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The Prop 8 Proponents' Emergency Motion

editor's note: Proponents of Proposition 8 have filed an emergency motion for a stay of Judge Walkers gay-marriage ruling, pending appeal. This is the text of their motion for a Ninth Circuit stay.

Pursuant to Fed. R. App. P. 8(a)(2), Appellants respectfully seek a stay of the district court's judgment invalidating Proposition 8 pending resolution of their appeal.

INTRODUCTION
Proposition 8, a voter-initiated amendment to the California Constitution, reaffirms that '[o]nly marriage between a man and a woman is valid or recognized in California.' Cal. Const. art. I, § 7.5. This is the same understanding of marriage that prevailed in every State of the Union until just six years ago and still prevails in all but five states and the District of Columbia. Indeed, until quite recently 'it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.' Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006) (plurality). The district court nevertheless held that the age-old, all-but-universal opposite-sex definition of marriage embraced by Proposition 8 violates the fundamental due process right to marry rooted in 'the history, tradition and practice of marriage in the United States.' Doc. No. 708, Ex. A at 111.[1] It also concluded that 'strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,' id. at 122, but that 'Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause,' because the traditional definition of marriage 'is simply not rationally related to a legitimate state interest,' id. at 123.

Given that the district court did not cite a single case that had addressed these issues, one might think the court was deciding issues of first impression on a blank slate. Nothing could be further from the truth. Indeed, though the district court held that the venerable definition of marriage as the union of a man and a woman violates the Due Process and Equal Protection Clauses of the Federal Constitution, every state or federal appellate court to address the issue—including the Supreme Court in Baker v. Nelson, 409 U.S. 810 (1972), and this Court in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)—has consistently rejected this conclusion. See infra Part II.A. The district court's conclusion that strict scrutiny applies to classifications based on sexual orientation likewise stands in stark conflict with binding authority from this Court and the unanimous conclusion of ten other federal circuit courts (all that have addressed the question) that such classifications are subject only to rational basis review. See infra Part II.C. And again, contrary to the district court's conclusion below, this Court, and the overwhelming majority of other courts, both state and federal, to address the issue have concluded that the opposite-sex definition of marriage rationally serves society's interest in regulating sexual relationships between men and women so that the unique procreative capacity of those relationships benefits rather than harms society, by increasing the likelihood that children will be born and raised in stable family units by the mothers and fathers who brought them into this world. See infra Part II.D.

The district court did not confront the Supreme Court's holding in Baker, binding authority from this Court, or any of the well established lines of authority opposed to its conclusions. It did not distinguish them. It did not explain why it believed they were wrongly decided. It did not even acknowledge their existence. It simply ignored them.

Similarly, to read the district court's confident, though often startling, factual pronouncements, one would think that reasonable minds simply cannot differ on the key legislative facts implicated by this case. Again, however, the district court simply ignored virtually everything—judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive documentary and historical evidence, and even simple common sense—opposed to its conclusions. Indeed, even though this case implicates quintessential legislative facts—i.e., 'general facts which help the tribunal decide questions of law and policy and discretion,' Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2d Cir. 1971) (Friendly, J.)—the district court focused almost exclusively on the oral testimony presented at trial. See Daggett v. Commission on Governmental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999) (Boudin, J.) (legislative facts 'usually are not proved through trial evidence but rather by material set forth in the briefs'); Indiana H. B. R.R. Co. v. American Cyanamid Co., 916 F.2d 1174, 1182 (7th Cir. 1990) (Posner, J.) (legislative facts 'more often are facts reported in books and other documents not prepared specially for litigation'). The district court's treatment of the trial testimony, moreover, was likewise egregiously selective and one-sided. The district court eagerly and uncritically embraced the highly tendentious opinions offered by Plaintiffs' experts and simply ignored important concessions by those witnesses that undermined Plaintiffs' claims. And it just as consistently refused to credit (or even qualify) the two experts offered by Proponents—the only defense experts who were willing to appear at trial after the district court's extraordinary attempts to video record and broadcast the trial proceedings. See Hollingsworth v. Perry, 130 S. Ct. 705 (2010).

The district court, for example, entertained no doubt whatsoever:

? that the virtually universal requirement that marriage be between persons of the opposite sexes was 'never part of the historical core of the institution of marriage,' Ex. A at 113, despite the extensive historical and documentary evidence, not to mention common knowledge, demonstrating exactly the opposite, see infra Part II.B;

? that '[t]he evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,' Ex. A at 130, despite the undeniable biological fact that only a man and a woman can produce offspring, whether intentionally or as the unintended result of casual sexual behavior;

? that the traditional opposite-sex definition of marriage is 'nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life,' Ex. A at 124, despite the extensive judicial authority, scholarship, and historical evidence demonstrating that traditional opposite-sex marriage is ubiquitous, sweeping across all cultures and all times, regardless of the relative social roles of men and women, and clearly reflects marriage's abiding concern with the unique procreative potential of opposite-sex relationships, see infra Part II.B;

? that the 'evidence shows beyond any doubt that parents' genders are irrelevant to children's developmental outcomes,' Ex. A at 127, and, moreover, that the genetic bond between a child and its mother and father 'is not related to a child's adjustment outcomes,' Ex. A at 96, even though other courts considering the same evidence have recognized that it is contested, inconclusive, and far from sufficient to render irrational the virtually universal and deeply ingrained common-sense belief that, all else being equal, children do best when raised by their own mother and father, see infra Part II.D.

