Perry et al v. Schwarzenegger et al

Filing 151

CASE MANAGEMENT STATEMENT filed by Campaign for California Families. (McAlister, Mary) (Filed on 8/17/2009)

Perry et al v. Schwarzenegger et al

Doc. 151

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R E N A M. LINDEVALDSEN* M A R Y E. MCALISTER C a lifornia Bar No. 148570 L IBE RT Y COUNSEL P .O . Box 11108 L ynchbu rg, VA 24506 (4 3 4 ) 592-7000 Telephone (4 3 4 ) 592-7700 Facsimile co u r t@ lc.o rg Email Attorneys for Prospective Intervenor *A d m itte d pro hac vice MATHEW D. STAVER* LIBERTY COUNSEL P .O . Box 540774 O r la ndo, FL 32854 (8 0 0 ) 671-1776 Telephone (4 0 7 ) 875-0770 Facsimile co u r t@ lc.o rg Email Attorney for Prospective Intervenor *Pr o hac vice application filed simultaneously UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION K R I S T I N M. PERRY, SANDRA B. STIER, PAUL T. C as e No.09-CV 02292 VRW K A T A M I, and JEFFREY J. ZARRILLO, PR O PO S E D D E FE N D AN T P la intiffs I N T E R V E N O R CAM P A I G N v. FOR CALIFORNIA FAMILIES' CASE A R N O L D SCHWARZENEGGER, in his official capacity as M AN AGEM E N T STATEM E N T G overno r of California; EDMUND G. BROWN, JR., in his officia l capacity as Attorney General of California, MARK B. H O R T O N , in his official capacity as Director of the California D epa rtm ent of Public Health and State Registrar of Vital D a te: A u gu st 19, 2009 S ta tistics; LINETTE SCOTT, in her official capacity as Deputy T im e : 1 0 :0 0 Am D irector of Health Information & Strategic Planning for the J u dge: C hief Judge Vaughn R. C a l i fo r n i a Department of Public Health; PAT R I C K W a lk er O 'C O N N E L L , in his official capacity as Clerk-Recorder for the L oca tion: Courtroom 6,17 th Floor C ou n ty of Alameda; and DEAN C. LOGAN, in his official ca pa city as Registrar-Recorder/ County Clerk for the County of L os Angeles, D efenda nts. a nd PROPOSITION 8 OFFICIAL PROPONENTS DENNIS H O L L IN G S W O R T H , GAIL J. KNIGHT, MARTIN F. G U T I E R R E Z , HAK-SHING WILLIAM TAM, and MARK A. J A N S S O N ; andPROTECTMARRIAGE.COM-YES ON 8, A P R O J E C T OF CALIFORNIA RENEWAL, Intervenor-Defendants. _ _ _ _ _ _ ___ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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In accordance with F.R.Civ. P. 16 ( c)(2) and this Court's August 12, 2009 Order (Docket # 1 4 1 ), Proposed Intervenor-Defendant Campaign for California Families (the "Campaign") submits the following Case Management Statement: I. ELEM E N T S OF THE PARTIES' CLAIMS P la intiffs seek declaratory and injunctive relief under 42 U.S.C. §1983. Plaintiffs claim that defining marriage as the union of one man and one woman, as stated in Cal. Const. Art. I §7.5 (" P roposition 8") and incorporated in various California statutes, violates the due process and equal pr otectio n clauses of the Fourteenth Amendment to the United States Constitution. 1. Elements of Plaintiffs' Due Process Claim:

C onsistent with the substantive due process inquiry set forth in Washington v. Glucksberg, 521 U.S. 702, 721, 723 (1997), the following are the specific elements of Plaintiffs' Due Process claim and P rop osed Intervenor's position on each element: · W hether a concrete and particularized description of the liberty interest asserted in this ca se is the right to same-sex marriage or marriage. (Proposed Intervenor maintains that P la intiffs' asserted right is to same-sex marriage, not marriage.) · W hether the asserted right is an enumerated right in the Constitution. If it is, it is a fu nd a m enta l right. (Proposed Intervenor maintains that it is not an enumerated right.) · If the asserted right is not enumerated in the Constitution, then the Court must determine whether same-sex marriage is deeply rooted in this Nation's history and tradition, and im plicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. (Proposed Intervenor maintains that it is not.) · O nce it is determined that strict scrutiny is inapplicable, Plaintiffs can only succeed on their claim if they can prove it is irrational for California to continue to define marriage a s the union of one man and one woman. (Proposed Intervenor maintains that C a lifornia 's continued definition of marriage as the union of one man and one woman is reasonable and has a rational basis.) · If this Court determines that strict scrutiny applies, Plaintiffs would succeed on their cla im unless defendants can prove that California laws defining marriage as the union T he Campaign's Case Management Statement ­ Case No. 09-CV-02292 VRW 1

