3:09-cv-02292 #8

Case3:09-cv-02292-VRW Document8 Filed05/28/09 Page1 of 21
1 ALLIANCE DEFENSE FUND

Timothy Chandler (CA Bar No. 234325)
2 tchandler@telladf.org
101 Parkshore Drive, Suite 100, Folsom, California 95630
3 Telephone: (916) 932-2850, Facsimile: (916) 932-2851
4 Benjamin W. Bull, (AZ Bar No. 009940)

bbull@telladf.org
5 Brian W. Raum (NY Bar No. 2856102)*
braum@telladf.org
6 James A. Campbell (OH Bar No. 0081501)*
jcampbell@telladf.org
7 15100 North 90th Street, Scottsdale, Arizona 85260
Telephone: (480) 444-0020, Facsimile: (480) 444-0028
8
LAW OFFICES OF ANDREW P. PUGNO
9 Andrew P. Pugno (CA Bar No. 206587)+
andrew@pugnolaw.com
10 101 Parkshore Drive, Suite 100, Folsom, California 95630
11
ATTORNEYS FOR PROPOSED INTERVENORS DENNIS HOLLINGSWORTH,
12 GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
MARK A. JANSSON, and PROTECTMARRIAGE.COM – YES ON 8, A
13 PROJECT OF CALIFORNIA RENEWAL
14 * Pro hac vice application forthcoming

+ Application for admission forthcoming
15
UNITED STATES DISTRICT COURT
16 NORTHERN DISTRICT OF CALIFORNIA
17 KRISTIN M. PERRY, SANDRA B. STIER, PAUL

T. KATAMI, and JEFFREY J. ZARRILLO,
18 CASE NO. 09-CV-2292 VRW
Plaintiffs, PROPOSED INTERVENORS’
19
NOTICE OF MOTION AND MOTION
20 v. TO INTERVENE, AND
MEMORANDUM OF POINTS AND
21 ARNOLD SCHWARZENEGGER, in his official AUTHORITIES IN SUPPORT OF
capacity as Governor of California; EDMUND G. MOTION TO INTERVENE
22 BROWN, JR., in his official capacity as Attorney
Date: July 2, 2009
23 General of California; MARK B. HORTON, in his Time: 10:00 a.m.
official capacity as Director of the California Judge: Chief Judge Vaughn R. Walker
24 Department of Public Health and State Registrar of Location: Courtroom 6, 17th Floor
Vital Statistics; LINETTE SCOTT, in her official
25 capacity as Deputy Director of Health Information
& Strategic Planning for the California Department
26 of Public Health; PATRICK O’CONNELL, in his
27 official capacity as Clerk-Recorder for the County
of Alameda; and DEAN C. LOGAN, in his official
28 capacity as Registrar-Recorder/County Clerk for
PROPOSED INTERVENORS’ NOTICE OF MOTION AND MOTION TO INTERVENE, AND MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION TO INTERVENE – CASE NO. 09-CV-2292 VRW
1 the County of Los Angeles,

2 Defendants,
3 and
4 PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, GAIL J.
5 KNIGHT, MARTIN F. GUTIERREZ, HAK-
SHING WILLIAM TAM, and MARK A.
6 JANSSON; and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
7 RENEWAL,
8 Proposed Intervenors.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 TABLE OF CONTENTS
2 TABLE OF AUTHORITIES ............................................................................................................... ii
3 INTRODUCTION ............................................................................................................................... 1
4 PROCEDURAL HISTORY ................................................................................................................ 1
5 FACTUAL HISTORY......................................................................................................................... 2
6 ARGUMENT ....................................................................................................................................... 6
7 I. PROPOSED INTERVENORS ARE ENTITLED TO INTERVENE AS OF RIGHT ................................... 6
8 A. Proposed Intervenors Have Timely Filed This Motion ............................................... 7
9 B. Proposed Intervenors Have A Significantly Protectable Interest In The Subject

Matter Of This Lawsuit ............................................................................................... 7
10
C. This Court’s Ruling Might Impair Proposed Intervenors’ Significantly
11 Protectable Interest .................................................................................................... 10
12 D. The Existing Parties Will Not Adequately Represent Proposed Intervenors’

Interests ...................................................................................................................... 11
13
II. PROPOSED INTERVENORS HAVE SATISFIED THE REQUIREMENTS FOR PERMISSIVE
14 INTERVENTION ........................................................................................................................ 14
15 CONCLUSION.................................................................................................................................. 16
16
17
18
19
20
21
22
23
24
25
26
27
28 i
1 TABLE OF AUTHORITIES
2 FEDERAL CASES
3 Bates v. Jones,
904 F. Supp. 1080 (N.D. Cal. 1995) ............................................................................... passim
4
B. Fernandez & Hnos., Inc. v. Kellogg USA, Inc.,
5 440 F.3d 541 (1st Cir. 2006) .................................................................................................. 13
6 Blake v. Pallan,
554 F.2d 947 (9th Cir. 1977) ................................................................................................. 12
7
Glancy v. Taubman Ctrs., Inc.,
8 373 F.3d 656 (6th Cir. 2004) ................................................................................................. 13
9 Idaho v. Freeman,
625 F.2d 886 (9th Cir. 1980) ................................................................................................... 8
10
League of United Latin Am. Citizens v. Wilson,
11 131 F.3d 1297 (9th Cir. 1997) ............................................................................................... 14
12 Nw. Forest Res. Council v. Glickman,

82 F.3d 825 (9th Cir. 1996) ..................................................................................................... 7
13
Prete v. Bradbury,
14 438 F.3d 949 (9th Cir. 2006) ........................................................................................... 7, 8, 9
15 Sagebrush Rebellion, Inc. v. Watt,

713 F.2d 525 (9th Cir. 1983) ................................................................................. 8, 10, 11, 12
16
Sw. Ctr. for Biological Diversity v. Berg,
17 268 F.3d 810 (9th Cir. 2001) ............................................................................................. 7, 10
18 Trbovich v. United Mine Workers of Am.,

404 U.S. 528 (1972)............................................................................................................... 11
19
United States v. City of Los Angeles,
20 288 F.3d 391 (9th Cir. 2002) ............................................................................................. 7, 14
21 Washington State Bldg. & Constr. Trades Council v. Spellman,

684 F.2d 627 (9th Cir. 1982) ......................................................................................... 7, 8, 10
22
Yniguez v. State of Arizona,
23 939 F.2d 727 (9th Cir. 1991) .......................................................................................... passim
24 STATE CASES
25 In re Marriage Cases,
43 Cal.4th 757, 76 Cal.Rptr.3d 683 (Cal. 2008) .................................................................... 12
26
Hernandez v. Robles,
27 7 N.Y.3d 338, 855 N.E.2d 1 (N.Y. 2006) .............................................................................. 13
28 ii
1 CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES
2 Cal. Const. art. I, § 7.5 ............................................................................................................... 1, 5, 12
3 Cal. Const. art. II, § 8....................................................................................................................... 2, 9
4 Cal. Elec. Code § 342 .......................................................................................................................... 2
5 Cal. Elec. Code § 9001 ........................................................................................................................ 3
6 Cal. Elec. Code § 9004 ........................................................................................................................ 2
7 Cal. Elec. Code § 9008 ........................................................................................................................ 3
8 Cal. Elec. Code § 9012 ........................................................................................................................ 3
9 Cal. Elec. Code § 9014 ........................................................................................................................ 3
10 Cal. Elec. Code § 9030 ........................................................................................................................ 4
11 Cal. Elec. Code § 9031 ........................................................................................................................ 4
12 Cal. Elec. Code § 9032 .................................................................................................................... 3, 9
13 Cal. Elec. Code § 9033 ........................................................................................................................ 4
14 Cal. Elec. Code § 9067 ................................................................................................................ 4, 5, 9
15 Cal. Elec. Code § 9607 ........................................................................................................................ 3
16 Cal. Elec. Code § 9609 ........................................................................................................................ 3
17 Cal. Fam. Code § 308.5 ............................................................................................................... 12, 13
18 Fed. R. Civ. P. 24 ........................................................................................................................... 6, 14
19 OTHER AUTHORITIES
20 A.B. 849, 2005-2006 Leg., Reg. Sess. (Cal. 2005) ........................................................................... 14
21 A.B. 43, 2007-2008 Leg., Reg. Sess. (Cal. 2007) ............................................................................. 14
22
23
24
25
26
27
28 iii
1 TO THE PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on July 2, 2009, at 10:00 a.m., or as soon thereafter as the
3 matter may be heard, before the Honorable Vaughn R. Walker, United States District Court,
4 Northern District of California, 450 Golden Gate Avenue, San Francisco, California, Proposed
5 Intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam,
6 Mark A. Jansson, and ProtectMarriage.com – Yes on 8, a Project of California Renewal,
7 (collectively referred to as “Proposed Intervenors”) will move this Court for an order allowing them
8 to intervene in this case.
9 Proposed Intervenors respectfully request an order allowing them to intervene in this case to
10 guard their significant protectable interest in the subject matter of this lawsuit.
11 INTRODUCTION
12 The Ninth Circuit has repeatedly permitted sponsors and supporters of ballot initiatives and
13 constitutional amendments to intervene in lawsuits challenging those provisions. Proposed
14 Intervenors are the official proponents and campaign committee for Proposition 8, the California
15 constitutional provisions challenged in this lawsuit. This Court should thus allow them to intervene
16 in this case.
17 PROCEDURAL HISTORY
18 On May 22, 2009, Plaintiffs filed this suit, asserting claims against various California state
19 and local officials. Plaintiffs allege that California’s recently enacted Proposition 8, which is now
20 embodied in Article I, Section 7.5 of the State Constitution, violates the Due Process and Equal
21 Protection Clauses of the Fourteenth Amendment to the United States Constitution. They seek
22 declaratory and injunctive relief against the enforcement of Article I, Section 7.5 of the State
23 Constitution.
24 A few days after the initial filing of this lawsuit, on May 27, 2009, Plaintiffs filed a motion
25 for preliminary injunction, asking this Court to enjoin California state officials from enforcing
26 Article I, Section 7.5 of the State Constitution. Plaintiffs set their preliminary-injunction hearing
27 for July 2, 2009.
28 1
1 Now Proposed Intervenors respectfully request that this Court allow them to intervene.
2 They have expeditiously filed this intervention motion so as not to cause any unnecessary delay in
3 these proceedings. And, to aid this Court in economically addressing the preliminary issues raised
4 in this case, Proposed Intervenors have proposed to schedule their intervention hearing for the same
5 time as Plaintiffs’ preliminary-injunction hearing.
6 FACTUAL HISTORY
7 Article II, Section 8 of the California Constitution gives “electors” the right “to propose
8 statutes and amendments to the [State] Constitution” through the initiative process. See Cal. Const.
9 art. II, § 8. Five California “electors”—Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez,
10 Hak-Shing William Tam, and Mark A. Jansson (collectively referred to as “Proponents”)—
11 exercised this state constitutional right by taking the necessary legal steps to become the “Official
12 Proponents” of Proposition 8.
13 In the fall of 2007, Proponents started the process of satisfying all legal requirements for
14 placing Proposition 8 on the November 2008 ballot. Proponents began by supervising the drafting
15 and ultimately approving the language of Proposition 8. Declaration of Dennis Hollingsworth at ¶ 6
16 (attached as Exhibit A); Declaration of Gail J. Knight at ¶ 6 (attached as Exhibit B); Declaration of
17 Martin F. Gutierrez at ¶ 6 (attached as Exhibit C); Declaration of Hak-Shing William Tam at ¶ 6
18 (attached as Exhibit D); Declaration of Mark A. Jansson at ¶ 6 (attached as Exhibit E). Proponents
19 then submitted the requisite legal forms prompting the California Attorney General to prepare
20 Proposition 8’s “Title and Summary” for the signature petitions. Id. By approving the language
21 and submitting the forms, Proponents became the “Official Proponents” of Proposition 8 within the
22 meaning of California law. See Cal. Elec. Code § 342. As such, Proponents assumed various legal
23 duties and acquired numerous legal rights: among other things, they were responsible for paying
24 the initiative filing fee; they could compel the California Attorney General to draft a Title and
25 Summary for the initiative; and they were the only persons authorized to submit amendments to the
26 initiative. See Cal. Elec. Code § 9004.
27 On November 29, 2007, the California Attorney General issued to Proponents a
28 2
1 “circulating” Title and Summary for Proposition 8. Ex. A at ¶ 10; Ex. B at ¶ 10; Ex. C at ¶ 10; Ex.
2 D at ¶ 10; Ex. E at ¶ 10. But before they could collect signatures, Proponents needed to comply
3 with additional legal requirements. For instance, they needed to prepare petition forms that
4 complied with the California Elections Code. See Cal. Elec. Code §§ 9001, 9008, 9012, 9014.
5 Proponents were also required to retain an executed certification from each supervising signature-
6 gatherer, certifying that he or she would not allow the Proposition 8 signatures to be used for any
7 purpose other than qualifying the measure for the ballot. See Cal. Elec. Code § 9609. And
8 Proponents had a legal duty to instruct all signature-collectors about the petition-circulation and
9 signature-gathering requirements under state law. See Cal. Elec. Code § 9607. No person or entity
10 other than Proponents could submit petitions to the State for signature verification; the State would
11 have summarily rejected petitions submitted by others. See Cal. Elec. Code § 9032.
12 California law places onerous, time-constrained signature-gathering requirements on
13 Proponents. They were responsible for obtaining at least 694,354 valid petition signatures between
14 November 29, 2007, and April 28, 2008. Ex. A at ¶ 16; Ex. B at ¶ 16; Ex. C at ¶ 16; Ex. D at ¶ 16;
15 Ex. E at ¶ 16. In other words, Proponents needed to supervise the collection of, on average, at least
16 4,629 valid petition signatures per day during a five-month period.
17 Even after a sufficient number of signatures had been collected, Proponents retained the
18 exclusive statutory right to decide whether to file the initiative petitions for signature verification.
19 See Cal. Elec. Code § 9032 (“The right to file the petition shall be reserved to its proponents, and
20 any section thereof presented for filing by any person or persons other than the proponents . . . shall
21 be disregarded by the elections official”). No person other than Proponents possessed this unique
22 legal right.
23 Near the beginning of this initiative process, Proponents helped to establish
24 ProtectMarriage.com – Yes on 8, a Project of California Renewal (“Committee”), as a “primarily
25 formed ballot measure committee” under the California Political Reform Act. Ex. A at ¶ 13; Ex. B
26 at ¶ 13; Ex. C at ¶ 13; Ex. D at ¶ 13; Ex. E at ¶ 13. The Committee exists with one purpose: to
27 support Proposition 8. See Declaration of David Bauer at ¶ 4 (attached as Exhibit F). Proponents
28 3
1 endorsed the Committee as the official Proposition 8 campaign committee, and designated it to
2 receive all contributions and disburse all expenditures for the Proposition 8 campaign. Id. at ¶ 6.
3 Since its formation, the Committee has received financial contributions from over 83,000
4 individuals, the vast majority of which are registered California voters. Id. at ¶ 8. From these
5 financial supporters, the Committee has amassed more than $39 million in total contributions. Id. at
6 ¶ 9. Aside from the statutory powers and duties reserved exclusively to Proponents, the Committee
7 was directly responsible for all aspects of the campaign to qualify Proposition 8 for the ballot and
8 enact it into law. Id. at ¶¶ 6, 10. During the campaign, the Committee spent over $37 million to
9 qualify Proposition 8 for the ballot and operate a statewide campaign to persuade a majority of
10 California voters to approve it. Id. at ¶ 11. The Committee’s substantial investments of time and
11 money, in addition to its unique status as a “primarily formed ballot measure committee” under
12 state law, distinguish its interest in Proposition 8 from that of other supporters in the general public.
13 Id. at ¶ 15.
14 On April 24, 2008, Proponents authorized the Committee to submit the petitions, containing
15 the signatures of over 1.2 million Californians, for signature verification by county-elections
16 officials. Ex. A at ¶ 19; Ex. B at ¶ 19; Ex. C at ¶ 19; Ex. D at ¶ 19; Ex. E at ¶ 19. California law
17 provides that county-elections officials and the Secretary of State must provide certain notices to
18 Proponents during the signature-verification process. See Cal. Elec. Code §§ 9030, 9031, 9033. On
19 June 2, 2008, the California Secretary of State notified Proponents that the county-elections
20 officials had verified the requisite number of voter signatures and that, consequently, Proposition 8
21 qualified for inclusion on the November 2008 ballot. Ex. A at ¶ 21; Ex. B at ¶ 21; Ex. C at ¶ 21;
22 Ex. D at ¶ 21; Ex. E at ¶ 21.
23 After Proposition 8 was approved for the ballot, Proponents had the statutory authority to
24 designate the arguments in favor of Proposition 8 to appear in the statewide voter-guide. Ex. A at ¶
25 22; Ex. B at ¶ 22; Ex. C at ¶ 22; Ex. D at ¶ 22; Ex. E at ¶ 22. The voter-guide contains only one
26 argument in favor of each ballot initiative. See Cal. Elec. Code § 9067. If multiple arguments are
27 submitted, the Secretary of State publishes only the argument designated by Proponents and omits
28 4
1 those submitted by other persons or entities. See Cal. Elec. Code § 9067(b). Thus, California law
2 gives Proponents a preferred status as official advocate for Proposition 8.
3 In addition to satisfying their many legal duties, Proponents dedicated substantial time,
4 effort, reputation, and personal resources in campaigning for Proposition 8. Ex. A at ¶ 27; Ex. B at
5 ¶ 27; Ex. D at ¶ 27; Ex. E at ¶ 27. Mr. Hollingsworth, for example, authored campaign literature
6 and helped to raise more than $2 million for the campaign. Ex. A at ¶ 27. Mr. Tam spent most of
7 his working hours during 2008 advocating for Proposition 8; among other things, he coordinated
8 Proposition 8 rallies and organized volunteers from the Asian-American community. Ex. D at ¶ 27.
9 Mrs. Knight donated personal funds to the campaign and gave a presentation at a large Proposition
10 8 rally. Ex. B at ¶ 27. And Mr. Jansson spent hundreds of hours working in support of Proposition
11 8—work which included circulating signature petitions, organizing volunteers, speaking to
12 community organizations, and serving on the Committee. Ex. E at ¶ 27. Proponents’ tireless
13 support of Proposition 8, and unique status as official proponents, separates their interest in
14 Proposition 8 from that of other supporters in the general public. Ex. A at ¶ 5; Ex. B at ¶ 5; Ex. C at
15 ¶ 5; Ex. D at ¶ 5; Ex. E at ¶ 5.
16 In late June 2008, Proponents were sued as Real Parties in Interest in a pre-election legal
17 challenge to Proposition 8 filed in the California Supreme Court. See Petition for Extraordinary
18 Relief, Bennett v. Bowen, No. S164520 (attached as Exhibit G). The petitioners in that case alleged
19 that Proposition 8 was a constitutional “revision” (rather than an “amendment”), and thus could not
20 be enacted through the initiative process. Id. at p. 12. The petitioners also asserted that the Title
21 and Summary on the circulated petitions were false and misleading. Id. at p. 34. Proponents
22 defended against those allegations, and the California Supreme Court summarily denied that legal
23 challenge. See Bennett v. Bowen, No. S164520 (Cal. July 16, 2008) (attached as Exhibit H).
24 On November 4, 2008, a majority of California voters approved Proposition 8 as an
25 amendment to the State Constitution. Thus, on November 5, 2008, Proposition 8 became Article I,
26 Section 7.5 of the California Constitution, which states: “Only marriage between a man and a
27 woman is valid or recognized in California.” Cal. Const. art. I, § 7.5.
28 5
1 On that same day, November 5, 2008, three post-election lawsuits were filed in the
2 California Supreme Court, arguing that Proposition 8 was enacted in violation of the State
3 Constitution. See Amended Petition for Extraordinary Relief, Strauss v. Horton, No. S168047
4 (attached as Exhibit I). Although not initially named as parties, Proponents and the Committee
5 successfully intervened in that suit and defended Proposition 8. See Strauss v. Horton, No.
6 S168047 (Cal. Nov. 19, 2008) (attached as Exhibit J). In that litigation, the California Attorney
7 General opposed Proposition 8, arguing that it “should be invalidated . . . because it abrogates
8 fundamental rights . . . without a compelling interest.” See Answer Brief in Response to Petition
9 for Extraordinary Relief, Strauss v. Horton, No. S168047, at p. 75 (attached as Exhibit K). On May
10 26, 2009, the California Supreme Court denied those legal challenges and upheld Proposition 8.
11 See Strauss v. Horton, Nos. S168047, S168066, S168078, 2009 WL 1444594 (Cal. May 26, 2009).
12 On May 6, 2009, Proponents and the Committee successfully intervened in another
13 challenge to Proposition 8 currently pending before the United States District Court for the Central
14 District of California. See Smelt v. United States, Case No. SACV-09-286 DOC (MLGx) (C.D.
15 Cal. May 6, 2009) (attached as Exhibit L); see also Ex. A at ¶ 30; Ex. B at ¶ 30; Ex. C at ¶ 29; Ex.
16 D at ¶ 30; Ex. E at ¶ 30; Ex. F. at ¶ 19. That case, like this one, challenges the legality of
17 Proposition 8 under the United States Constitution. Proponents and the Committee through their
18 legal counsel are currently defending against that federal constitutional challenge to Proposition 8.
19 Proponents believe that no other party in this case will adequately represent their interests as
20 official proponents with state constitutional and statutory rights to propose Proposition 8. Ex. A at
21 ¶ 29; Ex. B at ¶ 29; Ex. C at ¶ 28; Ex. D at ¶ 29; Ex. E at ¶ 29. The Committee likewise believes
22 that no other party will adequately represent its interests as the official Proposition 8 campaign
23 committee. Ex. F at ¶ 18.
24 ARGUMENT
25 I. PROPOSED INTERVENORS ARE ENTITLED TO INTERVENE AS OF RIGHT.
26 Four requirements must be satisfied to intervene as a matter of right under Fed. R. Civ. P.
27 24(a)(2): (1) the intervention motion must be timely filed; (2) the applicant must have a
28 6
1 “significantly protectable” interest relating to the subject of the action; (3) the disposition of the
2 action might, as a practical matter, impair the applicant’s ability to protect its interest; and (4) the
3 applicant’s interest might be inadequately represented by the existing parties. Sw. Ctr. for
4 Biological Diversity v. Berg, 268 F.3d 810, 817-18 (9th Cir. 2001) (citing Nw. Forest Res. Council
5 v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996)). Each of these requirements must be evaluated
6 liberally in favor of intervention:
7
A liberal policy in favor of intervention serves both efficient resolution of issues and
8 broadened access to the courts. By allowing parties with a practical interest in the
outcome of a particular case to intervene, [the court] often prevent[s] or simplif[ies]
9 future litigation involving related issues; at the same time, [the court] allow[s] an
additional interested party to express its views . . . .
10
11 United States v. City of Los Angeles, 288 F.3d 391, 398 (9th Cir. 2002) (citing Forest Conservation
12 Council v U.S. Forest, 66 F.3d 1489, 496 n.8 (9th Cir. 1995)); see also Berg, 268 F.3d at 818;
13 Washington State Bldg. & Constr. Trades Council v. Spellman, 684 F.2d 627, 630 (9th Cir. 1982).
14 Proposed Intervenors satisfy all four intervention requirements, each of which will be addressed in
15 turn.
16 A. Proposed Intervenors Have Timely Filed This Motion.
17 Three criteria determine whether a motion to intervene satisfies the timeliness requirement:
18 (1) the stage of the proceedings; (2) the reason for delay, if any, in moving to intervene; and (3)
19 prejudice to the parties. Glickman, 82 F.3d at 836-837. Proposed Intervenors filed their motion at
20 the very earliest stages of this proceeding (less than a week after these proceedings began); they
21 have not delayed in moving to intervene; and the parties will not be prejudiced in any way.
22
B. Proposed Intervenors Have A Significantly Protectable Interest In The Subject
23 Matter Of This Lawsuit.
24 The Ninth Circuit has adopted “a virtual per se rule that the sponsors of a ballot initiative
25 have a sufficient interest in the subject matter of the litigation to intervene pursuant to Fed. R. Civ.
26 P. 24(a).” Yniguez v. State of Arizona, 939 F.2d 727, 735 (9th Cir. 1991); see also Prete v.
27 Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (ruling that a public-interest group and chief petitioner
28 7
1 who supported “an initiative [had] a ‘significant protectable interest’ in defending the legality of the
2 measure”); Spellman, 684 F.2d at 630 (holding that “the public interest group that sponsored the
3 [challenged] initiative[] was entitled to intervention as a matter of right under Rule 24(a)”). “The
4 individualized interest of official proponents of ballot initiatives in defending the validity of the
5 enactment they sponsored is sufficient to support intervention as of right.” Bates v. Jones, 904 F.
6 Supp. 1080, 1086 (N.D. Cal. 1995).
7 A long line of Ninth Circuit precedent supports intervention by initiative proponents,
8 initiative sponsors, and constitutional-amendment supporters. In Yniguez, the Ninth Circuit held
9 that an organization and spokesman who campaigned for a ballot initiative had “sufficient
10 interest[s] in the subject matter of the litigation to intervene” in a suit challenging that initiative.
11 Yniguez, 939 F.2d at 735. In Prete, the court ruled that the chief initiative petitioner and a public-
12 interest group that supported the initiative had “a ‘significant protectable interest’ in defending the
13 legality of the measure.” Prete, 438 F.3d at 954. Similarly, in Spellman, the court found that “the
14 public interest group that sponsored the [challenged] initiative[] was entitled to intervention as a
15 matter of right under Rule 24(a).” Spellman, 684 F.2d at 630. And, in Idaho v. Freeman, 625 F.2d
16 886, 887 (9th Cir. 1980), the Ninth Circuit concluded that an organization had the right to intervene
17 in a suit challenging the ratification procedures for a constitutional amendment supported by that
18 organization. Likewise, in Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 1983), a
19 case challenging the federal government’s creation of a wildlife conservation area, the court held
20 that “there [could] be no serious dispute . . . concerning . . . the existence of a protectable interest”
21 on the part of an organization that supported the conservation area’s creation. This Court has
22 dutifully followed this guidance: in Bates, for example, this Court permitted intervention by the
23 “official proponents” of a state constitutional amendment setting term limits for state legislators.
24 Bates, 904 F. Supp. at 1086.
25 Here, Proposed Intervenors are the official proponents and campaign committee of
26 Proposition 8, and as such, they hold unique legal statuses regarding that initiative. By creating,
27 proposing, and campaigning for Proposition 8, Proponents have exclusively exercised many state
28 8
1 statutory and constitutional rights: (1) the constitutional right to propose Proposition 8 by initiative,
2 see Cal. Const. art. II, § 8; (2) the statutory right to submit completed signature petitions, thereby
3 authorizing the State to place Proposition 8 on the ballot, see Cal. Elec. Code § 9032; and (3) the
4 statutory right to designate arguments in support of Proposition 8 for the official voter-guide, see
5 Cal. Elec. Code § 9067. Cf. Yniguez, 939 F.2d at 733 (“[State] law recognizes the ballot initiative
6 sponsor’s heightened interest in the measure by giving the sponsor official rights and duties distinct
7 from those of the voters at large”). Similarly, the Committee holds a distinctive legal position: it is
8 the only “primarily formed ballot measure committee” under California law endorsed by
9 Proponents in support of Proposition 8. In short, Proposed Intervenors’ unique legal statuses
10 regarding Proposition 8 are unmatched by any other person or organization.
11 Proposed Intervenors have indefatigably labored in support of Proposition 8. Proponents
12 complied with a myriad of legal requirements to procure Proposition 8’s enactment, such as (1)
13 filing forms prompting the State to prepare Proposition 8’s Title and Summary, (2) paying the
14 initiative filing fee, (3) drafting legally compliant signature petitions, (4) overseeing the collection
15 of more than 1.2 million signatures, (5) instructing signature-collectors on state-law guidelines, and
16 (6) obtaining certifications from supervising signature-gatherers. Proponents devoted substantial
17 time, effort, and resources through fundraising, campaigning, monetary donations, organizing
18 volunteers, and assisting the Committee. Likewise, the Committee—which was responsible for all
19 aspects of the campaign (aside from those legal duties assigned exclusively to Proponents)—
20 labored incessantly, collecting and disbursing approximately $39 million, all with the goal of
21 achieving Proposition 8’s enactment. Proposed Intervenors have also battled for Proposition 8 in
22 the courtroom: Proponents successfully defended against a pre-election legal challenge; and
23 Proponents as well as the Committee intervened and successfully defended against a post-election
24 challenge filed in the California Supreme Court. See Strauss v. Horton, Nos. S168047, S168066,
25 S168078, 2009 WL 1444594 (Cal. May 26, 2009). Currently, Proposed Intervenors continue their
26 legal defense of Proposition 8. They have recently intervened and are litigating in a federal-court
27 suit, which, like this case, challenges the legality of Proposition 8 under the United States
28 9
1 Constitution. See Smelt v. United States, Case No. SACV-09-286 DOC (MLGx) (C.D. Cal.). It is
2 thus clear that Proposed Intervenors—unlike any other person or organization—have invested
3 greatly in enacting and protecting Proposition 8.
4 In this case, Plaintiffs directly challenge Proposition 8 under the Federal Constitution. It is
5 well settled under Ninth Circuit precedent that Proposed Intervenors’ unique legal status as
6 Proposition 8’s official proponents and campaign committee endow them with a significantly
7 protectable interest permitting them to intervene as of right. See Yniguez, 939 F.2d at 735; Prete,
8 438 F.3d at 954; Spellman, 684 F.2d at 630; Bates, 904 F. Supp. at 1086. Ninth Circuit precedent
9 also demonstrates that Proposed Intervenors’ tireless support of Proposition 8 also establishes their
10 right to intervene. See Sagebrush Rebellion, 713 F.2d at 528; Freeman, 625 F.2d at 887.
11 C. This Court’s Ruling Might Impair Proposed Intervenors’ Significantly