The district court also purported to know, with certainty, the unknowable, couching predictions about the long-term future as indisputable facts. According to the district court, 'the evidence shows beyond debate' that allowing same-sex marriage 'will have no adverse effects on society or the institution of marriage.' Ex. A at 125-26 (emphasis added). The evidence relied upon by the district court was the testimony of a single expert witness who expressed 'great confidence' that legalizing same-sex marriage would cause no harm to the marital institution or to society, see Trial Tr. 657-59,[2] and who found it 'informative,' but nothing more, that marriage and divorce rates in Massachusetts had remained relatively stable during the four year periods before and after same-sex marriage was judicially imposed in that State. See Trial Tr. 654-56. Even assuming that sufficient evidence could ever be marshaled to predict with 'beyond debate' certainty the long-term societal consequences of a seismic change in a venerable social institution, this scanty evidence does not begin to do so. Nor did the district court take account of any contrary evidence, including that the Plaintiffs' other expert on this subject acknowledged the obvious: that adoption of same-sex marriage is a 'watershed' and 'turning point' in the history of the institution that will change 'the social meaning of marriage,' and therefore will 'unquestionably [have] real world consequences,' Tr. 311-13, but that 'the consequences of same-sex marriage' are impossible to know, because 'no one predicts the future that accurately.' Tr. 254. See infra Part II.D. Given these simple realities, California voters could reasonably decide to study further the still novel and unfolding experiment with same-sex marriage in a handful of other states before embarking on it themselves. The district court dismissed this consideration, too, as irrational, even though it reflects the very purpose of our federalist system.

Finally, the district court judge, ignoring this Court's directive that 'the question of [voter] motivation' is not 'an appropriate one for judicial inquiry,' Southern Alameda Spanish Speaking Org. v. Union City, 424 F.2d 291, 295 (9th Cir. 1970), even purported to read the minds of the seven million Californians who voted for Proposition 8, and he found them filled with nothing but animosity and condescension toward gays and lesbians. 'The evidence shows conclusively,' according to the district court, 'that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples,' Ex. A at 135, and that Proposition 8's supporters were motivated by 'nothing more' than 'a fear or unarticulated dislike of same-sex couples' and 'the belief that same-sex couples simply are not as good as opposite-sex couples.' Id. at 132. This charge is false and unfair on its face, and leveling it against the people of California is especially cruel, for they have enacted into law some of the Nation's most sweeping and progressive protections of gays and lesbians, including a domestic partnership law that gives same-sex couples all of the same substantive benefits and protections as marriage. And it defames not only seven million California voters, but everyone else in this Country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve the legitimate interests of society—from the current President of the United States, to a large majority of legislators throughout the Nation, both in statehouses and in the United States Congress, and even to most of the scores of state and federal judges who have addressed the issue. The truth is that a majority of Californians have simply decided not to experiment, at least for now, with the fundamental meaning of an age-old and still vital social institution. See infra Part II.D.

#page#This Court need not tarry over the district court's purported fact findings, however, for its legal errors alone are palpable and destined for reversal. Further, appellate review of legislative facts such as those at issue here is 'plenary,' Free v. Peters, 12 F.3d 700, 706 (7th Cir. 1993) (Posner, J.), and it is unrestricted by the testimony and evidence considered below, for plainly '[t]here are limits to which important constitutional questions should hinge on the views of social scientists who testify as experts at trial,' see Dunagin v. Oxford, 718 F.2d 738, 748 n.8 (5th Cir. 1983) (en banc) (plurality). Cf. Lockhart v. McCree, 476 U.S. 162, 170 n.3 (1986). Nor need this Court attempt to predict how it would resolve these disputed issues of legislative fact: where, as here, the standard of review is rational basis, 'the very admission that the facts are arguable … immunizes from constitutional attack the [legislative] judgment represented by' Proposition 8. Vance v. Bradley, 440 U.S. 93, 112 (1979). Indeed, the 'legislative choice' reflected by Proposition 8 'is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.' Heller v. Doe, 509 U.S. 312, 320 (1993).

For all of these reasons, as well as others elaborated more fully below, the district court's decision will almost certainly be reversed by this Court. It is thus imperative that a stay pending appeal be entered on or before August 18, 2010 at 5 p.m. Pacific Time (the time the district court's judgment is set to go into effect, see Doc. No. 727 at 11), to avoid the confusion and irreparable injury that would surely flow from the creation of a class of purported same-sex marriages entered in reliance on the district court's decision but in direct contravention of a lawful provision of the California Constitution and the manifest will of the people of that State.

STATEMENT
'From the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.' In re Marriage Cases, 183 P.3d 384, 407 (Cal. 2008). In 2000, Californians passed an initiative statute (Proposition 22) reaffirming that understanding. See Cal. Fam. Code § 308.5. In 2008, the California Supreme Court nevertheless struck down Proposition 22 and interpreted the State constitution to require that marriage be redefined to include same-sex couples. See In re Marriage Cases, 183 P.3d 384. At the next opportunity, just five months later, the people of California adopted Proposition 8, restoring the venerable definition of marriage and overruling their Supreme Court.

On May 22, 2009, Plaintiffs-Appellees ('Plaintiffs'), a gay couple and a lesbian couple, filed this suit in district court, claiming that Proposition 8 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution. On May 27, Plaintiffs filed a motion for preliminary injunction.

The next day, May 28, Appellants, official proponents of Proposition 8 and the primarily formed ballot measure committee designated by the official proponents as the official Yes on 8 campaign (collectively, 'Proponents'), see Cal. Elec. Code § 342; Cal. Gov. Code § 82047.5(b), moved to intervene to defend Proposition 8. The Governor, Attorney General, and other government Defendants named in Plaintiffs' complaint refused to defend Proposition 8, and on June 30, the district court granted Proponents' motion.

Also on June 30, the district court tentatively denied Plaintiffs' preliminary injunction motion, preferring instead to hold a trial on Proposition 8's constitutionality. See Doc. No. 76 at 4.[3] At a July 2 hearing, counsel for Plaintiffs consented to this course of action, stating that '[w]e accept it, and we are prepared to go forward on that basis.' July 2, 2009 Tr. of Hr'g, Doc. No. 78 at 12. Plaintiffs did not appeal the denial of their preliminary injunction motion. At the same hearing, Proponents questioned the need for a trial, pointing out that similar challenges to the traditional definition of marriage had been decided by courts without trial, and explaining that the issues at stake concerned legislative rather than adjudicative facts. Id. at 24-25.

