Perry et al v. Schwarzenegger et al

Filing 567

Brief re #566 Amended MOTION to File Amicus Curiae Brief AMENDED MOTION FOR LEAVE TO FILE AN AMICI CURIAE BRIEF BY THE ASIAN LAW CAUCUS, ASIAN AMERICAN JUSTICE CENTER, ASIAN PACIFIC AMERICAN BAR ASSOCIATION OF LOS ANGELES COUNTY, ASIAN PACIFIC AMERICAN LEGAL CENTE filed byASIAN AMERICAN JUSTICE CENTER, ASIAN PACIFIC AMERICAN BAR ASSOCIATION OF LOS ANGELES COUNTY, ASIAN PACIFIC AMERICAN LEGAL CENTER, ASIAN PACIFIC BAR ASSOCIATION OF SILICON VALLEY, Asian Law Caucus, Asian Pacific Islander Legal Outreach, Bienestar Human Services, California State Conference of the NAACP, Coalition for Humane Immigrant Rights, Japanese American Bar Association, La Raza Centro Legal, Mexican American Legal Defense And Education Fund, National Black Justice Coalition, South Asian Bar Association of Northern California, Zuna Institute. (Attachments: #1 Supplement Addendum A)(Related document(s) #566 ) (Obstler, Peter) (Filed on 2/3/2010)

Perry et al v. Schwarzenegger et al

Doc. 567

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BINGHAM MCCUTCHEN LLP Peter Obstler (SBN 171623) - [e-mail] Jee Young You (SBN 241658) - [e-mail] John Polito (SBN 253195) - [e-mail] Lucy Wang (SBN 257771) - [e-mail] Suneeta Fernandes (SBN 257772) - [e-mail] Perry Grossman (SBN 260570) - [e-mail] Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: [phone] Facsimile: 415.393.2286 Attorneys for Amici Curiae UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O'CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS

No. 09-CV-2292 VRW AMENDED BRIEF IN SUPPORT OF PLAINTIFFS BY AMICI CURIAE ASIAN LAW CAUCUS, ASIAN AMERICAN JUSTICE CENTER, ASIAN PACIFIC AMERICAN BAR ASSOCIATION OF LOS ANGELES COUNTY, ASIAN PACIFIC AMERICAN LEGAL CENTER, ASIAN PACIFIC BAR ASSOCIATION OF SILICON VALLEY, ASIAN PACIFIC ISLANDER LEGAL OUTREACH, BIENESTAR HUMAN SERVICES, CALIFORNIA STATE CONFERENCE OF THE NAACP, COALITION FOR HUMANE IMMIGRANT RIGHTS, JAPANESE AMERICAN BAR ASSOCIATION, LA RAZA CENTRO LEGAL, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, NATIONAL BLACK JUSTICE COALITION, SOUTH ASIAN BAR ASSOCIATION OF NORTHERN CALIFORNIA AND ZUNA INSTITUTE Judge: Dept.: Chief Judge Vaughn R. Walker Courtroom 6, 17th Floor

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Dockets.Justia.com

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DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, Defendant-Intervenors.

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TABLE OF CONTENTS Page STATEMENT OF INTEREST OF AMICI ................................................................................... 1 I. INTRODUCTION AND SUMMARY OF ARGUMENTS .............................................. 1 II. THE DETERMINATION OF POLITICAL POWERLESSNESS REQUIRES AN EXAMINATION OF A COMPENDIUM OF MANY FACTORS, NO ONE OF WHICH IS DISPOSITIVE ................................................................................................ 3 A. The Political Powerlessness Inquiry Should Draw on a Compendium of Factors .................................................................................................................... 4 B. Inability to Muster Political Support is Not a Prerequisite for Political Powerlessness......................................................................................................... 6 C. Isolated Legislative Gains By Gay Men and Lesbians Are Not Dispositive of the Extent to Which This Minority Is Politically Powerless So As To Warrant Heightened Scrutiny of Proposition 8...................................................... 8 III. THE NATURE, HISTORY AND CIRCUMSTANCES OF THE PREJUDICE AGAINST GAY MEN AND LESBIANS ESTABLISHES THAT THE COURT SHOULD EVALUATE PROPOSITION 8 UNDER HEIGHTENED SCRUTINY......... 9 A. Gay Men and Lesbians Are Underrepresented in Government ............................. 9 B. Gay Men and Lesbians Are the Victims of Political Backlash............................ 11 C. Discrimination Deters Many Gay Men and Lesbians From Political Activism ........................................................................................................................ 12 D. Recent Legislation Protecting Rights of Gay Men and Lesbians Are Dwarfed by the Inequalities They Face Daily...................................................... 13 IV. CONCLUSION ................................................................................................................ 15