12 Protectable Interest.
13 When a proposed intervenor “would be substantially affected in a practical manner by the

14 determination made in the action, he should, as a general rule, be entitled to intervene.” Berg, 268
15 F.3d at 822 (quoting the advisory committee’s notes from Fed. R. Civ. P. 24). Not surprisingly, the
16 Ninth Circuit has routinely concluded that an initiative- or amendment-supporters’ sufficiently
17 protectable interest could be impaired by a suit challenging the supported provision. See Prete, 438
18 F.3d at 954 (“[A]n adverse court decision on such [an initiative] measure may, as a practical matter,
19 impair the interest held by the public interest group”); Bates, 904 F. Supp. at 1086 (“The interest of
20 . . . the official proponents of [the challenged] Proposition . . . in its continued validity could
21 obviously be impaired in this litigation”); Freeman, 625 F.2d at 887 (holding that an organization’s
22 protectable interest in a constitutional amendment supported by that organization “would as a
23 practical matter be significantly impaired by an adverse decision”); Sagebrush Rebellion, 713 F.2d
24 at 528 (holding that “there can be no serious dispute . . . concerning . . . the existence of a
25 protectable interest on the part of the [proposed intervenor] which may, as a practical matter, be
26 impaired”).
27 Here, Plaintiffs ask this Court to declare that Proposition 8 violates the United States
28 10
1 Constitution. They also seek to enjoin California state officials from enforcing that newly enacted
2 provision of the State Constitution. If the Court grants this relief, all Proposed Intervenors’ labor in
3 support of Proposition 8 will be for naught. Thus, this Court’s ruling could directly impair
4 Proposed Intervenors’ interest in Proposition 8, by undoing all that they have done in obtaining its
5 enactment.
6 D. The Existing Parties Will Not Adequately Represent Proposed Intervenors’

7 Interests.
8 “[T]he requirement of inadequacy of representation is satisfied if the [proposed intervenor]
9 shows that representation of its interests ‘may be’ inadequate.” Sagebrush Rebellion, 713 F.2d at
10 528 (emphasis added); accord Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10
11 (1972). “[T]he burden of making this showing is minimal.” Sagebrush Rebellion, 713 F.2d at 528;
12 accord Trbovich, 404 U.S. at 538 n.10; Bates, 904 F. Supp. at 1087.
13 Presumably, California Attorney General, Edmund G. Brown, will represent the California
14 state officials sued in this case. The Ninth Circuit has found that intervention is warranted where
15 the facts indicate that the defendant government official desires the same legal outcome sought by
16 the plaintiff. See Sagebrush Rebellion, 713 F.2d at 528. Attorney General Brown has made it clear
17 that he opposes Proposition 8’s validity. In the challenge to Proposition 8 recently decided by the
18 California Supreme Court, Attorney General Brown argued that “Proposition 8 should be
19 invalidated . . . because it abrogates fundamental rights . . . without a compelling interest.” See Ex.
20 K at p. 75. The Attorney General’s deputy communicated this message more pointedly at oral
21 argument, when he identified himself as a “challenger” to Proposition 8. See California Supreme
22 Court Website, Proposition 8 Cases, available at http://www.courtinfo.ca.gov/courts/supreme/
23 highprofile/prop8.htm (last visited on May 27, 2009) (linking to audio and video coverage of the
24 oral argument). A self-identified “challenger” to Proposition 8 will not adequately represent the
25 interests of those who diligently labored for its enactment.
26 The Ninth Circuit has also found that a state attorney general inadequately represents the
27 views of initiative proponents if he interprets the initiative amendment differently than the
28 11
1 proponents. See Yniguez, 939 F.2d at 738. Attorney General Brown’s legal views about
2 Proposition 8 conflict sharply with those held by Proposed Intervenors. As previously mentioned,
3 the Attorney General believes that Proposition 8 should be invalidated, while Proposed Intervenors
4 firmly maintain its legal propriety. Additionally, Attorney General Brown contends that
5 Proposition 8 should be interpreted narrowly, i.e., that the State should recognize all relational
6 unions that were considered to be “marriages” when they were formalized (regardless of whether
7 they conform to Proposition 8’s structure of one man and one woman). See Ex. K at pp. 61-75
8 (arguing that the State should recognize same-sex “marriages” previously solemnized within its
9 borders). In contrast, Proposed Intervenors maintain that Proposition 8 should be interpreted
10 broadly, i.e., that it prevents the State from “recogniz[ing]” as “marriage” any relational union that
11 does not conform to Proposition 8’s structure of one man and one woman (regardless of when or
12 where it was solemnized). See Cal. Const. art. I, § 7.5. These significant distinctions between
13 Attorney General Brown’s and Proposed Intervenors’ legal views about Proposition 8 demonstrate
14 that he is unable to adequately represent Proposed Intervenors’ interests.
15 The inadequate-representation prong is also satisfied where the existing parties—because of
16 inability or unwillingness—might not present intervenor’s arguments. See Sagebrush Rebellion,
17 713 F.2d at 528; Blake v. Pallan, 554 F.2d 947, 954-55 (9th Cir. 1977). In 2000, Californians
18 enacted a statutory initiative that defined “marriage,” like Proposition 8 does, as a union between “a
19 man and a woman.” Cal. Fam. Code § 308.5 (2000). Attorney General Brown unsuccessfully
20 defended that statute against state constitutional attack. See In re Marriage Cases, 43 Cal.4th 757,
21 76 Cal.Rptr.3d 683 (Cal. 2008). When litigating that case, he presented only two state interests for
22 defining marriage as the union of a man and a woman: (1) the government’s interest in maintaining
23 its longstanding definition of marriage; and (2) its interest in affirming the will of its citizens. See
24 Answer Brief of State of California and the Attorney General to Opening Brief on the Merits, In re
25 Marriage Cases, No. S147999, at pp. 43-54 (attached as Exhibit M). Here, Proposed Intervenors
26 intend to argue additional state interests including but not limited to: promoting stability in
27 relationships between a man and a woman because they naturally (and at times unintentionally)
28 12
1 produce children; and promoting the statistically optimal child-rearing household where children
2 are raised by both a mother and a father. The Attorney General has proven unwilling to argue these
3 state interests, which have been found by other courts to satisfy rational-basis review. See, e.g.,
4 Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1 (N.Y. 2006). His refusal to do so here will
5 unnecessarily hinder the constitutional defense of Proposition 8.
6 “[Another] way for the intervenor to show inadequate representation is to demonstrate that
7 its interests are sufficiently different in . . . degree from those of the named party.” B. Fernandez &
8 Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 546 (1st Cir. 2006); see also Glancy v. Taubman
9 Ctrs., Inc., 373 F.3d 656, 675 (6th Cir. 2004) (“Asymmetry in the intensity . . . of interest can
10 prevent a named party from representing the interests of the absentee”). The Ninth Circuit has
11 acknowledged that oftentimes the government’s motivation to defend a voter-enacted initiative is
12 much less than the proponent’s hearty enthusiasm:
13 [A]s appears to be true in this case, the government may be less than enthusiastic
about the enforcement of a measure adopted by ballot initiative; for better or worse,
14 the people generally resort to a ballot initiative precisely because they do not believe
that the ordinary processes of representative government are sufficiently sensitive to
15
the popular will with respect to a particular subject. While the people may not
16 always be able to count on their elected representatives to support fully and fairly a
provision enacted by ballot initiative, they can invariably depend on its sponsors to
17 do so.
18 Yniguez, 939 F.2d at 733. This Court has similarly reasoned:
19
[A]n official sponsor of a ballot initiative may be considered to add an element not
20 covered by the government in defending the validity of the initiative in that the very
act of resorting to a ballot initiative indicates a rift between the initiative’s
21
proponents and voters and their elected officials on the issue that underlies the
22 initiative.
23 Bates, 904 F. Supp. at 1087 (citations omitted).

24 The marriage issue in California reflects this sharp “rift” between the people and their
25 elected representatives. As previously mentioned, in 2000, Californians enacted a statutory
26 initiative that defined “marriage” as a union between “a man and a woman.” Cal. Fam. Code §
27 308.5 (2000). In 2005 and 2007, however, the California Legislature sought to overturn the
28 13
1 people’s will by approving bills that would have allowed marriage between persons of the same
2 sex, but on both occasions, the Governor vetoed those bills. See A.B. 849, 2005-2006 Leg., Reg.
3 Sess. (Cal. 2005); A.B. 43, 2007-2008 Leg., Reg. Sess. (Cal. 2007). These repeated legislative
4 efforts to permit same-sex “marriage” demonstrate the representatives’ hostility to the people’s will
5 on marriage. This prompted Proposed Intervenors to endure the personally arduous initiative
6 process to enact the constitutional amendment desired by the people. Moreover, the Attorney
7 General’s legal opposition to Proposition 8 also demonstrates the rift between Californians and their
8 elected representatives. Californians thus depend on Proposed Intervenors, and not their elected
9 officials, to defend Proposition 8 vigorously.
10 In sum, Proposed Intervenors satisfy all the requirements for intervention as of right. This
11 Court should grant their request to intervene.
12 II. PROPOSED INTERVENORS HAVE SATISFIED THE REQUIREMENTS FOR PERMISSIVE

INTERVENTION.
13
14 Fed. R. Civ. P. 24(b)(1)(B) establishes the requirements for permissive intervention. “[A]
15 court may grant permissive intervention where the applicant for intervention shows (1) independent
16 grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the
17 main action, have a question of law or question of fact in common.” City of Los Angeles, 288 F.3d
18 at 403. Proposed Intervenors satisfy each of these requirements.
19 First, Proposed Intervenors have independent grounds for jurisdiction in this case.
20 Plaintiffs’ claims seek to undermine Proposed Intervenors’ state constitutional and statutory rights
21 as the official proponents and campaign committee for Proposition 8. This direct attack on
22 Proposed Intervenors’ rights creates sufficient grounds for jurisdiction.
23 Second, Proposed Intervenors have timely filed their motion to intervene. In determining
24 timeliness for purposes of permissive intervention, the Ninth Circuit “considers precisely the same
25 three factors—the stage of the proceedings, the prejudice to existing parties, and the length of and
26 reason for the delay”—that it considers when determining timeliness for purposes of mandatory
27 intervention. League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1308 (9th Cir. 1997).
28 14
1 As previously demonstrated, Proposed Intervenors satisfy the timeliness requirement: they filed
2 their motion at the very earliest stages of this proceeding; they have not delayed in moving to
3 intervene; and the parties will not be prejudiced in any way.
4 Third, Proposed Intervenors’ defenses to Plaintiffs’ claims present questions of law in
5 common with the issues involved in the “main action.” Plaintiffs’ claims and Proposed
6 Intervenors’ defenses both involve the constitutionality of Proposition 8 under the Federal
7 Constitution: Plaintiffs seek a declaration that Proposition 8 violates the Federal Constitution, and
8 Proposed Intervenors contend that Proposition 8 complies with the Federal Constitution. These
9 arguments present inextricably intertwined and completely overlapping questions of law.
10 In sum, Proposed Intervenors satisfy all the requirements for permissive intervention. This
11 Court should therefore grant their request to intervene.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 15
1 CONCLUSION
2 Proposed Intervenors have significantly protectable interests in Proposition 8. The
3 California Attorney General will not adequately represent their interests because he has argued that
4 Proposition 8 should be invalidated; he interprets Proposition 8 differently than Proposed
5 Intervenors; and he will not present all their arguments. This Court should thus allow Proposed
6 Intervenors to intervene in this action.
7 Dated: May 28, 2009

ATTORNEYS FOR PROPOSED INTERVENORS DENNIS
10 HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F.
11 GUTIERREZ, HAK-SHING WILLIAM TAM, MARK A.
JANSSON, AND PROTECTMARRIAGE.COM – YES ON
12 8, A PROJECT OF CALIFORNIA RENEWAL
13
By: s/Timothy Chandler
14 Timothy Chandler
15
16
17
18
19
20
21
22
23
24
25
26
27
28 16
Case3:09-cv-02292-JW Document8-1 Filed05/28/09 Page1 of 8
Case3:09-cv-02292-VRW Document8-2 Filed05/28/09 Page1 of 8
EXHIBIT B


bbull@telladf.org
braum@telladf.org
8
andrew@pugnolaw.com
11
and MARK A. JANSSON; and PROTECTMARRIAGE.COM – YES ON 8, A

15

Plaintiffs, DECLARATION OF GAIL J.
19
KNIGHT IN SUPPORT OF
20 v. PROPOSED INTERVENORS’
MOTION TO INTERVENE
21 ARNOLD SCHWARZENEGGER, in his official
capacity as Governor of California; EDMUND G.
23 General of California; MARK B. HORTON, in his
official capacity as Director of the California
24 Department of Public Health and State Registrar of
DECLARATION OF GAIL J. KNIGHT IN SUPPORT OF PROPOSED INTERVENORS’ MOTION TO INTERVENE

CASE NO. 09-CV-2292 VRW

2 Defendants,
3 and
7 RENEWAL,
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 I, Gail J. Knight, declare as follows:
2 1. I am a resident, taxpayer, and registered elector of the County of Los Angeles, State of
3 California. I have personal knowledge of the facts stated herein, and if called upon to testify, I
4 could, and would, competently testify to those facts.
5 2. Under Article II, Section 8 of the California Constitution, I have a personal right as an
6 elector “to propose statutes and amendments to the Constitution” through the initiative process.
7 3. As one of the five Official Proponents of Proposition 8, I have exercised my
8 constitutional right to propose Proposition 8 as an initiative amendment to the California
9 Constitution.
10 4. My state constitutional and statutory rights as an Official Proponent of Proposition 8
11 could be adversely affected by the ruling in this case.
12 5. As an Official Proponent of Proposition 8, I assert an individualized and personal
13 interest that is distinguishable from the generalized public-policy interest in defining marriage as
14 the union of a man and a woman, shared by the majority of California voters who voted in favor of
15 Proposition 8.
16 6. In October 2008, I supervised the preparation of the appropriate language for
17 Proposition 8. At that time, I also executed the forms and documents prescribed by the California
18 Elections Code, and presented them to the California Attorney General so that he would prepare a
19 Title and Summary of the chief purpose and points of Proposition 8.
20 7. Under California Elections Code Section 342, I hold the status of an “Official
21 Proponent” of Proposition 8 because I submitted a draft of the petition proposing Proposition 8 by
22 initiative to the California Attorney General with a request that he prepare a Title and Summary of
23 the chief purpose and points of the proposed measure.
24 8. To become an Official Proponent, I was also required by California Elections Code
25 Section 9608 to execute and submit to the Attorney General a certification (1) acknowledging that it
26 is a misdemeanor under state law to allow signatures on an initiative petition to be used for any
27 purpose other than qualifying the proposed measure for the ballot and (2) certifying that I will not
28 allow the signatures for Proposition 8 to be used for any purpose other than qualifying the measure

1 for the ballot.
2 9. Under California Elections Code Section 9004, as an Official Proponent, I was
3 responsible for paying the filing fee to begin the initiative process; I was entitled to compel the
4 Attorney General to draft a Title and Summary for Proposition 8; and I was authorized to submit
5 amendments to Proposition 8.
6 10. On November 29, 2007, the Attorney General issued a Title and Summary for the
7 signature petitions. This Title and Summary appeared on the petitions that were circulated for the
8 purpose of obtaining signatures to qualify Proposition 8 for the ballot.
9 11. As an Official Proponent, I had unique legal duties to perform and rights to exercise
10 prescribed by the California Constitution and the California Elections Code.
11 12. As an Official Proponent, I was legally responsible for preparing a Proposition 8 petition
12 form that complied with the requirements of California Elections Code Sections 9001, 9008, 9012,
13 and 9014.
14 13. As an Official Proponent, I endorsed ProtectMarriage.com – Yes on 8, A Project of
15 California Renewal (a “primarily formed ballot measure committee” under California law registered
16 with the California Secretary of State) to conduct a petition-gathering campaign for the purpose of
17 qualifying Proposition 8 for the ballot.
18 14. Before allowing signatures to be collected for Proposition 8, as an Official Proponent, I
19 was required by California Elections Code Section 9609 to obtain and keep on file an executed
20 certification by each person, company official, or other organizational officer in charge of signature
21 gathering, certifying that he or she will not allow the signatures for Proposition 8 to be used for any
22 purpose other than qualifying that measure for the ballot.
23 15. As an Official Proponent, I was responsible under California Elections Code Section
24 9607 for ensuring that all volunteers and paid signature-gatherers received instruction on the state-
25 law requirements and prohibitions concerning petition circulation and signature gathering. As part
26 of this legal requirement, I was responsible for making sure that all volunteers and paid signature-
27 collectors were instructed about the state-law prohibition against the use of signatures for a purpose
28 other than qualifying the proposed initiative for the ballot.

1 16. As an Official Proponent, I was responsible for obtaining at least 694,354 valid petition
2 signatures within a maximum of 150 days between November 29, 2007, and April 28, 2008.
3 17. As an Official Proponent, I was responsible for ensuring that each petition circulator
4 who obtained signatures executed the “Declaration of Circulator” on each petition sheet. I was also
5 responsible for including each circulator’s signature, date, and place of signing as required under
6 Section 2015.5 of the California Code of Civil Procedure.
7 18. As an Official Proponent, I had the exclusive statutory right under California Elections
8 Code Section 9032 to file the signature petitions with county-elections officials for signature
9 verification. No one (other than the other four Official Proponents) could submit petitions for
10 signature verification.
11 19. On April 24, 2008, in my capacity as an Official Proponent, I authorized that the
12 petitions, bearing the signatures of over 1.2 million Californians, be submitted to county-elections
13 officials for signature verification.
14 20. As an Official Proponent, I was entitled, under California Elections Code Sections 9030,
15 9031, and 9033, to receive special notices and updates during the signature-verification process.
16 21. On June 2, 2008, because of my capacity as an Official Proponent, the Secretary of State
17 notified me that the county-elections officials had verified the requisite number of voter signatures
18 and that Proposition 8 qualified for inclusion on the November 2008 ballot.
19 22. As an Official Proponent, I had the statutory authority under California Elections Code
20 Section 9067 to designate the arguments and rebuttal arguments in favor of Proposition 8 appearing
21 in the statewide voter pamphlet.
22 23. After Proposition 8 qualified for the ballot, I was sued, in my capacity as an Official
23 Proponent, in a pre-election legal challenge before the California Supreme Court seeking to remove
24 Proposition 8 from the ballot because it was alleged to be an improperly presented constitutional
25 “revision” (rather than an amendment). The name of that case is Bennett v. Bowen, No. S164520.
26 As an Official Proponent, I through counsel defended my right to propose Preposition 8 as an
27 initiative amendment to the California Constitution. The California Supreme Court dismissed that
28 suit in July 2008.

1 24. In the same pre-election lawsuit, I was also sued, in my capacity as an Official
2 Proponent, on grounds that the Title and Summary prepared by the Attorney General for the
3 circulating petitions had been false and misleading. As an Official Proponent, I through counsel
4 defended the propriety of the Title and Summary appearing on Proposition 8’s official petitions.
5 The California Supreme Court dismissed that suit in July 2008.
6 25. On November 4, 2008, a majority of voting Californians approved Proposition 8, and it
7 immediately became Article I, Section 7.5 of the California Constitution, which states: “Only
8 marriage between a man and a woman is valid or recognized in California.”
9 26. As an Official Proponent, I successfully intervened in three post-election legal
10 challenges to Proposition 8 filed with the California Supreme Court. The petitioners in those cases
11 challenge the legality of Proposition 8 under the California Constitution. On November 19, 2008,
12 the Court permitted my intervention in those consolidated cases. The name of that consolidated
13 action is Strauss v. Horton, No. S168047. In my capacity as an Official Proponent, I through
14 counsel defended Proposition 8 against those legal challenges. On March 26, 2009, the California
15 Supreme Court denied those challenges and upheld Proposition 8.
16 27. As an Official Proponent, I invested substantial reputation and personal resources in
17 campaigning for Proposition 8. For example, I personally attended and spoke at a major rally for
18 Proposition 8. I also donated personal funds several times to the Proposition 8 campaign.
19 28. My state constitutional and statutory rights as an Official Proponent of Proposition 8 are
20 jeopardized by the legal claims raised by the plaintiffs in this case. These rights are personal
21 interests of such a direct, immediate, and individualized nature that I will suffer a personal loss if
22 the Court grants the judgment sought by the plaintiffs in that case.
23 29. I do not think that any other party in this case will adequately represent my interests as
24 an Official Proponent of Proposition 8.
25 30. As an Official Proponent of Proposition 8, I have intervened in a case currently pending
26 before the United States District Court for the Central District of California, Smelt v. United States,
27 Case No. SACV-09-286 DOC (MLGx). I intervened in that case with the four other Official
28 Proponents of Proposition 8—Dennis Hollingsworth, Martin F. Gutierrez, Hak-Shing William Tam,

EXHIBIT C


bbull@telladf.org
braum@telladf.org
8
andrew@pugnolaw.com
11

15

Plaintiffs, DECLARATION OF MARTIN F.
19
GUTIERREZ IN SUPPORT OF
MOTION TO INTERVENE
DECLARATION OF MARTIN F. GUTIERREZ IN SUPPORT OF PROPOSED INTERVENORS’ MOTION TO INTERVENE


2 Defendants,
3 and
7 RENEWAL,
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 I, Martin F. Gutierrez, declare as follows:
2 1. I am a resident, taxpayer, and registered elector of the County of Yolo, State of
9 Constitution.
15 Proposition 8.

1 for the ballot.
13 and 9014.


23 before the United States District Court for the Central District of California, Smelt v. United States,
24 Case No. SACV-09-286 DOC (MLGx). I intervened in that case with the four other Official
25 Proponents of Proposition 8—Dennis Hollingsworth, Gail J. Knight, Hak-Shing William Tam, and
26 Mark A. Jansson—as well as ProtectMarriage.com – Yes on 8, A Project of California Renewal.
27 That court granted our request for intervention on May 6, 2009. That case, like this one, asserts
28 federal constitutional challenges against Proposition 8. The plaintiffs in that case, like the plaintiffs

EXHIBIT D


bbull@telladf.org
braum@telladf.org
8
andrew@pugnolaw.com
11

15

Plaintiffs, DECLARATION OF HAK-SHING
19
WILLIAM TAM IN SUPPORT OF
MOTION TO INTERVENE
DECLARATION OF HAK-SHING WILLIAM TAM IN SUPPORT OF PROPOSED INTERVENORS’ MOTION TO INTERVENE


2 Defendants,
3 and
7 RENEWAL,
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 I, Hak-Shing William Tam, declare as follows:
2 1. I am a resident, taxpayer, and registered elector of the City and County of San Francisco,
3 State of California. I have personal knowledge of the facts stated herein, and if called upon to
4 testify, I could, and would, competently testify to those facts.
9 Constitution.
15 Proposition 8.

1 for the ballot.
13 and 9014.


16 27. As an Official Proponent, I invested substantial time, effort, reputation, and personal
17 resources in campaigning for Proposition 8. For example, I dedicated the majority of my working
18 hours between January 2008 and November 2008 toward qualifying Proposition 8 for the ballot and
19 campaigning for its enactment. I organized several rallies in support of Proposition 8 (which were
20 attended by thousands of voters), coordinated volunteers from the Asian-American community, and
21 raised thousands of dollars for the Proposition 8 campaign.

EXHIBIT E


bbull@telladf.org
braum@telladf.org
8
andrew@pugnolaw.com
11

15

Plaintiffs, DECLARATION OF MARK A.
19
JANSSON IN SUPPORT OF
MOTION TO INTERVENE
DECLARATION OF MARK A. JANSSON IN SUPPORT OF PROPOSED INTERVENORS’ MOTION TO INTERVENE


2 Defendants,
3 and
7 RENEWAL,
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 I, Mark A. Jansson, declare as follows:
2 1. I am a resident, taxpayer, and registered elector of the County of Sacramento, State of
9 Constitution.
15 Proposition 8.

1 for the ballot.
13 and 9014.


16 27. As an Official Proponent, I invested substantial time, effort, reputation, and personal
17 resources in qualifying Proposition 8 for the ballot and campaigning for its enactment. For
18 example, I spent hundreds of hours between January 2008 and November 2008 working in support
19 of Proposition 8, including obtaining petition signatures, traveling throughout the State to organize
20 volunteers, speaking to community organizations, meeting with leaders of the various ethnic
21 communities, and serving on the executive committee of ProtectMarriage.com – Yes on 8, A
22 Project of California Renewal.