On July 23, the City and County of San Francisco moved to intervene as a party plaintiff to challenge Proposition 8. The district court granted San Francisco's motion on August 19, reasoning that ' [t]o the extent San Francisco claims a government interest in the controversy about the constitutionality of Proposition 8, it may represent that interest.' Aug. 19, 2009 Tr. of Hearing, Doc. No. 162 at 56. The district court further directed that it would be 'appropriate' for 'the Attorney General and San Francisco [to] work together in presenting facts pertaining to the affected government interests.' Id.

Also on August 19, the district court held a case management conference to schedule further proceedings in the case. In advance of the conference, the parties submitted case management statements, with Proponents explaining at length their view that a trial was unnecessary. See Doc. No. 139 at 9-16. The district court set the case on an expedited schedule, culminating in a January 11, 2010 trial date. See Doc. No. 160.

On September 9, Proponents moved for summary judgment. See Doc. No. 172-1. The district court heard argument on the motion on October 14, and denied it from the bench. See Oct. 14, 2009 Minute Entry, Doc. No. 226. Also in October, Proponents moved to realign the Attorney General as a party plaintiff in light of his joinder in Plaintiffs' opposition to Proponents' motion for summary judgment and his embrace of Plaintiffs' constitutional claims. See Doc. No. 216. On December 23, the district court denied the motion. See Doc. No. 319.

Meanwhile discovery commenced and, over Proponents' First Amendment and relevancy objections, the district court authorized sweeping discovery of 'communications by and among proponents and their agents … concerning campaign strategy' and 'communications by and among proponents and their agents concerning messages to be conveyed to voters, … without regard to whether the messages were actually disseminated.' Doc. No. 214 at 17. In the district court's view, the First Amendment simply offered no protection against 'the disclosure of campaign communications' beyond 'the identities of rank-and-file volunteers and similarly situated individuals.' Doc. No. 252 at 3. This Court responded by granting Proponents' petition for a writ of mandamus, holding that '[t]he freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment,' and that the discovery authorized by the district court 'would have the practical effect of discouraging the exercise of First Amendment associational rights.' Perry v. Schwarzenegger, 591 F.3d 1147, 1152 (9th Cir. 2009) (as amended Jan. 4, 2010).[4]

On December 15, Imperial County, its Board of Supervisors, and Deputy County Clerk Isabel Vargas (collectively, 'Imperial County'), moved to intervene as defendants. Imperial County issues marriage licenses and performs marriages, and thus would be directly affected by a ruling against Proposition 8 if 'the state officials bound by that ruling seek to compel statewide compliance with it (as there is every reason to expect that they would.).' Doc. No. 311 at 9. Imperial County thus sought to intervene to protect its 'interests as a local government agency and ensure the possibility of appellate review of the important questions presented in this case, regardless of its outcome in' district court. Id. at 10. Imperial County's motion was argued and submitted on January 6, 2010. The district court, however, did not rule on that motion until August 4, concurrent with issuing its ruling on the merits. The district court denied intervention, reasoning that 'Imperial County's status as a local government does not provide it with an interest in the constitutionality of Proposition 8.' Doc. No. 709 at 18.

#page#Before trial, the district court also arranged for the trial to be publicly broadcast. At the district court's request, Chief Judge Kozinski of this Court approved the case for inclusion in a purported pilot program for recording and broadcasting district court trial proceedings, specifically providing for real-time streaming to several federal courthouses across the country and acknowledging the potential for posting the recording on the internet. See Hollingsworth, 130 S. Ct. at 708-09. On January 11, in response to a stay application from Proponents, the Supreme Court entered a temporary stay of any real-time streaming or broadcast of the proceedings beyond 'the confines of the courthouse in which the trial is to be held.' Hollingsworth v. Perry, 130 S. Ct. 1132 (2010). Shortly before commencement of trial, on the morning of January 11, with public broadcast of the trial still a possibility, Proponents withdrew four of their expert witnesses. See Doc. No. 398. On January 13, after full consideration of Proponents' application, the Supreme Court stayed broadcast of the trial, pending disposition of a timely filed petition for certiorari or mandamus. Hollingsworth, 130 S. Ct. at 714-15. The district court then withdrew the case from the Ninth Circuit pilot program. See Trial Tr. 674.[5]

The case was tried from January 11 through January 27, and closing arguments were held on June 16. On August 3, the district court announced that it would release its ruling the next day. Proponents filed a motion asking the district court to stay its judgment pending appeal in the event the court invalidated Proposition 8. See Doc. No. 705.[6] On August 4, the district court issued its Findings of Fact and Conclusions of Law. See Ex. A. The district court held that Proposition 8 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution because it 'unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.' See Ex. A at 109.

In holding that the fundamental right to marry protected by the Due Process Clause includes the right to marry a person of the same sex, the district court reasoned that there simply is not 'any historical purpose for excluding same-sex couples from marriage,' but rather that 'the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage.' Id. at 113. The district court then asserted that Proposition 8 could not 'survive the strict scrutiny required by plaintiffs' due process claim,' id. at 117, because, as it would later explain, 'Proposition 8 cannot withstand any level of scrutiny,' id. at 123.

Addressing Plaintiffs' Equal Protection claim, the district court first held that Proposition 8 discriminates on the basis of both sex and sexual orientation, and indeed that Plaintiffs' claim of discrimination on the basis of sexual orientation 'is equivalent to a claim of discrimination based on sex.' Id. at 121. The district court next determined that gays and lesbians constitute a suspect class, reasoning that 'gays and lesbians are the type of minority strict scrutiny was designed to protect.' Id. In reaching this conclusion, the district court recognized that same-sex couples, unlike opposite-sex couples, 'are incapable through sexual intercourse of producing offspring biologically related to both parties,' but determined that there is no reason 'why the government may need to take into account fertility when legislating.' Id. at 122.

The district court nonetheless did not apply strict scrutiny under the Equal Protection Clause. Instead, it determined that 'Proposition 8 fails to survive even rational basis review' because 'excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.' Id. at 122-23. As an 'example of a legitimate state interest in not issuing marriage licenses to a particular group,' the court identified 'a scarcity of marriage licenses or county officials to issue them,' but concluded that 'marriage licenses in California are not a limited commodity.' Id. at 123.