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o f one man and one woman serve a compelling state interest and that the marriage laws a re narrowly tailored to accomplish those interests. (Proposed Intervenor maintains that C a lifor nia 's marriage laws survive strict scrutiny.) E le m e n t s of Plaintiffs' Equal Protection Claim:

Consistent with Supreme Court precedent, the following are the specific elements of Plaintiffs' equ a l protection claim and Proposed Intervenor's position on each element: · T ha t same-sex couples are similarly situated to opposite-sex couples for purposes of pa rticipa ting in the institution of marriage. (Proposed Intervenor maintains that P la intiffs cannot make this showing and thus the equal protection claim fails.) If Plaintiffs can make the similarly situated showing, California's marriage laws will be reviewed under the rational basis standard unless Plaintiffs can show that the m a rria ge laws burden either a fundamental right or target a suspect class. For the rea sons set forth above in the due process discussion, Proposed Intervenor maintains that the marriage laws do not burden a fundamental right. To succeed on their claim that the m a r ria g e laws target a suspect class, Plaintiffs must show: · T ha t same-sex couples are similarly situated to opposite-sex couples for pu rposes of participating in the institution of marriage but are denied the right to marry solely on the basis of their sex (Proposed Intervenor maintains that P la intiffs cannot demonstrate that the marriage laws discriminate on the basis of sex); and/or · T ha t same-sex couples are similarly situated to opposite-sex couples for pu rposes of participating in the institution of marriage but are denied the right to marry solely on the basis of their sexual orientation and that sexual or ienta tio n is a suspect class. To establish that sexual orientation is a suspect cla ss, Plaintiffs must establish: · A definition of sexual orientation that can be used to classify a group of people based on characteristics that are readily identifiable and narrow enou g h to identify a subset of the human population. (Proposed T he Campaign's Case Management Statement ­ Case No. 09-CV-02292 VRW 2

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Intervenor maintains that Plaintiffs cannot establish a workable definition of sexual orientation for purposes of an equal protection a n a l y si s) . T ha t there is a history of invidious discrimination based on sexual orienta tion (Proposed Intervenor disputes that invidious discrimination ha s taken place consistently or in a widespread fashion based on sexual o rien ta tio n such as took place in this Nation based on race and gender; Proposed Intervenor further adds that there is no widespread invidious discrim ina tion at present and the definition of marriage as the union of one man and one woman does not discriminate on the basis of sexual o r i e n ta t i o n ) ; T ha t sexual orientation does not affect one's ability to contribute to society (Proposed Intervenor contends that sexual orientation is relevant to the ability to procreate and raise children); T ha t sexual orientation is immutable or beyond the individuals' control (P rop osed Intervenor maintains that sexual orientation is not immutable, is hard to even define, is fluid in nature, and unlike other protected ca tegories); and T ha t homosexauls lack political power (Proposed Intervenor maintains th a t homosexuals do not lack political power). I f Plaintiffs fail to show that sexual orientation is a suspect class, that the marriage laws discrim ina te based on sex, or that same-sex marriage is a fundamental right, then Pla intiffs will have to establish that defining marriage as the union of one man and one wom a n is not rationally related to a legitimate state interest. (Proposed Intervenor m a in ta in s that Plaintiffs cannot make this showing). If same-sex couples are similarly situated to opposite-sex couples for purposes of pa rticipa ting in the institution of marriage but they are denied access to the institution of marriage either because same-sex marriage is a fundamental right or sexual T he Campaign's Case Management Statement ­ Case No. 09-CV-02292 VRW 3