EXHIBIT F


bbull@telladf.org
braum@telladf.org
8
andrew@pugnolaw.com
11

15

Plaintiffs, DECLARATION OF DAVID BAUER
19
IN SUPPORT OF PROPOSED
20 v. INTERVENORS’ MOTION TO
INTERVENE
DECLARATION OF DAVID BAUER IN SUPPORT OF PROPOSED INTERVENORS’ MOTION TO INTERVENE


2 Defendants,
3 and
7 RENEWAL,
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 I, David Bauer, declare as follows:
2 1. I am the Treasurer of the official campaign committee for Proposition 8:
3 ProtectMarriage.com – Yes on 8, a Project of California Renewal, FPPC ID No. 1302592 (the
4 “Committee”). I have personal knowledge of the facts stated herein, and if called upon to testify, I
6 2. In November 2007, the Official Proponents of Proposition 8 and other members of a
7 broad-based coalition of community leaders asked me to serve as Treasurer of the Committee, and I
8 agreed to do so.
9 3. On November 27, 2007, I executed and filed with the Secretary of State a “Statement of
10 Organization” for the purpose of creating and registering the Committee as a “primarily formed
11 ballot measure committee” under the California Political Reform Act.
12 4. Pursuant to California Government Code Section 82047.5(b), the Committee has the
13 legal status of a “primarily formed committee” because the Committee exists primarily to support
14 just one ballot measure—Proposition 8.
15 5. Pursuant to California Government Code Section 82048.7, the Committee is
16 “sponsored” by California Renewal, a California nonprofit organization. That organization is
17 responsible for setting the policies for soliciting contributions and making expenditures of
18 committee funds.
19 6. The Official Proponents of Proposition 8 designated the Committee as the official
20 campaign committee responsible for receiving all contributions and making all expenditures in the
21 campaign to qualify Proposition 8 for the ballot and to pass it into law at the November 2008
22 General Election.
23 7. As the Treasurer, I monitored the raising and spending of all campaign contributions.
24 The contributions were used to pay for professional signature gathering, campaign personnel,
25 television and radio advertisements, newspaper advertisements, media relations, and all other
26 campaign expenses to promote Proposition 8. In my role as Treasurer, I invested a substantial
27 amount of personal time and effort in promoting the enactment of Proposition 8.
28 8. Since it was formed, the Committee has received financial contributions from over

1 83,000 individual donors, the vast majority of which are registered California voters.
2 9. From these financial supporters, the Committee has received over $39 million in total
3 contributions for the official Proposition 8 campaign.
4 10. Subject only to the statutory powers and duties reserved exclusively to the Official
5 Proponents, the Committee was directly responsible for all other aspects of the campaign to qualify
6 Proposition 8 for the ballot and enact it into law.
7 11. In the campaign, the Committee spent over $37 million of its financial resources to (1)
8 collect the required number of petition signatures and (2) campaign in favor of Proposition 8.
9 12. After the election, the Committee had a surplus of over $1.6 million.
10 13. Pursuant to California Elections Code Section 18680(m)(2), the Committee is expressly
11 authorized to spend these surplus funds for, among other things, “attorney’s fees and other costs in
12 connection with litigation where the litigation arises directly out of . . . [t]he enactment, by the
13 initiative process, of any . . . constitutional amendment.”
14 14. After the election, the Committee successfully intervened in three post-election legal
17 the Court permitted the Committee’s intervention in those consolidated cases. The name of that
18 consolidated action is Strauss v. Horton, No. S168047. The Committee through its counsel
19 defended Proposition 8 against those legal challenges. On March 26, 2009, the California Supreme
20 Court denied those challenges and upheld Proposition 8.
21 15. Because of the Committee’s statutorily authorized role in providing for the legal defense
22 of Proposition 8, and the Committee’s enormous pecuniary investment of over $37 million in the
23 campaign to enact Proposition 8, the Committee has a unique stake, not shared by the general
24 public, in any litigation directly challenging the legality of Proposition 8.
25 16. The Committee is in jeopardy of suffering a direct, immediate, and individualized loss if
26 the Court grants the relief sought by the plaintiffs in this case.
27 17. If the Court grants the relief sought by the plaintiffs in this case, all efforts and
28 pecuniary investments by the Committee and its 83,000 financial supporters would be nullified.

EXHIBIT G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
Exhibit L

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. SACV 09-286 DOC (MLGx) Date: May 6, 2009
Title: SMELT ET AL V UNITED STATES OF AMERICA ET AL
DOCKET ENTRY
[I hereby certify that this document was served by first class mail or Government messenger service, postage prepaid, to all counsel (or parties) at their
respective most recent address of record in this action on this date.]
Date:____________ Deputy Clerk: ___________________________________
PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Kristee Hopkins Not Present

Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:
NONE PRESENT NONE PRESENT
PROCEEDING (IN CHAMBERS): GRANTING MOTION TO INTERVENE
On April 10, 2009, Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Hak-Shing
William Tam, Mark Jansson and ProtectMarriage.com (the “Proposed Interveners”) filed a Motion to
Intervene in this case, under either FED. R. CIV. P. 24(a)(2) or FED. R. CIV. P. 24(b)(1)(B) (the
“Motion”). Defendant State of California, on April 27, 2009, filed a Notice of Non-Opposition to the
instant Motion. Defendant United States of America filed a statement avering that it “takes no
position” regarding the instant Motion. Plaintiffs’ opposition, if any, was due on April 27, 2009. As of
this date, the Court has not received an opposition. Accordingly, the Motion is hereby GRANTED as
unopposed. The Proposed Interveners’ request to intervene is hereby GRANTED.
The Clerk shall serve this minute order on all parties to the action.
MINUTES FORM 11 DOC Initials of Deputy Clerk _kh_

CIVIL - GEN Page 1 of 1
Exhibit M
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
Coordination Pro'ceeding,Special Title [Rule 1550(b)] Case No. S 147999

In re MARRIAGE CASES.
(JCCP No. 4365)
First Appellate District, Case Nos. A 110449, A 110450, A 110451,

A1 10463, A1 10651, A1 10652
San Francisco County Superior Court Nos. CGC-04-429539, CGC-04-504038,
CGC-04-429548, CPF-04-503943, CGC-04-428794
Los Angeles County Superior Court Case No. BS-088506
Hon. Richard A. Kramer, Judge
ANSWER BRIEF OF STATE OF CALIFORNIA AND THE

ATTORNEY GENERAL TO OPENING BRIEFS ON THE MERITS
EDMUND G. BROWN JR. STACY BOULWARE EURIE

Attorney General of the State of California Senior Assistant Attorney General
JAMES M. HUMES CHRISTOPHER E. KRUEGER
Chief Deputy Attorney General Supervising Deputy Attorney General
State Bar No. 173288
MANUEL M. MEIIEIROS
State Solicitor Gencxal 1300 I Street, Suite 125
P.O. Box 944255
DAVID S. CHANEY Sacramento, CA 94244-2550
Chief Assistant Attlorney General Telephone: (916) 445-7385
Fax: (916) 324-8835
Email: Christopher.Krueger@doj.ca.gov
Attorneys for the State of California and

Attorney General Edmund G. Brown Jr.
TABLE OF CONTENTS
Page
INTRODUCTION
STATEMENT OF FACTS
A. The History of California's Laws Regulating Marriage as

Between a Man and a Woman. 3
B. The :Historyof the Recognition of Lawhl Conjugal and

Farniily Relationships Outside of the Marriage Context. 7
C. The History of California's Statutory Recognition of

Committed Same-sex Partnerships. 10
D. The :Historyof the Instant Litigation. 12
ARGUMENT 16
I. CALIFORNIA'S MARRIAGE LAWS SATISFY EQUAL

PROTECTION UNDER A RATIONAL BASIS TEST
BECAUSE THE STATE MAY PRESERVE THE
TRADITIONAL DEFINITION OF MARRIAGE WHILE
AFFORDING THE SAME RIGHTS, BENEFITS AND
PROTECTIONS TO DOMESTIC PARTNERS. 16
A. The Marriage Laws Do Not Discriminate Based on Gender

Because They Do Not Favor One Gender Over Another. 17
B. The ]Marriage Statutes Do Not Discriminate Based on

Sexual Orientation Because They Do Not Favor One
Sexual Orientation Over Another. 22
C. Sexual Orientation Is Not a Suspect Classification. 24
D. The ]Equal Protection Clause of the California Constitution

Does Not Establish a Fundamental Right to Same-sex
Marriage. 38
TABLE OF CONTENTS (continued)
Page
E. If the Court Declines to Apply a Rational Basis Test,

the IVlarriage Laws Should Nevertheless Be Sustained
Because They Satisfy an Intermediate Level of Scrutiny. 39
F. The State's Maintenance of Traditional Marriage and

Domestic Partnerships Promotes Important State Interests. 43
1. The State Has an Important Interest in Maintaining the

Traditional Definition of Marriage While Providing
Same-sex Couples With the Same Rights and Benefits. 45
2. 'The State Has an Important Interest in Canylng Out

the Will of Its Citizens as Represented Through the
Legislative Process. 48
11. CA1,IFORNIA'S CHOICE TO EQUALIZE RIGHTS

FOR SAME-SEX COUPLES WHILE PRESERVING
THE INSTITUTION OF MARRIAGE COMPORTS
WITH THE FUNDAMENTAL RIGHT TO MARRY. 55
A. The Personal Dignity Interests That Inform the Historically

Recognized "Right to Marry" Have Been Given to Same-sex
Partners by the Domestic Partnership Act. 55
B. There Is No Fundamental Liberty Interest in Using the Title

"Marriage" to Describe a Same-sex Relationship. 63
111. TH13 MARRIAGE LAWS COMPORT WITH THE

RIGHTS OF PRIVACY, ASSOCIATION AND
EXPRESSION. 63
A. There Is No Constitutionally Recognized Privacy Interest

that Guarantees Same-sex Couples a Right to Marry. 64
B. The Marriage Laws Do Not Infnnge Upon Rights of

Asslociation or Expression. 66
CONCLUSION 68
TABLE OF AUTHORITIES
Page
Cases
Alaska Civil Liberties Union v. State of Alaska

(Alaska 2005) 122 P.3d 781
Amador Valley Joint Union High School District v.

State Board of Equalization
(1978) 22 Cal.3d 208
American Academy of Pediatrics v. Lungren

(1997) 16 Cal.4th 307
Andersen v. King County

(Wash. 2006) 138 P.3d 963
A rmijo v. Mile:?
(2005) 127 Cal.App.4th 1405
Arp. v. Workers' Comp. Appeals Bd.

(1977) 19 Ca1.3d 395
Baehr v. Lewifir
(Hawaii 19193)852 P.2d 44
Baker v. Carr
(1962) 369 U.S. 186
Baker v. Nelson
(Minn. 1971) 191 N.W.2d 185
Baker v. State qf Vermont

(Vt. 1999) '744 A.2d 864
Bakke v. Regents of the Univ. of CaliJ:

(1976) 18 Cal.3d 34
Baluyut v. Superior Court

(1996) 12 Cal.4t.h 826
TABLE OF AUTHORITIES (continued)
Page
Board of Supelvisors v. Local Agency Formation Comm.

(1992) 3 Cii1.4th 903 8
Bowens v. Superior Courl

(1991) 1 Cii1.4th 36 32
Bowers v. Hardwick
(1986) 478 U.S. 186 37,56
Brown v. Boand of Education

(1954) 347 U.S. 483 46,47
Brown v. Merlo
(1973) 8 Cii1.3d 855 46
Butt v. State of California

(1992) 4 Cal.4th 668 38
Califano v. JoE~st
(1977) 434 U.S. 47 59
City of Cleburrze v. Cleburne Living Center

(1985) 473 U.S. 432 30,31,35,41
Coshow v. City of Escondido

(2005) 132 Cal.App.4th 687 56
Craig v. Boren
(1976) 429 U.S. 190 28,40
Dandridge v. ?Tilliams
(1970) 397 U.S. 471 43
Dawn D. v. Superior Court

(1998) 17 Clal.4th 932 56,57
21
Page
D 'Amico v. Board of Medical Examiners

(1974) 11 Cal.3d 1 16,38-40
Eisenstadt v. Baird
(1972) 405 U.S. 438 58
Elden v. Sheldon
(1988) 46 Cal.3d 267 4
Elisa B. v. SupleriorCourt
(2005) 37 Cal.4th 108 9
Fair Political I3ractices Commission v. Superior Court

(1979) 25 Cal.3d 33 59
Flores v. Morgan Hill Unlfied Sch. Dst.

(9' Cir. 2003) 32 F.3d 1130 37
Frontier0 v. Richardson
(1973) 4 11 U.S. 677 28,30,31
Gay Law Studtmts Assn. v. Pac. Telephone & Telegraph Co.

(1979) 24 Cal.3d 458 18
Goodridge v. L)epartment of Public Health

(Mass. 200:3) 798 N.E.2d 941 60
Graham v. Ricrbrdson
(1971) 403 U.S. 365 29
Griswold v. Connecticut
(1965) 381 U.S. 479 58
Hansen v. City of San Buenaventura

(1986) 42 C:al.3d 1172 32
Hardy v. Sturnif
(1978) 2 1 C:al.3d I 19
Page
Harris v. Capital Growth Investors XIV

(1991) 52 Cal.3d 1142
Hawkins v. Superior Court

(1978) 22 Cal.3d 584
Hays v. Wood
(1979) 25 Cal.3d 772
Hernandez v. City of Hanford

(June 7,2007, S 143287) -Cal.4th - [2007 WL 16298301 40
Hernandez v. Robles
(N.Y. 2006) 855 N.E.2d I
Hernandez v. State of Texas

(1954) 347 U.S. 475
Hernandez-Montiel v. Immigration & Naturalization Sew.

(9' Cir. 2000) 225 F.3d 1084 37
Hill v. National Collegiate Athletic Assn.

(1994) 7 Cal.4th 1
Holguin v. Flol~es
(2004) 122 Cal.App.4th 428
Holmes v. Caltfornia Army National Guard

(9' Cir. 19517) 124 F.3d 1126
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.

(1995) 515 U.S. 557 67
In re Anderson
(1968) 69 C:al.2d 613
In re Kandu
(Bankr. W.D. Wash. 2004) 3 15 B.R. 123
Page
In re Lane
(1962) 58 (2a1.2d 99 8
Johnson v. Car!ifornia
(2005) 543 U.S. 449 31
Johnson v. Calvert
(1993) 5 Cial.4t.h 84 8
Kasler v. Lockyer, supra,

(2000) 23 Cal.4th 472 31,38
Kenneally v. Med. Bd. of CaliJ:

(1994) 27 Cal.App.4th 489 32
Kilburn v. Kilt~urn
(1891) 89 (3al. 46 4
Kim v. Workers ' Comp. Appeals Bd.

(1999) 73 (Zal.App.4t.h 1357 23
Knight v. Superior Court

(2005) 128 Cal.App.4th 14 6
Koebke v. Benaardo Heights Country Club

(2005) 36 (Zal.4t.h 824 10,22,41,48
Koire v. Metro Car Wash

(1985) 40 Ca1.3d 24 18
Kristine H. v. Lisa R.
(2005) 37 (Zal.4t.h 156, 9
Lawrence v. Texas
(2003) 539 U.S. 558
vii
Page
Lewis v. Harri:i
(N.J. 2006) 908 A.2d 196 43,45,52
Lochner v. New York

(1905) 198 U.S., 45 57
Lockyer v. City and County of Sun Francisco

(2004) 33 CZal.4th 1055 7, 12,60
Loving v. Virginia
(1967) 388 U.S. I 8,20,29, 58
Massachusetts Board of Retirement v. Murgia

(1976) 427 U.S. 307 30
Maynard v. Hill
(1888) 125 U.S. 190 7
Meyer v. State of Nebraska

(1923) 262 U.S. 390 57
Michelle W. v. Ronald W.
(1985) 39 Cal.3d 354 18
Mississippi Un,iv.for Women v. Hogan

(1982) 458 U.S. 718 18
Morrison v. Saldler
(Ind. Ct. App. 2005) 82 1 N.E.2d 15 52
Mott v. Mott
(1 890) 82 C:al. 4 13 4,61
Nahrstedt v. Larkeside Village Condominium Assn.

(1 994) 8 Call.4th 361 64
Nguyen v. Imm,igration& Naturalization Sew.

(2001) 533 U.S. 53 29
Page
Ortiz v. Los Arlgeles Police Relief Ass'n, Inc.

(2002) 98 Cal.App.4t.h 1288 65
People v. Andcrson
(1972) 6 Cal.3d 628
People v. Hill
(1992) 3 Cal.4t.h 959
People v. Mobley
(1999) 72 Cal.App.4th 761
People v. Santc~s
(2007) 147 Cal.App.4th 965
Perez v. Sharp
(1948) 32 Cal.2d 7 11
Personnel Adrriinistrator of Mass. v. Feeney

(1979) 442 U.S. 256
Plessy v. Fergtison
(1896) 163 U.S. 537
Plyler v. Doe
(1982) 457 U.S. 202
Purdy & Fitzplztrick v. State of California

(1969) 71 Cal.2d 566
Raffaelli v. Committee on Bar Examiners

(1972) 7 Cal.3d 288
Raich v. Gonzfi!les
(9" Cir. Mar. 27,2007) -F.3d -9 2007 WL 754759 56
Reed v. Reed
(1971) 404 U.S. 71
Page
Regents of the Univ. of CaliJ:v. Bakke

(1978) 438 U.S. 265
Reyna v. City cfi County of Sun Francisco

(1977) 69 Cal.App.3d 876
Roe v. Wade
(1973) 410 U.S. 113
Romer v. Evans
(1996) 517 U.S. 620
Rumsfeld v. Fclrum for Academic and Institutional Rights, Inc.

(2006) 547 U.S. 47, 126 S.Ct. 1297 67
Sail'er Inn, Inc. v. Kirby

(1971) 5 Ci11.3d 1
San Antonio Independent School Dist. v. Rodriguez

(1973) 41 1 U.S. 1
Schmidt v. Superior Court

(1989) 48 Ca1.3d 370
Selfv. Self
(1962) 58 Czal.2d 683
Serrano v. Pritat
(1977) 18 Cal.3d 728
Sharon S. v. Superior Court

(2003) 3 1 Cal.4th 4 17
Skinner v. Okl~lhoma
(1942) 3 16 U.S. 535
Smelt v. Countjv of Orange

(C.D. Ca1. ;!005) 374 F.Supp.2d 861
Page
Standhardt v. :Superior Court

(Ariz. Ct. App. 2003) 77 P.3d 45 1
Tain v. State Bd. of Chiropractic Examiners

(2005) 130 Cal. App.4th 609
Turner v. SaJey
(1987) 482 U.S. 78 59,60
US. Department of Agriculture v. Moreno

(1973) 413 U.S. 528
United States v. Carolene Products Co.

(1938) 304 U.S. 144 passim
United States v. Virginia

(1996) 518 U.S. 515
Vacco v. Quill
(1997) 521 U.S. 793
Warden v. State Bar of California

(1999) 2 1 Cal.4t.h 628
Warfield v. Peninsula GoEf& Country Club

(1995) 10 Cal.4t.h 594
Washington v. Gluclcsberg
(1997) 52 1 U.S. 702
Watkins v. United States Army

(9" Cir. 19139) 875 F.2d 699
Werner v. Southern California Associated Newspapers

(1950) 35 Cal.2d 121
Zablocki v. Recihail
(1978) 434 U.S. 374
Page
Constitutional Provisions
Calif. Const. 1849, art. XI

§ 12
Calif. Const., iirt. I

61
$ 6 (former)
§8
§ 17
Calif. Const., iut. I1

§ 1
§8
Calif. Const., former art. XX

§7
§ 18
Hawaii Const., art. I

§ 26
United States Const.

First Amendment 7
Fourteenth Amendment passim
Twenty-Sixth Amendment 4
Statutes and ]Regulations
1 U.S.C.
§7
28 U.S.C.
1738C
Page
Calif. Civ. Code (former)
§ 55
§ 56
4100
g 4101
8 4101(a)
g 4357
4400
440 1
4425(b)
42 13(a)
Calif. Code Civ. Proc.

# 1094
Calif. Code Regs., tit. 18,
5 462.240, su.bd. ( k )
Calif. Farn. Colde
g 297 62
297.5 passim
5 299.2 12
9 300 passim
5 301 passim
5 302 passim
8 304 6
8 308 6
5 308.5 passim
5 420 3
5 7602 8
8 9000 9
Calif Rev. & Tax. Code

§ 61
5 18521
Calif. Stats. 1850, ch. 140
$5 1-11
...
Xlll
Page
Calif. Stats. 1969, ch. 1608 4

§ 26

§ 1

31
Calif. Welf. & Inst. Code

$ 16013
Conn. Gen. Stat. Ann.

$8 46b-38aa -- 46b-3800
D.C. Official (:ode
8 32-702
Haw. Rev. Stat. 572C-2
Maine Rev. Stiits. Ann., tit. 22

3 2710
N.H. Stats. 2007, ch. 58
N.J. Stat. Ann.

$3 37:l-29 - 37:l-36
Ore. Stats. 2007, ch. 99
Page
Vt. Stat. Ann.

$5 1201 - 1207
Wash. Stats. 2007, ch. 156
Other Authorities
2B Sutherland,,Statutes and Statutory Construction

(6' ed. 2000) Reenactment of a Statute After Contemporaneous and
Practical Interpretation, $49-09, p. 103 24
3 Rotunda & Nowak, Treatise on Constitutional Law

(3rded. 1999) 5 18.28, p. 580
Breyer, Active Liberty

(2005)
Buchanan, Gajls and Lesbians Gain New Rights As 8 Laws Take Effect
Monday
S.F. Chroni.cle,Dec. 29,2006, p. B7 34
Burke, A Vindication of Natural Society

(1757), reprinted in The Portable Edrnund Burke (1999) 44
Burke, Reflections on the Revolution in France, para. 36 (1790)' reprinted in

The Portable Edrnund Burke (1999) 44
Chauncey, Why Marriage: The History Shaping Today's Debate Over Gay
Equality (2004) 47
Ely, Democracy and Distrust

(1980)
Eskndge, Equality Practice: Civil Unions and the Future of Gay Rights
(2002) 47
Frankfurter, TRe Supreme Court in the Mirror of the Justices

(1957) 105 U.Pa.L.Rev. 78 1 51
Page
Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v.

Wade
(1985) 63 N. Carolina L.Rev. 375 50
Gunther, Foreward: In Search of Evolving Doctrine on a Changing Court:

A Model for a Newer Equal Protection
(1972) 86 Harv. L. Rev. 1 26,40
Lusky, Footnote Redux: A Carolene Products Reminiscence

(1982) 82 (Zolum. L. Rev. 1093 25
Note, The G1uc:hberg Renaissance: Substantive Due Process Since

Lawrence v. Texas
(2006) 105 Mich. L. Rev. 409 56
Pull, Questioning the Fundamental Right to Marry

(2006) 90 1vIa1-q.L. Rev. 2 1
Sunstein, Foreward: Leaving Things Undecided

(1996) 110 Harv. L. Rev. 1
Sunstein, 7he Right to Many

(2005) 26 Cardozo L. Rev. 208 1
Traynor, Law (2nd Social Change in a Democratic Society, 1956 U . Ill. L. F.

230, reprinted in The Traynor Reader
(Hastings L,. J. 1987) 49
Traynor, StatulfesRevolving in Common-Law Orbits, 17 Cath. U.L. Rev.

40 1 (1968), reprinted in The Traynor Reader (Hastings L. J. 1987) 21
Traynor, The Limits of Judicial Creativity

(1978) 29 Hastings L. J. 1025
Webster's Ninth New Collegiate,Dictionary

(1989)
Zelinsky, Deregulating Marriage: The Pro-Marriage Casefor Abolishing

Civil Marriage
(2006) 2 7 Cardozo L. Rev. 1 1 6 1 61
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
Coordination Proceeding, Special Title [Rule 1550(b)] Case No.

In re MARRIAGE CASES. S 147999
(JCCP No.
4365)
INTRODUCTION
Across the nation, a historic debate about marriage and equality

continues. While many states have responded to the push for legalization of
same-sex marriage by amending their constitutions to outlaw it, California in
recent years has been moving steadily in the opposite direction. Although
same-sex marriage remains unrecognized by statute, the Legislature created a
domestic partnership system for same-sex partners in 1999 and then
amended it in 2003 to provide these partners with substantially all of the
same rights and benefits that are given to married couples. While these
consolidated cases were under submission to the Court of Appeal, California
further amended its laws to provide domestic partners with all of the same
rights and benefits given by the state to married couples.
Several states have followed California's lead in providing rights and
benefits to same-sex couples without judicial compulsion. In just the last few
1
months, Washington and Oregon have approved domestic partnership laws

while New Hampshire has adopted a system of civil unions. A total of 10
states now provide same-sex couples with some or all of the rights and
benefits typically associated with marriage.
~etitionersl'ask this Court to strike down laws preserving marriage as
traditionally derfined. The Court should, regardless of the doctrinal test
involved, refrain from invalidating California's marriage scheme for three
separate yet related reasons. First, California's political process has
demonstrated itself to being open to gay men and lesbians, who have and
who will conti~~ue
to be fully respected by the laws that emerge. Second, the
current status cluo whereby same-sex couples receive all of the material and
tangible benefits California confers on married couples does not remotely
treat gays and lesbians with any animus or invidiously relegate them to
second-class citizenship of any kind. And third, the state should have the
power to stick with a definition and conception of marriage that has proven
durable and fu~ictionalover many generations in order to avoid the social
risks inherent in overly rapid change that rends the fabric of society in ways
that cannot be ireadily assimilated and that may prompt backlash reactions.
Under such circumstances, prudence and respect for the coordinate branches
of government counsel that the judiciary should not short-circuit the
legislative process by stepping in and imposing its own view of a perfect
solution.
1. For tlhe sake of clarity, this brief will refer to the four groups of
parties challenging the marriage laws as "petitioners." (This answer brief
does not address the arguments regarding standing made in the opening
briefs filed by Campaign for California Families and the Proposition 22
Legal Defense (andEducation Fund.) The State of California and Attorney
General Edmurtd G. Brown Jr. will be referred to collectively as the "state."
A day rnay come when the people decide to legalize same-sex

marriage. But such a social change should appropriately come from the
people rather than the judiciary so long as constitutional rights are protected.
All applicable constitutional rights have been so protected in California
through enactment of the domestic partnership laws, which confer on
domestic partners the same rights and benefits that are given to married
couples. Because California's marriage laws are constitutional, the state
respectfully requests the judgment of the Court of Appeal be affirmed.
STATEMENT OF FACTS
A. The Histo~yof California's Laws Regulating Marriage as Between a
Man and a Woman.
The Legislature began exercising its authority over civil marriage

immediately upon statehood.21(Stats. 1850, ch. 140, 8 8 1- 11.) The state's
current marriage statutes find their origin in the 1872 Civil Code, a modified
version of Field's New York Draft Civil Code. Former Civil Code section
55 provided that marriage was "a personal relation arising out of a civil
contract, to which the consent of parties capable of making it is necessary."
(Appellants' Appendix on Appeal ("AA") at p. 6.) Section 56 of that Code
provided: "Any unmarried male of the age of eighteen years or upwards,
and any unmarried female of the age of fifteen years or upwards, and not
otherwise disqualified, are capable of consenting to and consummating
2. Marriage has an undeniable spiritual or religious significance for

many people, bsut civil marriage in California has never been subject to a
religious requirement. California's first Constitution provided: "No contract
of marriage, if lothenvise duly made, shall be invalidated for want of
conformity to tlhe requirements of any religious sect." (Cal. Const. 1849, art.
XI, $ 12.) This;provision was retained in the 1879 Constitution before being
codified in 1970. (Cal. Const., former art. XX, $ 7; Fam. Code, $ 420, subd.
(c).) Thus, civil marriage has never been a religious institution under
California law.
marriage." (Bid.) The 1872 Civil Code further provided, in section 69,
subdivision (4), that the county clerk must obtain the "the consent of the
father, mother, or guardian," before solemnizing any marriage in which "the
male be under the age of twenty-one, or the female under the age of eighteen
years . . . ." (A.A at p. 7.)
Former Civil Code section 55 did not expressly state that marriage
was between a man and a woman, but this Court held in 1890 that the legal
relationship defined in section 55 "is one 'by which a man and woman
reciprocally engage to live with each other during their joint lives, and to
discharge toward each other the duties imposed by law on the relation of
husband and wife. "' (Mott v. Mott (1 890) 82 Cal. 4 13,4 16, quoting
Bouvier's Law Dist., tit. Marriage; see also Kilburn v. Kilburn (1891) 89 Cal.
46, 50, quoting Shelf. Mar. & Div. 1 [describing marriage as a contract "by
which a man and woman, capable of entering into such a contract, mutually
engage with each other to live their whole lives together in the state of union
which ought to' exist between a husband and his wife"].)
Although California statutes governing marriage and family relations
have undergone extensive changes since the nineteenth century,g the
understanding of marriage as a union between a man and a woman has
endured. In 19169, the Legislature enacted "The Family Law Act." (Stats.
1969, ch. 1608.) While reforming the laws governing divorce, the bill left
many of the staltutes governing marriage unchanged though recodified.
Former Civil Code sections 55 and 56 were recodified as Civil Code
sections 4100 and 4101. (AA at p. 21.)
Following the passage in 1971 of the Twenty-Sixth Amendment to
the United States Constitution lowering the minimum voting age to 18 years,
3. California abolished common law marriage in 1895. (Elden v.