The court next turned to evaluating the legitimate interests Proponents identified for Proposition 8. The district court placed those interests into six categories, and proceeded to find each of them wanting. For example, the district court concluded that '[n]one of the interests put forth by proponents relating to parents and children is advanced by Proposition 8,' reasoning that 'parents' genders are irrelevant to children's developmental outcomes' and that '[s]ame-sex couples can have (or adopt) and raise children.' Id. at 127-29. The district court also found it 'beyond debate' that adoption of same-sex marriage will have no adverse societal consequences and concluded, accordingly, that California has no legitimate interest in waiting for the experience of other states with same-sex marriage to develop further before itself redefining marriage to include same-sex couples. Id at 125-26. And at any rate, the district court concluded that redefining marriage to include same-sex couples would not 'amount[] to sweeping social change.' Id. at 125. After deeming Proposition 8 lacking in any rational justification, the court concluded that 'what remains of proponents' case is an inference' that 'Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.' Id. at 132.

As a remedy, the district court 'order[ed] entry of judgment permanently enjoining [Proposition 8's] enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.' Id. at 136. The district court also temporarily stayed entry of judgment, directing the other parties 'to submit their responses on or before August 6, 2010,' and further directing that at that time Proponents' stay motion would 'stand submitted.' See Doc. No. 710 at 2.

On August 12, the district court denied Proponents' stay motion, lifted the temporary stay on the entry of judgment, and entered judgment. See Doc. No. 727, Doc. No. 728. According to the district court, not a single stay factor weighs in Proponents' favor. See Doc. No. 727 at 10. At the same time, the district court ordered another limited stay, this time until 'August 18, 2010 at 5 PM PDT' in order to 'permit the court of appeals to consider the issue [of a stay pending appeal] in an orderly manner.' Id. at 2, 11.

ARGUMENT
In deciding whether to issue a stay pending appeal, this Court considers: (1) appellant's likelihood of success on the merits; (2) the likelihood of irreparable harm absent a stay; (3) the likelihood of substantial injury to other parties if a stay is issued; and (4) the public interest. See, e.g., Golden Gate Rest. Ass'n v. City of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008). As demonstrated below, each of these factors favors a stay of the district court judgment at issue here.

I. Proponents Have Standing to Appeal
Contrary to the district court's suggestion, see Doc. No. 727 at 3-6, Proponents' standing to appeal is no obstacle to staying the district court's judgment. Proponents have standing to appeal the district court's judgment because they have 'authority under state law,' Karcher v. May, 484 U.S. 72, 82 (1987), to defend the constitutionality of an initiative they have successfully sponsored 'as agents of the people of [California] … in lieu of public officials' who refuse to do so, Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997). In Karcher, the Supreme Court held that the President of the New Jersey Senate and the Speaker of the New Jersey General Assembly had standing to defend the constitutionality of a state statute when 'neither the Attorney General nor the named defendants would defend the statute,' 484 U.S. at 75, because New Jersey law authorized them to do so. In particular, in other cases the 'New Jersey Supreme Court ha[d] granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties-respondent on behalf of the legislature in defense of a legislative enactment.' Id. at 82. Here also, the California Supreme Court has granted the application of initiative proponents to defend initiatives they have sponsored but the State Attorney General and other public officials refuse to defend—indeed it has done so with respect to these Proponents and Proposition 8. See Strauss v. Horton, 207 P.3d 48, 69 (Cal. 2009); Order of Nov. 19, 2008, Strauss, Nos. S168047, S168066, S168078 (Cal.) (Doc. No. 8-10). California law thus allows proponents to defend initiatives they have sponsored when government officials 'might not do so with vigor' in order 'to guard the people's right to exercise initiative power, a right that must be jealously defended by the courts.' Building Indus. Ass'n v. City of Camarillo, 718 P.2d 68, 75 (Cal. 1986). Thus, Proponents may directly assert the State's interest in defending the constitutionality of its laws, an interest that is indisputably sufficient to confer appellate standing. See, e.g., Maine v. Taylor, 477 U.S. 131, 136-37 (1986); Diamond v. Charles, 476 U.S. 54, 62 (1986).[7]

California law thus distinguishes this case from Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). In that case, the Ninth Circuit held that proponents of an Arizona initiative had standing to appeal a decision striking down the measure. Id. at 58. In dicta, the Supreme Court expressed 'grave doubts' about proponents' standing. Id. at 66; see also id. ('we need not definitively resolve the issue'). Citing Karcher, the Court acknowledged that it had 'recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests,' but explained that it was 'aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.' Id. at 65. Here, by contrast, settled principles of California law, including but not limited to the very same type of legal authority relied upon by Karcher—a State Supreme Court decision permitting intervention—establishes Proponents' authority 'as agents of the people of Arizona to defend, in lieu of public officials,' the constitutionality of Proposition 8.

#page#Proponents also have standing to appeal because of their own particularized interest in defending an initiative they have successfully sponsored, an interest that is created and secured by California law. See, e.g., Diamond v. Charles, 476 U.S. at 54, 65 n.17 (1986) (state law may 'create new interests, the invasion of which may confer standing'). Under California law, the right to 'propose … constitutional changes through the initiative process' is a 'fundamental right,' Costa v. Superior Court, 128 P.3d 675, 686 (Cal. 2006), that affords proponents a 'special interest' and 'particular right to be protected over and above the interest held in common with the public at large,' an interest that is 'directly affected' when an initiative they have sponsored is challenged in litigation, Connerly v. State Personnel Bd., 129 P.3d 1, 6-7 (Cal. 2006) (quotation marks omitted).

For all of these reasons, California courts have repeatedly allowed proponents to intervene to defend initiatives they have sponsored.[8] Indeed, when the district court permitted Proponents to intervene in this case, it expressly recognized that, 'under California law … proponents of initiative measures have the standing to … defend an enactment that is brought into law by the initiative process.' July 2, 2009 Tr. of Hr'g, Doc. No. 78 at 8.