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orienta tion is a suspect classification, then the marriage laws will be struck down unless C a liforn ia has a compelling interest for the laws and the laws are narrowly tailored to a chieve those interests. (Proposed Intervenor maintains that the marriage laws would su r viv e strict scrutiny). If same-sex couples are similarly situated to opposite-sex couples for purposes of pa rticipa ting in the institution of marriage but they are denied access to the institution of marriage based solely on gender, then the marriage laws will be struck down unless C a lifornia has important governmental interests for the laws and there is a close rela tionship between the laws and state's interests. (Proposed Intervenor maintains that the marriage laws would survive heightened scrutiny). II. FACTUAL ADM I S SI O N AND STIPULATIONS: It is unlikely that the parties will be able to reach agreement on most of the operative facts in the parties' claims and defenses. However, the Campaign believes that the parties can reach agreement on some of the preliminary facts, including: · T ha t the text of Proposition 8 is "Only marriage between one man and one woman is va lid or recognized in California." T ha t Proposition 8 was approved by California voters on November 4, 2008; T ha t Proposition 8 went into effect on November 5, 2008; T ha t Proposition 22 enacted in 2000 and designated as Family Code § 308.5 contained the same 14 words as does Proposition 8, i.e., "Only marriage between one man and one w om a n is valid or recognized in California." T he language contained in the title, summary and ballot arguments for Proposition 8.; T h a t from the beginning of California statehood until the decision of the Supreme Court of California on May 15, 2008, In re Marriage Cases, 43 Cal.4th 757 (2008), m a rria ge in California was defined as the union of one man and one woman. T ha t since November 5, 2008 marriage in California is defined as the union of one man a nd one woman; T ha t the statement that marriage is the union of one man and one woman does not 4

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inclu de a statement regarding relative roles of the sexes in the marriage; T ha t the statement that marriage is the union of one man and one woman does not inclu de a reference to the sexual orientation of either of the parties; T ha t California Family Code §2200 provides: "Marriages between parents and ch ild ren , ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitim a te or illegitimate." T ha t California Family Code§ 2201 provides: (a) A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other tha n the former husband or wife, is illegal and void from the beginning, unless:(1) The form er marriage has been dissolved or adjudged a nullity before the date of the su bsequ ent marriage.(2) The former husband or wife (i) is absent, and not known to the person to be living for the period of five successive years immediately preceding the su b sequ ent marriage, or (ii) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted.(b) In either of the cases described in pa ra gra ph (2) of subdivision (a), the subsequent marriage is valid until its nullity is a dju dged pursuant to subdivision (b) of Section 2210. ANTICIPATED DISCOVERY: T he Campaign anticipates the following fact discovery: · C ontention interrogatories from the Plaintiffs to identify relevant documents and w itnesses to support the allegations of their Complaint; D epositions of the Plaintiffs and of the witnesses identified in the responses to contention interr oga tories; C ontention interrogatories to the Attorney General's office to identify relevant docu m ents and witnesses related to preparation of the title and summary for Proposition 8; D epositions of the witnesses identified by the Attorney General's office regarding

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prepa ra tion of the title and summary for Proposition 8; D epositions of the Intervenor-Defendants regarding the genesis of Proposition 8, its pr edecessor amendments, preparation of ballot arguments and the campaign to enact P roposition 8; D eposition and document production from the Campaign's Executive Director rega rding the history of efforts to maintain the definition of marriage as the union of one m a n and one woman; Iden tifica tion and deposition of witnesses other than same-sex couples who have been u na ble to marry because they do not meet the age, consanguinity or other requirements besides being members of the opposite sex; T o the extent Plaintiffs are permitted to pursue their allegation that the marriage laws reflect animus toward homosexuals, depositions and document production from Pla intiffs, the Campaign's Executive Director, Intervenor-Defendant, and others who su pported Proposition 8 concerning the alleged animus. (Proposed Intervenor maintains tha t proof of animus is not a separate basis for finding an equal protection violation but, r a th er , is a conclusion reached in prior decisions after the courts concluded that there w a s no conceivable legitimate interest for the challenged laws). A N T I C I P A T E D EXPERT DISCOVERY: T he Campaign anticipates the following expert discovery: · T estim ony from historians regarding the definition of marriage as the union of one man a nd one woman as predating the founding of California and continuing since that time; T estim ony from legal historians regarding the changes in property and contract rights a nd the removal of extraneous restrictions upon marriage as the union of one man and on e woman and whether those changes have affected the underlying nature of marriage; T estim ony from psychiatrists and psychologists and sociologists regarding longesta blished, empirically valid studies regarding whether homosexuality is an immutable t r a i t; T estim ony from psychiatrists and psychologists regarding the definition of "sexual