Sheldon (19881146 Cal.3d 267,275.)
the Legislature passed Assembly Bill 2887 (1971 Reg. Sess.), an omnibus
bill lowering rnost statutory minimum ages to 18. (AA at pp. 41-57; Stats.
1971, ch. 17413.) AB 2887 amended subdivision (a) of former Civil Code
section 4 101, setting the uniform age requirement for maniage at 18 years of
age, instead of' 2 1 for men and 18 for women. (Stats. 1971, ch. 1748, 5 26.)
Although, by setting a uniform age, the amended statute was able to
eliminate the reference to the gender of the marrying partners, the legislative
history of AB 2887 confirms that there was no intent to authorize same-sex
marriage.$ I n fact, the enactment of AB 2887 left unchanged many statutes
that continued to treat marriage as the union of one man and one woman,
including Civil Code section 4 100.y
In 197'7, the County Clerks Association of California sponsored
Assembly Bill 607 (Stats. 1977, ch. 339, 5 1). The legislation amended
former Civil Code sections 4 100 and 4 101 to reaffirm that marriage was a
contract between a man and a woman. The legislative history of AB 607
indicates concern that the 1971 elimination of the gender references in
section 4 101 nnade the issue of whether same-sex couples could marry
4. AA at p. 59 (Gov. Reagan Statement on AB 2887, Dec. 14, 1971);

see also AA at pp. 60-61(Assem. Cornm. on Jud. Analysis of AB 2887, July
12, 1971).
5. See .AA at pp. 23,25 (former Civil Code 42 13(a) ["[w] hen
unmarried persons, not minors, have been living together as man and wife,
they may, without a license, be married by any clergyman"], 5 4357 ["the
superior court .may order the husband or wife, or father or mother, as the case
may be, to pay any amount that is necessary" to support the husband, wife or
children], 8 4400 [prohibiting marriages between "brothers and sisters of the
half as well as the whole blood, and between uncles and nieces and aunts
and nephews"], § 4401 [prohibiting marriage by a person "during the life of
a former husband or wife of such person"], Ij 4425(b) [marriage voidable if
"husband or w:ife9'is living, marriage is in force, and husband or wife has not
been absent for five years or more]).
"vague and sul~jectto c o n t r o v e r ~ ~ .(AA

" ~ at p. 63.) Today, section 4 100 is
recodified, witlhout substantial change, as Family Code section 300, and the
provisions of former section 4 101 are found in Family Code sections 30 1,
302 and 304.
Proposition 22 was subsequently enacted by the People of California
in the year 20010. That initiative added Family Code section 308.5, which
provides that "[olnly marriage between a man and a woman is valid or
recognized in California." (Fam. Code, 9 308.5.y
This statutory history demonstrates that California's definition of
marriage has always been commonly and judicially understood as a union
6. The City contends that a campaign by singer Anita Bryant to

repeal a Dade County, Florida ordinance prohibiting discrimination against
gay men and lesbians "was also influential in the movement in California to
amend the marriage statutes to explicitly exclude same-sex couples." (City
Brief at p. 17.) But the evidence that Bryant influenced the 1977
amendment is :nonexistent. The City cites two letters from constituents
supporting AB 607 that also praised Bryant's activities. (Id. (citing S.F.
Respondent's Appendix at pp. 1121- 1122).) But these letters give no
indication that Bryant was involved in any way in AB 607.
7. The Court of Appeal noted that the Second and Third Appellate
Districts have rendered conflicting decisions in this area. (Opn. at pp. 13-15,
citing Armijo v. Miles (2005) 127 Cal.App.4t.h 1405; Knight v. Superior
Court (2005) 128 Cal.App.4t.h 14.) In Armijo, the Second Appellate District
stated that Proposition 22 "was designed to prevent same-sex couples who
could marry validly in other countries or who in the hture could marry
validly in other states from coming to California and claiming, in reliance on
Family Code sczction 308, that their marriages must be recognized as valid
marriages." (127 Cal.App.4t.h at p. 1424.) In Knight, the Third Appellate
District stated that Proposition 22 "ensures that California will not legitimize
or recognize same-sex maniages from other jurisdictions, as it otherwise
would be required to do pursuant to section 308, and that California will not
permit same-sex partners to validly marry within the state." (128
Cal.App.4th at pp. 14,23-24.) The state agrees with the Court of Appeal
that there is no need to decide this issue regarding the scope of Proposition
22 in order to render a decision in this case. (Opn. at p. 15.)
between a man and a woman. (See also Lockyer v. City and County of Sun
Francisco (2004) 33 Cal.4th 1055, 1 128 (conc. & dis. opn. of Kennard, J.)
["Since the earliest days of statehood, California has recognized only
opposite-sex marriages"] .)
B. The Histoiry of the Recognition of Lawful Conjugal and Family
Relationsblips Outside of the Marriage Context.
The assumption that marriage serves as the gateway to lawful sexual

relations, the plarentage and raising of children, and the formation of family
units appears aLs a common theme in cases discussing marriage. A
nineteenth century United States Supreme Court case described marriage as
"the foundation of the family and of society, without which there would be
neither civiliza~tionor progress." (Maynard v. Hill (1888) 125 U. S. 190,
2 1 1.) In Skinner v. Oklahoma (1942) 3 16 U.S. 535, a sterilization case, the
high court stated that "[mlarriage and procreation are fundamental to the
very existence and survival of the race." (Id. at p. 541.) This Court and the
United States Supreme Court both cited this observation from Skinner in
their decisions striking down anti-miscegenation laws. (Perez v. Sharp
(1948) 32 Cal.2d 7 11, 7 15 (plur. opn.),y quoting Skinner v. Oklahoma,
8. Justice Traynor's opinion was joined by only two justices. (Perez

v. Sharp, supra, 32 Cal.2d at p. 732 (plur. opn. of Traynor, J.).) Justice
Edmonds filed a separate concurrence, but did not join the lead opinion. (Id.
at p. 741 (conc. opn. of Edrnonds, J.).) Although Justice Edmonds briefly
stated that he agreed with the plurality opinion's observation that marriage is
a "fundamentall right of free men," he based his concurrence on his belief
that marriage was "grounded in the fimdarnental principles of Chstianity"
and that the aniti-miscegenation law therefore violated petitioners' First
Amendment frc:edom to practice their Catholic faith. (Id. at pp. 74 1-742
(conc. opn. of Edmonds, J.).) Justice Traynor's plurality opinion rejected
this reasoning on the ground that regulation of marriage was a proper state
function that could indirectly affect religious activity without violating the
First Amendment. (Id. at p. 7 13 (plur. opn. of Traynor, J.).) Justice
Edmonds' concurrence did not address the main conclusions of Justice
supra, 316 U.S. at p. 541); Loving v. Virginia (1967) 388 U.S. 1, 12.)
Finally, in Zablocki v. Redhail (1978) 434 U.S. 374, the high court made
explicit the connection between marriage, lawhl sexual relations and child-
rearing implied in the earlier cases. (Id. at p. 386 ["[Ilf appellee's right to
procreate means anything at all, it must imply some right to enter the only
relationship in which the State of Wisconsin allows sexual relations legally
to take place"] .)
But civil marriage no longer constitutes a prerequisite for lawhl
sexual relations. (See In re Lane (1962) 58 Cal.2d 99, 105 [invalidating "a
city ordinance attempting to make sexual intercourse between persons not
married to each other criminal" as void under state law]; People v. Mobley
(1999) 72 Cal.App.4th 76 1,785 [noting 1975 repeal of California law
criminalizing sodomy]; see also Lawrence v. Texas (2003) 539 U.S. 558
[invaliding Texas statute criminalizing homosexual sodomy].) Nor is
marriage a prerequisite for child-rearing. California law recognizes and
supports the right of unmarried couples to raise children. (Johnson v. Culvert
(1993) 5 Cal.4.h 84, 88 [holding the purpose of the Uniform Parentage Act
"was to elirniniate the legal distinction between legitimate and illegitimate
children"]; Farn. Code, 5 7602 [providing that the relationship of parent and
child exists "regardless of the marital status of the parents"] .) Moreover,
"California's adoption statutes have always permitted adoption without
Traynor's pluri~lityopinion: that the anti-miscegenation statutes violated

equal protection by discriminating based on race and were void for
vagueness. (Id at pp. 73 1-732 (plur. opn. of Traynor, J.).)
Since Justice Traynor's opinion was not signed by four justices,
propositions artd principles contained in it lack precedential authority.
(Board of Supervisors v. Local Agency Formation Cornm. (1992) 3 Cal.4th
903,918.) Suggestions by some of the petitioners that the Court of Appeal
failed to follo~rthe "holdings" contained in the Perez plurality are therefore
imprecise. (See, e.g., Clinton Brief at p. 14.)
regard to the marital status of the prospective adoptive parents." (Sharon S.

v. Superior Court (2003) 3 1 Cal.4th 417,433.)
Recent judicial decisions and statutory changes have confirmed that
same-sex couples enjoy the same rights to bear and rear children as
traditional couples. Gay men and lesbians are legally entitled to become
foster or adoptive parents. (Welf. & Inst. Code, 5 16013.) In 2003, this
Court held that second-parent adoption, a method of adoption often used by
same-sex couples in which a child born to or legally adopted by one partner
is adopted by a. non-legal or non-biological second parent, constitutes a valid
independent acloption under our adoption laws. (Sharon S. v. Superior
h p. 422, h.2.) Subsequently, the Legislature
Court, supra, 3 1 ~ a l d t at
enacted Assembly Bill 205, the Domestic Partner Rights and
Responsibilities Act of 2003 (Stats. 2003, ch. 42 1) ("AB 205" or the
"DPA"), which declares that "[tlhe rights and obligations of registered
domestic partnlers with respect to a child of either of them shall be the same
as those of spouses." (Fam. Code, 5 297.5, subd. (d); see also Fam. Code, 5
9000, subd. (b)~[providing for stepparent adoption by registered domestic
partner].) Thi;sCourt has also issued several decisions confirming that
same-sex partners should have the same rights and bear the same
responsibilities as traditional couples with regard to the children of their
re1ationships.y
9. See lSisa B. v. Superior Court (2005) 37 Cal.4th 108, 113

[holding that a woman who agreed to raise children with her female partner,
supported her partner's artificial insemination, and held the children out as
her own was considered a legal parent]; K.M. v. E.G. (2005) 37 Cal.4th 130,
134 [holding that a woman who donated her ova to her lesbian partner so
that the partner could bear children is a parent to the children]; Kristine H. v.
Lisa R. (2005) 37 Cal.4th 156, 166 [holding that a biological mother who
stipulated to a judgment declaring that she and her lesbian partner were the
parents of her child was estopped from attacking that judgment].
Marriage is also not the sole way to form a family. This Court has
held that same-sex couples who form registered domestic partnerships
engage in "the creation of a new family unit" as surely as married couples
do. (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824,
843.)
C. The History of California's Statutory Recognition of Committed
Same-sex ]Partnerships.
The Legislature created the first statewide domestic partnership

registry in 1999, and has steadily expanded those rights. (Stats. 1999, ch.
588; Stats. 2002, ch. 447.) In 2003, the Legislature abandoned its piecemeal
approach to providing rights and benefits in passing the DPA. The DPA,
which became effective on January 1,2005, broadly declared that registered
domestic partners "shall have the same rights, protections and benefits" as
spouses, "and shall be subject to the same responsibilities, obligations, and
duties under the law . . . ." (Fam. Code, 9 297.5, subd. (a).) The DPA gave
registered domestic partners rights and obligations regarding financial
support of partners and children, community property, child custody and
visitation, and ownership and transfer of property. (Fam. Code, 8 297.5,
subds. (b)-(d).:~
As originally enacted, the DPA provided registered domestic partners
with substanticzlly all of the rights and benefits that the state gives to married
couples. This is how the state briefed this issue in the lower courts. But as
of this year, registered domestic partners are provided with all of the rights
and benefits given by the state to married couples. While this matter was
under submissj.on in the Court of Appeal, the Legislature enacted and the
Governor signed Senate Bill 1827 (Stats. 2006, ch. 802), which amended the
DPA to provide that the earned income of registered domestic partners
would be treated as community property for purposes of state income
taxation and gave them the option to file joint tax returns as married spouses
do. (Rev. & Tax. Code, 5 18521, subd. (d).) This was the last material
benefit given by the state to married couples that had been denied to sarne-
sex domestic p1artners.m
Of course, the DPA does not modify federal law, which does not
recognize dom.estic partnerships and defines marriage as the union of a man
and a woman. (1 U.S.C. 8 7; 28 U.S.C. 81738C.) Thus, many federal
benefits cannot be enjoyed by registered domestic partners. These rights and
benefits pertain to social security, medicare, federal housing, food stamps,
federal income:taxation, veterans' benefits, federal civilian and military
benefits, the Fiimily and Medical Leave Act, and other federal employment
10. The Court of Appeal's decision stated in reliance on a 2003

legislative analysis that "the property tax reassessment benefit granted to
surviving spouses under Proposition 13 is not available to a surviving
domestic partner." (Opn. at p. 18, citing Assem. Com. on Judiciary,
Analysis of A13 205 as amended Mar. 25,2003, p. 4).) This conclusion was
erroneous for three reasons. First, the Court of Appeal should not have
relied upon evidence of the legislative intent of AB 205 unless it first found
the law to be ambiguous, which it did not. Second, the legislative history
cited by the Court of Appeal was inherently contradictory. The bill analysis
stated that the iwthor of AB 205 intended to grant domestic partners equal
rights with regard to "[tlaxes, including, but not limited to, . . . non-
reassessment of real property upon a spouse's death . . . ." (S.F
Respondents' lJnopposed Motion to Augment the Record on Appeal in
Fund, p. CT 1510, citing Assem. Com. on Judiciary, Analysis of AB 205 as
amended Mar. 25,2003, p. 3.) Third, the Court of Appeal ignored the fact
that, subsequent to that legislative analysis, the Board of Equalization and
the Legislature acted to address this issue by respectively promulgating a
regulation and enacting a statute specifying that a transfer to a surviving
domestic partner is not a change in ownership for purposes of Proposition
13. (Cal. Code Regs., tit. 18, § 462.240, subd. (k), effective Nov. 13,2003;
Rev. & Tax. Code, § 61, subd. (p), effective Sept. 29,2005.) This Court has
previously helcl that the Legislature and the Board of Equalization are
empowered to resolve such ambiguities appearing in Proposition 13.
(Amador Vallq Joint Union High School District v. State Board of
Equalization (1 978) 22 Cal.3d 208,246.)
benefits. These rights and benefits would be denied to same-sex couples

even if California chose to extend the title of marriage to same-sex couples,
because federal law prohibits recognition of same-sex marriages for the
purposes of providing federal benefits. (1 U.S.C. 57.p
It is also true that other states are not required to recognize registered
domestic partn,erships from California even though California law
recognizes legal statuses comparable to domestic partnerships entered into in
other states.g California lacks authority to dictate the laws of other states.
Moreover, because of the federal Defense of Marriage Act, other states
would not be required to recognize same-sex marriages from California even
if such marriages were legalized. (28 U.S.C. 8 17386.)
D. The History of the Instant Litigation.
On February 10,2004, San Francisco Mayor Gavin Newsom directed

the San Francisco County Clerk to begin altering official marriage forms so
that same-sex couples could be married. (See Lockyer v. City and County of
San Francisco, supra, 33 Cal.4th at p. 1070.) The County Clerk altered the
forms and began marrying same-sex couples. (Id. at pp. 1070-1071.)
On March 11,2004, in response to a petition for writ of mandate filed
by the Attorney General, this Court ordered San Francisco officials to show
cause why a writ of mandate should not issue requiring them "to apply and
11. Nevertheless, to the extent that California law relies upon federal
law in conferring any right or benefit to spouses, the DPA provides that
domestic partners shall be treated under state law as if federal law
recognized such partnerships. (Fam. Code, 8 297.5, subd. (e).)
12. See Fam. Code, § 299.2 ["A legal union of two persons of the
same sex, other than a marriage, that was validly formed in another
jurisdiction, antd that is substantially equivalent to a domestic partnership as
defined in this part, shall be recognized as a valid domestic partnership in
this state regardless of whether it bears the name domestic partnership"].
abide by the current California marriage statutes in the absence of a judicial

determination that the statutory provisions are unconstitutional." (Id. at p.
1073.) Pending a determination on that question, this Court directed San
Francisco officials to comply with the marriage laws, an order that halted
further same-sex marriages. (Bid.)
In response to the order, the City and County of San Francisco
initiated City and County of San Francisco v. State of California, et al., San
Francisco County No. CGC-04-429539. Two additional lawsuits were filed
soon after, entiitled Woo, et al. v. Lockyer, et al., San Francisco County No.
CGC-04-504038,g and Tyler, et al. v. County of Los Angeles, et al., Los
Angeles County No. BS 088 506. Each action challenged the
constitutionaliity of California's marriage laws.
The Judicial Council ordered the CCSF, Woo, and Tyler actions
coordinated with two other actions brought by private groups seeking to
defend the marriage statutes: Thomasson v. Newsom, San Francisco County
No. CGC-04-428794, and Proposition 22 Legal Defense & Education Fund
v. City and County of San Francisco, San Francisco County No. CGC-04-
503943, and assigned the Honorable Richard A. Kramer to preside over the
cases, now collectively known as the Marriage Cases, Judicial Council
Coordination l'roceeding No. 4365. Later, another case challenging the
constitutionality of California's marriage laws, Clinton, et al. v. State of
California, et id., San Francisco County No. CGC-04-429548, was filed and
added to the coordinated proceedings.
In December 2004, the trial court held simultaneous hearings in the
six actions. Tlhe CCSF, Woo, Tyler and Clinton hearings were writ of
mandate proce:edings under Code of Civil Procedure section 1094. (AA at
13. Wclo is known as Rymer action in this Court since the lead
petitioners have withdrawn.
pp. 108-109.) The Fund and Thomasson hearings involved cross-motions

for summary judgment and for judgment on the pleadings. (Ibid.)
The triad court issued its final decision in the Marriage Cases on
April 13, 2005. (AA at pp. 107-131.) The court ruled that Family Code
sections 300 and 308.5 violate the equal protection clause of the California
Constitution. 'The court concluded that California's marriage laws created a
gender-based classification and infringed the fundamental right to marriage,
thus requiring a strict scrutiny analysis, and that there is no compelling or
even rationally-related legitimate interest in denying marriage to same-sex
couples.
The trial court issued identical judgments in CCSF, Woo, Tyler, and
Clinton. The judgments declared unconstitutional Family Code sections 300
and 308.5. They further directed the issuance of writs of mandate requiring
the State Registrar of Vital Statistics (a) to furnish the forms necessary to
allow for marriage between persons in a gender-neutral manner (i.e., without
regard to the gender of the persons getting married), (b) to furnish
instructions to local county clerks and registrars informing them of their
obligation to issue and record marriage licenses and to perform marriage
ceremonies in a gender-neutral manner, and (c) to implement and enforce
"all duties with respect to marriage" in a gender-neutral manner. (AA at pp.
140-141.)
In 7hol;nasson and Fund, the trial court entered judgment for the
defendants and intervenor-defendants and against the plaintiffs. All of the
judgments entered in the coordinated proceedings were final and were stayed
pending appeal.
On Octlober 5,2006, the Court of Appeal for the First Appellate
District, Division Three, issued its judgment in the six appeals, which it had
consolidated for purposes of hearing and decision. The court unanimously
held that the appellants in the Fund and Thomasson actions lacked stanhng
to pursue their claims. (Opn. at pp. 7- 12.p'
The court divided, however, on the question of the constitutionality of
the marriage lelws. The majority opinion, authored by Presiding Justice
McGuiness and joined by Justice Parrilli, concluded that the historical
definition of rriarriage did not deprive same-sex couples of a fundamental
right and did not discriminate against a suspect class. (Opn. at p. 3.)
Applying the rational relationship test to petitioners' equal protection claims,
the majority concluded that the marriage statutes were constitutional. (Ibid.)
The majority also held that the statutes did not violate rights of due process,
privacy, freedom of association, or freedom of expression. (Id. at pp. 2 1-64.)
Justice Parrilli authored a separate concurring opinion. Justice Kline
dissented from that part of the majority opinion upholding the
constitutionality of the marriage statutes while concurring that the appellants
in Fund and Kbomasson lacked standing.
The Court of Appeal modified its opinion in an order dated
November 6,21006, denying petitions for rehearing from the City and the
Woo petitioners.
14. The majority opinion in the Court of Appeal will be cited simply
as "Opn." while citations to the concurring and the concurring and
dissenting opinuons will further specify those opinions by author.
ARGUMENT
I.
CALIFORNIA'S MARRIAGE LAWS SATISFY EQUAL
PROTIECTION UNDER A RATIONAL BASIS TEST
BECAUSE THE STATE MAY PRESERVE THE
TRAD:[TIONALDEFINITION OF MAIUUAGE WHILE
AFFOIRDING THE SAME RIGHTS, BENEFITS AND
PROTIECTIONS TO DOMESTIC PARTNERS.
Petitioners contend that the marriage laws violate the equal protection
clause of the California Constitution. The "promise that no person shall be
denied the equal protection of the laws must coexist with the practical
necessity that most legislation classifies for one purpose or another, with
resulting disadvantage to various groups or persons." (Romer v. Evans
(1996) 5 17 U.!S. 620,63 1.) Courts reconcile this principle "by stating that, if
a law neither burdens a hndamental right nor targets a suspect class," it will
generally be upheld "so long as it bears a rational relation to some legitimate
end." (Ibid.) 'This rational basis test "manifests restraint by the judiciary in
relation to the discretionary act of a co-equal branch of government; in so
doing it invests legislation involving such differentiated treatment with a
presumption of constitutionality and 'requir(es) merely that distinctions
drawn by a cha~llengedstatute bear some rational relationship to a
conceivable legitimate state purpose."' (D 'Amico v. Board of Medical
Examiners (19'74) 11 Cal.3d 1, 16.) The burden of demonstrating the
invalidity of a classification under this standard rests upon the party who
assails it. (Id. at pp. 16-17.) At the other end of the continuum, strict
scrutiny applies "in cases involving 'suspect classifications' or touching on
'fundamental i~iterests."' (Id. at p. 17.) Under this test, the state bears the
burden of establlishing that it has a compelling interest that justifies the law
and that the distinctions drawn are necessary to further its purpose. (Ibid.)
Petitiorlers assert that the marriage laws should receive strict scrutiny
because they supposedly burden a fundamental interest and discriminate
based on gender and sexual orientation. As will be explained below, the
marriage laws need not receive strict scrutiny based on any of these
rationales. The Court of Appeal concluded that the marriage laws satisfied
the rational basis test, and the court was correct - both in its application of a
rational basis standard and in holding that the marriage laws satisfied that
test.
Some have argued that the question whether same-sex couples may
marry falls into a special category where the usual dichotomous methodology
- "rational basis" or "strict scrutiny" - seems unduly wooden, even if no
fbndamental interests or suspect classifications are at issue under applicable
precedent. Indeed, opinions of the United States Supreme Court itself
evince discomfort with a "test of extremes" in evaluating some
classifications.
The state accordingly suggests that, in the event the Court should
conclude that ?he classification at issue here warrants a showing of
something moire than mere rational basis, it is not necessary for the Court to
leap to the other extreme - strict scrutiny. This Court's precedent is
sufficiently open to the possibility of "heightened or "intermediate" scrutiny
in cases involving "sensitive" classifications, and such a level of scrutiny
could reasonably be applied here without disturbing existing tests for suspect
classifications. As wjll be demonstrated, however, the state's interest in
preserving traclitional marriage is sufficiently important to satisfi even a
heightened level of scrutiny.
A. The Marriage Laws Do Not Discriminate Based on Gender Because
They Do Not Favor One Gender Over Another.
Petitioners contend that the marriage laws should be subject to strict
scrutiny because they discriminate based on gender. This position lacks
merit under carehl review. The marriage laws do not discriminate based on
gender because they do not prefer one gender over the other. Simply stated,
both men and women are equally entitled to the benefits of marriage. Family
Code section 300 provides in pertinent part that "[mlarriage is a personal
relation arising out of a civil contract between a man and a woman, to which
the consent of the parties capable of making the contract is necessary."
Family Code section 308.5 provides that "[olnly marriage between a man
and a woman iis valid or recognized in California." Nothing in the plain
language of these statutes discriminates based on the basis of gender.
The equal protection clause of the California Constitution protects
against "disparate" treatment of one gender over another. (Michelle W. v.
Ronald W. (1985) 39 Cal.3d 354,364.) Numerous cases, both from this
Court and the high court, support the proposition that sex discrimination
occurs when one gender is favored over another. (Arp. v. Workers ' Comp.
Appeals Bd. (1977) 19 Cal.3d 395,407 [invalidating workers' compensation
law that presumed that all widows were dependent on their husbands for
purposes of survivor benefits but did not extend that presumption to
widowers]; Un!itedStates v. Virginia (1996) 518 U.S. 515, 555-556 [holding
that statute preventing women from attending Virginia Military Institute
violated equal protection]; Mississippi Univ. for Women v. Hogan (1982)
458 U.S. 7 18, '731 [invaliding admission policy excluding males from
nursing school'];Koire v. Metro Car Wash (1 985) 40 Cal.3d 24,27 [holding
that price discounts offered to women but not men violated the Unruh Act
because "public policy in California demands equal treatment of men and
women"]; Gay Law Students Assn. v. Pac. Telephone & Telegraph Co.
(1979) 24 Cal.3d 458,490 [holding that discrimination against homosexuals
did not constitute sex discrimination under anti-discrimination law].) But
equal protectioin is not denied if both genders are treated the same. (See
Hardy v. Stumpf (1978) 2 1 Cal.3d 1, 7 [holding that police department's

physical agility test, which included a six-foot wall climb, was not a gender
classification, because it was applied equally to men and women].)
The Ve:rmont Supreme Court's same-sex marriage ruling squarely
rejected the notion that the definition of marriage as between a man and a
woman constiitutes a gender classification. That court stated: "All of the
seminal sex-discrimination decisions . . . have invalidated statutes that single
out men or wokmen as a discrete class for unequal treatment." (Baker v. State
of Vermont (Vt. 1999) 744 A.2d 864, 880, fn. 13.) "The difficulty here is
that the marriage laws are facially neutral; they do not single out men or
women as a c1,ass for disparate treatment, but rather prohibit men and women
equally from nmqing a person of the same sex." (Ibid.)
The Court of Appeal and almost every appellate and federal court to
consider the is,suehas concluded that marriage as traditionally defined does
not constitute gender discrimination. (Opn. at pp. 33-38; Hernandez v.
Robles (N.Y.21006) 855 N.E.2d 1, 10 (plur. opn.); id. at p. 20 (conc. opn. of
Graffeo, J.); A~adersenv. King County (Wash. 2006) 138 P.3d 963,990
(plur. opn.); id. at p. 1010 (conc. opn. of Johnson, J.); Baker v. Nelson
(Minn. 1971) 191 N.W.2d 185, 186, app. dism. 409 U.S. 810; Smelt v.
County of Orarzge (C.D. Cal. 2005) 374 F.Supp.2d 861, 876-877, vacated in
part on other girounds ( 9 Cir.
~ 2006) 447 F.2d 673; In re Kandu (Bankr.
W.D. Wash. 2004) 3 15 B.R. 123, 143.) The Hawaii Supreme Court's 1993
opinion in Baehr v. Lewin (Hawaii 1993) 852 P.2d 44, found a gender
classification, but this opinion was only a plurality decisionul that was
subsequently overturned by an amendment to the Hawaii Constitution.
15. See Baehr, supra, 852 P.2d at pp. 67-68. The Baehr opinion
cited was only the opinion of two justices of the five-member Hawaii
Supreme Court..
(Hawaii Const., art. I, 26.)