In all events, proposed Defendant-Intervenors Imperial County, its Board of Supervisors, and Deputy County Clerk Isabel Vargas, have noticed an appeal from both the order denying intervention and the district court's decision on the merits. See Doc. No. 719; United States ex rel. Killingsworth v. Northrop Corp., 25 F.3d 715, 720 (9th Cir. 1994) (holding that the district court 'erred in denying the government's motion to intervene in a limited way for the purpose of appeal' and thus 'proceed[ing] with the merits of the case'); United States ex rel. McGough v. Covington Tech. Co., 967 F.2d 1391, 1392 (9th Cir. 1992) (same); 15A Charles Alan Wright et al., Federal Practice & Procedure § 3902.1 ('If final judgment is entered with or after the denial of intervention, however, the applicant should be permitted to file a protective notice of appeal as to the judgment, to become effective if the denial of intervention is reversed.'). Under California law, Vargas is a 'commissioner of civil marriage,' Cal. Fam. Code § 401(a); Cal. Gov't Code § 24100, charged with issuing marriage licenses in compliance with California law, Cal. Fam. Code §§ 350(a), 352. Because the district court's order purports to control the official duties of Vargas and every other commissioner of civil marriage in the State, see Ex. A at 136, Vargas plainly has standing to appeal that order.[9] Accordingly, this Court need not reach the question of Proponents' standing at this time. See McConnell v. FEC, 540 U.S. 93, 233 (2003); Diamond, 476 U.S. at 68.

II. Proponents Are Likely to Succeed on the Merits

A. The District Court's Judgment Conflicts with Binding Supreme Court and Ninth Circuit Precedent, as well as the Overwhelming Weight of Authority of Courts Across the Nation
The district court's holding that the United States Constitution requires the people of California to redefine marriage to include same-sex relationships contravenes binding Supreme Court and Ninth Circuit precedent as well as the consistent and all-but unanimous judgment of courts across the Country. This overwhelming body of precedent confirms that the Federal Constitution simply provides no warrant for striking down the traditional definition of marriage as reaffirmed in Prop 8.

i. The Supreme Court's Decision in Baker Mandates Reversal.
In Baker v. Nelson, 409 U.S. 810 (1972), the Supreme Court unanimously dismissed, 'for want of substantial federal question,' an appeal from the Minnesota Supreme Court presenting the same questions at issue here: whether a State's refusal to authorize same-sex marriage violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id.; see also Baker v. Nelson, No. 71-1027, Jurisdictional Statement at 3 (Oct. Term 1972) (Doc. No. 36-3 at 6); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The same-sex couple in Baker placed primary reliance on Loving v. Virginia, 388 U.S. 1 (1967), which had been decided five years earlier. The Baker Court's dismissal was a decision on the merits that is binding on lower courts on the issues presented and necessarily decided, Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam), and its precedential value 'extends beyond the facts of the particular case to all similar cases,' Wright v. Lane County Dist. Court, 647 F.2d 940, 941 (9th Cir. 1981). Plaintiffs' claims are the same as those rejected in Baker, and the district court's decision thus conflicts with a binding Supreme Court authority. See also Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O'Connor, J., concurring in judgment) (concluding that 'preserving the traditional institution of marriage' is a 'legitimate state interest').

ii. This Court's Decision in Adams Mandates Reversal.
This Court has likewise rejected claims that the Federal Constitution bars the government from limiting marriage to opposite-sex couples. In Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), this Court interpreted 'spouse' in a federal immigration provision to exclude partners in a purported same-sex marriage, and squarely held that 'Congress's decision to confer spouse status … only upon the parties to heterosexual marriages has a rational basis and therefore comports with the due process clause and its equal protection requirements.' Id. at 1042. This binding decision likewise forecloses Plaintiffs' claims.

iii. The District Court's Ruling Is Contrary to the All But Unanimous Conclusion of Other Courts Across the Country.
The district court's decision is also contrary to the overwhelming weight of judicial authority addressing the validity of the traditional opposite-sex definition of marriage under the Federal Constitution, including decisions by the United States Court of Appeals for the Eighth Circuit, two State courts of final resort, two intermediate State courts within this Circuit in decisions that were denied review by the States' supreme courts, and virtually every other court to address the issue. See Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 871 (8th Cir. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298, 1309 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 148 (Bankr. W.D. Wash. 2004); Standhardt v. Superior Court of Ariz., 77 P.3d 451, 453 (Ariz. Ct. App. 2003), review denied by Standhardt v. MCSC, No. CV-03-0422-PR, 2004 Ariz. LEXIS 62 (Ariz. May 25, 2004); Dean v. District of Columbia, 653 A.2d 307, 308 (D.C. Ct. App. 1995); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980); Singer v. Hara, 522 P.2d 1187, 1197 (Wash. Ct. App.), review denied by 84 Wn.2d 1008 (Wash. 1974); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973); Baker, 191 N.W.2d at 187; but see Massachusetts v. United States Dep't of Health & Human Serv., No. 1:09-11156-JLT, 2010 U.S. Dist. LEXIS 67927 (D. Mass. July 8, 2010); Gill v. Office of Personnel Mgmt., No. 09-10309-JLT, 2010 U.S. Dist. LEXIS 67874 (D. Mass. July 8, 2010). The sheer weight of authority opposed to the district court's decision further confirms that that decision will likely be reversed on appeal.

B. There Is No Fundamental Right to Same-Sex Marriage.
Substantive due process 'specially protects those fundamental rights and liberties which are,' (1) 'objectively, deeply rooted in this Nation's history and tradition,' and (2) 'implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.' Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (quotation marks and citations omitted). This test is intentionally strict, for 'extending constitutional protection to an asserted right or liberty interest, … to a great extent, place[s] the matter outside the arena of public debate and legislative action.' Id. at 720; accord District Attorney's Office v. Osborne, 129 S. Ct. 2308, 2322 (2009). The purported right to marry a person of the same sex plainly fails this test. Indeed, same-sex marriage was unknown in the laws of this Nation before 2004, and same-sex marriages are now performed legally in only five States and the District of Columbia.[10]

The district court nevertheless attempted to redefine the established fundamental right to marry into an abstract right to marry the person of one's choice without regard to gender, asserting that 'plaintiffs' relationships are consistent with the core of the history, tradition and practice of marriage in the United States.' Ex. A at 113. But history and precedent make clear that the fundamental right to marry recognized by the Supreme Court is the right to enter a legally recognized union only with a person of the opposite sex.