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TABLE OF AUTHORITIES Page

Casteneda v. Partida, 430 U.S. 482 (1977) .................................................................................................................. 5 City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432 (1985) ...................................................................................................... 2, 5, 6, 7 Foley v. Connelie, 435 U.S. 291 (1978)................................................................................................................. 2, 5 Frontiero v. Richardson, 411 U.S. 677 (1973) ......................................................................................................... passim Golinski v.U.S. Office of Personnel Mgmt., Case No. 10-cv-00257, Dkt No. 1 (N.D. Cal. Jan 20, 2010) .................................................... 9 In re Golinski, 587 F.3d 956 (9th Cir. 2009)................................................................................................. 8, 9 J.E.B. v. Alabama, 511 U.S. 127 (1994) .................................................................................................................. 7 Loving v. Virginia. 388 U.S. 1 (1967) ......................................................................................................................... 6 San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973).................................................................................................... 1 United States v. Broussard, 987 F.2d 215 (5th Cir. 1993)..................................................................................................... 7 United States v. Carolene Prod. Co., 304 U.S. 144 (1938) .............................................................................................................. 2, 4 United States v. Virginia, 518 U.S. 515 (1996) .................................................................................................................. 5 Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989)..................................................................................................... 9 STATE CASES Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ........................................................................................................ 12 ii
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TABLE OF AUTHORITIES (continued) Page Goodrich v. Dep't of Public Health, 798 N.E. 2d 941 (Mass. 2003) .......................................................................................... 11, 12 Lewis v. Harris, 908 A.2d 196 (N.J. 2006).......................................................................................................... 8 FEDERAL STATUTES 10 U.S.C. § 654(b) ........................................................................................................................ 14 STATE STATUTES Ark. Code Ann. § 9-8-304 ............................................................................................................ 14 Fla. Stat. § 63.042(3)..................................................................................................................... 14 Miss. Code Ann. § 93-17-3(5) ...................................................................................................... 14 N.J. Stat. § 37:1-28(e) ..................................................................................................................... 8 N.J. Stat. § 37:1-36(a) ..................................................................................................................... 8 Utah Code Ann. § 78B-6-117 ....................................................................................................... 14 OTHER AUTHORITIES 2004 Republican Party Platform: A Safer World and a More Hopeful America, available at http://www.presidency.ucsb.edu/papers_pdf/25850.pdf..................................................... 12 Bruce A. Ackerman, Beyond "Carolene Products," 98 Harv. L. Rev. 713 (1985) .................. 4, 12 M. V. Lee Badgett et al., The Williams Institute, Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination .................................... 13 Charles E. Beggs, Gay Issue Will Arise in Court Race, AP Newswires, Mar. 21, 2004 .............. 10 Karen Breslau, A Rising Tide, Rocking Boats: The Politics of Gay Marriage Roil Oregon's Electoral Terrain, Newsweek, May 17, 2004......................................................... 10 Guido Calabresi, Antidiscrimination and Constitutional Accountability (What the BorkBrennan Debate Ignores), 105 Harv. L.Rev. 77 (1991) ................................................... 8 S.W. Cole et al., Elevated Physical Health Risk Among Gay Men Who Conceal Their Homosexual Identity, Health Psychol. 243 (1996).................................................................. 13 First Interim Report of the New Jersey Civil Union Review Commission (2008), available at http://www.state.nj.us/lps/dcr/downloads/1st-InterimReport-CURC.pdf............................. 8 iii
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TABLE OF AUTHORITIES (continued) Page Gary J. Gates et al., The Williams Institute & The Urban Institute, Adoption and Foster Care by Gay and Lesbian Parents in the United States (2007) .............................................. 14 Gary J. Gates, The Williams Institute, Same-Sex Couples and the Gay, Lesbian, Bisexual Population: New Estimates from the American Community Survey (2006)........................ 12 Gay & Lesbian Victory Fund and Leadership Institute, 2008 Annual Report, available at http://www.victoryfund.org/files/ victory_annual_08.pdf ...................................................... 10 Ruth Bader Ginsburg, Ratification of the Equal Rights Amendment, 57 Tex. L. Rev. 919 (1979) ........................................................................................................................................ 7 Naomi G. Goldberg & M.V. Lee Badgett, The Williams Institute, Tax Implications for Same-Sex Couples (2009) ....................................................................................................... 15 Human Rights Campaign, Michigan Adoption Law (last updated Dec. 9, 2009)......................... 14 Human Rights Campaign, Parenting Laws: Joint Adoption and Second-Parent Adoption (2009) ...................................................................................................................................... 14 Kaiser Family Foundation Study, Inside OUT: A Report on the Experiences of Lesbians, Gays and Bisexuals in America and the Public's View on Issues and Policies Related to Sexual Orientation (2001) ............................................................................... 13 Esther Kaplan, Onward Christian Soldiers: The Religious Right's Sense of Siege is Fueling a Resurgence, The Nation, July 5, 2004.................................................................... 11 Eric Lichtblau, Justice Dept. Bans Event By Gay Staff, New York Times, June 6, 2003 ............ 13 Lambda Legal and Deloitte Financial Advisory Services LLP, 2005 Workplace Fairness Survey (2006) .................................................................................................................... 13, 14 Lambda Legal, Lambda Legal Goes Back To Court in NJ, Jan. 7, 2010, available at http://www.lambdalegal.org/publications/articles/ fa_20090107_nj-legislature-failsmarriage-equality-lambda-legal-back-to-court.html ................................................................. 8 Michael J. Klarman, Brown and Lawrence (And Goodridge), 104 Mich. L. Rev. 431 (2005) ................................................................................................................................ 11, 12 National Conference of State Legislatures (NCSL), Legislators, Number, Terms of Office, Next Election (2007), http://www.ncsl.org/default.aspx?tabid=17273................................... 10 Press Release, American Civil Liberties Union, ACLU Urges Kansas Public Library Not to Censor Employee for Discussing Historic Sodomy Ruling. July 16, 2003, available at http://www.aclu.org/free-speech/aclu-urges-kansas-public-library-not-censoremployee-discussing-historic-sodomy-ruling. ........................................................................ 13 iv
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TABLE OF AUTHORITIES (continued) Page Steve Schmadeke, Gay, Lesbian Judges in Cook County Note Their Progress, Chicago Tribune, Dec. 6, 2009.............................................................................................................. 10 The California Legislative Lesbian, Gay, Bisexual, & Transgender (LGBT) Caucus, http://www.assembly.ca.gov/LGBT_Caucus/ (last updated Jan. 28, 2008) ........................... 10 U.S. Gen. Acct'g Office, GAO-04-353R, Defense of Marriage Act: Update to Prior Report (2004) .......................................................................................................................... 14 Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell," 108 Yale L.J. 485 (1998) ............................................ 13 Kenji Yoshino, Covering, 111 Yale L.J. 769 (2002)............................................................................12