Petitioners advance two arguments why the marriage statutes
ostensibly disctriminatebased on gender. First, petitioners contend that the
marriage laws should be analogized to the former anti-miscegenation laws.
Second, petitioners contend that maintaining the traditional definition of
marriage perpetuates gender-role stereotypes. Neither contention is
persuasive when carefully considered.
The analogy to the anti-miscegenation cases is inapposite. In Perez v.
Sharp, supra, 32 Cal.2d 7 11, and Loving v. Virginia, supra, 3 88 U.S. 1, the
respective defCndants argued that laws forbidding interracia1 marriage did
not impermissibly classifL based on race. This Court rejected that argument,
stating: "[tlhe right to marry is the right of individuals, not of racial groups.
The equal prot.ection clause of the United States Constitution does not refer
to rights of the: Negro race, the Caucasian race, or any other race, but to the
rights of individuals." (Perez v. Sharp, supra, 32 Cal.2d at p. 7 16.) The
United States !Supreme Court similarly "reject[ed] the notion that the mere
'equal app1icat:ion' of a statute containing racial classifications is enough to
remove the classifications from the Fourteenth Amendment's proscription of
all invidious racial discriminations . . . ." (Loving v. Virginia, supra, 388
U.S. at p. 8.)
However, as the Court of Appeal stated in this case, "[c]lose
examination 0.FPerez and Loving reveals that these courts were especially
troubled by the challenged laws' reliance on express racial classsifications."
(Opn. at p. 36.) The anti-miscegenation laws were recognized "as measures
designed to maintain White Supremacy." (Loving v. Virginia, supra, 388
U.S. at p. 1 1.) With regard to the California statute, this intention was
obvious from the fact that whites were forbidden from marrying specific
races while pel-sons from other, nonwhite races were free to intermarry.
(Perez v. Sharjv, supra, 32 Cal.2d at p. 72 1.) Thus, the superficial neutrality

of these statutes was simply a sham, concealing a clearly invidious intent to
prefer one race over another. By contrast, there is no evidence that
California's marriage laws were devised to discriminate against males or
females.
Petition.ers' claim that the marriage statutes discriminate based on
gender by reflecting stereotypical views of gender roles is also
unconvincing. The marriage statutes do not attempt to entrench gender roles
in families. Defining marriage as the union of one man and one woman does
not reflect any assumption about which spouse might be the primary
breadwinner or whether one spouse might eschew working outside the home
in order to stay home and raise children. Nor does the statutory definition
itself fit the definition of a stereotype: "a standardized mental picture that is
held in cornrncm by members of a group and that represents an
oversimplified opinion, affective attitude, or uncritical judgment."
(Webster's Ninth New Collegiate Dictionary (l989), p. 1156.) The marriage
statutes are not reflective of an opinion about the relative capabilities of men
or women; the:y are simply a legal definition of an institution in our s0ciety.E'
16. Based on the erroneous assumption that the marriage laws are a
mere vestige o:Fsexism, petitioners cite cases in which this Court either
invalidated outmoded common law rules to remove sexist assumptions (see,
e.g., Selfv. Seljf(1962) 58 Cal.2d 683,684 [abandoning common law
doctrine of interspousal tort immunity "[b]ecause the reasons upon which the
[doctrine] was predicated no longer exist"]) or interpreted statutes governing
family law situations to reflect contemporary realities. (See, e.g., DeBurgh v.
DeBurgh (1952) 39 Cal.2d 858, 870-871 [rejecting "mechanical
application" of'the "widely condemned doctrine of recrimination in divorce
proceedings without invalidating the doctrine entirely].) But the judicial
responsibility for removal of a "moribund rule" from the common law
(Traynor, Statutes Revolving in Common-Law Orbits, 17 Cath. U.L.Rev.
40 1 (1968), reprinted in The Traynor Reader (1987) p. 169) and the ongoing
application of statutes to new situations are quite distinguishable from what
Petitioners' claim that the marriage statutes should receive strict scrutiny
because they supposedly discriminate based on gender should therefore be
rejected, and rational basis review should be applied.
B. The Marriage Statutes Do Not Discriminate Based on Sexual
Orientation Because They Do Not Favor One Sexual Orientation
Over Another.
Petitionlers assert the laws restricting marriage to opposite-sex unions
constitute sexual orientation discrimination. They krther ask this Court to
hold, for the first time, that sexual orientation classifications are subject to
strict scrutiny. Their assertion is incorrect, and their request seeks an
extension of the law that is unwarranted.
Family Code sections 300, 301, 302 and 308.5 do not facially
discriminate against gay men and lesbians because the statutes make no
mention of sexual orientation. Nor do they make heterosexuality a
requirement fo'r a marriage license. (Cf. Koebke v. Bernardo Heights
Country Club, supra, 36 Cal.4th at pp. 853-854 [country club's policy of
using marriage! as criterion for allocating benefits did not constitute facial
sexual orientation discrimination even though it "necessarily denies such
benefits to all of its homosexual members who . . . are unable to marry"].)
The lower court held that the marriage statutes, despite their facial
neutrality, amount to actionable sexual orientation discrimination based on a
disparate irnpalct theory. (Opn. at pp. 39, citing Personnel Administrator of
Mass. v. Feenty (1979) 442 U.S. 256,272-274.) This was incorrect.
To show that a facially neutral law discriminates unconstitutionally
based on a disparate impact theory, a challenger must show that the "impact
can be traced to a discriminatory purpose." (Personnel Administrator of
Mass. v. Feeney, supra, 442 U.S. at p. 272.) "[Ilmpact provides an
the petitioners seek: judicial rewriting of the longstanding statutory

definition of marriage in California.
'important starting point,' . . . but purposeful discrimination is 'the condition

that offends the Constitution."' (Id. at p. 274, citations omitted; see also Kim
v. Workers ' Camp. Appeals Bd. (1999) 73 Cal.App.4th 1357, 136 1 ["Neither
explicit discrimination nor discrimination by 'disparate impact' is
unconstitutional unless motivated at least in part by purpose of intent to harm
a protected grc~up"].)ul
The Court of Appeal concluded that "the Legislature's manifest
purpose in enacting the 1977 amendments to Family Code, section 300, was
to exclude same-sex couples from the institution of marriage." (Opn. at p.
39, citing Sen. Com. on Judiciary, Analysis of Assem. Bill No. 607 (1977-
1978 Reg. Sess.), as amended May 23, 1977, p. 1.) The court further found
that the voters who enacted Proposition 22 in 2000 did so with
"exclusionary intent." (Opn. at p. 39.)
The Coiurt of Appeal confused impact with invidious intent. It is true
that the legislaitors and voters who acted to preserve the state's longstanding
definition of marriage wanted marriage reserved for opposite-sex couples. It
is equally true that the impact of such a definition falls virtually exclusively
on gay men and lesbians. But it is wrong to assume that the mere desire to
preserve a definition of marriage necessarily shows an intent to discriminate
on the basis of sexual orientation. Codifying a distinction that had long
existed at comnon law without a suggestion that it was intended as
17. Proving an equal protection violation under a disparate impact

theory requires a showing of discriminatory intent or purpose in addition to
disparate impact. (Baluyut v. Superior Court (1996) 12 Cal.4th 826, 837
[citing federal cases establishing an intent requirement for a disparate impact
equal protectioin claim].) This is a different test from the prima facie case for
showing disparate impact in employment litigation. In that context, the
disparate impact test does not require the plaintiff to prove the employer's
subjective intent. (Harris v. Capital Growth Investors XIV (1 99 1) 52 Cal.3d
1142, 1171.)
invidious disc~iminationagainst gay men and lesbians cannot be considered

an act of discnirnination. (Cf. 2B Sutherland, Statutes and Statutory
Construction (6' ed. 2000) Reenactment of a Statute After
Contemporane:ousand Practical Interpretation, 8 49-09, p. 103 [observing
that, when statutes are reenacted that were previously given judicial and
administrative interpretation, those longstanding interpretations should be
"regarded as presumptively the correct interpretation of the law"] .)'8'
C. Sexual 0r:ientation Is Not a Suspect Classification.
In contending that sexual orientation should be deemed a suspect

classification, the petitioners challenging the marriage laws fail to address
the main reason why their position should be rejected. Petitioners argue
extensively th21tgay men and lesbians have been discriminated against based
on sexual orie~ltationthroughout history and up to the present day. (City Br.
at pp. 6-19, 60-64; Rymer Br. at pp. 29-33; Clinton Br. at pp. 31-33.)
Petitioners furlher assert that sexual orientation has no bearing on an
individual's ability to contribute to society. (City Br. at pp. 60,63; Rymer
Br. at pp. 32-33.) Finally, while some of the petitioners believe that there is
no need to show that homosexuality is an immutable characteristic and other
petitioners concede that immutability is part of the test, all of them argue that
homosexuality is immutable. (City Br. at pp. 64-69; Rymer Br. at pp. 35-39;
Clinton Br. at p. 30; Tyler Br. at p. 28.) If determining a suspect
18. Cf. Andersen v. King County, supra, 138 P.3d at p. 981, fn. 15
(plur. opn.) [the assumption that legislators who supported law barring same-
sex marriage diid so out of discriminatory intent "fails to consider that
traditional and generational attitudes toward marriage may have contributed
to the vote by any individual legislator as well as the possibility that
legislators who were favorably disposed toward same-sex marriage were
nevertheless colncerned with developments in other states, including the
amendments to state constitutions"].
classification depended on only these considerations, there would be an

argument that sexual orientation should be a suspect classification. The state
does not contest them either, regardless of whether they are purely legal in
nature, as some petitioners contend (Ryrner Br. at p. 39; Tyler Br. at p. 28),
or factual, as others suggest. (City Br. at pp. 28-29; Clinton Br. at p. 29.),
But as ithe decisions of this Court and the high court demonstrate, a
"suspect" classification is appropriately recognized only for minorities who
are unable to use the political process to address their needs. (United States
v. Carolene Products Co. (1938) 304 U.S. 144, 152, h.4.) Suspect
classification is not a reparation for historical mistreatment or a type of
affirmative action to alleviate contemporary discrimination. Since the gay
and lesbian community in California is obviously able to wield political
power in defense of its interests, this Court should not hold that sexual
orientation collstitutes a suspect classification.
Contray to the suggestion of some petitioners, this Court's 1971
decision in Sail 'er Inn, Inc. v. Kirby (197 1 ) 5 Cal.3d 1, which held that
gender is a suspect classification, did not establish a definite test for
determining the existence of a suspect classification. The parallel
development of equal protection standards by this Court and the United
States Supreme Court before and after Sail 'er Inn shows why the
considerations at issue here range beyond those mentioned in Sail 'er Inn.
Before 1937, the U.S. Supreme Court struck down a number of
regulatory laws on the ground that substantive due process protected free
enterprise from regulation. (Lusky, Footnote Redux: A Carolene Products
Reminiscence ((1982) 82 Colum. L. Rev. 1093, 1094.) When the Supreme
Court reversed its approach and began deferring to Congress in reviewing
economic and social legislation, the Court had to decide whether its
new-found deference included deference to laws implicating civil rights and
liberties. (Ibid,,)It signaled its intent to treat such laws differently in a

footnote in United States v. Carolene Products Co., supra, 304 U.S. at p.
152, fn. 4 (Careolene Products).
In upholding the regulation of a milk product, Carolene Products
distinguished its review of laws regulating commerce from review of statutes
violating (1) a "specific prohibition of the Constitution" or (2) "statutes
directed at particular religious, or national, or racial minorities." (Ibid.) If
statutes were directed at particular minorities, the Court stated, judicial
inquiry should be made into "whether prejudice against discrete and insular
minorities may be a special condition, which tends seriously to curtail the
operation of those political processes ordinarily to be relied upon to protect
minorities, and which may call for a correspondingly more searchingjudicial
inquiry." (Ibid.)
The concern expressed in Carolene Products about protecting
minorities who cannot protect themselves through the political process
foreshadowed .thehigh court's approach to equal protection under Chief
Justice Warren. (Ely, Democracy and Distrust (1980) p. 75.) In 1972,
Professor Gerald Gunther summarized that approach as follows:
At the beginning of the 19601s,judicial intervention under the banner
of equal protection was virtually unknown outside racial
discrimination cases. The emergence of the "new" equal protection
during the 'Warren Court's last decade brought a dramatic change.
Strict scrutiny of selected types of legislation proliferated. The
familiar signals of "suspect classification" and "fundamental interest"
came to trigger the occasions for the new interventionist stance. The
Warren Court embraced a rigid two-tier attitude. Some situations
evoked the aggressive "new" equal protection, with scrutiny that was
"strict" in tlieory and fatal in fact; in other contexts, the deferential
"old equal protection reigned, with minimal scrutiny in theory and
virtually none in fact.
(Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court:

A Model for a Newer Equal Protection (1972) 86 Harv. L. Rev. 1, 8.)
Professor Gunth~erdescribed the "new equal protection" as leaving "a legacy

of anticipations as well as accomplishments." (Ibid.)Its approach led to
expectations of hrther judicial discovery of fundamental interests and
suspect classifications. (Ibid.)But by late 1972, Professor Gunther
described the Burger Court's reluctance to expand the scope of the new
equal protection and criticism of the "rigid two-tier formulations of the
Warren Court's equal protection doctrine'' as creating a too-sharp dichotomy
between rational review and strict scrutiny. (Id.at pp. 12, 17.)
During this period when equal protection standards were in flux, this
Court decided Sail 'er Inn. The plaintiffs challenged a statute prohibiting
women from tending bar unless they held liquor licenses, were wives of
licensees, or were sole shareholders with their husbands in the corporation
holding the license. (5 Cal.3d. at p. 6.)
Sail 'er Irin began by noting that the California Constitution contained
a mandatory prolvision stating that women could not be barred "'because of
sex, from entering or pursuing a lawfit1 business, vocation or profession."'
(Id.at p.8, citing Cal. Const., former art. XX, § 18.p' The liquor license
statute was unconstitutional based on this provision. (Id.at p. 10.) This
Court also held that the statute violated the Civil Rights Act of 1964 (id.at
p. 15) before turning to the federal and state equal protection challenge.
After observing that the federal and state equal protection tests are
"substantially the same," Sail 'er Inn noted that "[tlhe United States Supreme
Court has not designated classifications based on sex 'suspect'
classifications requiring close scrutiny and a compelling state justification
for their constitutionality." (Id.at p. 16-17 & fn. 13.) But this Court
19. This provision has been amended and now states: "A person may
not be disqualified from entering or pursuing a business, profession,
vocation, or employment because of sex, race, creed, color, or national or
ethnic origin." (Cal. Const., art. I, § 8.)
believed that the trend in high court jurisprudence was toward strict scrutiny.
"An analysis of classifications which the Supreme Court has previously
designated as suspect reveals why sex is properly placed among them. Such
characteristics include race, lineage or national origin, alienage and poverty,
especially in conjunction with criminal procedures." (Id. at p. 18, citations
omitted.)
Sex, like race and lineage, is an immutable trait, a status into which
the class members are locked by accident of birth. What
differentiates sex from nonsuspect classes, such as intelligence or
physical disability, and aligns it with recognized suspect
classifications is that the characteristic frequently bears no relation to
ability to perform or contribute to society. The result is that the whole
class is relegated to an inferior status without regard to the
capabilities or characteristics of its individual members. . . . [I]
Another characteristic which underlies all suspect classifications is
the stigma of inferiority and second class citizenship associated with
them. Wornen, like Negroes, aliens and the poor have historically
labored under severe legal and social disabilities.
(Id. at pp. 18- 19.) Consequently, the Court held, strict scrutiny should apply
to gender classifications. (Id. at p. 20.)
The high court did not proceed entirely in the direction anticipated by
Sail 'er Inn. Six months after Sail 'er Inn, the United States Supreme Court
applied a ratiorial relationship test to a gender classification in Reed v. Reed
(197 1) 404 U.S. 7 1, 75. In 1973, a plurality opinion in Frontier0 v.
Richardson (1973) 41 1 U.S. 677, opined that gender was a suspect
classification. (Id. at p. 682 (plur. opn.).) But in 1976 the majority in Craig
v. Boren (1976) 429 U.S. 190, held that gender classifications would receive
intermediate scrutiny rather than strict scrutiny. Craig stated that
"classifications by gender must serve important government objectives and
must be substantially related to the achievement of those objectives." (Id. at
In United States v. Virginia (1996) 518 U.S. 515, the Supreme Court
explained why sex is not a proscribed classification. (Id. at p. 533.)
"Supposed 'inherent differences' are no longer accepted as a ground for race
or national origin discrimination," the Court stated. (Id. at p. 533, citing
Loving v. Virginia, supra, 388 U.S. 1.) "Physical differences between men
and women, however, are enduring . . . ." (Id. at p. 533.) These differences
between the sexes "remain cause for celebration, but not for denigration of
the members of either sex or for artificial constraints on an individual's
opportunity." (Ibid.) While the Supreme Court in United States v. Virginia
held that Virginia failed to show an "exceedingly persuasive justification"
for a differential treatment based on gender (5 18 U.S. at pp. 533-534)' the
Court subsequc:ntly held that this phrase is only synonymous with the
longstanding intermediate scrutiny test. (Nguyen v. Immigration &
Naturalization Sew. (2001) 533 U.S. 53'73 ["[Aln 'exceedingly persuasive
justification' is established 'by showing at least that the classification serves
'important governmental objectives and that the discriminatory means
employed' are 'substantially related to the achievement of those
objectives'"] .)
As the lJnited States Supreme Court's gender discrimination
jurisprudence developed after Sail 'er Inn, its general approach to
determining the existence of new suspect classifications also developed. In
Graham v. Richardson (1971) 403 U.S. 365, the high court cited the
Carolene Products rationale in holding that legal resident aliens constituted
"a prime example of a 'discrete and insular minority' for whom such
heightened judicial solicitude is appropriate." (Id. at p. 372, citation
0mitted.y Two years later, the Court held in San Antonio Independent
20. The hlgh court later held that illegal aliens, unlike the legal aliens
at issue in Graham, "cannot be treated as a suspect class because their
School Dist. v. Rodriguez (1973) 41 1 U.S. 1, that schoolchildren living in

economically-clisadvantaged school districts were not members of a suspect
class. (Id. at p. 28.) It held that "[tlhe system of alleged discrimination and
the class it defines have none of the traditional indicia of suspectness: the
class is not saddled with such disabilities, or subjected to such a history of
purposehl unequal treatment, or relegated to such a position of political
powerlessness as to command extraordinary protection from the majoritarian
political process." (Zbid.)
The high court also invoked the Carolene Products standard in
Massachusetts Board of Retirement v. Murgia (1976) 427 U.S. 307, to hold
that age does not constitute a suspect classification. The Court held that "old
age does not define a 'discrete and insular' group . . . in need of
extraordinary protection from the majoritarian political process." (Id. at pp.
3 13-314, citatilon omitted.)
The high court rejected a claim that mental retardation constitutes a
quasi-suspect c:lassification in City of Cleburne v. Cleburne Living Center
( 1 985) 473 U.!S. 432. Cleburne observed that "the distinctive legislative
response . . . to the plight of those who are mentally retarded demonstrates
not only that they have unique problems, but also that lawmakers have been
addressing their difficulties in a manner than belies a continuing antipathy or
prejudice and a corresponding need for more intrusive oversight by the
judiciary." (Id. at p. 443.)g It hrther stated:
presence in thi,scountry in violation of federal law is not a 'constitutional

irrelevancy."' (Plyler v. Doe (1982) 457 U.S. 202,223.) Nonetheless, the
Court held that the statute at issue, which excluded illegal alien children
from the public school system, was irrational because it did not further a
substantial goal of the State of Texas. (Id. at pp. 224,230.)
2 1. This holding in City of Cleburne contradicts the plurality

opinion's apprloach in Frontier0 v. Richardson, supra, 41 1 U.S. 677. The
[Tlhe legislative response, which could hardly have occurred and

survived without public support, negates any claim that the mentally
retarded arc: politically powerless is the sense that they have no ability
to attract th.e attention of lawmakers. Any minority can be said to be
powerless 1.0 assert direct control over the legislature, but if that were
a criterion :for higher level scrutiny by the courts, much economic and
social legislation would now be suspect.
(Id. at p. 445.)
Meanwhile, the United States Supreme Court has continued to apply
strict scrutiny 1.0 race-based classifications in "every context, even for so-
called 'benign" racial classifications . . . ." (Johnson v. California (2005)
543 U.S. 449, 505 [policy of segregating inmates by race during evaluation
by prison authorities violated equal protection].) Strict scrutiny applies
because of "special fears" that racial classifications may be "motivated by an
invidious purpose." (Ibid.)
The equal protection provisions in the California Constitution are
"'substantially the equivalent o f the guarantees contained in the Fourteenth
Amendment," but also have an "'independent vitality. "' (Kasler v. Lockyer
(2000) 23 Cal.4th 472,481, citations omitted.) These provisions may in
certain cases require an analysis that varies somewhat from the analysis
employed under the United States Constitution. (Ibid.) Nevertheless, this
Court and the courts of appeal have generally used the same criteria, finding
their roots in Carolene Products, to determine the existence of a suspect
classification that the United States Supreme Court has employed.
Using the Carolene Products rationale, this Court found that resident
aliens are a suspect classification under both the United States and California
Frontiero plur,alitycited congressional efforts to combat sex discrimination

in support of finding gender to be a suspect classification. (Id. at p, 687
(plur. opn.).) 'The Rymer petitioners cite the Frontiero plurality opinion on
h s point without noting that the later decision in City of Cleburne takes the
contrary view. (Ryrner Br. at p. 34, fn. 22.)
Constitutions because they are a minority in need of judicial protection

because of their political powerlessness. (Rafaelli v. Committee on Bar
Examiners (1972) 7 Cal.3d 288,292, citations omitted [holding that
permanent resident alien was entitled to be admitted to the bar]; see also
Purdy & Fitzpiztrick v. State of California (1969) 71 Cal.2d 566, 580
[holding that resident aliens were an identifiable minority who, "denied the
right to vote, lack the most basic means of defending themselves in the
political processes"] .)
Applying the same Carolene Products rationale, this Court and the
courts of appeal have followed high court precedent in rejecting claims of
suspect classification status for various groups, including those based on age
(Schmidt v. Superior Court (1989) 48 Cal.3d 370,389 [holding that age was
not a suspect classification in challenge to mobile home park age
restriction]), status as an indicted defendant (Bowens v. Superior Court
(1991) 1 Cal.4th 36,42 [holding that the denial of a preliminary hearing to
an indicted defendant did not single out a suspect class]), taxpayer status
(Amador Valley Joint Union High Sch. Dist. v. State Board of Equalization,
supra, 22 Cal.3d at p. 237 ["persons who vote in favor of tax measures may
not be deemed to represent a definite, identifiable class" for equal protection
purposes]), ratepayer status (Hansen v. City of San Buenaventura (1986) 42
Cal.3d 1172, 1189 [nonresident ratepayers served by municipal utility are
not a suspect class because they "can exert political power" even without
voting]), status as parents of unborn children (Reyna v. City & County of San
Francisco (1977) 69 Cal.App.3d 876, 88 1 [parents of unborn children do not
constitute a politically powerless suspect class]), and occupational status.
(Kenneally v. Aded. Bd. of CaliJ: (1994) 27 Cal.App.4th 489,496 h.5
[physicians are not a suspect class under California and federal
Constitutions]; Tain v. State Bd. of Chiropractic Examiners (2005) 130 Cal.
App.4th 609,630-63 1 [chiropractors are not a suspect class].)