1. With only a handful of very recent exceptions, marriage is, and always has been, understood—in California, in this Country, and indeed in every civilized society—as limited to opposite-sex unions. Indeed, until recently 'it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.' Hernandez v. Robles, 855 N.E.2d at 8. In the words of highly respected anthropologist Claude Levi-Strauss, 'the family—based on a union, more or less durable, but socially approved, of two individuals of opposite sexes who establish a household and bear and raise children—appears to be a practically universal phenomenon, present in every type of society.' The View From Afar 40-41 (1985) (Trial Exhibit DIX63); see also G. Robina Quale, A History of Marriage Systems 2 (1988) (DIX79) ('Marriage, as the socially recognized linking of a specific man to a specific woman and her offspring can be found in all societies.').

#page#The opposite-sex character of marriage has always been understood to be a central and defining feature of this institution, as uniformly reflected in dictionaries throughout the ages. Samuel Johnson, for example, defined marriage as the 'act of uniting a man and woman for life.' A Dictionary of the English Language (1755). Subsequent dictionaries have consistently defined marriage in the same way, including the first edition of Noah Webster's, An American Dictionary of the English Language (1828), and prominent dictionaries from the time of the framing and ratification of the Fourteenth Amendment, see, e.g., Noah Webster, Etymological Dictionary 130 (1st ed. 1869); Joseph E. Worcester, A Primary Dictionary of the English Language (1871). A leading legal dictionary from the time of the framing and ratification of the Fourteenth Amendment, for example, defined marriage as '[a] contract, made in due form of law, by which a man and woman reciprocally engage to live with each other during their joint lives, and to discharge towards each other the duties imposed by law on the relation of husband and wife.' John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States 105 (1868). Modern dictionaries continue to reflect the same understanding. The New Oxford American Dictionary (2001), for example, defines marriage as 'the formal union of a man and a woman, typically recognized by law, by which they become husband and wife.'[11]

Nor can this understanding plausibly be dismissed, as the court below did, as nothing more than an 'artifact of a time when the genders were seen as having distinct roles in society and in marriage.' Ex. A at 113. Rather, it reflects the undeniable biological reality that opposite-sex unions—and only such unions—can produce children. Marriage, thus, is 'a social institution with a biological foundation.' Levi-Strauss, 'Introduction,' in Andre Burguiere, et al. (eds.), 1 A History of the Family: Distant Worlds, Ancient Worlds 5 (1996). Indeed, an overriding purpose of marriage in every society is, and has always been, to approve and regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society. In particular, through the institution of marriage, societies have sought to increase the likelihood that children will be born and raised in stable and enduring family units by the mothers and fathers who brought them into this world.

This understanding of the central purposes of marriage is well expressed by William Blackstone, who, speaking of the 'great relations in private life,' describes the relationship of 'husband and wife' as 'founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated.' 1 William Blackstone, Commentaries *410. Blackstone then immediately turns to the relationship of 'parent and child,' which he describes as 'consequential to that of marriage, being its principal end and design: it is by virtue of this relation that infants are protected, maintained, and educated.' Id.; see also id. *35 ('the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children'). John Locke likewise writes that marriage 'is made by a voluntary compact between man and woman,' Second Treatise of Civil Government § 78 (1690), and then provides essentially the same explanation of its purposes:

For the end of conjunction between male and female, being not barely procreation, but the continuation of the species, this conjunction betwixt male and female ought to last, even after procreation, so long as is necessary to the nourishment and support of the young ones, who are to be sustained by those that got them, till they are able to shift and provide for themselves.

Second Treatise of Civil Government § 79 (1690).

Throughout history, other leading linguists, philosophers, historians, and social scientists have likewise consistently recognized the essential connection between marriage and responsible procreation and childrearing. See, e.g., Noah Webster, An American Dictionary of the English Language (1st ed. 1828) (marriage 'was instituted … for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children'); Bertrand Russell, Marriage and Morals 156 (1929) ('But for children, there would be no need for any institution connected with sex. … [for] it is through children alone that sexual relations become of importance to society'); Quale, A History of Marriage Systems 2 ('Through marriage, children can be assured of being born to both a man and a woman who will care for them as they mature.'); James Q. Wilson, The Marriage Problem 41 (2003) ('Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.'). In the words of the eminent sociologist Kingsley Davis, '[t]he genius of the family system is that, through it, the society normally holds the biological parents responsible for each other and for their offspring. By identifying children with their parents … the social system powerfully motivates individuals to settle into a sexual union and take care of the ensuing offspring.' The Meaning & Significance of Marriage in Contemporary Society 7-8, in Contemporary Marriage: Comparative Perspectives on a Changing Institution (Kingsley Davis, ed. 1985) (DIX50).

This understanding of marriage and its purposes has also prevailed in California, just as it has everywhere else. Indeed, aside from the California Supreme Court's swiftly corrected decision in the Marriage Cases, California courts have repeatedly embraced this understanding, expressly recognizing that 'the institution of marriage' serves 'the public interest' because it 'channels biological drives that might otherwise become socially destructive' and 'it ensures the care and education of children in a stable environment, ' DeBurgh v. DeBurgh, 250 P.2d 598, 601 (Cal. 1952); that 'the first purpose of matrimony, by the laws of nature and society, is procreation,' Baker v. Baker, 13 Cal. 87, 103 (1859); and thus that 'the sexual, procreative, [and] child-rearing aspects of marriage' go 'to the very essence of the marriage relation,' In re Marriage of Ramirez, 81 Cal. Rptr. 3d 180, 184-85 (Cal. Ct. App. 2008).