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STATEMENT OF INTEREST OF AMICI1 The Asian Law Caucus, Asian American Justice Center, Asian Pacific American Bar Association of Los Angeles County, Asian Pacific American Legal Center, Asian Pacific Bar Association of Silicon Valley, Asian Pacific Islander Legal Outreach, Bienestar Human Services, California State Conference of the NAACP, Coalition for Humane Immigrant Rights, Japanese American Bar Association, La Raza Centro Legal, Mexican American Legal Defense and Education Fund, National Black Justice Coalition, South Asian Bar Association of Northern California and Zuna Institute (collectively "Amici") respectfully submit this "Friend of the Court Brief" in the above captioned case (the "Action") to assist the Court in determining the extent to which the wide-spread prejudice against gay men and lesbians obstructs political processes traditionally available to protect minorities from discrimination so as to warrant increased judicial scrutiny of whether Proposition 8 violates the federal Equal Protection Clause. Amici are a broad and diverse array of civil rights organizations dedicated to eliminating discrimination against minorities, including practices and laws that seek to discriminate based on race, ethnicity, national origin, gender and sexual orientation. In so doing, Amici strive to ensure equal rights for all Americans by advocating on behalf of the interests of the diverse groups who contribute to the pluralistic character of our great nation.

I.

INTRODUCTION AND SUMMARY OF ARGUMENTS In this brief, Amici examine the narrow but important issue of whether the long-held ani-

mus and discrimination directed against gay men and lesbians prevent this group from seeking recourse in traditional political processes so as to warrant heightened judicial scrutiny of Proposition 8 or other discriminatory governmental action because gay men and lesbians, like other protected minority groups, are "politically powerless." That examination suggests that the answer is "yes." Political powerlessness is one of many "traditional indicia of suspectness" used to determine the level of scrutiny applied by courts in evaluating the constitutionality of disparate
More detailed statements of interest for each amicus curiae are attached hereto at Addendum A.
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government treatment of minorities. See San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). Political powerlessness rests on the fundamental notion that deep-seated and longstanding prejudices towards certain groups impede their ability to rely on political processes. See United States v. Carolene Prod. Co., 304 U.S. 144, 152 n.4 (1938). As such, the relevant inquiry is to examine the nature, history and circumstances of the disparate treatment and prejudice against minorities through a broad and empirical data-driven analysis of the extent to which political processes fail to protect minorities from disparate treatment. Narrowing the definition of and inquiry into political powerlessness, including Defendants' argument that this Court should only examine whether a minority group can attract the attention of lawmakers (the "Attention Test"), is unworkable and runs afoul of more than 70 years of Equal Protection jurisprudence. Indeed, the Attention Test urged by Defendants would threaten the well-established protected status afforded many minorities under the Equal Protection Clause, all of whom have demonstrated a historical and present ability to get the "attention of lawmakers." A finding that the mere ability to attract the attention of lawmakers is, by itself, sufficient to prevent protected minorities from receiving heightened judicial scrutiny would eliminate suspect classifications for all persons under the Equal Protection Clause. In this respect, gay men and lesbians are no different than any other group who, in the face of societal discrimination, should be entitled to demonstrate through empirical evidence that homophobic prejudice, like racism or sexism, has curtailed their ability to rely on political processes to protect them from state actions motivated by bias, hate and prejudice. See Carolene Prod., 304 U.S. at 152 n.4; see also Frontiero v. Richardson, 411 U.S. 677, 686 n.17 (1973) (Brennan, J., plurality opinion) (examining representation of women in "decisionmaking councils" as a measure of political power); Foley v. Connelie, 435 U.S. 291, 294 (1978) (examining aliens' inability to vote as a measure of political power); cf. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 445 (1985) (examining the mentally handicapped group's "ability to attract the attention of the lawmakers" as a measure of political power). In this Action, an examination of the nature, history and circumstances of the discrimination faced by gay men and lesbians reveals that their participation in the political process has
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been systemically impeded in at least four ways: First, gay men and lesbians are underrepresented "in the decisionmaking councils" throughout all levels of government. Despite the recent increase in the number of openly gay men and lesbians who have run for office, the actual number of these individuals who hold elected office still remains disproportionately small. Second, the passage of some protective legislation in response to widespread sexual-orientation discrimination does not transform gay men and lesbians into a politically powerful group. Indeed, the limited legislative gains made by gay men and lesbians have consistently triggered a backlash from anti-gay groups that often leads to the mobilization of powerful well-funded groups dedicated to preventing gay men and lesbians from securing greater civil rights protections. As Proposition 8 exemplifies, anti-gay groups have manipulated longstanding prejudice not only to forestall the passage of legislation favorable to gay men and lesbians, but to pass legislation that takes away constitutional and other rights from gay men and lesbians. The result of this political backlash is the further institutionalization of discriminatory practices and laws at the local, state and national levels. Third, the well-documented social opprobrium against gay men and lesbians presents an "organizational problem" because members of this group, like members of racial, ethnic, and gender-based minorities, can disguise their distinguishing characteristic by hiding their personal relationships and activities. Unfortunately, political mobilization presents a Catch-22 for gay men and lesbians. To mobilize politically, gay men and lesbians must "out" themselves to the public. The public disclosure of their sexual orientation will then subject them to discriminatory treatment. Fourth, gay men and lesbians experience discrimination with appalling frequency across a variety of sectors. Same-sex couples experience discrimination and harassment at rates that exceed those of other groups with respect to employment, child rearing, family rights and marriage.