In sumiary, this Court and the courts of appeal have generally
applied the same test that the high court has applied to find suspect
classifications. The considerations have included: whether the classification
affects an identifiable minority, whether that minority has been traditionally
discriminated a.gainst based on a characteristic, whether the characteristic is
immutable, whether the characteristic bears no relevance on the ability of
those possessin~git to contribute to society, and whether the group lacks
power to address the discrimination through the political process.
The onky apparent departure fiom this approach involved
classification based on wealth, which has been found "suspect" only insofar
as it infringes upon the exercise of a right enumerated in the Constitution.
Thus, the financing system for California public elementary and secondary
schools was found to be subject to strict scrutiny under the California
Constitution in Serrano v. Priest (1977) 18 Cal.3d 728, because it created a
wealth-based classification that affected the hndamental right of students to
a public education. (Id. at p. 768.) But the Serrano Court specifically
declined to hold that all wealth-based classifications were suspect. (Id. at p.
766, fn.45.)
The Rylner petitioners argue that the relevance of the characteristic to
a person's ability to make a contribution is "the most important overarching
consideration" in determining whether to recognize a suspect classification
(Ryrner Br. at lp. 30), but they are incorrect. The entire concept of suspect
classification traces back to a primary question: How much should the courts
defer to legisladivejudgment? The answer fiom Carolene Products and its
progeny is that the courts should generally defer, and that strict scrutiny by
the judiciary is appropriate where the law violates an express constitutional
provision or hums a discrete and insular group that is unable to protect itself
through the legislative process. If such a minority group can adequately

defend itself in the political process, the justification for strict scrutiny
disappears.
This Court need not treat sexual orientation as a suspect classification
because in California gay men and lesbians do not lack political power.
(Hernandez v. State of Texas (1954) 347 U.S. 475,478 [the existence of a
suspect classification is determined on a community-by-community basis
depending on "'community prejudices [which] are not static . . ."I.)
Petitioners concede that the gay and lesbian community in California has
achieved enonnous successes in the political process. The Ryrner petitioners
state: "In the past few years, California's Legislature has enacted more
provisions protecting lesbian and gay people than any other state legislature
. . . . The Legislature has made plain that the public policy of this state is to
strengthen fmlily bonds for same-sex couples and their children." (Ryrner
Br. at p. 5; see also Buchanan, Gays and Lesbians Gain New Rights A s 8
Laws Take Eflect Monday, S.F. Chronicle, Dec. 29,2006, p. B7 [observing
that "[tlhe eight laws, involving issues ranging from tax filings to court
proceedings tc~protections from discrimination, will be the most pro-gay
measures enacted at one time anywhere in the country . . ."I .)
The City likewise concedes that state law guarantees "that lesbians
and gay men should be allowed to work, participate in civic life and create
families on equal terms with others." (City Br. at p. 39.) The City claims
that the simultaneous extension of these civil rights protections and the
maintenance of the traditional definition of maniage "can best be described
as schizophrenic." (Ibid.) A more sensible characterization would be that,
while the gay and lesbian community has enacted much of its legislative
agenda, it has not yet succeeded in getting a same-sex marriage bill enacted.
Petitioners cite the findings of Assembly Bill 849 (2005-2006 Reg. Sess.), a
bill that was passed by the Legislature and vetoed by the Governor, and
essentially ask this Court to write those findings into law by judicial fiat.22'
Yet the ability to pass this legislation through the Legislature and the
numerous othe:r pieces of recently enacted legislation addressing the gay and
lesbian community's concern, demonstrate "a distinctive legislative
response" that counsels against recognition of a new suspect classification.
(City of Cleburne v. Cleburne Living Ctr., supra, 473 U.S. at p. 443.)
The Rylrzer petitioners point out that "lesbians and gay men have been
the target of repeated efforts to use the majoritarian political process to deny
them basic 1eg;slprotections." (Rymer Br. at p. 33.) This is undoubtedly true
(although the the Rymer petitioners are wrong to cite Proposition 22 among
such measures:). Nevertheless, the fact that laws reflecting homophobia have
sometimes been enacted does not demonstrate an inability to use the
majoritarian political process to seek redress.
The status of gay men and lesbians as a minority group likewise does
not by itself support finding a suspect classification without a showing of
political powerlessness. California is a very diverse state. There is no racial
majority group in the state. At least 1.4 percent of couples in California are
same-sex couples, the highest percentage in the United States. (S.F. R.A.
189.) Accordi~igto Professor John Hart Ely, the idea of discrete and insular
minorities was intended in Carolene Products to identify minority groups
who were in such a position that they could not protect their interests in the
political system even through "mutual defense pacts" with other groups.
22. As ithe Court of Appeal observed, the Governor stated in his

message vetoing AB 849 that he believed that Family Code section 308.5
could not be amended without voter approval. (Opn. at pp. 20-2 1, citing
Governor's veto message to Assem. on Assem. Bill No. 849 (Sept. 29,2005)
Recess J. No. 4 (2005-2006 Reg. Sess.) pp. 3737-3738.) The Governor also
opined that signing the bill would create "confbsion" regarding the
constitutional issues at stake in this litigation. (Ibid.)
(Ely, Democralcy and Distrust, supra, at p. 151.) But in a society where

every group ne:eds to do at least some coalition-building to get its needs
addressed, adding more suspect classifications may not make sense. Taken
to its logical extreme, continuing recognition of additional suspect
classifications could result in a situation in which almost everyone is a
member of some suspect classification.^
Recognizing sexual orientation as a suspect classification could also
imperil efforts to remedy discrimination against gay men and lesbians. If
sexual orientation is treated as a suspect classification, then heterosexuals
will be able to challenge those remedial actions by arguing that there exists
no compelling government interest justifying exclusion of heterosexuals.
(See, e.g., Bakke v. Regents of the Univ. of Calif (1976) 18 Cal.3d 34, 50
["We cannot agree with the proposition that deprivation based upon race is
subject to a less demanding standard of review under the Fourteenth
Amendment if' the race discriminated against is the majority rather than a
minority"], affd. in part, revd. in part sub. nom. Regents of the Univ. of Calif
v. Bakke (19711) 438 U.S. 265.) Since heterosexuals compose the
23. Thle Rymer petitioners cite Professor Ely for the proposition that
sexual orientalion classifications should be subject to strict scrutiny. Writing
in 1980, Professor Ely reasoned that the "serious social costs" entailed in
revealing a hoimosexual orientation combined with severe prejudice against
homosexuals "renders classifications that disadvantage homosexuals
suspicious." (Ely, Democracy and Distrust, supra, at p. 163.) However,
Professor Ely acknowledged that "[tlhis situation seems to be changing,
precisely because gays are increasingly willing to bear the brunt of our
prejudices in tlhe short run in order to diminish them in the long run. I'll be
delighted if this book remains in print long enough to render this discussion
obsolete." (Id, at p. 255, h.91.) Thus, Professor Ely's conclusion with
regard to suspc:ct classifications appears a bit dated, as does his suggestion
that anti-sodorny laws might be constitutional based on moral grounds, a
conclusion that is now untenable in light of Lawrence v. Texas. (Id. at pp.
255-256, h.92.)
overwhelming majority of the population, recognizing sexual orientation as a

suspect classification could result in a high incidence of "reverse
discrimination" sexual orientation lawsuits brought by heterosexuals. (Cf.
Holguin v. Flores (2004) 122 Cal.App.4th 428,439 [rejecting claim that
statute allowing registered domestic partners but not unmarried heterosexual
cohabitants to sue for wrongful death constituted gender discrimination].)
Petitioners argue that sexual orientation should be recognized as a
suspect classifi~cationbecause some of the cases rejecting their argument
relied upon Bowers v. Hardwick (1986) 478 U.S. 186. (City Br. at pp. 70-
72.) While it is true that some of the cases rejecting suspect classification
status have cited Bowers, others have not. (See, e.g., Holmes v. California
Army Nationar' Guard (9" Cir. 1997) 124 F.3d 1 126, 1132.) The Ninth
Circuit has found that "[s]exual orientation and sexual identity are
immutable" for purposes of concluding that sexual orientation defines a
"particular social group" such that fear of persecution based on group
membership is a basis for seeking asylum under immigration law.
(Hernandez-Montiel v. Immigration & Naturalization Sew. (9" Cir. 2000)
225 F.3d 1084, 1091, 1093, 1099.) But even after this finding, the Ninth
Circuit has held that gay men and lesbians are not a suspect or quasi-suspect
class for the purpose of equal protection analysis. (Flores v. Morgan Hill
Un$ed Sch. Cbt. (9thCir. 2003) 32 F.3d 1130, 1 137 [gay students were not
members of a :suspectclass but had a right to be free from sexual orientation
discrimination].y
24. Pel.itionerscite the concumng opinion in Watkins v. United

States Army (9'" Cir. 1989) 875 F.2d 699 (conc. opn. of Nonis, J.), for the
proposition that sexual orientation should be recognized as a suspect class.
But that concurrence argued that suspect classification was warranted
because "[ilt cannot be seriously disputed . . . that homosexuals as a group
cannot protect their right to be free from invidious discrimination by
appealing to the political branches." (Id. at p. 727.) While that statement
The history of discrimination based on sexual orientation is

undeniable. Nonetheless, this Court should not deem sexual orientation to
be a suspect cl,assification,because doing so is not supported by the
rationales used. by this Court and the United States Supreme Court to justify
strict judicial ~eview.
D. The Equal Protection Clause of the California Constitution Does Not

Establish ri Fundamental Right to Same-sex Marriage.
Petitioners contend that the marriage laws should be subject to strict

scrutiny under the California Constitution's equal protection clause because
the laws infiin,ge upon a fundamental right. Such rights have been
recognized in two circumstances, neither of which is present here.
First, hlndamental rights have been recognized where they have been
"'explicitly or implicitly guaranteed by the Constitution."' (D 'Amico v.
Board of Med. Examiners, supra, 11 Cal.3d at p. 18 [no fundamental right to
be licensed as an osteopath].) Thus, education is a fundamental interest
under California's equal protection clause because "the California
Constitution makes public education uniquely a fundamental concern of the
State" (Butt v. State of California (1992) 4 Cal.4th 668, 685 [holding that the
state has a constitutional duty to prevent a school district's budgetary
difficulties fro:m denying students of basic educational equality]), while the
right to bear a m s is not fundamental because it does not appear in the
California Constitution. (Kasler v. Lockyer, supra, 23 Cal.4th at p. 48 1
[assault weapon law did not infringe a fundamental interest under the
California Constitution].) The right to marry is not found, implicitly or
explicitly, in ainy provision of our Constitution.
might have been true in Washington State when it was made in 1989, and
may be true elsewhere in the United States today, it is fortunately not true in
California in 2007.
Second.,hndamental rights have been recognized where they are

"'deeply rooted in this Nation's history and tradition,' and 'implicit in the
concept of ordered liberty,' such that 'neither liberty nor justice would exist
if [the interest were] sacrificed."' (Washington v. Gluckberg (1997) 52 1
U.S. 702, 72 1 (Gluckberg).) This fundamental interest analysis, which is
the same whetlher the fundamental right is asserted under principles of equal
protection or due process, will be discussed below in section 11. (Vacco v.
Quill (1997) 5 2 1 U.S. 793,799 [relying upon the holding of Glucksberg,
supra, 521 U.S. 702, 719-728, that a hndamental right to physician-assisted
suicide does not exist under the due process clause in reaching the same
conclusion with regird to the equal protection clause].)
E. If the Court Declines to Apply a Rational Basis Test, the Marriage

Laws Should Nevertheless Be Sustained Because They Satisfy an
Intermediate Level of Scrutiny.
Although application of a "rational basis test" is appropriate to

evaluate petitioners' claims, the Court may be of the view that, in light of the
issues presenteld in this matter, either the customary methodology for
identifylng fun~damentalliberty interests is inadequate or that the criteria for
identifylng suspect classifications is deficient. But even were the Court to
conclude that the rational basis test is ill-suited for the claims being raised by
petitioners, it cloes not follow that the marriage laws should be invalidated.
This Court is free to adopt an intermediate level of scrutiny in this case,
which is both more sensitive to petitioners' interests than is a "rational basis
test,"and still acknowledges that the legislative policy of preserving
traditional marriage is worthy of being honored because of its importance.
The Court of Appeal properly applied this Court's longstanding equal
protection precedents, which establish two tiers of equal protection review to
claims under the California Constitution. (Opn. at p. 2 1, citing D 'Amico v.
Board of MedifcalExaminers, supra, 11 Cal.3d at pp. 16- 17; Sail 'er Inn v.
Kirby, supra, 5 Cal.3d at p. 16).) But as this Court has noted, the United
States Supreme Court has in recent years applied a standard higher than
rational basis review to some classifications. (Warden v. State Bar of
California ( 1 999) 2 1 Cal.4th 628, 64 1, fn. 7 [declining to apply intermediate
scrutiny in cha~llengeto continuing legal education program but noting
federal cases dlecided after D 'Amico applying intermediate scrutiny].)
Rational basis review would appropriately apply under existing
California precedent as the default standard that governs when neither a
suspect classification nor a fbndamental interest is implicated. (Hernandez v.
City of Hanfor-d (June 7,2007, S 143287) - Cal.4th - [2007 WL
1629830, p. l:!].) But the dichotomous approach has been subject to
criticism from scholars as well as judges. Justice Mosk observed nearly 30
years ago that "[tlhe vice of the binary theory . . . is that it applies either a
standard test that is virtually always met (the rational relationship test) or one
that is almost never satisfied (the strict scrutiny test)." (Hays v. Wood (1979)
25 Cal.3d 772,796 (conc. opn. of Mosk, J.); see also Gunther, Forward: In
Search of Evor'ving Doctrine on a Changing Court: A Model for a Newer
Equal Protection, supra, 86 Haw. L. Rev. at p. 8 [contrasting "scrutiny that
was 'strict' in theory and fatal in fact" with traditional rational basis review
that provides '"minimal scrutiny in theory and virtually none in fact"].)
The United States Supreme Court has responded to the sharp
dichotomy between strict scrutiny and rational basis in two ways. First, the
high court has applied intermediate scrutiny to certain classifications. (Craig
v. Boren, supra, 429 U.S. at p. 197 [gender classification subject to
intermediate sc:rutiny].) Second, some cases have applied "rational basis
review" that is functionally some form of heightened review. For example,
in U.S. Department of Agriculture v. Moreno (1973) 4 13 U.S. 528, a portion
of the Food Stamp Act that rendered ineligible any household containing
persons who were unrelated to each other was struck down upon a finding
that it was intended to prevent "hippies" from utilizing the program. (Id. at
pp. 529, 534.) In rejecting the federal government's assertion that the rule
was a protectialn against fraud, the Supreme Court held that the law lacked a
rational basis blecause it reflected "a bare congressional desire to harm a
politically unpopular group . . . ." (Id. at p. 534; see also City of Cleburne v.
Cleburne Living Center, supra, 473 U.S. at p. 450 [invalidating ordinance
requiring a permit for a group home because it rested on "irrational prejudice
against the melitally retarded"] .)
Cases in this line have been viewed as malung "unacknowledged
departures frorn the deferential rational-based standard without defining a
new lund of scrutiny." (Baker v. State of Vermont, supra, 744 A.2d at p. 872
fn. 5.) They hive been described as demonstrating that "[tlhe edges of the
tripartite division [of federal equal protection analysis] have thus softened,
and there has been at least a modest convergence away from tiers and toward
general balanc ing of relevant interests." (Sunstein, Foreward: Leaving
Things Undecided (1996) 110 Harv. L. Rev. 1,77.)
The Court should properly be reluctant to modify formally the
standards of equal protection review, but some could reasonably conclude
that special co~lsiderationsshould govern the choice of a standard in this
case. The marriage laws implicate issues of great personal significance, and
while marriage: is no longer the exclusive means of forming a family unit
now that domestic partnership is available (Koebke v. Bernardo Heights
Country Club, supra, 36 Cal.4th at p. 843), marriage undeniably provides
one long-honored way to form a family. Also, the legal preservation of
traditional marriage does exclude same-sex couples, and that exclusion falls
almost exclusively upon gay men and lesbians. While there are reasons,
discussed above, why sexual orientation need not be recognized as a new

suspect classification, there can be little doubt that gay men and lesbians
constitute a minority group that is subject to prejudice, both as a matter of
history and as a contemporary reality. Under these circumstances, it is
arguable that treating the laws preserving traditional marriage as subject to
mere rationality review may not be appropriate.
A possible solution was suggested by Justice Mosk in Hawkins v.
Superior Court (1978) 22 Cal.3d 584. Concurring in his own majority
opinion, Justice Mosk urged the Court to adopt a balancing approach in
certain cases not subject to strict scrutiny review because of the "wide chasm
between levels of review [that] is entirely unjustified, given the broad
spectrum of rights and classifications that demand equal protection analysis."
(Id. at p. 603 (conc. opn. of Mosk, J.).) Justice Mosk stated:
I urge that .we refine our articulation of the standards for applying the
state equal protection clause . . . . In my view we should adopt a
variation of the intermediate level of review discussed above,
applicable .when rights important - but not "fundamental" - are
denied, or ywhen a classification sensitive - but not "suspect" - is
made. Such rights and bases of classification do not trigger strict
scrutiny under traditional equal protection analysis, and should not do
so; but neither is the weak rational basis standard adequate to test the
constitutio~ialityof measures which discriminatorily deny important
rights or make classifications based on sensitive criteria.
When such rights or classifications are implicated, it is necessary to

examine the importance of the state interests involved and the extent
to which they are promoted. The proper inquiry is this: Does the
classification Significantly further Important state interests? I
recognize, of course, that the emphasized concepts are no more exact
than those invoked in the traditional two-tier approach. But the
existence of an intermediate level of scrutiny will give California
courts the flexibility needed to adjust their analysis of equal
protection claims to conform with reality. A standard of review
formulated in this manner will allow our courts, for example, to
consider such critical factors as the "the character of the classification
in question, the relative importance to individuals in the class
discriminated against of the governmental benefits that they do not

receive, an~dthe asserted state interests in support of the
classification."
(Id. at p. 601 (Mosk, J., concurring), quoting Dandridge v. Williams (1970)

397 U.S. 47 1, 52 1 (dis. opn. by Marshall, J.).) Some courts in other
jurisdictions have found it appropriate to adopt a similar approach in
reviewing claims comparable to those at issue here. (Lewisv. Harris (N.J.
2006) 908 A.2d 196,212 [applying a balancing test in holding that New
Jersey was required to provide same-sex couples with the same benefits as
were provided to married couples but was not required to legalize same-sex
marriage];Alaska Civil Liberties Union v. State of Alaska (Alaska 2005) 122
P.3d 78 1, 789.,793-794 [applying balancing test analysis to hold that Alaska
was required to give public employees in same-sex domestic partnerships the
same rights and benefits given to married couples even though same-sex
marriage was lbarred by a constitutional provision].)
The Cotut might find that adopting such an analysis to the equal
protection claims allows for broader consideration of the relative interests
involved, including but not limited to, the state's justifications for the
marriage laws. Those interests will be discussed in the next section.
F. The State%Maintenance of Traditional Marriage and Domestic

Partnerships Promotes Important State Interests.
The state's interests in maintaining its longstanding definition of

marriage are sufficient to uphold the marriage laws - whether those interests
are consideredl under the rational basis test or under an intermediate scrutiny
analysis that balances those interests against the interests of same-sex
couples. Petitioners accuse the state of invoking tradition for its "own sake."
But this attack: completely misses the point: "Tradition" is not an empty
abstract concept -- it is a shorthand to describe the tangible and
psychological benefits that accrue to members of a society when they respect

the teachings of their predecessors. As the political philosopher Edmund
Burke observeti, "[wle owe an implicit reverence to all the institutions of our
ancestors." (Burke, A Vindication of Natural Society (1757), reprinted in
The Portable Edrnund Burke (1999), p. 34.) "Tradition" is worthy of respect
not because it is invoked talismanically by government, but rather because it
draws on the wisdom of many generations and the tests of time. Revolution
'
may sometime:; be warranted, but more often it represents only the untested
wisdom of a si:nglegeneration.
Burke and other political philosophers have, of course, recognized
that respect for tradition is not inconsistent with notions of progress. As
Burke himself noted, "a state without the means of some change is without
the means of its conservation." (Burke, Reflections on the Revolution in
France, para. 36 (1790), reprinted in The Portable Edrnund Burke, supra, p.
424.) But carelfid, measured organic change is more likely to be easily
absorbed by society and less likely to run afoul of the law of unintended
consequences. In the present situation, one unintended and unfortunate
consequence of too radical a change is the possibility of backlash, both
within the state and throughout the country that the state is currently helping
to lead.
Even a child is familiar with the common-sense adage: "If it ain't
broke, don't fix it." California's treatment of same-sex unions isn't remotely
broken at all. Instead, it is the result of a hlly-functioning political process
that is treating,,and will continue to treat, same-sex couples with respect and
equality.
1 The State Has an Important Interest in Maintaining the

Traditional Definition of Marriage While Providing Same-
sex Couples With the Same Rights and Benefits.
The state's definition of marriage is literally older than California.

Long before bleing written into statute in 1977, the definition of marriage
was part of our common law. The drafters of the 1849 Constitution were
carehl to specify that there was no religious test for marriage (see note 2,
ante), and they had no need to define marriage as a male-female union
because that limitation was readily understood. The traditional definition of
marriage is so entrenched that courts in other states have found it to exist
even in the absence of an express provision requiring traditional marriage.
(See, e.g., Hernandez v. Robles (N.Y. 2006) 855 N.E.2d 1 , 6 (plur. opn.);
Baker v. State of Vermont, supra, 744 A.2d at pp. 868-869.) As the Court of
Appeal noted, "Marriage is more than a 'law,' of course; it is a social
institution of profound significance to the citizens of this state, many of
whom have expressed strong resistance to the idea of changing its
historically oplposite-sex nature." (Opn. at p. 59.)
The New Jersey Supreme Court, in Lewis v. Harris, supra, 908 A.2d
196, likewise recognized the importance of this traditional understanding of
marriage. It stated:
We cannot escape the reality that the shared societal meaning of
marriage - passed down through the common law into our statutory
law - has always been the union of a man and a woman. To alter that
meaning would render a profound change in the public consciousness
of a social institution of ancient origin.
(Id. at p. 922.)
Petitioners would like to view the state's maintenance of its
traditional definition of marriage and its domestic partnership system in
isolation from each other. But the Court of Appeal recognized that the state's
interest in preserving the definition of "marriage" as a union between a man
and a woman must be considered in light of the entire statutory scheme.

(Opn. at p. 52, citing Brown v. Merlo (1973) 8 Cal.3d 855, 862.) The court
observed that, because of the provision of rights through the domestic
partnership system "the quarrel here is largely symbolic, though highly
significant." (hi. at p. 57.) As explained above, the state provides domestic
partners with all of the same rights that it affords to married couples while
withholding the: word "marriage" to describe their relationship. The state
does not provid,e domestic partners with any federally-conferred rights or
benefits, but su'chbenefits would be denied to same-sex couples pursuant to
federal law even if same-sex marriage were legalized in California. (1
U.S.C. 5 7.)
Petitionr:rs criticize the institution of domestic partnerships as
analogous to th.e "separate but equal" system of racially-segregated facilities
that was rejected in several landmark cases including Brown v. Board of
Education (1954) 347 U.S. 483. The dissent in the Court of Appeal agreed
that "[l]audable as the domestic partnership act may be as providing at least
half a loaf, it is in the end a simulacrum, a form of pseudomarriage that
stigmatizes homosexual unions in much the same way 'separate but equal'
public schools stigmatized black students." (Opn. at pp. 44-46 (dis. opn. of
Kline, J.).)
Such hyperbole ignores inconvenient historical facts. Domestic
partnerships artd civil unions, unlike Jim Crow laws, were not conceived by
a majority group for the purpose of oppressing a minority group. Rather,
they were sponsored by gay and lesbian rights groups. A historian of the gay
rights movemelnt, Professor George Chauncey, traces the impetus of the
campaign for ciomestic partnership rights and the current sarne-sex marriage
movement to the need to secure the rights associated with marriage.=

According to Professor Chauncey, "[nlot until the 1990s did marriage
become a widespread goal, and even then it received more support from
lesbians and giiy men at the grassroots level than from major gay
organizations." (Chauncey, Why Marriage: The History Shaping Today's
Debate Over Ciay Equality (2004) p. 88.) Until that time, most people in the
gay and lesbia~~
community viewed marriage as a "discredited patriarchal
institution" in .which they did not wish to participate. (Id. at pp. 89,93.)
Professor Cha~mceyopines that the desire for the legal protections of
marriage was prompted by the legal vulnerability that gay men and lesbians
felt when they began having children and when many in their community fell
victim to AIDS. (Id. at p. 95.) This desire led to the campaign for domestic
partnership rights and has also prompted the drive for same-sex marriage.
(Id. at pp. 116-123.) It is this history that leads law professor and same-sex
marriage supporter William Eskridge to state that analogies between legal
statuses protecting the rights of same-sex couples and racial segregation "are
out of line." (See Eskridge, Equality Practice: Civil Unions and the Future of
Gay Rights (2002) pp. 147-148, 139-145 [rejecting the analogy between
civil unions and racial segregation and arguing that creation of civil unions
in Vermont is imore comparable to the Brown decision than Plessy v.
Ferguson (1 896) 163 U.S. 537, because they promote respect and
tolerance].)
As the Court of Appeal noted, domestic partnerships must be viewed
as an important step toward securing acceptance of same-sex relationships.
(Opn. at pp. 57-58.) Maintaining the longstanding and traditional definition
25. Professor Chauncey submitted a declaration in support of the

City's position in this case and thus certainly has no bias against petitioners'
position. (S.F. R.A. 223-238.)
of marriage, while providing same-sex couples with "legal recognition

comparable to ]marriagev(Koebke v. Bemardo Heights Country Club, supra,
36 Cal.4th at p. 845)' is a measured approach to a complex and divisive
social issue. Cc:rtainly, given the history and importance of maniage, the
state's interest in preserving that balance must be seen as at least important.
2. The State Has an Important Interest in Carrying Out the

Will of Its Citizens as Represented Through the Legislative
Process.
The seclond state interest justifying preservation of traditional

maniage is the interest in deferring to the will of Californians as expressed in
the legislative process. The enactment of Proposition 22 in 2000
demonstrated the popular intent to preserve traditional marriage. (Fam.
Code, 5 308.5.) That initiative confirmed the previous determination by the
people's representatives in the Legislature that marriage should be so limited.
(Fam. Code, $($ 300,301 .) Those representatives have also declared that
California public policy supports providing equal rights and responsibilities
for lesbian and gay families. (Stats. 2003, ch. 42 1, 1, subd. (b) [declaring
that domestic partnerships hrther the state's interest in supporting families].)
The qut:stion here is to what extent this Court should defer to these
legislativejudgments. Petitioners claim that such deference would be an
abdication of judicial responsibility. They imply that the state's position
contradicts the principle of judicial review. Both contentions lack merit.
The state is asserting only that certain social changes should more
appropriately come from the people than from the judiciary - as long as
constitutional rights continue to be guaranteed. The state is asserting that the
judiciary shoulld not rewrite the longstanding definition of marriage based on
its view of a bletter solution to the social issues involved. Such respect and
caution is espe:cially warranted because the political process is actively
engaged on this subject. Any judgment requiring state recognition of same-

sex marriage would terminate this process and would "to a great extent,
place the matter outside the arena of public debate and legislative action."
(Glucksberg, supra, 52 1 U.S. at p. 720.)
Like judicial review, judicial deference to legislative judgments is a
principle with a distinguished pedigree. This Court has observed, in
rejecting a constitutional challenge to a statute limiting claims for
defamation, that
if courts art: called upon to set their judgment as to what is wise
against the popular judgment they may summarily put an end to
certain law:; that may be foolish but also to certain laws that may be
wise, and particularly to laws that may be wise in the long run
although they appear foolish at the moment. "Most laws dealing with
economic and social problems are matters of trial and error. That
which before trial appears to be demonstrably bad may belie prophesy
in actual operation. It may not prove good, but it may prove
innocuous. But even if a law is found wanting at trial, it is better that
its defects s~houldbe demonstrated and removed than that the law
should be aborted by judicial fiat. Such an assertion of judicial power
deflects responsibility from those on whom in a democratic society it
ultimately rests - the people."
( Werner v. Southern California Associated Newspapers ( 1 950) 3 5 Cal.2d

121, 130, citation omitted; see also Baker v. Carr (1962) 369 U.S. 186, 270
(dis. opn. of Frankfurter, J.) ["In a democratic society like ours, relief must
come through im aroused popular conscience, that sears the conscience of
the people's representatives"] .)
Chief Justice Traynor echoed this principle in his academic writings
on the role of the judiciary. The Chief Justice wrote: "A judge who
meditates law ;md social change in a democratic society is bound to be
preoccupied with the role of the courts. Nevertheless he is bound also to
recognize that .thetask of law reform is that of the legislators, which is to say
that it is primarily that of the people." (Traynor, Law and Social Change in
a Democratic ,S'ocie@ 1956 U. Ill. L. F. 230, reprinted in The Traynor Reader

(Hastings L. J. 1987) p. 45); see also Traynor, The Limits of Judicial
Creativiv (197'8) 29 Hastings L. J. 1025, 1030 [observing "there remains
widespread agreement that the court itself cannot be the engine of social
reform. The very responsibilities of a judge as an arbiter disqualify him as a
crusader"] .)
Whether described as judicial modesty, judicial restraint, or judicial
minimalism, this principle has many contemporary advocates. United States
Supreme Court Justice Stephen Breyer has written that courts should give
greater deference to the legislative process in order to support what he
describes as "active liberty," the right of individuals to participate in self-
government. (Breyer, Active Liberty (2005) p. 2 1.) Judicial modesty is
needed when a.pproaching constitutional questions, according to Justice
Breyer, "because a premature judicial decision risks short-circuiting, or pre-
empting, a 'co~iversational'lawmaking process - a process that embodies
our modern understanding of democracy." (Id. at p. 7 1.) His colleague on
the high court, Justice Ruth Bader Ginsburg, has criticized the United States
Supreme Court's decision in Roe v. Wade (1973) 4 10 U.S. 113, for this same
reason:
The political process was moving in the early 1970s, not swiftly
enough for advocates of quick, complete change, but majoritarian
institutions were listening and acting. Heavy-handed judicial
interventio~iwas difficult to justify and appears to have provoked, not
resolved, conflict.
(Ginsburg, Some Thoughts on Autonomy and E q u a l i ~in Relation to Roe v.