In short, the understanding of marriage as a union of man and woman, uniquely involving procreation and the rearing of children by those who brought them into the world, is age-old, universal, and enduring. Indeed, this oft-expressed understanding of the origins and defining purposes of marriage was essentially undisputed prior to the very recent advent of the movement for redefining that institution to include same-sex relationships. The United States Congress, in defining marriage for all federal-law purposes as the 'legal union between one man and one woman as husband and wife,' 1 U.S.C. § 7, thus stood on firm historical ground when it expressly found that, '[a]t bottom, civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child rearing. Simply put, government has an interest in marriage because it has an interest in children.' Committee on the Judiciary Report on DOMA, H. Rep. 104-664 at 48.

The district court brushed aside the abiding connection between marriage and 'responsible procreation and child rearing,' blithely asserting that 'states have never required spouses to have an ability or willingness to procreate in order to marry.' Ex. A at 113. The district court did not even acknowledge the wealth of precedent squarely and repeatedly holding that the animating procreative purposes of marriage are in no way belied by the fact that societies have not conditioned marriage on procreation or otherwise 'inquired into procreative capacity or intent' on a case-by-case basis 'before issuing a marriage license.' Ex. A at 111. See Standhardt, 77 P.3d at 462; Adams, 486 F. Supp. at 1124-25; In re Kandu, 315 B.R. at 146-47; Conaway v. Deane, 932 A.2d 571, 633 (Md. Ct. App. 2007) (applying state constitution); Hernandez, 855 N.E.2d at 11 (same); Andersen v. King County, 138 P.3d 963, 983 (Wash. 2006) (plurality) (same); Morrison v. Sadler, 821 N.E.2d 15, 27 (Ind. Ct. App. 2005) (same).[12]

Not only would such an inquiry be administratively burdensome and intolerably intrusive, it would also be unreliable. Most obviously, many opposite-sex couples who do not plan to have children may experience 'accidents' or 'change their minds,' Morrison, 821 N.E.2d at 24-25, and at least some couples who do not believe they can have children may find out otherwise, given the 'scientific (i.e., medical) difficulty or impossibility of securing evidence of [procreative] capacities,' Monte Neil Stewart, Marriage Facts, 31 Harv. J. L. & Pub. Pol'y 313, 345 (2008) (DIX1028). And even where infertility is clear, usually only one spouse is infertile. In such cases marriage still furthers society's interest in responsible procreation by decreasing the likelihood that the fertile spouse will engage in sexual activity with a third party, for that interest is served not only by increasing the likelihood that procreation occurs within stable family units, but also by decreasing the likelihood that it occurs outside of such units.[13] It is thus neither surprising nor significant that States have chosen to forego an Orwellian and ultimately futile attempt to police fertility and childbearing intentions and have relied instead on the common-sense presumption that opposite-sex couples are, in general, capable of procreation. See, e.g., Nguyen v. INS, 533 U.S. 53, 69 (2001) (Congress could properly enact 'an easily administered scheme' to avoid 'the subjectivity, intrusiveness, and difficulties of proof' of 'an inquiry into any particular bond or tie.').[14] Again, the district court did not address any of these points, or even acknowledge the many cases embracing them.

#page#Nor, contrary to the district court's assertion, see Ex. A at 112, does the elimination of the antimiscegenation laws that once blighted many States' legal landscape somehow support the district court's startling and patently inaccurate claim that 'gender restrictions … were never part of the historical core of the institution of marriage.' Ex. A at 113. As demonstrated above, with only a handful of very recent exceptions, the opposite-sex definition of marriage has for millennia been understood to be a defining characteristic of marriage in this Country and indeed in virtually every society. The same cannot be said for racial restrictions on marriage. Even in this Country, interracial marriages were legal at common law, in six of the thirteen original States at the time the Constitution was adopted, and in many States that at no point ever enacted antimiscegenation laws. See, e.g., Irving G. Tragen, Statutory Prohibitions Against Interracial Marriage, 32 Cal. L. Rev. 269, 269 & n.2 (1944) ('[A]t common law there was no ban on interracial marriage.'); Lynn Wardle and Lincoln C. Oliphant, In Praise of Loving: Reflections on the ‘Loving Analogy' for Same-Sex Marriage, 51 How. L.J. 117, 180-81 (2007) (state-by-state description of historical antimiscegenation statutes); Peter Wallenstein, Tell the Court I Love My Wife: Race, Marriage, and Law—An American History 31, 253-54 (2002). And such laws have certainly never been universally understood to be a defining characteristic of marriage, throughout history and across civilizations. Furthermore, while the opposite-sex definition of marriage is inescapably connected with that institution's central procreative purposes, antimiscegenation laws were affirmatively at war with those purposes, for by prohibiting interracial marriages, they substantially decreased the likelihood that children of mixed-race couples would be born to and raised by their parents in stable and enduring family units. It is thus not surprising either that the Supreme Court held that such laws violated the fundamental right to marry in Loving, 388 U.S. at 12, or that, a scant five years later, the Supreme Court in Baker unanimously and summarily rejected on the merits precisely the same constitutional claims asserted by Plaintiffs here.

The elimination of the doctrine of coverture likewise provides no support for the district court's gender-blind view of the fundamental right to marry. Much like antimiscegenation laws, coverture was never universally understood to be a defining characteristic of marriage. Nor has any society's understanding of marriage as the union of a man and a woman ever turned on whether that society embraced coverture. Indeed, coverture was never part of the civil law and thus did not apply in civil law countries or even outside the common law courts in England or this Country. See Blackstone, 1 Commentaries at * 432 ('in the civil law the husband and the wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband'). Nor was it ever fully established in States such as California that were originally colonized by civil law countries. See, e.g., James Schouler, Law of the Domestic Relations 182 (1905) ('From the civil, rather than the common law, are derived those property rights of married women which are recognized in Louisiana, California, and others of the Southwestern States, originally colonized by the Spanish and French.'); Cal. Const. art. XI, § 14 (1849) (providing that property owned by a wife before marriage and acquired after marriage by gift, by will, and by inheritance 'shall be her separate property' and adopting community property system for other property acquired during the marriage). Yet all of these countries and States, of course, have historically adhered to the definition of marriage as the union of a man and a woman, and nearly all continue to do so today. And even where coverture did exist, its elimination was not accompanied by any change in the traditional opposite-sex definition of marriage. The district court's assertion that the traditional definition of marriage simply reflects 'gender roles mandated through coverture,' Ex. A at 112, is thus manifestly incorrect. Further, unlike antimiscegenation laws, coverture was never held to violate the fundamental right to marry. Cf. United States v. Yazell, 382 US 341, 352-53 (1966) ('We have no federal law relating to the protection of the separate property of married women. We should not here invent one and impose it upon the States, despite our personal distaste for coverture provisions such as those involved in this case.'). Coverture was abolished gradually on a state-by-state basis, primarily by legislative rather than judicial action, and this precedent thus provides no support whatsoever for the district court's precipitate attempt to abolish once and for all the traditional definition of marriage by judicial decree.