II.

THE DETERMINATION OF POLITICAL POWERLESSNESS REQUIRES AN EXAMINATION OF A COMPENDIUM OF MANY FACTORS, NO ONE OF WHICH IS DISPOSITIVE The Supreme Court's Equal Protection jurisprudence demonstrates that there is no "one-

size-fits-all" approach to determining the extent to which discrimination faced by a minority
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group impedes their reliance on political processes. Instead, Equal Protection precedent suggests that all impediments to a group's ability to rely on political processes to remedy discrimination are relevant and important considerations. As such, Equal Protection jurisprudence requires a court to undertake a thorough and empirically-based analysis of the many different, and often unique, characteristics of discrimination against a particular group. Restricting consideration of the diverse factors relevant to the political powerlessness inquiry results in an incomplete and flawed analysis. And the narrowing of inquiry urged by Defendants would necessarily require a reexamination of established Equal Protection jurisprudence by eliminating all suspect classifications, including race and gender. As Equal Protection jurisprudence establishes, this Court is free to consider any factors it deems material to an objective determination of whether discrimination perpetrated against gay men and lesbians has impeded their ability to count on political processes to protect them from widespread and severe discrimination.

A.

The Political Powerlessness Inquiry Should Draw On A Compendium Of Factors

The Supreme Court first articulated the concept of political powerlessness in Carolene Products as unchecked prejudice against "discrete and insular minorities" that would "curtail the operation of those political processes ordinarily to be relied upon to protect minorities." 304 U.S. at 152 n.4 (1938). In so doing, the Court focused on how the political weakness of minorities prevents them from relying on traditional political processes, and as a result, gives the majority an unfettered right to legislate or take other disparate state action against them. See Bruce A. Ackerman, Beyond "Carolene Products," 98 Harv. L. Rev. 713, 715, 717 (1985). Applying the fundamental notion from Carolene Products that defects in traditional political processes can render minorities unable to rely on the political system, the Supreme Court has analyzed political powerlessness in several different ways. In Frontiero, a gender discrimination action, the Court recognized that although women "when viewed in the abstract . . . do not constitute a small and powerless minority," women are nonetheless "vastly underrepresented" in "decisionmaking councils . . . throughout all levels of our State and Federal Government." 411 U.S. at 686 n.17 (Brennan, J. plurality opinion). Thus, even in cases where a group does not
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constitute a numerical minority, a group can still face pervasive discrimination "in the political arena" to a degree that requires heightened judicial review of government action treating that group differently from others. Id. at 686; see also United States v. Virginia, 518 U.S. 515, 53233, 575 (1996) (upholding gender as a suspect classification despite Justice Scalia's dissent that women cannot be considered a discrete and insular minority "unable to employ" the ordinary political processes); cf. Casteneda v. Partida, 430 U.S. 482, 499 (1977) (holding that the fact that Mexican Americans held a "governing majority" did not dispel the presumption of intentional discrimination established by a prima facie case of underrepresentation). In Foley, the Court examined disenfranchisement as a measure of political powerlessness in the context of whether strict scrutiny should be applied to discrimination against non-citizens. 435 U.S. at 294. In that case, the Court found that "aliens -- pending their eligibility for citizenship -- have no direct voice in the political processes." Id. Similarly, in United States v. Virginia, the Court found that the history of opportunities denied women, including disenfranchisement, required the Court to apply a heightened scrutiny standard to the basis for gender discrimination. 518 U.S. at 531; accord Frontiero, 411 U.S. at 688. The Court articulated yet another measure of political powerlessness in City of Cleburne. 473 U.S. at 445. In Cleburne, the Court struck down a municipal zoning ordinance as applied to a group home for the mentally retarded. In examining the political powerlessness of the mentally retarded, the Court noted other legislation conferring rights to the mentally retarded. Justice White, writing for the majority, concluded that the mentally retarded were not "politically powerless in the sense that they have no ability to attract the attention of the lawmakers" because political powerlessness cannot be based solely on the inability of a minority to "assert direct control over the legislature." Id. at 445. In so doing, the Court expressed the concern that if the mere inability to control the legislature were sufficient to warrant suspect classification, "much economic and social legislation would now be suspect." Id. The notion that political powerlessness must mean something more than being on the losing side of a legislative battle, while self-evident, is of no help to the Court in this Action. The Supreme Court has never used that premise (prior to or after Cleburne) to negate the established
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principal that political powerlessness exists where the nature, history and circumstances of prejudice against a particular group impede their ability to rely on political processes. Indeed, if political power were a function only of a group's ability to attract the attention of lawmakers, protected groups, including women and racial and ethnic minorities, would lose their protected status under the Equal Protection Clause. In any event, the Supreme Court has never suggested, let alone held, that a group's ability to attract the attention of lawmakers constitutes a per se bar to heightened judicial scrutiny of state action. And Defendants' contention otherwise is inconsistent with the Court's application of heightened scrutiny in Equal Protection cases. In this Action, heightened scrutiny should apply because the majority has used an unchecked popular referendum process to enshrine discrimination into a state constitution by reversing an Equal Protection ruling of the state's highest court and usurping the traditional power of the judiciary to protect minorities from disparate treatment.