Wade (1985) 63 N . Carolina L.Rev. 375, 385-386.p' This interest in
-- - -
26. See also Sunstein, Foreward: Leaving Things Undecided, supra,

at p. 97 [arguing that judicial invalidation of prohibitions against same-sex
marriage "could jeopardize important interests" and "weaken the
deferring to the legislative process is particularly strong in California's

constitutional system of government, in which political power in inherent in
the People. (Cal. Const., art. 11, $8 1, 8 . y
Here, all signs indicate that the legislative process is working to
protect the rights of same-sex couples. The democratic "conversation," in
Justice Breyer's words, continues. There has been no showing that the DPA,
which did not 'become fully implemented until 2005, is inadequate to
safeguard the iights of same-sex couples in the meantime. Under these
circumstances, when there exists a po'ssibility that the legislative process can
work out a soliution to this controversial matter, the importance of deference
can hardly be disputkd.
antidiscrimina1:ion movement itself as that movement is operating in

democratic arenas"].
27. The consequences of failing to recognize the significant role that

the people play in California's constitutional system is illustrated by one of
the cases that the Rymer petitioners cite, People v. Anderson (1972) 6 Cal.3d
628. In that case, this Court distinguished between the wording of former
article 1, section 6 (now article I, section 17) prohibiting "cruel or unusual
punishment" and the Fourteenth Amendment, which prohibits "cruel and
unusual punishment" in holding the death penalty unconstitutional. (Id. at
pp. 641-645.) This holding "was promptly repudiated by California voters,
who amended the California Constitution to make clear that the death
penalty and its related statutory scheme do not constitute cruel or unusual
punishment or any other violation of the state Constitution." (People v. Hill
(1992) 3 Cal.4th 959, 1015.) While petitioners cite Anderson to argue
against deference to the legislative process, the Court would be better
advised to consider the concurring opinion of Justice Mosk in an earlier
appeal brought by the Anderson defendant. While expressing a "personal
belief in the social invalidity of the death penalty," Justice Mosk concurred
in the decision upholding the death penalty because "to yield to my
predilections would be to act wilfully 'in the sense of enforcing individual
views instead of speaking humbly as the voice of the law by which society
presumably consents to be ruled . . . ."' (In re Anderson (1968) 69 Cal.2d
613,634-635 (:cone. opin of Mosk, J.), quoting Frankfurter, 7he Supreme
Court in the Mirror of the Justices (1957) 105 U.Pa.L.Rev. 78 1, 794.)
The Court of Appeal properly recognized that deferring to the

legislative process is not the same as bowing to majority rule. "Majoritarian
whims or prejudices will never be sufficient to sustain a law that deprives
individuals of a hndamental right or discriminates against a suspect class."
(Opn. at p. 61, citation omitted.) But legislativejudgment can be
nevertheless deferred to under either the standard rational basis test or under
a test that weighs the relative interests.
If this Clourt applies rational basis review, the marriage statutes must
be upheld as constitutional. Numerous courts in other jurisdictions have
already held that the traditional definition of marriage satisfies the rational
review test. (See, e.g., Hernandez v. Robles, supra, 855 N.E.2d at p. 12
(plur. opn.); Morrison v. Sadler (Ind. Ct. App. 2005) 82 1 N.E.2d 15,27;
Standhardt v. :Superior Court (Ariz. Ct. App. 2003) 77 P.3d 45 1,464-465.)
If this Czourt is inclined to apply an intermediate scrutiny standard of
review such as the one proposed in Hawkins v. Superior Court, supra, 22
Cal.3d 584, the statutes would also pass muster. The New Jersey Supreme
Court's recent analysis in Lewis v. Harris, supra, 908 A.2d 186, is
persuasive. In deciding equal protection claims under the New Jersey
Constitution, tlhat court weighs three factors that are equivalent to those
proposed in fizwkins: "the nature of the right at stake, the extent to which
the challenged statutory scheme restricts the right, and the public need for
the statutory rc:striction." (Id. at p. 443 .)
Applyi~igthis test to its marriage laws, the New Jersey Supreme Court
identified two distinct issues: whether the rights and privileges of marriage
should be given to same-sex couples and whether sarne-sex couples "have a
constitutional right to define their relationship by the name of marriage, the
word that historically has characterized the union of a man and a woman.''
(Id. at p. 444.) Considering the first question, the Lewis court held that there
was no legitimate reason to deny same-sex couples the same rights and
benefits as were given to married couples. (Id. at p. 453 .)
But the court declined to compel New Jersey to authorize same-sex
marriage. Instead, it allowed the New Jersey Legislature to determine
whether to legalize same-sex marriage or to provide the rights and benefits
associated with marriage to same-sex couples through another means. (Id. at
p. 459.) The court stated, "[b]ecause this State has no experience with a
civil union construct that provides equal rights and benefits to same-sex
couples, we will not speculate that identical schemes called by different
names would create a distinction that would offend" equal protection. (Ibid.)
"Under our equal protection jurisprudence, however, plaintiffs' claimed right
to the name of marriage is surely not the same now that equal rights and
benefits must be conferred on committed same-sex couples." (Id. at p. 458.)
Finally, the coilrt addressed dissenters who claimed that it should simply
require same-azx marriage as a remedy rather than leaving the choice to the
legislature:
Some may think that this Court should settle the matter, insulating it
from public: discussion and the political process. Nevertheless, a
court must discern not only the limits of its own authority, but also
when to exercise forbearance, recognizing that the legitimacy of its
decisions rests on reason, not power. We will not short-circuit the
democratic process from running its course.
(Id. at p. 46 1.)
The outcome in New Jersey was comparable to the holding of the
Vermont Suprc:me Court, which concluded that same-sex couples were
entitled to all of the benefits and protections given to married couples but not
a marriage 1ice.nse. (Baker v. State of Vermont, supra, 740 A.2d at p. 867.)
That court stated: "Whether this ultimately takes the form of inclusion within
the marriage laws themselves or a parallel 'domestic partnership' system or
some equivalent statutory alternative, rests with the Legislature." (~bid.p'

Here, Clalifornia has already implemented a domestic partnership
system consistlent with the outcomes in New Jersey and Vermont.
Registered domestic partners already receive the same rights, benefits, and
protections tha.t the state gives to married couples. Thus, the classification
made by our marriage laws is no broader than absolutely necessary to
effectuate the state's interest in maintaining the traditional definition of
marriage. Deference to the legislative process, "the ultimate source of
constitutional i~uthority"(Id. at p. 888), is no less important. The interest of
same-sex couples in equal treatment under the law is undeniable, but it is
being addresse:d comprehensively. The Court of Appeal's judgment
affirming the rnarriage laws against equal protection should therefore be
affirmed.
28. Tht: Washington Supreme Court might have reached a similar

result, but the plaintiffs in that case requested that the court not consider
whether they would be entitled to the rights and benefits of marriage
separate from the status of marriage. (Andersen v. King County, supra, 138
P.3d at p. 985.:) Subsequently, the Washington Legislature passed a
domestic partn'ership bill. (Wash. Stats. 2007, ch. 156.) California, Oregon,
Maine and the District of Columbia also offer domestic partnerships to same-
sex couples (Ore. Stats. 2007, ch. 99; Maine Rev. Stats. Ann., tit. 22, § 2710;
D.C. Official Code 32-702) while New Hampshire, Vermont, New Jersey,
and Connecticut provide civil unions. (N.H. Stats. 2007, ch. 58; Vt. Stat.
Ann. $8 1201 -. 1207; N.J. Stat. Ann. §§ 37:l-29 - 37:l-36; Conn. Gen. Stat.
Ann. $9 46b-38aa - 46b-3800.) Hawaii provides certain rights to same-sex
couples who relgister as "reciprocal beneficiaries." (Haw. Rev. Stat.
572C-2.)
CALIFORNIA'S CHOICE TO EQUALIZE RIGHTS

FOR SAME-SEX COUPLES WHILE PRESERVING
THE INSTITUTION OF MARRIAGE COMPORTS
WITH THE FUNDAMENTAL RIGHT TO MARRY.
Petitioners' claim that the traditional definition of marriage violates

the fundamental right to marry suffers from two related problems.~First,
petitioners fail in their claim that they are being denied the fundamental right
to enter into a legally-recognized family relationship with the person of their
choice or to enjoy other benefits associated with traditional marriage. The
Domestic Partnership Act safeguards those interests to the fullest extent of
the state's abiliity. Second, to the extent that petitioners claim a fundamental
right based on the nomenclature used to describe their state-sanctioned
relationship - the title "marriage" - no legal authority supports recognition
of such a liberty interest.
A. The Persoinal Dignity Interests That Inform the Historically
Recognized "Right to Marry" Have Been Given to Same-sex
Partners by the Domestic Partnership Act.
The marriage laws do not violate the fundamental right to many

because all of ithe personal and dignity interests that have traditionally
29. The petitioners assert a fundamental right to marry based on

"multiple and largely overlapping constitutional guarantees, including the
rights of privacy, due process, and intimate association." (Ryrner Br. at p.
5 1.) Petitioners therefore cite constitutional precedents in all of these areas,
as well as righi. to marry cases based on equal protection principles, in
support of their fundamental rights claim. In the interests of clarity of
presentation, this brief will address in this section the due process cases as
well as the right to marry cases cited by petitioners. Because the California
Constitution, unlike the United States Constitution, includes a specific
privacy guarantee, petitioners claims of a violation of the rights to privacy,
intimate association, and freedom of expression will be addressed in the next
section.
informed the right to marry have been given to same-sex couples through the
Domestic Parbnership Act. Precedents of this Court and the United States
Supreme Court explain that consideration of a newly-asserted hndamental
interest must blegin with a '"carehl description' of the asserted liberty
interest." (Dawn D. v. Superior Court (1998) 17 Cal.4th 932,941, quoting
Glucksberg, szpra, 52 1 U.S. at p. 72 1.) "The next step is to determine
whether this interest is constitutionally protected." (Ibid.) This
determination asks whether the asserted interest is "'deeply rooted in this
Nation's histoiry and tradition,' and 'implicit in the concept of ordered
liberty,' such that 'neither liberty nor justice would exist if [the interest were]
sacrificed."' (Glucksberg, supra, 521 U.S. at p. 721 .pl
30. The dissent in the Court of Appeal would have disregarded these
longstanding limitations on the recognition of new hdamental rights.
Instead, the dissent suggested that Lawrence v. Texas, supra, 539 U.S. 558,
changed the applicable analysis. However, Lawrence did not repudiate the
high court's prior approach to recognizing fundamental rights. Rather, the
high court considered historical practices and traditions in overruling Bowers
v. Hardwick, supra, 478 U.S. 186. Lawrence reexamined the historical
practices and traditions underlying Bowers, concluding that Bowers was
wrongly decided based on prevailing practices and traditions at the time
when it was decided. (Lawrence, supra, 539 U.S. at p. 571.) Lawrence also
considered more recent laws and traditions in concluding that our legal
history "showl:s] an emerging awareness that liberty gives substantial
protection to adult persons in deciding how to conduct their private lives in
matters pertaining to sex." (Id. at p. 572.) Thus, the dissent's view that the
prudential lim~tson recognizing new fundamental rights claims have been
removed was erroneous. This conclusion is supported by post-Lawrence
decisions from state and federal appellate courts that have continued to
analyze fundamental rights claims to determine if they are deeply rooted in
our constitutional traditions. (See, e.g., Raich v. Gonzales (9" Cir. Mar. 27,
2007) -F . 3 d , 2007 WL 754759 [no hndamental right to medical
marijuana useII; Coshow v. City of Escondido (2005) 132 Cal.App.4th 687,
709 [holding that there is no hndamental right to drink unfluoridated water];
People v. Sanlos (2007) 147 Cal.App.4th 965,979 [holding that there is no
deeply rooted right to question jurors about their deliberative process after
the verdict as il component of the right to an impartial jury]; Note, The
Here, petitioners assert that same-sex couples have a fundamental

right to have the state license their marriages without consideration of the
nature of the state's past regulation of marriage or the Domestic Partnership
Act. In petitioners' view, maintaining traditional marriage is a mere
tautology - an assertion that same-sex marriage cannot be legal simply
because it has inever been legal. This perspective gives short shrift to the
valid concern about recognizing new fundamental rights: that fimdamental
rights analysis not constitute an occasion for judicial creation of public
policies. (Dawn D. v. Superior Court, supra, 17 Cal.4th at p. 939; see also
Lochner v. Nav York (1905) 198 U.S. 45,75 (dis. opn. of Holmes, J.) ["I
strongly believe that my agreement or disagreement has nothing to do with
the right of the majority to embody their opinions in law . . . . The 14'
Amendment does not enact Mr. Herbert Spencer's Social Statics"].)
But perhaps more importantly, petitioners' assertion of a fundamental
right to same-sex marriage begs the question of the nature and constitutional
basis of the right to marriage that has historically been recognized. The right
to marriage precedents have been described as "murky." (Pull, Questioning
the Fundamental Right to Marry (2006) 90 Marq. L. Rev. 2 1,34.) The early
cases describing a right to marriage speak of it solely as a private relationship
into which the state should not interfere or as a setting in which private
sexual relations occur. (Meyer v. State of Nebraska (1923) 262 U.S. 390,
399 [recognizing the right "to marry, establish a home, and bring up
children" in a case holding that a law crirninalizing the teaching of foreign
languages violated due process]; Skinner v. Oklahoma, supra, 3 16 U.S. 535,
541 [recognizing that "[mlarriage and procreation" are hndamental rights in
Gluchberg Rtlnaissance: Substantive Due Process Since Lawrence v. Texas

(2006) 105 Mich. L. Rev. 409,411 [survey of cases concluding that the
holding of Gluchberg has continued to be cited by cases throughout the
country post-Lawrence].)
a decision striking down a state law sterilizing persons convicted of certain

crimes]; Griswold v. Connecticut (1965) 381 U.S. 479,485-486
[recognizing the marital relationship falls within a "zone of privacy, created
by several funtlamental constitutional guarantees," that made it
unconstitutional for a state to bar a married couple from having access to
contraceptives:l.pl
Later cases discussing civil marriage as a state-regulated institution
also do not support finding same-sex marriage to be a fundamental right.
The plurality decision in Perez v. Sharp, supra, 32 Cal.2d 7 11, 73 1-732, and
the high court's decision in Loving v. Virginia, supra, 388 U.S. 1, 12, held
that anti-miscegenation laws constituted improper racial restrictions on the
right to marriage and were therefore subject to strict scrutiny. They did not
find a fundamental right beyond the context of traditional marriages.
In Zablocki v. Redhail, supra, 434 U.S. 374, the Supreme Court
struck down 011equal protection grounds a Wisconsin law that required
noncustodial parents with child support obligations to seek judicial approval
before being alllowed to marry. (Id. at p. 375.) The case did not address the
question of the: gender of the would-be marital partners and, more
importantly, Zlzblocki did not clearly apply a strict scrutiny test. While
describing manage as a right having a "fundamental character," the high
court stated that a law that "significantly interferes with the exercise of a
fundamental right . . . cannot be upheld unless it is supported by suficiently
important state interests." (Id. at pp. 386, 388, emphasis added.) The Court
3 1. The Court later clarified, in Eisenstadt v. Baird (1972) 405 U.S.

438, that the right to have access to contraception discussed in Griswold was
not an exclusive right of married couples but rather a right of all persons,
manied or single, "to be free of government intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a
chlld." (Id. at ~p.453.)
also stated that "reasonable regulations that do not significantly interfere

with decisions to enter into the marital relationship may legitimately be
imposed." (Id, at pp. 386-387, citing Califano v. Jobst (1977) 434 U.S. 47.)
Thus, il appears either that Zablocki applied a lesser standard than
strict scrutiny or that it did not hold that strict scrutiny applies to all
regulation of marriage. (See, e.g., Fair Political Practices Commission v.
Superior Court (1979) 25 Cal.3d 33,47 [citing Zablocki for the proposition
that "although a hndamental interest may be involved, . . . not every
limitation or incidental burden on a fundamental right is subject to the strict
scrutiny standard" and that Zablocki held that strict scrutiny only applies
"when there is a real and appreciable impact on, or a significant interference
with the exercise of the fundamental right"]; Hawkins v. Superior Court,
supra, 22 Cal.:3d, 584, 599 (conc. opn. of Mosk, J.) [arguing that Zablocki
applied intermediate scrutiny]; 3 Rotunda & Nowak, Treatise on
Constitutional Law (3d ed. 1999) 5 18.28, p. 580 ["Justice Marshall wrote a
majority opinion for five members of the Court which was somewhat
unclear as to the nature of the right to marriage and the standard of review
used in the decision . . . . [Tlhe majority opinion seems to continue to
recognize maniage as a fundamental right, although the language used is
weaker than that of previous majority opinions"].)
The lasl of petitioners' cases discussing the right to marriage, Turner
v. SaJey (1987) 482 U.S. 78, rejected the State of Missouri's contention that
prisoners had no right to marry. (Id. at p. 95.) The Supreme Court explained
that, even though the right to marriage was subject to substantial restrictions
in a prison setting, prisoner marriages would still have many important
"attributes of nlarriage," including emotional support and commitment,
spiritual significance, the expectation of hture consummation after release
from prison, and the fact that marriage is often a precondition for receipt of
government benefits, property rights and "less tangible benefits." (Id. at pp.
95-96.) As in its other cases, there can be little doubt that the high court was
considering tht: constitutional claim in the context of a traditional male-
female marriage. Moreover, the central issue in Turner was the test to be
used in evaluating restrictions imposed upon the constitutional rights of
prisoners. Thus, the Court did not speak to whether the right to marriage in
issue was grounded in principles of due process or in equal protection. (See
Sunstein, 7he Right to Marry (2005) 26 Cardozo L. Rev. 208 1,2089.)
In light of these cases, the "right to marriage" appears unique among
fundamental rights. Although marriage is described as fundamental, the
high court aclu~owledgedthat it can be subject to merely "reasonable"
regulation. (Zablocki v. Redhail, supra, 434 U.S. at pp. 386-387.) This
observation is consistent with California precedent holding that "'the
Legislature has full control of the subject of marriage and may fix the
conditions under which the marital status may be created or
terminated . . . ."' (Lockyer v. CCSF, supra, 33 Cal.4th at p. 1074, citation
~rnitted.~
Such pllenary power over marriage belies the idea that marriage is a
fundamental interest in the same way as other interests are deemed
32. State regulation of the defmition of marriage in California

distinguishes this case from Goodridge v. Department of Public Health
(Mass. 2003) 798 N.E.2d 94 1, which involved only a common law
definition of marriage. In requiring Massachusetts to authorize same-sex
marriages, the Goodridge Court observed that the judicial imposition of that
remedy was "entirely consonant with established principles of jurisprudence
empowering a court to refine a common law principle in light of evolving
constitutional s'tandards." (Id. at p. 969.) As explained above, particularly in
footnote 16, the remedy that the petitioners seek in this case -- judicial
revision of a legislatively-approved definition of marriage -- implicates
prudential concerns that are absent when judges are merely reconsidering the
wisdom of conlmon law precedents.
fundamental. Petitioners admit that the right to civil marriage has been
subject to dynimic changes through the years. (City Br. at pp. 25-26.) And
academics have even posited that the states could abolish civil marriage if
they wished, leaving the institution to private institutions, including
churches. (Sunstein, The Right to Mary, supra, 26 Cardozo L. Rev. at pp.
2 1 15-2 1 17,21 19-2120; Zelinsky, Deregulating Marriage: The Pro-
Marriage Casefor Abolishing Civil Marriage (2006) 27 Cardozo L. Rev.
1 161, 1182 [olbserving that "a legal world without civil marriage is workable
and not as different from the status quo as many might suppose"].) Such
recognition of the state's broad authority to regulate - or not regulate - in
thls area underscores the difference between marriage and other asserted
fundamental rights, which could hardly be "deregulated" in a similar
manner.
But what cannot be deregulated is the right to have a private
relationship wi~tha beloved person. (Pull, Questioning the Fundamental
Right to Marry, supra, 90 Marq. L. Rev. at p. 62.) One commentator,
distinguishing this right from civil marriage, calls this "personal-marriage."
(Ibid.) Such a right "can summon in its defense many long-recognized
constitutional protections (the autonomy of the household; freedom of
speech; liberty to associate with fhends of one's choosing; freedom of
conscience) along with more recently-birthed constitutional protections (for
privacy and se:lcual behavior)." (Id. at p. 76.)
This idea of marriage was recognized at common law, which
described marriage as a relationship "'by which a man and woman
reciprocally engage to live with each other during their joint lives, and to
discharge toward each other the duties imposed by law on the relation of
husband and wife."' (Mott v. Mott, supra, 82 Cal. at p. 416, citation
omitted.) This right was always described in the context of the male-female
relationship, for the simple reason that neither law nor society recognized the
existence of committed same-sex relationships. But to say that the law never
recognized a right in one man to marry another, or a right in one woman to
marry another, is not to say that the profound human rights which are
historically encompassed by the shorthand phrase "right to marry" when
speaking of a nnan and a woman do not exist as a matter of law for persons
seeking the same kind of life-partnership with another of the same sex.
The hurnan rights that inform a man's right to marry a woman, and
vice versa, have been recognized for same-sex couples by the California
Legislature. To the extent that it derives from California law, there is no
right, benefit, privilege, or responsibility that can be accomplished by a
marriage contriict that cannot be accomplished by a domestic partnership.
This Court's explanation of common law marriage as a relationship "by
which [two pelsons] reciprocally engage to live with each other during their
joint lives, and to discharge toward each other the duties imposed by law on
the relation of lhusband and wife" (82 Cal. at p. 4 16) is virtually echoed in
the definition of a domestic partnership: "two adults who have chosen to
share one another's lives in an intimate and committed relationship of
mutual caring." (Fam. Code, 5 297, subd. (a).)
The judicially-recognized "right to marry" is not about the label; it is
about freedom from governmental interference in personal relationships.
And same-sex couples are now as free to join as life partners in domestic
partnership as opposite-sex couples are free to marry. Saving only what
cannot be provided by California law alone, whatever rights can be said to
be guaranteed for a man and a woman by the state Constitution's due
process clause under the rubric "right to marry," can now be enjoyed by
persons of the same sex in the right to join together as domestic partners.
Accordingly, there can be no merit to petitioners' due process claims

following adoption of the Domestic Partnership Act.
B. There Is No Fundamental Liberty Interest in Using the Title
"Marriage" to Describe a Same-sex Relationship.
Petitioners' assertion of a fundamental right also fails because there is

no fundamental right to compel the state to describe a legally-sanctioned
same-sex relationship as a marriage. The state is unaware of any legal
precedent establishing a fundamental interest in the use of a word by the
government to describe a particular legal status. And under the domestic
partnership system, the word "marriage" is all that the state is denying to
registered domestic partners. The hndamental right to marry can no more
be the basis for same-sex couples to compel the state to denominate their
committed relationships "marriage" than it could be the basis for anyone to
prevent the state legislature fkom changing the name of the marital
institution itself to "civil unions." Accordingly, petitioners' claim to a
fhndarnental right must be denied for this reason as well.
THE MARRIAGE LAWS COMPORT WITH THE

RIGHTS OF PRIVACY, ASSOCIATION AND
EXPRE:SSION.
Article I., section 1 of the California Constitution guarantees the right

of privacy. This right encompasses "autonomy privacy" and "informational
privacy." (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th l , 3 5
(NCAA).) Petitioners assert a right of autonomy privacy. A plaintiff
alleging such a right under the California Constitution must establish each of
the following: (1) a legally protected privacy interest; (2) a reasonable
expectation of privacy under the circumstances; and (3) conduct by
defendant constituting a serious invasion of privacy. (Id. at pp. 39-40.)
Petitioners fail to show how they have been denied a legally protected
privacy interest or that the law constitutes a serious invasion of their privacy.
They also cannot show that their right of freedom of association or
expression has been infringed upon.
A. There Is No Constitutionally Recognized Privacy Interest that

Guarantees Same-sex Couples a Right to Marry.
Petitioners would also ground a right to same-sex marriage in the

California Constitution's right to privacy. That effort must fail for the same
reason that a due process right to sarne-sex marriage cannot be found: the
absence of a fiindamental interest guaranteeing same-sex couples a right to
"marriage." This is not to say that same-sex couples lack an autonomy
interest protecting them from government interference in their relationship.
Those fundamental interests are fully secured to same-sex couples under the
rubric of domestic partnership. But the privacy clause of our Constitution
does not sweep so broadly as to compel the state to change its longstanding
definition of rrlarriage. "[Tlhe privacy provision in our state Constitution
does not 'encompass all conceivable assertions of individual rights' or create
'an unbridled ~ight'of personal freedom." (Nahrstedt v. Lakeside Village
Condominium Assn. (1994) 8 Cal.4th 361,387, quoting NCAA, supra, 7
Cal.4th at p. 36.) The question whether a privacy interest exists "must be
determined from 'the usual sources of positive law governing the right to
privacy - comnon law development, constitutional development, statutory
enactment, andl the ballot arguments accompanying the Privacy Initiative."'
(Ibid.)
These slources do not support finding a privacy interest in sarne-sex
marriage. California law has recognized marriage only as a union of a man
and a woman throughout the history of the state. As discussed above with
regard to petitiloners' due process claim, the right to marriage precedents do
not establish a right to same-sex marriage. And that lack of precedent
undermines peititioners' claim to the existence of autonomy privacy in sarne-

sex marriage. (Cf. American Academy of Pediatrics v. Lungren (1997) 16
Cal.4th 307,3 32-333 [noting that previous California cases "firmly and
unequivocally" establish that the constitutional interest in autonomy privacy
includes a pregnant woman's right to choose whether to continue her
pregnancyI .)
Nor does the ballot argument for the 1974 privacy initiative
support petitioners' position. This Court has observed that the "principal
focus" of the initiative was to prevent unnecessary information gathering by
public and private entities. (NCAA, supra, 7 Cal.4th at p. 2 1.) And reliance
on broad references such as a "right to be left alone" (see Opn. at p. 4 (dis.
opn. of Kline, J.)), are unavailing. This Court has described such phrases as
a group of "vague and all-encompassing terms [that] afford little guidance in
developing a workable legal definition of the state constitutional right to
privacy." (NCd4A,supra, at pp. 20-2 1, citing Ballot Parnp., Proposed
Amends. Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972, p.
27.)
Petitionlers would effectively equate California's right to privacy with
the United States Supreme Court's most expansive substantive due process
decisions, while ignoring the prudential limitations on due process
established by ithe high court. But no case cited by petitioners stands for the
proposition that the California right to privacy is so unlimited.2' As the
33. In Ortiz v. Los Angeles Police Relief Ass'n, Inc. (2002) 98

Cal.App.4th 1288; cited by petitioners, the Court of Appeal recognized a
privacy interest in marriage, but that case does not stand for the proposition
that there is a privacy interest in sarne-sex marriage. Rather, the employee's
right to privacy was implicated by her employer's policy forbidding her from
marrying a felon of the opposite sex. (Id. at p. 1304.) Nonetheless, the court
held that the pnivacy interest was not violated by policy because the
Court of Appe,alobserved, marriage is "much more than a private

relationship"; it is a "public institution." (Opn. at p. 47.) In declining to
authorize the licensing of same-sex marriages, "the state is not interfering
'
with how [same-sex couples] conduct personal aspects of their lives . . . .
7
(Id. at p. 48.) Petitioners' privacy claim must therefore fail.