In short, in finding that the fundamental right to marry is unqualified by gender, the district court wholly failed even to acknowledge—let alone confront—the wealth of historical, scholarly, and other support for the traditional opposite-sex understanding of marriage and its essential procreative purposes. The district court thus ignored a central and defining feature of our 'Nation's history, legal traditions, and practices' with respect to marriage, disregarded the requirement of a 'careful description' of asserted fundamental rights, and abandoned 'crucial guideposts for responsible decision making' under the Due Process Clause. Glucksberg, 521 U.S. at 721(quotation marks omitted). Indeed, as the district court's decision well illustrates, the abstract right found by the district court is not only unmoored from, but palpably at war with, what centuries of history, legal tradition, and practice have always understood marriage to be.

2. The Supreme Court's cases recognizing the fundamental right to marry likewise provide no support for the ahistorical right found by the district court. All arise in the context of marriage defined as the union of a man and a woman and plainly acknowledge the abiding connection between marriage and the procreative potential of opposite-sex relationships. See, e.g., Loving, 388 U.S. at 12 ('Marriage is fundamental to our very existence and survival.'); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) ('Marriage and procreation are fundamental to the very existence and survival of the race.'); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (The right to 'marry, establish a home and bring up children … [is] essential to the orderly pursuit of happiness by free men.'); cf. Bowers v. Hardwick, 478 U.S. 186, 215 (1986) (Stevens, J., dissenting) (describing marriage as a 'license to cohabit and to produce legitimate offspring').

The Supreme Court's understanding of this fundamental right is well illustrated by Zablocki v. Redhail, 434 U.S. 374 (1978), a decision trumpeted by Plaintiffs throughout this litigation. There, the Court struck down a Wisconsin statute barring residents with child support obligations from marrying absent proof that the supported child was not and would not become a public charge. The Court reiterated the close connection between marriage and procreation, id. at 383 (quoting Loving and Skinner); further framed the right to marry as a right to bear and raise children 'in a traditional family setting,' id. at 386; and reasoned that the challenged law would frustrate the purposes of marriage by leading, as a 'net result,' to 'simply more illegitimate children,' id. at 390.

Further, when the Supreme Court decided Baker in 1972, it had long been well established that the right to marry is fundamental, and the historical changes in the law of marriage relied on by the district court were already largely complete. Baker thus necessarily establishes that the fundamental right to marry does not include the right to marry a person of the same sex.

C. Proposition 8 Is Not Subject to Heightened Equal Protection Scrutiny.
When 'individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement … the Equal Protection Clause requires only a rational means to serve a legitimate end.' Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441-42 (1985). Because only opposite-sex relationships are potentially naturally procreative and same-sex relationships categorically are not, couples in same-sex relationships are undeniably not similarly situated to those in opposite-sex relationships with respect to the central purposes of marriage. This distinction is not only 'relevant to interests the State has authority to implement,' but, as demonstrated above, it forms the very foundation of what marriage has always, and everywhere, been understood to be.

The district court nevertheless concluded that Proposition 8 classifies individuals based on sexual orientation and that 'strict scrutiny is the appropriate standard of review to apply to classifications based on sexual orientation.' Ex. A at 122. The district court failed to acknowledge, however, that this Court's binding precedent establishes that classifications based on sexual orientation are subject only to rational basis review. See e.g., Witt v. Department of the Air Force, 527 F.3d 806, 821 (9th Cir. 2008); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573-74 (9th Cir. 1990). Ten other federal circuit courts—all that have addressed the issue—agree. See, e.g., Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (en banc); Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc); Equality Found. v. City of Cincinnati, 128 F.3d 289, 294 (6th Cir. 1997); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Bruning, 455 F.3d at 866-67 (8th Cir. 2006); Rich v. Secretary of the Army, 735 F.2d 1220, 1229 (10th Cir. 1984); Lofton v. Secretary of the Dep't of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en banc); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); see also Romer v. Evans, 517 U.S. 620, 632 (1996) (applying 'conventional' rational basis scrutiny to classification based on sexual orientation).

The unanimity of these decisions is no accident, for the question whether gays and lesbians satisfy the requirements for suspect-class status is not a close one. As an initial matter, homosexuality is a complex and amorphous phenomenon that defies consistent and uniform definition. As well-respected researchers have concluded, "there is currently no scientific or popular consensus on the exact constellation of experiences that definitively ‘qualify' an individual as lesbian, gay, or bisexual.' Lisa M. Diamond & Ritch C. Savin-Williams, Gender and Sexual Identity, in Handbook of Applied Developmental Science 101, 102 (Richard M. Lerner et al., eds. 2003) (DIX934). In this respect, the proposed class of gays and lesbians clearly differs from other classifications—race, sex, alienage, national origin, and illegitimacy—that the Supreme Court has singled out for heightened protection.[15]

Further, as this Court's precedent establishes, gays and lesbians also fail two essential requirements for receiving heightened scrutiny under the Equal Protection Clause: They are neither politically powerless nor are they defined by an immutable characteristic. See High Tech Gays, 895 F.2d at 573-74. Heightened scrutiny is reserved for groups that are 'politically powerless in the sense that they have no ability to attract the attention of the lawmakers.' Cleburne, 473 U.S. at 445. This Court held that gays and lesbians failed this test 20 years ago, see High Tech Gays,

Full post as published by Bench Memos - National Review Online on August 13, 2010 (boomark / email).