B.

Inability to Muster Political Support Is Not a Prerequisite for Political Powerlessness

In this Action, Defendants argue that Cleburne precludes the Court from considering any factor regarding political powerlessness other than the ability of same-sex couples to get the attention of lawmakers. In so doing, Defendants ask this Court to adopt a rigid and narrow definition of political powerlessness based solely on the ability of Plaintiffs to attract the attention of lawmakers. Amici respectfully request that the Court decline to do so because Defendants' Attention Test runs counter to, and would eviscerate, more than 70 years of established Equal Protection jurisprudence. Indeed, the application of such a restrictive definition would mean the end to suspect classification of any kind, including those relating to race and gender under the Equal Protection Clause. For example, with respect to race, it cannot be contended that blacks had "no ability to attract the attention of lawmakers" at the time the Court applied heightened scrutiny to the antimiscegenation statute at issue in Loving v. Virginia. 388 U.S. 1 (1967). By the time that Loving was decided in 1967, Congress had passed an unprecedented series of civil rights laws, starting
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with the Civil Rights Act of 1957 and culminating with the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The ability to gather political support for protective legislation, however, in no way precluded the Court from deeming race a suspect classification. Similarly, with respect to women, the Court applied heightened scrutiny to sex-based classifications at the very moment Congress was turning its closest attention to discrimination against women. Indeed, Congress had just passed the Equal Rights Amendment, then pending before states for ratification. See Ruth Bader Ginsburg, Ratification of the Equal Rights Amendment, 57 Tex. L. Rev. 919, 921 (1979). As Justice Brennan stated in Frontiero: "over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications . . . thus, Congress itself has concluded that classifications based on sex are inherently invidious." 411 U.S. at 687. And years after Cleburne, the Supreme Court continued to afford heightened scrutiny to sex-based classifications even as women continued to make gains in the legislature, including gaining additional protections from discrimination. See, e.g., J.E.B. v. Alabama, 511 U.S. 127 (1994) (prohibiting discrimination against women in jury selection, abrogating reasoning in United States v. Broussard, 987 F.2d 215 (5th Cir. 1993), that women were no longer politically powerless). As these, and other cases suggest, confining the political powerlessness inquiry to whether a group can get the attention of lawmakers, is also unworkable in our system of government because it grants the majority the unchecked ability to usurp the traditional power of the judiciary to protect minorities under a state's constitution. The reality is that the enactment of a discriminatory constitutional amendment by a bare majority vote infects the entire tripartite checks and balances system inherent in traditional political processes. Although Proposition 8 was limited on its face to a vote on whether gay men and lesbians have the right to marry, its effect was not limited to this single issue. Rather, because the proponents of Proposition 8 used the referendum to deprive a protected class of a right to marry, the majority encroached on the power of California's Supreme Court to decide who is a protected class under that state's Equal Protection Clause. Accordingly, the Attention Test advanced by Defendants impedes, if not destroys, the tripartite separation of powers inherent in our system of government that has
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heretofore protected minorities from discrimination for almost a century.

C.

