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

Filing 419

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Love Honor Cherish. Date of service: 03/09/2012. [8097304] [10-16696, 11-16577] (LFA)

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.,
Intervenors-Defendants-Appellants.
On Appeals from the United States District Court for the Northern District of
California, No. CV-09-02292 (Hon. Vaughn R. Walker and Hon. James Ware)
BRIEF OF AMICUS CURIAE LOVE HONOR CHERISH
IN OPPOSITION TO PETITION FOR REHEARING EN BANC
ROSENFELD, MEYER & SUSMAN,
LLP
Ryan Lapine (State Bar No. 239316)
9601 Wilshire Boulevard, Suite 710
Beverly Hills, CA 90210
Telephone: [phone]
Fascimile: [phone]

BATE, PETERSON, DEACON,
ZINN & YOUNG LLP
Harry A. Zinn (State Bar No. 116397)
Lester F. Aponte (State Bar No. 143692)
888 South Figueroa Street, 15th Floor
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]

Attorneys for Amicus Curiae
Love Honor Cherish

TABLE OF CONTENTS
Page
TABLE OF CONTENTS ............................................................................................i
TABLE OF AUTHORITIES .................................................................................... ii
CORPORATE DISCLOSURE STATEMENT ........................................................iv
STATEMENT OF INTEREST OF
AMICUS CURIAE LOVE HONOR CHERISH ....................................................... 1
ARGUMENT ............................................................................................................. 2
I.

INTRODUCTION ........................................................................................... 2

II.

THE DELAY OCCASIONED BY REHEARING
WOULD IRREPARABLY HARM GAY AND LESBIAN
COUPLES AND THEIR FAMILIES. ............................................................ 2

III.

THE APPELLANTS APPEAR TO HAVE EMBRACED
DELAY FOR ITS OWN SAKE. ..................................................................... 5

CONCLUSION .......................................................................................................... 8
CERTIFICATE OF COMPLIANCE ......................................................................... 9

i

TABLE OF AUTHORITIES
Page(s)
Cases
In re Marriage Cases,
43 Cal. 4th 757 (2008) .......................................................................................... 1
Manwani v. U.S. Dept. of Justice, I.N.S.,
736 F. Supp. 1367 (W.D.N.C. 1990) .................................................................... 4
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) .............................................................. 4, 5
Statutes and Rules
Fed. R. App. P. 29 ...................................................................................................... 1
Fed. R. App. P. 32 ...................................................................................................... 9
Ninth Circuit Rule 29-2 ......................................................................................... 1, 9
Other Authorities
Monica Yant Kinney, Same-Sex Gains Too Late For Some,
Philadelphia Inquirer, Feb. 26, 2012 .................................................................... 4
Press Release, Alliance Alert, ADF comment on 9th Circuit
decision in Perry v. Brown (Feb. 7, 2012),
http://www.alliancealert.org/2012/02/07/adf-comment-on9th-circuit-decision-in-perry-v-brown-ca-prop-8/ ................................................ 6
Press Release, National Organization for Marriage Blog, NOM
Condemns Ninth Circuit Ruling Finding Prop 8 Unconstitutional,
Imperiling the Marriage Laws of 43 states (Feb. 7, 2012),
http://www.nomblog.com/18991/ ......................................................................... 7

ii

TABLE OF AUTHORITIES
(continued)
Page(s)
Other Authorities (continued)
Press Release, ProtectMarriage.com, Prop 8 Proponents to
Appeal Ninth Circuit Ruling Against Traditional
Marriage (Feb. 7, 2012),
http://www.protectmarriage.com/blog/2012/02/prop-8-proponentsto-appeal-ninth-circuit-ruling-against-traditional-marriage/ ................................ 6
YouTube, Derence Kernek and Ed Watson, Mar. 2, 2011,
http://www.youtube.com/watch?v=H8nTy0e8mj4 .............................................. 3
Carol J. Williams, Gay marriage proponent who urged halt to
Prop. 8 enforcement dies, L.A. Times, Dec. 8, 2011 ........................................... 3

iii

CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, the
undersigned states that Amicus Curiae Love Honor Cherish is not a corporation
that issues stock or has a parent corporation that issues stock.

March 9, 2012

Respectfully submitted,
ROSENFELD, MEYER & SUSMAN LLP
-andBATE, PETERSON, DEACON,
ZINN & YOUNG LLP