B. The Marriage Laws Do Not Infringe Upon Rights of Association or
Expression.
Nor can the marriage laws be characterized as infringements on the

freedoms of intimate association or expression protected by the California
Constitution. IVot only have these associational and expression interests
never been recognized in California to include a right to same-sex marriage,
but whatever "marital" interests of association and expression may be
protected to oplposite-sex couples by the California Constitution have been
secured to same-sex couples by domestic partnership. Accordingly, the
inability to obtain a marriage license cannot be said to infringe on those
associational interests.
The right of intimate association has been held to protect "highly
personal relationships" from government intrusion, including family
relationships. ( Wafield v. Peninsula Golf& Country Club (1995) 10
Cal.4th 594, 624-625.) But the Court of Appeal properly rejected
petitioners' claim because the right to marry recognized as part of the
freedom of intimate association has never included the right to same-sex
marriage. (Opn. at p. 47.)
The marriage laws likewise do not infringe upon the right to freedom
of expression. As the Court of Appeal held, "[tlhe marriage laws do not
interfere with the ability of individuals in this to enter intimate relationships
employer's conflict of interest rule was supported by a rational basis. (Id. at

p. 1313.)
with persons of their choosing, regardless of gender. The laws do not

proscribe any form of intimate conduct between same-sex partners. Nor do
they prevent same-sex couples from associating with each other or from
publicly expressing their mutual commitment through some form of
ceremony." (Cbpn. at p. 50.) This absence of a government requirement that
same-sex couples express themselves in a particular way or refrain from
expressing the~nselvesrequires denial of their freedom of expression claim.
(Compare Rumlsfeld v. Forum for Academic and Institutional Rights, Inc.
(2006) 547 U.S. 47, 126 S.Ct. 1297, 1310 [holding that law denying federal
funds to universities that prohibited military recruiting was not a denial of
the schools' frt:edom of expression] with Hurley v. Irish-American Gay,
Lesbian and B,isexual Group of Boston, Inc. (1995) 5 15 U.S. 557, 573 [state
law forcing parade organizer to accept participant violated freedom of
expression].)
CONCLUSION
For the foregoing reasons, the state respectfully requests that the
judgment of the Court of Appeal upholding the marriage statutes against
constitutional challenge be affirmed.
Dated: June 14,2007
Respectfully submitted,
EDMUND G. BROWN JR.

Attorney General of the State of California
JAMES M. HUMES
Chief Deputy Attorney General
MANUEL M. MEDEIROS
State Solicitor General
DAVID S. CHANEY
Chief Assistant Attorney General
STACY BOULWARE EURIE
Senior Assistant Attorney General
Supervising Deputy Attorney General

CERTIFICATE OF COMPLIANCE
[Pursuant to California Rules of Court, rule 8.204(~)(1)]
Pursuant to California Rules of Court, rule 8.204(~)(1),I hereby

certify that the attached ANSWER BRIEF OF STATE OF
CALIFORNIA AND THE ATTORNEY GENERAL TO OPENING
BRIEFS ON THE MERITS is proportionately spaced utilizing 13-point
Times New Roman font. In reliance on the word count feature of the
Wordperfect 8 software used to prepare this brief, I further certify that the
total number of words of this brief is 2 1,040, exclusive of those materials not
required to be counted. Counsel for State of California and the Attorney
General has submitted with this brief an application to file a brief in excess
of the word lirnit.
Dated: June 14,2007
Respectfully submitted,
EDMUND G. BROWN JR.
Attorney General of the State of California
JAMES M. HUMES
Chief Deputy Attorney General
MANUEL M. MEDEIROS
State Solicitor General.
DAVID S. CHANEY
Chief Assistant Attomey General
STACY BOULWARE EURIE
Senior Assistant Attorney General
Supervising Deputy Attorney General

DECLPLRATIONOF SERVICE BY OVERNIGHT COURIER
Case Name: IN RE: MARRIAGE CASES
No.: Califorilia Supreme Court Case No. S147999
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter; my business address is: 1300 I Street, Suite 125, P.O. Box
944255, Sacramento, CA 94244-2550.
On June 14.2007, I served the attached ANSWER BRIEF OF STATE OF CALIFORNIA

AND THE ATTORNIEY GENERAL TO OPENING BRIEFS ON THE MERITS by placing
a true copy thereof enclosed in a sealed envelope with Golden State Overnight, addressed as
follows:
-
PLEASE SEE ATTACHED SERVICE LIST
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on June 14,2007, at Sacramento, California.
/
Toni Melton laKi
Declararlt Signature
10349425 wpd
SERVICE LIST FOR CONSOLIDATED MARRIAGE CASES,

CALIFORNIA SUPREME COURT CASE NO. S147999
JCCP No. 4369'
City and County of San Francisco v. State of California

California Court of Appeal, First Appellate District Case No. A1 10449
San Francisco County Superior Court Case No. CGC-04-429539
(Consolidated for Trial with)
Representing Petitioner City and County Representing Petitioner City and County
of San Francisco: of San Francisco:
Therese M. Stewart Bobbie J. Wilson

Chief Deputy City Attorney Amy E. Margolin
OFFICEOF THE CITY ATTORNEY HOWARD RICENEMEROVSKI CANADY FALK
City Hall, Room 234 & RABKIN
1 Dr. Carlton B. Goodlett P1. Three Embarcadero Center, 7'h Floor
San Francisco, California 94102-4682 San Francisco, CA 941 11-4024
Telephone:
Facsimile:
(415) 554-4708
(415) 554-4745
Telephone:
Facsimile:
(415) 434-1600
(415) 2 17-5910 I
Representing Goverrror Arnold
Schwarzenegger and State Registrar of
Vital Statistics Teres:ita Trinidad:
Kenneth C. Mennemeier
Kelcie M.Gosling
MENNEMEIER, GLASSMAN & STROUD,LLP
980 9'h Street, Suite 1;'00
Sacramento, CA 958 14-2736
Telephone: (9 16 ) 553-4000
Facsimile: (916 ) 553-401 1
1. These cases were consolidated by the Court of Appeal in an order dated December 1,2005.
Tyler, et al. v. State of California

California Court of Appeal, First Appellate District Case No. A110450
Los Angeles County Superior Court Case No. BS088506
Representing Petitiolners Robin Tyler, et Representing County of Los Angeles:

al:
Lloyd W. Pellman, County Counsel
Gloria Allred Raymond G. Fortner
Michael Maroko Senior Deputy County Counsel
John S. West Judy W. Whitehurst
ALLRED,MAROKO & OLDBE BERG Senior Deputy County Counsel
6300 Wilshire Blvd., !Ste. 1500 648 Kenneth Hahn Hall of Administration
i Los Angeles, CA 90048-5217 500 W. Temple St.
Los Angeles, CA 900 12-2713
Telephone: (323) 653-6530
Facsimile: (323) 653-1660 Telephone: (2 13) 974-8948
Facsimile: (2 13) 626-2 105
Representing Respondent Equality Representing Respondent Equality

California: California:
Stephen V. Bomse Shannon Minter

Christopher F. Stoll Vanessa H. Eisemann
HELLERE m LLP' Melanie Rowen
333 Bush Street Catherine Sakimura
San Francisco, CA 94104-2878 NATIONALCENTERFOR LESBIANRIGHTS
870 Market Street, Suite 370
Telephone: (4 15) 772-6000 San Francisco, CA 94 102
Facsimile: (4 15) 772-6268
Telephone: (415) 392-6257
Facsimile: (415) 392-8442
Representing Resporldent Equality Representing Respondent Equality
I Jon W. Davidson Peter J. Eliasberg

Jennifer C. Pizer Clare Pastore
LAMBDALEGALDEFENSE ANDEDUCATION ACLU FOUNDATION OF SOUTHERN
FUND,INC. CALIFORNIA
3325 Wilshire Boulevard, Suite 1300 16 16 Beverly Boulevard
Los Angeles, CA 900 10 Los Angeles, CA 90026
Telephone: (2 13) 382-7600 Telephone: (2 13) 977-9500

Facsimile: (2 13) 250-39 19
Representing Respor~dentEquality Representing Respondent Equality

Alan L. Schlosser David C. Codell

Alex M. Cleghorn LAWOFFICEOF DAVIDC. CODELL
ACLU FOUNDATION OF NORTHERN 9200 Sunset Blvd. Penthouse Two
CALIFORNIA Los Angeles, CA 90069
39 Drumm Street
San Francisco, CA 941 1 1 Telephone: (3 10) 273-0306
Facsimile: (3 10) 273-0307
Telephone: (4 15) 62 1-2493
Facsimile: (4 15) 255-8437
- -
Representing Governor Arnold

Vital Statistics Teresita Trinidad:
Kenneth C. Mennemeier
Kelcie M. Gosling
MENNEMEIER, GLASSMAN & STROUD, LLP
See listing above under CCSF v. State of
California
Woo, et al. v. Lockyer

San Fraincisco County Superior Court Case No. CGC 04-504038
Representing Respon~dentsLancy Woo, et Representing Respondents Lancy Woo, et

al.: al. :

Christopher F. Stoll Vanessa H. Eisemann
HELLEREHRMANLLP Melanie Rowen
See listing above under Tyler, et al. v. State of Catherine Sakimura
California NATIONAL CENTERFOR LESBIANRIGHTS
See listing above under Tyler, et al. v. State of
California
Representing Respon~dentsLancy Woo, et Representing Respondents Lancy Woo, et
al.: al.:

ACLU FOUNDATION OF NORTHERN See listing above under Tyler, et al. v. State of
CALIFORNIA California
See listing above unde,r Tyler, et al. v. State of
California
Representing Responidents Lancy Woo, et Representing Respondents Lancy Woo, et

a].: a].:
Peter J. Eliasberg Jon W. Davidson

Clare Pastore Jennifer C. Pizer
ACLU FOUNDATIONC)F SOUTHERN LAMBDA LEGALDEFENSE
ANDEDUCATION
CALIFORNIA FUND,INC.
See listing above under Tyler, et al. v. State of See listing above under Tyler, et al. v. State of
California California
Representing Respontdents Lancy Woo, et Representing Governor Arnold
al.: Schwarzenegger and State Registrar of
Vital Statistics Teresita Trinidad:
Dena L. Narbaitz
Clyde J. Wadsworth Kenneth C. Mennemeier
STEEFEL,LEVIT& WEISS,a Professional Kelcie M. Gosling
Corporation MENNEMEIER, GLASSMAN & STROUD,LLP
One Embarcadero Center, 30thFloor See listing above under CCSF v. State of
San Francisco, CA 94 1 11 California
Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco
San Fralacisco County Superior Court Case No. CGC-04-503943
consolidated with
Campaign for California Families v. Newsom
Representing Proposition 22 Legal Defense Representing Proposition 22 Legal Defense

and Education Fund: and Education Fund:
Benjamin W. Bull Timothy Chandler

Glen Lavy ALLIANCE DEFENSE FUND
ALLIANCE DEFENSEFUND 101 Parkshore Drive, Suite 100
15333 North Pima Road, Suite 165 Folsom, CA 95630
Scottsdale, AZ 85260
Telephone: (916) 932-2850
Telephone: (480) 444-0020 Facsimile: (916) 932-2851
Facsimile: (480) 444-0028
Representing Proposition 22 Legal Defense Representing Proposition 22 Legal Defense

and Education Fund: and Education Fund:
Robert H. Tyler Terry L. Thompson

4DVOCATES FOR FAITHAND FREEDOM LAWOFFICESOF TERRY L. THOMPSON
24910 Las Brisas Roa~d,Suite 110 1804 Piedras Circle
Murrieta, CA 92562 Alarno, CA 94507
Telephone: (95 1) 304-7583 Telephone: (925) 608-3065

Facsimile: (95 1) 894-6430 Facsimile: (925) 820-6034
Representing Proposition 22 Legal Defense Representing Petitioner City and County

and Education Fund: of San Francisco:
Andrew P. Pugno Therese M. Stewart

LAWOFFICESOF ANDlZEW P. PUGNO Chief Deputy City Attorney
101 Parkshore Drive, ;Suite 100 OFFICEOF THE CITY ATTORNEY
..
Folsom, CA 95630 See listing above under CCSF v. State of
California
Telephone: (916) 608-3065
Facsimile: (916) 608-3066
Representing Petitioner City and County Representing Campaign for California
of San Francisco: Families:
Bobbie J. Wilson Matthew D. Staver

Amy E. Margolin LIBERTYCOUNSEL
HOWARD, RICE,NEME,ROVSKI, CANADY, Second Floor
FALK& RABKIN 1055 Maitland Center Commons
See listing above under CCSF v. State of Maitland, FL 3275 1-7214
California
Telephone: (407) 875-2 100
Facsimile: (407) 875-0770
Representing Campraign for California Representing Campaign for California
Families: Families:
Mary E. McAlister Ross S. Heckman

LIBERTYCOUNSEL ATTORNEYAT LAW
P.O. Box 11108 1214 Valencia Way
100 Mountain View Road, Suite 2775 Arcadia, CA 9 1006
Lynchburg, VA 24506
Telephone: (626) 256-4664
Telephone: (434) 592-7000 Facsimile: (626) 256-4774
Facsimile: (434) 592-7700
Representing Del Martin, et al.: Representing Del Martin, et al.:

Christopher F. Stoll Vanessa H. Eisernann
HELLEREHRP~~AN LLI' Melanie Rowen
See listing above undta Tyler, et al. v. State of Catherine Sakimura
California NATIONAL CENTERFORLESBIANRIGHTS
California
Representing Del Miartin, et al.: Representing Del Martin, et al.:

ACLU FOUNDATION OF NORTHERN See listing above under Tyler, et al. v. State of
CALIFORNIA California
California
Representing Del Martin, et al.:
Peter J. Eliasberg Jon W. Davidson

Clare Pastore Jennifer C. Pizer
ACLU FOUNDATION OF SOUTHERN LAMBDALEGALDEFENSEANDEDUCATION
CALIFORNIA FUND,INC.
See listing above undcr Tyler, et al, v. State of See listing above under Tyler, et al. v. State of
California California
Clinton, et al. v. State of California, et al.

California (Courtof Appeal, First Appellate District Case No. A110463
I Representing Petitio~oersClinton, et al.: I Representing Petitioners Clinton, et al.:
Jason Hasley Waukeen Q. McCoy

PAUL,HANLEY& HAEUEY LLP Aldon L. Bolanos
1608 Fourth Street, Suite 300 LAWOFFICESOF WAUKEEN Q. McCoy'
Berkeley, CA 94710 703 Market Street, Suite 1407
San Francisco, CA 94 103
Telephone: (5 10) 559-9980
Facsimile: (5 10) 559-9970 Telephone: (415) 675-7705
Facsimile: (415) 675-2530
Representing Goveraor Arnold

Vital Statistics Teresiita Trinidad:
Kenneth C. Mennemei~er
Kelcie M. Gosling
MENNEMEIER, GLASSMAN& STROUD,LLP
See listing above under CCSF v. State of
California
COURTS
Honorable Richard A. Kramer Court of Appeal

Judge of the Superior Court, Dept. 304 First Appellate District
400 McAllister Street 350 McAllister Street
San Francisco, CA 94.102 San Francisco, CA 94102
(1 CODY) (1 CODY)
EXHIBIT N


bbull@telladf.org
braum@telladf.org
8
andrew@pugnolaw.com
11

15

Plaintiffs, DECLARATION OF JAMES A.
19
CAMPBELL IN SUPPORT OF
MOTION TO INTERVENE
DECLARATION OF JAMES A. CAMPBELL IN SUPPORT OF PROPOSED INTERVENORS’ MOTION TO INTERVENE


2 Defendants,
3 and
7 RENEWAL,
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 I, James A. Campbell, declare as follows:
2 1. I am one of the attorneys for Proposed Intervenors Dennis Hollingsworth, Gail J.
3 Knight, Martin F. Gutierrez, Hak-Shing William Tam, Mark A. Jansson, and Proposition 8
4 Campaign Committee ProtectMarriage.com – Yes on 8, a Project of California Renewal.
5 2. Exhibit G to Proposed Intervenors’ Motion to Intervene is a true and accurate copy of
6 the Petition for Extraordinary Relief filed in the California Supreme Court in Bennett v. Bowen, No.
7 S164520.
8 3. Exhibit H to Proposed Intervenors’ Motion to Intervene is a true and accurate copy of an
9 order issued by the California Supreme Court on July 16, 2008, in Bennett v. Bowen, No. S164520,
10 which summarily denied the petition filed in that case.
11 4. Exhibit I to Proposed Intervenors’ Motion to Intervene is a true and accurate copy of the
12 Amended Petition for Extraordinary Relief filed in the California Supreme Court on November 5,
13 2008, in Strauss v. Horton, No. S168047.
14 5. Exhibit J to Proposed Intervenors’ Motion to Intervene is a true and accurate copy of an
15 order issued by the California Supreme Court on November 19, 2008, in Strauss v. Horton, No.
16 S168047, which granted Proposed Intervenors’ request to intervene in that challenge to Proposition
17 8.
18 6. Exhibit K to Proposed Intervenors’ Motion to Intervene is a true and accurate copy of
19 the Answer Brief of the Attorney General filed in Response to the Petition for Extraordinary Relief
20 in Strauss v. Horton, No. S168047.
21 7. Exhibit L to Proposed Intervenors’ Motion to Intervene is a true and accurate copy of an
22 order issued by the United States District Court for the Central District of California on May 6,
23 2009, in Smelt v. United States, Case No. SACV-09-286 DOC (MLGx), which granted Proposed
24 Intervenors’ request to intervene in that federal constitutional challenge to Proposition 8.
25 8. Exhibit M to Proposed Intervenors’ Motion to Intervene is a true and accurate copy of
26 the Answer Brief of State of California and the Attorney General to Opening Brief on the Merits
27 filed in the California Supreme Court in In re Marriage Cases, No. S147999.
28


bbull@telladf.org
braum@telladf.org
8
andrew@pugnolaw.com
11

15

Plaintiffs, [PROPOSED] ORDER GRANTING
19
MOTION TO INTERVENE OF
20 v. DENNIS HOLLINGSWORTH, GAIL
J. KNIGHT, MARTIN F.
21 ARNOLD SCHWARZENEGGER, in his official GUTIERREZ, HAK-SHING
capacity as Governor of California; EDMUND G. WILLIAM TAM, MARK A.
22 BROWN, JR., in his official capacity as Attorney JANSSON, AND
PROTECTMARRIAGE.COM – YES
23 General of California; MARK B. HORTON, in his ON 8, A PROJECT OF CALIFORNIA
official capacity as Director of the California RENEWAL
[PROPOSED] ORDER GRANTING MOTION TO INTERVENE OF DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F.
GUTIERREZ, HAK-SHING WILLIAM TAM, MARK A. JANSSON, AND PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF
CALIFORNIA RENEWAL – CASE NO. 09-CV-2292 VRW

2 Defendants,
3 and
7 RENEWAL,
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[PROPOSED] ORDER GRANTING MOTION TO INTERVENE OF DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F.
1 Proposition 8 Official Proponents Dennis Hollingsworth, Gail J. Knight, Martin F.
2 Gutierrez, Hak-Shing William Tam, and Mark A. Jansson, and Proposition 8 Campaign Committee
3 ProtectMarriage.com – Yes on 8, a Project of California Renewal have demonstrated that they are
4 entitled to intervene in this lawsuit. Therefore, the Court finds that Proposed Intervenors’ Motion
5 to Intervene should be GRANTED.
6 IT IS THEREFORE ORDERED that Dennis Hollingsworth, Gail J. Knight, Martin F.
7 Gutierrez, Hak-Shing William Tam, Mark A. Jansson, and ProtectMarriage.com – Yes on 8, a
8 Project of California Renewal are permitted to intervene in this case.
10 Date:
UNITED STATES DISTRICT JUDGE
11 CHIEF JUDGE VAUGHN R. WALKER
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27 1
28 [PROPOSED] ORDER GRANTING MOTION TO INTERVENE OF DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F.


bbull@telladf.org
braum@telladf.org
8
andrew@pugnolaw.com
11

15

Plaintiffs, CERTIFICATE OF SERVICE FOR
19
MOTION TO INTERVENE
20 v.

CERTIFICATE OF SERVICE FOR MOTION TO INTERVENE


2 Defendants,
3 and
7 RENEWAL,
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 I, Joshua Tijerina, declare that I am over the age of 18 years and not a party to this case. I
2 also declare that on May 28, 2009, I served the Proposed Intervenors’ Notice of Motion and Motion
3 to Intervene, and Memorandum of Points and Authorities in Support of Motion to Intervene and
4 supporting papers via UPS Overnight delivery on the following parties to this action:
5 Governor Arnold Schwarzenegger

Attn: Legal Department
6 State Capitol Building
7 Sacramento, CA 95814
8 Mark B. Horton
Director of the California Department of Public Health
9 and State Registrar of Vital Statistics
California Dept of Health Office of Legal Services
10 1501 Capitol Ave., MS0506
12 Linette Scott
Deputy Director of Health Information & Strategic Planning
13 for the California Department of Public Health
California Dept of Health Office of Legal Services
14 1501 Capitol Ave., MS0506
16 Patrick O’Connell
Clerk-Recorder for the County of Alameda
17 Alameda County Clerk-Recorder’s Office
1106 Madison Street
18
Oakland, CA 94607
19
Dean C. Logan
20 Registrar-Recorder/County Clerk for the County of Los Angeles
12400 Imperial Highway
21 Norwalk, CA 90650
22
23
24
25
26
27
1
28
1 On May 28, 2009, I served the foregoing documents on Attorney General Edmund G.
2 Brown, Jr., pursuant to an agreement with the Attorney General’s Office (for purposes of this motion
3 only), via email and United State First-Class mail to the following addresses:
4 Mark Beckington
5 Deputy Attorney General
Office of the Attorney General
6 300 South Spring St., Suite 1702
Los Angeles, CA 90013-1230
7 mark.beckington@doj.ca.gov
8
9 On May 28, 2009, I caused the foregoing documents to be filed electronically with the Clerk
10 of Court through ECF, and ECF will send an e-notice of the electronic filing to the following
11 attorneys for Plaintiffs:
12 Theodore B. Olson – tolson@gibsondunn.com
Theodore J. Boutrous, Jr. – tboutrous@gibsondunn.com
13
David Boies – dboies@bsfllp.com
14
15 I declare under penalty of perjury under the laws of the United States of America that the
16 foregoing is true and correct. Executed on May 28, 2009, at Scottsdale, Arizona.
17
18 /s Joshua Tijerina
Joshua Tijerina
19
20
21
22
23
24
25
26
27
2
28

3:09-cv-02292 #8

Enviado por

Dados do documento

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

3:09-cv-02292 #8

Enviado por

Direitos autorais:

Formatos disponíveis

Case3:09-cv-02292-VRW Document8 Filed05/28/09 Page1 of 21

1 ALLIANCE DEFENSE FUND

4 Benjamin W. Bull, (AZ Bar No. 009940)

14 * Pro hac vice application forthcoming

17 KRISTIN M. PERRY, SANDRA B. STIER, PAUL

1 the County of Los Angeles,

2 TABLE OF AUTHORITIES ............................................................................................................... ii

4 PROCEDURAL HISTORY ................................................................................................................ 1

7 I. PROPOSED INTERVENORS ARE ENTITLED TO INTERVENE AS OF RIGHT ................................... 6

8 A. Proposed Intervenors Have Timely Filed This Motion ............................................... 7

9 B. Proposed Intervenors Have A Significantly Protectable Interest In The Subject

12 D. The Existing Parties Will Not Adequately Represent Proposed Intervenors’

12 Nw. Forest Res. Council v. Glickman,

15 Sagebrush Rebellion, Inc. v. Watt,

18 Trbovich v. United Mine Workers of Am.,

21 Washington State Bldg. & Constr. Trades Council v. Spellman,

1 CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES

2 Cal. Const. art. I, § 7.5 ............................................................................................................... 1, 5, 12

3 Cal. Const. art. II, § 8....................................................................................................................... 2, 9

4 Cal. Elec. Code § 342 .......................................................................................................................... 2

5 Cal. Elec. Code § 9001 ........................................................................................................................ 3

6 Cal. Elec. Code § 9004 ........................................................................................................................ 2

7 Cal. Elec. Code § 9008 ........................................................................................................................ 3

8 Cal. Elec. Code § 9012 ........................................................................................................................ 3

9 Cal. Elec. Code § 9014 ........................................................................................................................ 3

10 Cal. Elec. Code § 9030 ........................................................................................................................ 4

11 Cal. Elec. Code § 9031 ........................................................................................................................ 4

12 Cal. Elec. Code § 9032 .................................................................................................................... 3, 9

13 Cal. Elec. Code § 9033 ........................................................................................................................ 4

14 Cal. Elec. Code § 9067 ................................................................................................................ 4, 5, 9

15 Cal. Elec. Code § 9607 ........................................................................................................................ 3

16 Cal. Elec. Code § 9609 ........................................................................................................................ 3

17 Cal. Fam. Code § 308.5 ............................................................................................................... 12, 13

18 Fed. R. Civ. P. 24 ........................................................................................................................... 6, 14

20 A.B. 849, 2005-2006 Leg., Reg. Sess. (Cal. 2005) ........................................................................... 14

21 A.B. 43, 2007-2008 Leg., Reg. Sess. (Cal. 2007) ............................................................................. 14

1 TO THE PARTIES AND THEIR ATTORNEYS OF RECORD:

6 Mark A. Jansson, and ProtectMarriage.com – Yes on 8, a Project of California Renewal,

8 to intervene in this case.

13 constitutional amendments to intervene in lawsuits challenging those provisions. Proposed

27 for July 2, 2009.

5 time as Plaintiffs’ preliminary-injunction hearing.

10 Hak-Shing William Tam, and Mark A. Jansson (collectively referred to as “Proponents”)—

15 and ultimately approving the language of Proposition 8. Declaration of Dennis Hollingsworth at ¶ 6

17 Martin F. Gutierrez at ¶ 6 (attached as Exhibit C); Declaration of Hak-Shing William Tam at ¶ 6

26 initiative. See Cal. Elec. Code § 9004.

27 On November 29, 2007, the California Attorney General issued to Proponents a

12 California law places onerous, time-constrained signature-gathering requirements on

16 4,629 valid petition signatures per day during a five-month period.

23 Near the beginning of this initiative process, Proponents helped to establish

24 ProtectMarriage.com – Yes on 8, a Project of California Renewal (“Committee”), as a “primarily

22 Ex. D at ¶ 21; Ex. E at ¶ 21.

2 gives Proponents a preferred status as official advocate for Proposition 8.

11 8—work which included circulating signature petitions, organizing volunteers, speaking to

24 On November 4, 2008, a majority of California voters approved Proposition 8 as an

27 woman is valid or recognized in California.” Cal. Const. art. I, § 7.5.

7 General opposed Proposition 8, arguing that it “should be invalidated . . . because it abrogates

12 On May 6, 2009, Proponents and the Committee successfully intervened in another

23 committee. Ex. F at ¶ 18.

25 I. PROPOSED INTERVENORS ARE ENTITLED TO INTERVENE AS OF RIGHT.

6 liberally in favor of intervention:

6 Supp. 1080, 1086 (N.D. Cal. 1995).

7 A long line of Ninth Circuit precedent supports intervention by initiative proponents,

24 Bates, 904 F. Supp. at 1086.