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o r i e n t a t io n ; " T estim ony from child development experts regarding empirically valid studies and sta tistics regarding the effects of various family structures on the physical, psychological a nd social development of children; T estim ony from sociologists, anthropologists, or other social science professionals rega rding empirically valid research regarding the ubiquity of the definition of marriage a s the union of one man and one woman throughout human society; T estim ony from social science researchers regarding empirically valid studies of the effects that changing the definition of marriage from the union of one man and one wom a n has had on the institution of marriage and on society in other states and cou ntries that have changed the definition; T estim ony from social science researchers regarding empirically valid studies describing h om o sex u a ls' political power; T estim ony from social science researchers regarding empirically valid studies describing the nature and history of any constitutionally significant discrimination against h o m o sex u a l s; T estim ony from legal experts regarding the rights, obligations and benefits available u nder state law to same-sex couples in AB205 domestic partnerships vis-a-vis the rights, ob liga tions and benefits available under state law to married couples.

SC H E D U L IN G The Campaign recognizes the Plaintiffs' desire for an expeditious resolution of this case and has

r e v i e w e d the Plaintiffs' proposed schedule for discovery and trial. While expeditious resolution is certa inly desirable, it should not be done at the expense of compromising development of a complete evid entia ry record and thorough analysis of the issues. As the Court has recognized, this case raises sign ifica nt issues, the resolution of which will have wide-ranging and lasting consequences that reach beyond the parties to this litigation. Consequently, it is important to develop a reasonable schedule that does not unnecessarily delay resolution of the case but also does not restrict the parties' ability to create

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the evidence and legal analysis necessary to provide this Court with the information it needs to make a reasoned decision. The Campaign agrees with the Intervenor-Defendants that many of the issues raised by the pa rties can be resolved through dispositive motions that would narrow the issues for an eventual trial a nd respectfully suggests that the Court consider including dispositive motions in its case management pla n. The Campaign also respectfully suggests that the Plaintiffs' proposal for a trial in December 2 0 0 9 is not reasonable in light of the circumstances of this case and the amount of discovery and pretrial prepa ra tion that will be necessary. The schedule should not prejudice any party's ability to complete necessa ry discovery and trial preparation in the interest of speed. While the Campaign will comply with whatever deadlines are imposed by the Court, it would lik e to suggest that if a trial is to be conducted, then it be scheduled for sometime in the first quarter of 2 0 1 0 . Discovery and dispositive motions could be completed in the last quarter of 2009 and preparation a nd trial of the remaining issues could be completed in the first quarter of 2010. D a ted: August 17, 2009. R espectfu lly Submitted, M A T H E W D. STAVER* LIBERTY COUNSEL P .O . Box 540774 O r la ndo, FL 32854 (8 0 0 ) 671-1776 Telephone (4 0 7 ) 875-0770 Facsimile co u r t@ lc.o rg Email Attorney for Prospective Intervenor *Pr o hac vice application pending s/ Rena M. Lindevaldsen R E N A M. LINDEVALDSEN* M A R Y E. MCALISTER C a lifornia Bar No. 148570 L IBE RT Y COUNSEL P .O . Box 11108 L ynchbu rg, VA 24506 (4 3 4 ) 592-7000 Telephone (4 3 4 ) 592-7700 Facsimile co u r t@ lc.o rg Email Attorneys for Prospective Intervenor *A d m itte d pro hac vice

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P R O O F OF SERVICE I am employed at the law firm of Liberty Counsel. I am over the age of 18 and not a party to the within action. My business address is 100 Mountain View Road, Suite 2775, Lynchburg, V irginia 24502. O n August 17 , 2009 I served the foregoing document described as: Proposed Intervenor's Case Management Statement on the below-listed parties in this action by the method stated. I presented the foregoing to the Clerk of the Court for filing and uploading via the CM/ECF system of the United States District Court, Southern District of California, which will send a notice of electronic filing to the attorneys named on the attached Service List. E xecu ted on August 17, 2009, at Lynchburg, Virginia. I declare under penalty of perjury under the laws of the United States of America and State of C a liforn ia that the above is true and correct.