Isolated Legislative Gains By Gay Men and Lesbians Are Not Dispositive Of The Extent To Which This Minority Is Politically Powerless So As To Warrant Heightened Scrutiny Of Proposition 8

Like racial minorities and women, the existence of state laws that prohibit discrimination on the basis of sexual orientation is not an indicium of political power but a reflection and recognition of the enduring prejudice this group faces in almost all facets of American life. Accordingly, the argument that recent enactments of legislation protecting gay men and lesbians from certain isolated or limited forms of discrimination end the political powerlessness inquiry is without merit. See Guido Calabresi, Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 Harv. L.Rev. 77, 97 n.51 (1991). For example, in response to the New Jersey Supreme Court's ruling in Lewis v. Harris, 908 A.2d 196 (N.J. 2006), the New Jersey Legislature enacted civil unions. See N.J. Stat. § 37:1-28(e). The Civil Unions Act also created the New Jersey Civil Union Review Commission, charged to "evaluate the effect on same-sex couples, their children and other family members of being provided civil unions rather than marriage." N.J. Stat. § 37:1-36(a); id. at (c)(5). In its first (and only) interim report, the Commission found that (1) employers continued to discriminate against civil union couples "despite [the employers'] familiarity with the [civil union] law," (2) civil union couples face "unequal treatment and uncertainties . . . during a health care crisis, particularly in hospital settings," and (3) "the Civil Union Act has a particularly disparate impact on people of color." See First Interim Report of the New Jersey Civil Union Review Commission, at 17-18 (2008), available at http://www.state.nj.us/lps/dcr/downloads/1stInterimReport-CURC.pdf. The Commission further found that "[c]ivil union status is not clear to the general public, which creates a second-class status." Id. at 17. The Legislature subsequently considered, but did not pass, same-sex marriage legislation. See Lambda Legal, Lambda Legal Goes Back To Court in NJ, Jan. 7, 2010, available at http://www.lambdalegal.org/ publications/articles/fa_20090107_nj-legislature-fails-marriage-equality-lambda-legal-back-tocourt.html.
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Same-sex couples have also encountered resistance when attempting to enforce protections against sexual orientation discrimination. In In re Golinski, the Office of Personnel Management ("OPM") directed an insurance carrier not to process a federal judicial employee's benefits election form for her wife, "thwarting the relief . . . ordered" under a ruling by the Ninth Circuit's Employment Dispute Resolution Plan. 587 F.3d 956, 958 (9th Cir. 2009). Stating that there was "no reason to believe that this discrimination will cease without further action," the court again ordered that federal health benefits be extended to the employee's wife, awarded back pay, and "authorize[d] Ms. Golinski to take appropriate action to secure compliance with this order, such as by petition for enforcement or mandamus." Id. at 960, 964. Rather than comply or appeal, OPM instead issued a press release stating its intent not to comply, leading the employee to file suit. See Golinski v.U.S. Office of Personnel Mgmt., Case No. 10-cv-00257, Dkt No. 1 ¶ 4 (N.D. Cal. Jan 20, 2010).

III.

THE NATURE, HISTORY AND CIRCUMSTANCES OF THE PREJUDICE AGAINST GAY MEN AND LESBIANS ESTABLISHES THAT THE COURT SHOULD EVALUATE PROPOSITION 8 UNDER HEIGHTENED SCRUTINY At least four important categories of data should be considered in examining how preju-

dice against gay men and lesbians impedes their ability to rely on political processes to protect themselves from discrimination: (1) the systemic underrepresentation of gay men and lesbians in political bodies; (2) the backlash by anti-gay groups in countering gains and protections obtained by gay men and lesbians; (3) the perceived "social opprobrium" against gay men and lesbians that impedes their political mobilization; and (4) the frequency, pervasiveness, and severity of the prejudice directed against gay men and lesbians.

A.

Gay Men And Lesbians Are Underrepresented In Government

Underrepresentation in political bodies is an acknowledged measure of relative political power in our representative government. See Frontiero, 411 U.S. at 686 (holding classification based on gender "inherently suspect" because women were "vastly underrepresented"); see also Watkins v. U.S. Army, 875 F.2d 699, 727 (9th Cir. 1989) (Norris, J., concurring) ("The very fact that homosexuals have historically been underrepresented in and victimized by political bodies is
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itself strong evidence that they lack the political power necessary to ensure fair treatment at the hands of government."). Gay men and lesbians are barely represented in political bodies today. Only recently have openly gay people dared to run for public office, and the number of openly gay elected officials in this country remains miniscule. Although California's gay, lesbian, and bisexual constituency is the largest in the country, only three percent of the California state legislators are openly gay or lesbian. See The California Legislative Lesbian, Gay, Bisexual, & Transgender (LGBT) Caucus, http://www.assembly.ca.gov/LGBT_Caucus/ (last updated Jan. 28, 2008) (reporting 4 LGBT members); National Conference of State Legislatures (NCSL), Legislators, Number, Terms of Office, Next Election (2007), http://www.ncsl.org/default.aspx?tabid=17273 (reporting 120 California legislators). As of 2008, there were three openly gay or lesbian members of the United States House of Representatives. See Gay & Lesbian Victory Fund and Leadership Institute, 2008 Annual Report, at 3, available at http://www.victoryfund.org/files/ victory_annual_08.pdf. Although more than 40 openly gay or lesbian state legislators were elected to office in 2008, that number represents a minute percentage of the over 7000 state legislators in the United States. See id. at 8; NCSL, http://www.ncsl.org/default.aspx? tabid=17273. As of January 23, 2010, there is only one openly gay or lesbian federal district court judge. See Steve Schmadeke, Gay, Lesbian Judges in Cook County Note Their Progress, Chicago Tribune, Dec. 6, 2009. Openly gay or lesbian individuals in public office are often subject to challenges based solely on their sexual orientation. In the spring of 2004, the Christian Coalition sent out 75,000 voter guides opposing the re-election of Justice Rives Kistler of the Oregon state Supreme Court, denouncing him as "the only open homosexual Supreme Court judge in the nation." Karen Breslau, A Rising Tide, Rocking Boats: The Politics of Gay Marriage Roil Oregon's Electoral Terrain, Newsweek, May 17, 2004. The group promised to challenge Kistler's fitness to serve on moral grounds: "We'll give the people of Oregon information on who they want as a judge, a man who believes family is as important as it has been for thousands of years or a man doing
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what in the past has been against law and is against moral law." Charles E. Beggs, Gay Issue Will Arise in Court Race, AP Newswires, Mar. 21, 2004.