By: s/ Lester F. Aponte
Lester F. Aponte
Attorneys for Amicus Curiae
Love Honor Cherish

iv

STATEMENT OF INTEREST OF
AMICUS CURIAE LOVE HONOR CHERISH
This brief of amicus curiae Love Honor Cherish is submitted pursuant to
Rule 29(a) of the Federal Rules of Appellate Procedure and Ninth Circuit
Rule 29-2 with the consent of all parties to the case. Pursuant to Federal Rule of
Appellate Procedure 29(c)(5), Love Honor Cherish states that: (1) no party’s
counsel authored this brief in whole or in part; (2) no party or party’s counsel
contributed money intended to fund preparing or submitting this brief; and (3) no
person other than Love Honor Cherish, its members, or its counsel contributed
money intended to fund preparation or submission of this brief.
Founded in May 2008 to protect and defend the California Supreme Court’s
marriage equality decision, In re Marriage Cases, 43 Cal. 4th 757 (2008), Love
Honor Cherish is the leading grassroots advocate in California for marriage
equality. Its members come from all walks of life and are both gay and straight.
What unites them is a strong conviction in the fundamental equality of all of
California’s citizens regardless of sexual orientation, and a belief in the importance
of marriage equality. Love Honor Cherish worked tirelessly to defeat
Proposition 8, and, since Proposition 8’s passage, continues to advance marriage
equality through public education, community empowerment, and the political
process. Love Honor Cherish continues to take a leading role in working to change
the hearts and minds of those Californians who voted in favor of Proposition 8.
1

ARGUMENT
I.

INTRODUCTION.
The outcome of this case undoubtedly will have an extraordinary and very

personal impact on the lives of gay and lesbian Californians and their families. Yet
this case’s very pendency – and any additional delay were a rehearing to be granted
– affects them just as much. Proposition 8 continues to be enforced during the
pendency of this case. Thus, every day that this case continues deprives gay and
lesbian Californians of the ability to marry at the time of their choosing – a most
personal and life-changing choice – and to share that moment with their loved
ones.

II.

THE DELAY OCCASIONED BY REHEARING WOULD
IRREPARABLY HARM GAY AND LESBIAN COUPLES AND
THEIR FAMILIES.
Plaintiffs and Plaintiff-Intervenor have prosecuted this case diligently and

have argued emphatically for expedited consideration at every stage in this lawsuit.
Recognizing this urgency, this Court’s motions panel gave the case expedited
consideration in the same order in which it stayed enforcement of the District
Court’s injunction. (See 8/16/2010 Order, Dkt. Entry 14.) Nonetheless, almost
three years have passed since this this matter was filed in May 2009.

2

To encumber the fundamental right to marry through protracted litigation is
tantamount to depriving gay and lesbians couples of that right. For some, this
deprivation will be permanent. In the time that this litigation has been pending,
many gay and lesbian couples have quite literally not lived to see the day when
they could get married. These words are not just rhetoric.
The harm wrought by this years-long delay in resolving the status of
marriage equality is tragically illustrated by the case of Derence Kernek and Ed
Watson, a couple in their late seventies who had been in a loving relationship for
over forty years. Ed was diagnosed with Alzheimer’s disease in summer 2010, and
his mental condition was deteriorating rapidly. Derence and Ed posted a video on
the Internet in which they expressed their hope that they could be married while
Ed’s health still permitted.1 Unfortunately, Ed passed away shortly thereafter, on
December 7, 2011.2 They were never able to marry.
Undoubtedly, there are countless other loving couples like Ed and Derence
who will not be able to marry in their lifetimes – or do so in the presence of their

1

Derence and Ed’s two-minute video is available on YouTube.
http://www.youtube.com/watch?v=H8nTy0e8mj4 (last visited Mar. 7, 2012).
2

Carol J. Williams, Gay marriage proponent who urged halt to Prop. 8
enforcement dies, L.A. Times, Dec. 8, 2011, http://articles.latimes.com/2011/
dec/08/local/la-me-1209-gay-marriage-death-20111209.
3

family and friends – because of the duration of this case.3 Indeed, members of
Love Honor Cherish have experienced the heartbreak of the fact that life is not
eternal.
Further, gay and lesbian couples and their families deserve the dignity to
order and plan their lives just as much as does everyone else. Fundamental to
individual liberty and the right to marry is the right of individuals to choose when
they wish to get married. See Manwani v. U.S. Dept. of Justice, I.N.S., 736 F.
Supp. 1367, 1374 (W.D.N.C. 1990) (“A couple that abandons or delays their right
to marry suffers a deprivation of marital association that is self-evident.”). For gay
and lesbian couples in California, however, the ability to choose when they can get
married and enjoy the benefits of marriage continues to hinge on the pendency and
outcome of this litigation. The only alternative is to uproot their lives, leave
California, and move to one of the states where same-sex marriage is legal.
Whether warranted or not, hopes are raised with each favorable ruling, and
then dashed by the continuation of the appellate process and stay. As the District
Court found, “Proposition 8 results in frequent reminders for gays and lesbians in
committed long-term relationships that their relationships are not as highly valued

3

Similar cases have been reported throughout the United States. See, e.g.,
Monica Yant Kinney, Same-Sex Gains Too Late For Some, Philadelphia Inquirer,
Feb. 26, 2012, http://articles.philly.com/2012-02-26/news/31101550_1_marriageequality-gay-couples-marriage-equality.
4

as opposite-sex relationships.” Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 979
(N.D. Cal. 2010). The uncertainty occasioned by the long, winding procedural
history of this case – a seesaw of emotions – itself serves to devalue gay and
lesbian relationships.
So long as Proposition 8 remains in effect, gay and lesbian Californians will
continue to suffer the indignity of discrimination with its concomitant emotional
harm, what the Rev. Martin Luther King, Jr. called “a degenerating sense of
nobodiness.”
In deciding whether to rehear this case, the Court should consider the impact
that rehearing would have on all gay and lesbian couples and their families.