/s/M a ry E. McAlister M a ry E. McAlister

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 T heodore B. Olson M a tthew C. McGill A m ir C. Tayranit G IB S O N , DUNN & CRUTCHER, LLP 1 0 5 0 Connecticut Avenue, NW W a shington, D.C. 20036 (2 0 2 ) 955-8668 t o l s o n @ g i b so n d u n n . c o m T h eo do re J. Boutrous, Jr. C hristopher D. Dusseault Ethan D. Dettmer T hea ne Evangelis Kapur E nriqu e A. Monagas G IB S O N , DUNN & CRUTCHER, LLP 3 3 3 S. Grand Avenue L os Angeles, CA 90071 (2 1 3 ) 229-7804 t b o u t r o u s @ g i b so n d u n n . c o m D a vid Boies T heodore H. Uno B O IE S, SCHILLER & FLEXNER, LLP 3 3 3 Main St A rm onk , NY 10504 (9 1 4 ) 749-8200 dboies@ bsfllp.com A t to r n e y s for Plaintiffs

S E R V I C E LIST

T im o th y Chandler ALLIANCE DEFENSE FUND 1 0 1 Parkshore Dr, Suite 100 F olsom , CA 95630 (9 1 6 ) 932-2850 tch a n dler @ tella d f.o rg Andrew P. Pugno L A W OFFICES OF ANDREW P. PUGNO 1 0 1 Parkshore Dr, Suite 100 F olsom , CA 95630 (9 1 6 ) 608-3065 a n d r ew @ p u g n o la w . c o m B enja m in W. Bull B ria n W. Raum J a m es A. Campbell ALLIANCE DEFENSE FUND 1 5 1 0 0 N. 90 th St. S cottsda le, AZ 85260 (4 8 0 ) 444-0020 b bu ll@ tella d f.o rg b ra u m @ tella d f.o rg jca m p b le@ tella d f.o rg A tto r n e y s for Proposition 8 Official Proponent I n t e r v e n o r Defendants E d m u n d G. Brown, Jr. A ttorn ey General of California J on a tha n K. Renner S enior Assistant Attorney General T a m a r Pachter D epu ty Attorney General 4 5 5 Golden Gate Ave, Suite 11000 S a n Francisco, CA 94102-7004 (4 1 5 ) 703-5970 T a m a r .P a ch ter @ d o j.ca .g o v Atto r ne ys for Defendant Attorney General E d m u n d G. Brown Jr.

K enn eth C. Mennemeier Kelcie M. Gosling L a nd on D. Bailey M E N N E M E IE R , GLASSMAN & STROUD, LLP 9 8 0 9 TH St, Suite 1700 S a cra m ento, CA 95814-2736 (9 1 6 ) 553-4000 k c m @ m g sl a w . c o m A t to r n e y s for Administration Defendants

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E liza beth M. Cortez Assistant County Counsel J u dy W. Whitehurst Principal Deputy County Counsel O F F IC E OF THE COUNTY COUNSEL 6 4 8 Kenneth Hahn Hall of Administration 5 0 0 W. Temple St. Los Angeles, CA 90012-2713 (2 1 3 ) 974-1845 j w h i t e h u r s t @ c o u n se l . l a c o u n t y . g o v A tto r n e y s for Defendant Dean C. Logan

Richard E. Winnie C ou nty Counsel C la u de F. Kolm D epu ty County Counsel B ria n E. Washington A ssista nt County Counsel L in dsey G. Stern A ssocia te County Counsel O F F IC E OF THE COUNTY COUNSEL C ou nty of Alameda 1 2 2 1 Oak St. Suite 450 O a k la nd , CA 94612 (5 1 0 )2 7 2 -6 7 0 0 c l a u d e . k o l m @ a c g o v .o r g A tt o r n e ys for Defendant Patrick O'Connell

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