found Amendment 2 unconstitutional for
going beyond mere repeal and broadly limiting the political rights that
homosexual citizens theretofore had shared with all citizens. Romer,
517 U.S. at 632-33. Proposition 8 does not repeal any rights that ever
existed outside of a non-binding judgment.
Properly understood, Proposition 8 falls within the “exception to

13

the general rule that statutes are not construed to apply retroactively,”
which arises “when the legislation merely clarifies existing law.” Bowen
v. Board of Retirement, 42 Cal.3d 572, 574 (1986); accord Martin v.
California Mut. B. & L. Ass’n, 18 Cal.2d 478, 484 (1941); Balen v.
Peralta Junior College Dist., 11 Cal.3d 821, 828 (1974). Two factors
suggest that Proposition 8 merely clarified pre-existing law.
First, when the text of Proposition 8 qualified for the November
ballot, it was existing law. Proposition 8’s text reflected the law of the
State of California from Statehood until the Marriage Cases decision,
and Proposition 8’s text was circulated to and approved by the voters to
appear on the November ballot protectively, before the Marriage Cases
decision.
Second, in the voter pamphlet prepared after Proposition 8
qualified for the November ballot, the Proponents argued that Marriage
Cases was “wrongly” decided, that Proposition 8 would “restore”
marriage’s definition and “overturns the flawed legal reasoning” of
Marriage Cases. See Ballot Pamphlet, Gen. Elec., at 55-57 (Nov. 4,
2008) (hereinafter, “Voter Pamphlet”). Taken together these factors
suggest that Proposition 8 was intended to abrogate Marriage Cases by

14

authoritatively clarifying existing law.7 Although separation of powers
prevents the Legislature from interfering with final judicial judgments,
People v. Bunn, 27 Cal.4th 1, 21 (2002), nothing prevents the People
from abrogating prior judicial holdings:
[Proposition 115], as enacted by the voters of
California, has abrogated the holding of [a prior
Supreme Court decision] such that an indicted
defendant is no longer deemed denied the equal
protection of the laws under [California’s equalprotection clause] by virtue of the defendant’s
failure to receive a postindictment preliminary
hearing.
Bowens, 1 Cal.4th at 46 (emphasis added). At least with respect to nonparties to the Marriage Cases judgment, the People abrogated Marriage
Cases and clarified existing law because Marriage Cases was “wrongly”
decided, “outrageous,” “flawed [in its] legal reasoning,” and “overruled”
by Proposition 8. Voters’ Pamphlet, at 56-57. The People set out to
clarify existing law, and because the California Supreme Court’s 4-3
Although the Legislature may enact legislation to abrogate
Supreme Court decisions, separation-of-power principles preclude the
Legislature’s dictating that the “new legislation merely declared what
the law always was,” once the California Supreme Court has issued a
final decision on what the prior law was. McClung v. Employment
Development Dep’t, 34 Cal.4th 467, 473 (2004). Unlike the Legislature,
however, the People are not a mere co-equal branch of government, and
separation-of-power principles do not apply.

7

15

majority elected to proceed undemocratically rather than await the
People’s decision, the People abrogated the resulting decision.
Finally, the Declaration of Rights itself prevents the argument
that Marriage Cases could freeze the People into a judgment that
applied some of the Declaration’s provisions. Section 24 provides that
“[t]his declaration of rights may not be construed to impair or deny
others retained by the people.” CAL. CONST. art. I, §24. Nothing in the
1972 and 1974 initiatives that added the California Constitution’s
privacy and equal-protection clauses informed the People that their
“Yes” vote would restrict their pre-existing constitutional rights under
the initiative process. Because the voters did not consider restricting
their initiative rights, this Court cannot read that restriction into the
1972 or 1974 initiatives. Katzberg v. Regents of University of California,
29 Cal.4th 300, 320 (2002) (declining to allow damages remedy for
violations of CAL. CONST. art. I, §7(a) where that issue was not
discussed in 1974 initiative).
As such, Section 24 is independently fatal to the panel’s reasoning.
Because the People reserved the right to amend their Constitution, CAL.
CONST. art. XVIII, §3, Section 24 prevents any attempt to pit provisions