B.

Gay Men and Lesbians Are the Victims of Political Backlash

The argument that gay men and lesbians are not politically powerless because of recent gains also ignores the political backlash that has arisen as a result of these victories. The LGBT rights movement has faced countless setbacks attributable to the group's unpopularity and lack of political clout in local, state and federal politics. See Michael J. Klarman, Brown and Lawrence (And Goodridge), 104 Mich. L. Rev. 431, 459-73 (2005). Defendants' assertion that the LGBT rights movement and its "powerful ... allies" possess the "ability to force lawmakers to take positions and actions against their preferences" does not ring true in the political marketplace. Voters who support same-sex marriage are less likely to make their vote contingent on a candidate's position on the issue than voters who oppose same-sex marriage. See Esther Kaplan, Onward Christian Soldiers: The Religious Right's Sense of Siege is Fueling a Resurgence, The Nation, July 5, 2004, at 33. Opinion polls conducted soon after the Massachusetts Supreme Court granted same-sex couples the right to marry showed that respondents were much more likely to vote for President Bush than the as-yet undetermined nominee of the Democratic party after being told of their respective positions on same-sex marriage and civil unions. See Klarman, 104 Mich. L. Rev. at 462 n. 228. After the 2004 presidential election, prominent Democrats blamed Mayor Gavin Newsom's decision to allow same-sex marriages in San Francisco for providing conservatives with a political rallying point. See id. at 482 nn. 365-69; see also id. at 481 n. 364 (conservative activists and some Democrats attributed Kerry's loss to Bush in 2004 to San Francisco's same-sex weddings and the Massachusetts Supreme Court's decision in Goodrich v. Dep't of Public Health, 798 N.E. 2d 941 (Mass. 2003)). Politicians showing support for LGBT rights have often suffered political harm. See id. at 465 n. 256, 479 n. 350. More than perhaps any other group in the recent history of America, the advance of LGBT rights has led to the immediate mobilization of powerful groups fighting to reverse the legislative and judicial acts granting those rights through drastic measures, such as constitutional
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amendment. When the Hawaii Supreme Court in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), struck down a state law limiting marriage to a man and a woman, within a few years, more than 30 states and Congress responded by passing `defense of marriage' acts. See Klarman, 104 Mich. L. Rev. at 460 n. 212. After Goodrich, in 2004, President George W. Bush stated his support for a marriage amendment to the Constitution. See id. at 460-65. The Republican party's platform in 2004 proclaimed that a Constitutional amendment was necessary to protect marriage. See 2004 Republican Party Platform: A Safer World and a More Hopeful America, at 83, available at http://www.presidency.ucsb.edu/papers_pdf/25850.pdf ("We strongly support President Bush's call for a Constitutional amendment that fully protects marriage."). The persistent "backlash" to advances in LGBT equality and the extreme political measures used to take away the group's fundamental right to marry illustrate the overwhelming difficulty that gay men and lesbians face in seeking recourse through "ordinary political processes."

C.

Discrimination Deters Many Gay Men And Lesbians From Political Activism

Gay men and lesbians constitute only a very small percentage of the population,2 and their political power is diminished by the fact that many keep their sexual orientation a secret in light of social opprobrium and animus. This secrecy is both a shelter from discrimination and an obstacle to overcoming it. Many gay men and lesbians are deterred from political activism out of fear of exposing themselves to the very discrimination they seek to eliminate. See Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713, 731 (1985). Just as "passing" has been a method of coping with discrimination based on race and gender, efforts of gay and lesbian individuals to hide their sexual orientation are both an "effect of discrimination as well as an evasion of it." See Kenji Yoshino, Covering, 111 Yale L.J. 769, 772, 811-36, 925-33 (2002).