III.

THE APPELLANTS APPEAR TO HAVE EMBRACED DELAY FOR
ITS OWN SAKE.
Appellants petition this Court for rehearing en banc. Yet, at the same time,

Appellants engage in a public campaign of denigrating the very Court in which
they seek a rehearing.
Andrew Pugno, general counsel for the ProtectMarriage.com coalition and
an attorney of record for Appellants, recently stated:

5

It’s no surprise that the 9th Circuit’s decision is
completely out of step with every other federal
appellate and Supreme Court decision in
American history on the subject of marriage.
Ever since the beginning of this case, we’ve
known that the battle to preserve traditional
marriage will ultimately be won or lost not here,
but rather in the U.S. Supreme Court.4
Brian Raum, senior legal counsel for the Alliance Defense Fund and an
attorney of record for Appellants, just last month said:
We are not surprised that this Hollywoodorchestrated attack on marriage — tried in San
Francisco — turned out this way. But we are
confident that the expressed will of the American
people in favor of marriage will be upheld at the
Supreme Court. Every pro-marriage American
should be pleased that this case can finally go to
the U.S. Supreme Court.5
Similarly, John C. Eastman, chairman of the National Organization for
Marriage (which opposes marriage equality) and the principal author of amicus
briefs supporting Appellants filed by the Center for Constitutional Jurisprudence,
stated:

4

Press Release, ProtectMarriage.com, Prop 8 Proponents to Appeal Ninth
Circuit Ruling Against Traditional Marriage (Feb. 7, 2012),
http://www.protectmarriage.com/blog/2012/02/prop-8-proponents-to-appeal-ninthcircuit-ruling-against-traditional-marriage/ (last visited Mar. 7, 2012). 
5

Press Release, Alliance Alert, ADF comment on 9th Circuit decision in
Perry v. Brown (Feb. 7, 2012), http://www.alliancealert.org/
2012/02/07/adf-comment-on-9th-circuit-decision-in-perry-v-brown-ca-prop-8/ (last
visited Mar. 7, 2012).
6

The Ninth Circuit Court of Appeals is the most
overturned circuit in the country, and Judge
Stephen Reinhardt, the author of today’s absurd
ruling is the most overturned federal judge in
America. Today’s ruling is a perfect setup for
this case to be taken by the U.S. Supreme Court,
where I am confident it will be reversed. 6
There is a plain contradiction between Appellants’ request for rehearing and
Appellants’ public statements about this Court. Given the Appellants’
proclamations that these proceedings are a mere prelude to going to the United
States Supreme Court, why did Appellants not immediately file a petition for
certiorari? The petition for rehearing en banc thus raises the unmistakable
inference that Appellants have embraced delay for its own sake.
The mere filing of the petition all but guarantees that the United States
Supreme Court will not be able to grant or deny a petition for certiorari prior to the
close of its current term. By prolonging this litigation even further, Appellants –
four California voters who are not State officials and who are accountable to no
one – have been able to perpetuate the harmful denial of equal dignity under the

6

Press Release, National Organization for Marriage (“NOM”) Blog, NOM
Condemns Ninth Circuit Ruling Finding Prop 8 Unconstitutional, Imperiling the
Marriage Laws of 43 states: Group will support efforts to take the issue to the US
Supreme Court (Feb. 7, 2012), http://www.nomblog.com/18991/ (last visited
Mar. 7, 2012). Mr. Eastman’s Center for Constitutional Jurisprudence filed its
amicus brief on September 24, 2010. (Dkt. Entry 63). 
7

law that Proposition 8 has inflicted upon gay and lesbian Californians and their
families.

CONCLUSION
Love Honor Cherish thus files this amicus brief in support of those
individuals whose rights are being denied while this litigation proceeds and, in
their name, respectfully requests that the Ninth Circuit forgo an en banc rehearing
to ensure a more timely resolution of this litigation.

March 9, 2012

Respectfully submitted,
ROSENFELD, MEYER & SUSMAN LLP
-andBATE, PETERSON, DEACON,
ZINN & YOUNG LLP
By: s/ Lester F. Aponte
Lester F. Aponte
Attorneys for Amicus Curiae
Love Honor Cherish

8

CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32 and Ninth Circuit
Rule 29-2(c)(2), the undersigned certifies that this amicus curiae brief is
proportionally spaced, has a typeface of 14 points or more, and does not exceed 15
pages.

March 9, 2012

Respectfully submitted,
ROSENFELD, MEYER & SUSMAN LLP
-andBATE, PETERSON, DEACON,
ZINN & YOUNG LLP

By: s/ Lester F. Aponte
Lester F. Aponte
Attorneys for Amicus Curiae
Love Honor Cherish

9

9th Circuit Case Number(s) 10-16696, 11-16577
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United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
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Mar 9, 2012
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Service List
Anthony R. Picarello, Jr.
UNITED STATES CATHOLIC
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COLUMBUS SCHOOL OF LAW
The Catholic University of America
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HAUSFELD LLP
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