16

of Article I, Sections 1 and 7 against Article I, Section 7.5:
[The] powers of the State reside primarily in the
people; and they, by our Constitution, have
delegated … their … powers to the three
departments –
legislative,
executive,
and
judicial – except in those cases where they have
themselves exercised these powers, or expressly,
or by necessary implication, reserved the same to
themselves.
Nougues v. Douglass, 7 Cal. 65, 69 (1857).8 Accepting arguendo that a
court judgment under the Declaration of Rights’ privacy or equalprotection provisions establishes an un-amendable “law,” then two
impermissible results flow from that judgment: (1) the California
Supreme Court exceeded its powers under CAL. CONST. art. III, §3; and
(2) the initiatives that adopted the privacy and equal-protection
provisions into the California Constitution were not amendments but
revisions of California’s “basic governmental plan,” Amador Valley Joint
Union High Sch. Dist. v. State Bd. of Equalization, 22 Cal.3d 208, 223
(1978) (“an enactment which purported to vest all judicial power in the
Legislature would amount to a revision”); Strauss, 46 Cal4th at 652-53,
Although Nougues predates the initiative power recognized in the
1911 Constitution, it correctly provides that the People have delegated
their powers to the three branches, subject inter alia to the People’s
reserving the power to amend the Constitution.

8

17

thereby rendering those initiatives void ab initio for failure to be
brought by constitutional convention. If we assume arguendo that
Proposition 8 did not abrogate Marriage Cases, then Marriage Cases
rests on authorities that are void. Either way, Plaintiffs lack a valid law
to press against Proposition 8.
For the foregoing reasons, Romer does not govern this litigation.
First, Romer does not apply to judgments, as distinct from enacted laws.
Second, if Romer did apply, Marriage Cases could not stand because the
authorities on which Marriage Cases relies would then be void.
II.

EN BANC REVIEW IS NECESSARY TO RESOLVE A SPLIT
IN AUTHORITY ON THE APPLICATION OF RATIONALBASIS REVIEW UNDER EQUAL PROTECTION
The panel failed to follow controlling authority for equal-

protection claims under the rational-basis test. In order to strike
Proposition 8 under the rational-basis test, a reviewing court must
consider and reject all of the rationales on which a state plausibly may
have acted. Here, the panel majority did not follow binding Circuit
precedent upholding a rational basis for statutes that recognize only
traditional marriage.
A

successful

rational-basis

18

plaintiff

must

“negative

every

conceivable basis which might support [the challenged statute],”
including those bases on which the state plausibly may have acted.
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)
(internal quotations omitted); Kadrmas v. Dickinson Public Schools, 487
U.S. 450, 462-63 (1988). It is enough, for example, that California voters
“rationally may have been considered [it] to be true” that marriage has
benefits for responsible procreation and childrearing. Nordlinger v.
Hahn, 505 U.S. 1, 11-12 (1992).
Significantly, “a legislative choice” like Proposition 8 “is not
subject to courtroom fact-finding and may be based on rational
speculation unsupported by evidence or empirical data.” F.C.C. v. Beach
Communications, Inc., 508 U.S. 307, 315 (1993); Heller v. Doe, 509 U.S.
312, 320 (1993). Plaintiffs cannot prevail by marshaling “impressive
supporting evidence … [on] the probable consequences of the [statute]”
vis-à-vis the legislative purpose but must instead negate “the theoretical
connection” between the two. Minnesota v. Clover Leaf Creamery Co.,
449 U.S. 456, 463-64 (1981) (emphasis in original). Unfortunately for
Plaintiffs, the data simply do not exist to negative the procreation and
childrearing rationale for traditional husband-wife marriage. And yet

19

those data are Plaintiffs’ burden to produce.
This Court already has held that a legislative “decision to confer
spouse status … only upon the parties to heterosexual marriages has a
rational basis and therefore comports with the due process clause and
its equal protection requirements.” Adams v. Howerton, 673 F.2d 1036,
1042 (9th Cir. 1982).9 Although Adams involved immigration, that does
not undermine the fact that this Court found plausible rational bases to
support the preference for traditional marriage.
The most widely recognized purpose of marriage is to provide a
stable and loving structure for procreation and childrearing. As defined
by California, marriage serves that legitimate end. Loving v. Virginia,
388 U.S. 1, 12 (1967) (tying marriage to “our very existence and
survival”). The fact that other potential legal arrangements exist under
California law does not undermine the rationality of believing that
children raised in a marriage by their biological mother and father may