It is estimated that 5.2% of California's population, and 4.1% of the United States population, is gay, lesbian or bisexual. See Gary J. Gates, The Williams Institute, Same-Sex Couples and the Gay, Lesbian, Bisexual Population: New Estimates from the American Community Survey, at 4, 5 (2006).
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In a survey conducted in 2000, 37% of gay men and lesbians reported they were not open about sexual orientation to their employers; 24% were not open to co-workers; and 15% were not open to family members. Kaiser Family Foundation Study, Inside OUT: A Report on the Experiences of Lesbians, Gays and Bisexuals in America and the Public's View on Issues and Policies Related to Sexual Orientation (2001). The cost of keeping one's sexual orientation "hidden" takes a toll on society, as well as the individual who expends great energy and suffers psychological alienation while trying to "pass." See Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell," 108 Yale L.J. 485, 527-29 (1998); see also S.W. Cole et al., Elevated Physical Health Risk Among Gay Men Who Conceal Their Homosexual Identity, 15 Health Psychol. 243 (1996). The chilling effects of censorship and discrimination make it difficult for gay men, lesbians and their allies to politically organize. Barriers to LGBT visibility are not only imposed by an individual's fear of discrimination and harm, but also strong pressures from society, including government. In 2003, the Department of Justice "barred a group of employees from holding their annual gay pride event at the department's headquarters" on grounds that "the White House had not formally recognized Gay Pride Month with a presidential proclamation." See Eric Lichtblau, Justice Dept. Bans Event By Gay Staff, New York Times, June 6, 2003, at A18. In 2003, the day after Lawrence v. Texas was decided, a Kansas librarian who was the mother of a gay son was reprimanded and informed that she could never speak about Lawrence again, because she was creating a "hostile work environment." See Press Release, American Civil Liberties Union, ACLU Urges Kansas Public Library Not to Censor Employee for Discussing Historic Sodomy Ruling (July 16, 2003), available at http://www.aclu.org/free-speech/acluurges-kansas-public-library-not-censor-employee-discussing-historic-sodomy-ruling.

D.

Recent Legislation Protecting Rights of Gay Men and Lesbians are Dwarfed by the Inequalities They Face Daily

According to a 2005 survey, 39% of LGBT employees experienced sexual orientationbased discrimination, with 11% reporting frequent harassment. Lambda Legal and Deloitte Financial Advisory Services LLP, 2005 Workplace Fairness Survey, at 4-5 (2006); see also M.
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V. Lee Badgett et al., The Williams Institute, Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination, Executive Summary, at 1 (2007). In ten states prohibiting sexual orientation discrimination, employees report gender-based discrimination and sexual orientation-based discrimination at approximately the same rate. See Badgett et al., at 1-2. Between 12% and 30% of heterosexual employees surveyed report witnessing sexual orientation discrimination against coworkers. See id. at 1. Openly gay, lesbian or bisexual individuals are still subject to discharge from serving in the United States Armed Forces. See 10 U.S.C. § 654(b). Same-sex couples continue to face barriers to family-building experienced by no other minority group in the United States. More than half of gay men and 41% of lesbians surveyed wish to have a child. See Gary J. Gates et al., The Williams Institute & The Urban Institute, Adoption and Foster Care by Gay and Lesbian Parents in the United States, at 5 (2007). Nevertheless, Florida and Mississippi law forbid "same gender" couples from adopting. See Fla. Stat. § 63.042(3); Miss. Code Ann. § 93-17-3(5); Gates et al., at 3. Utah both bans same-sex marriage and forbids unmarried couples from adopting. Utah Code Ann. § 78B-6-117; see also Human Rights Campaign, Parenting Laws: Joint Adoption and Second-Parent Adoption, at 1 (2009) ("HRC Parenting Laws"). Arkansas takes this one step further, by also forbidding foster parenting by individuals "cohabiting with a sexual partner outside of a marriage that is valid under . . . the laws of this state." See Ark. Code Ann. § 9-8-304; see also HRC Parenting Laws at 1. Although gay men and lesbians also engage in biological parenting, at least six states deny second-parent adoptions to same-sex partners, either directly or on the basis that the couples are unmarried. See HRC Parenting Laws at 2; Human Rights Campaign, Michigan Adoption Law, http://www.hrc.org/your_community/1076.htm (last updated Dec. 9, 2009). Even where same-sex marriage is available under state law, same-sex couples are denied more than 1000 federal rights due to the lack of federal recognition of their marriages. See U.S. Gen. Acct'g Office, GAO-04-353R, Defense of Marriage Act: Update to Prior Report, at 1 (2004). Healthcare and other employment benefits extended to the same-sex partner of an employee are treated as taxable income for that employee, resulting in, on average, $1,070 per
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year more in taxes than married employees with the same coverage. See Naomi G. Goldberg & M.V. Lee Badgett, The Williams Institute, Tax Implications for Same-Sex Couples, at 1 (2009). When the estate tax returns with an exclusion limit of $1 million in 2011, same-sex couples subject to the tax will pay on average $1.1 million more than their married counterparts. See id. Because the federal government does not recognize same-sex partners, social security survivor benefits and similar federal benefits are denied to surviving same-sex partners. See id., at 2. Gay men and lesbians, in general, and same-sex couples, in particular, continue to experience widespread discrimination related to both their private and public lives.

IV.

CONCLUSION Amici respectfully thank the Court for the opportunity to brief the discrete, but important

issue of the political powerlessness of gay men and lesbians. In submitting this brief, Amici hope that the legal arguments and empirical data provided will be of assistance to the Court in determining the level of scrutiny to apply in evaluating whether Proposition 8 violates the Equal Protection Clause of the United States Constitution and that the Court will conclude that some level of heightened scrutiny is appropriate in this case. DATED: February 3, 2010 Respectfully submitted,

By:

/S/ Peter Obstler Bingham McCutchen LLP Peter Obstler Attorneys for Amici Curiae

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