The Due Process Clause’s equal-protection component at issue in
Adams is equivalent to the Fourteenth Amendment’s Equal Protection
Clause at issue here. Buckley v. Valeo, 424 U.S. 1, 93 (1976); Bolling v.
Sharpe, 347 U.S. 497, 499 (1954); High Tech Gays v. Defense Indus. Sec.
Clearance Office, 895 F.2d 563, 570 (9th Cir. 1990).

9

20

have advantages over children raised under other arrangements:10
Although social theorists ... have proposed
alternative child-rearing arrangements, none has
proven as enduring as the marital family
structure, nor has the accumulated wisdom of
several millennia of human experience discovered
a superior model.
Lofton v. Sec’y of Dept. of Children & Family Services, 358 F.3d 804, 820
(11th Cir. 2004). Although the typical rational-basis plaintiff has a
difficult evidentiary burden to negative every possible basis on which
the legislature may have acted, Plaintiffs here face an impossible
burden. We are at least a generation away from the longitudinal studies
that could purport to compare the relative contributions of same-sex
versus opposite-sex marriages to the welfare of society. While Eagle
Forum submits that Plaintiffs never will be able to negative the value of
traditional husband-wife families for childrearing, Plaintiffs cannot
prevail when the data required by their theory of the case do not exist.

The panel majority treats marriage inconsistently. For same-sex
couples, marriage conveys “officially conferred and societally recognized
status” that same-sex couples demand. Slip Op. at 10. For opposite-sex
couples, however, there is no difference between non-marriage civil
arrangements and marriage. Id. at 57. The majority cannot have it both
ways. As this litigation demonstrates, marriage clearly matters.
10

21

CONCLUSION
The petition for rehearing en banc should be granted.
Dated: March 5, 2012

Respectfully submitted,

/s/ Lawrence J. Joseph
Lawrence J. Joseph, Cal. S.B. #154908
1250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Counsel for Amicus Curiae Eagle Forum
Education & Legal Defense Fund

22

CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the FEDERAL RULES OF APPELLATE
PROCEDURE, and Circuit Rule 29-2(c)(2), I certify that the foregoing
amicus curiae brief is proportionately spaced, has a typeface of Century
Schoolbook, 14 points, and contains 4,195 words, including footnotes,
but excluding this Brief Form Certificate, the Table of Authorities, the
Table of Contents, the Corporate Disclosure Statement, and the
Certificate of Service. The foregoing brief was created in Microsoft Word
2010, and I have relied on that software’s word-count feature to
calculate the word count.
Dated: March 5, 2012

Respectfully submitted,

/s/ Lawrence J. Joseph
Lawrence J. Joseph, Cal. S.B. #154908
1250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Counsel for Amicus Curiae Eagle
Forum Education & Legal Defense
Fund

CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of March, 2012, I electronically
filed the foregoing amicus curiae brief with the Clerk of the Court for
the U.S. Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system. Participants in the case who are registered CM/ECF
users will be served by the appellate CM/ECF system. I further certify
that I have mailed the foregoing document by Priority U.S. Mail,
postage prepaid, on the following participants in the case who are not
registered CM/ECF users:
Anthony R. Picarello, Jr.
U.S. Catholic Conference
3211 Fourth Street, N.E.
Washington, DC 20017
Thomas Brejcha
Thomas More Society
29 S. La Salle Street, Suite 440
Chicago, IL 60603
Arthur Bailey, Jr.
Hausfeld LLP
44 Montgomery St, Ste 3400
San Francisco, CA 94104

Anita L. Staver
Mathew D. Staver
Liberty Counsel
1055 Maitland Ctr. Commons
Second Floor
Maitland, FL 32751
Lincoln C. Oliphant
Columbus School of Law
Catholic University
3600 John McCormack Rd, NE
Washington, DC 20064

/s/ Lawrence J. Joseph
Lawrence J. Joseph