No.

12-144
In the
([ourt of tbe Wniteb
DENNIS HOLLINGSWORTH, et al,
Petitioners,
v.
KRISTENM. PERRY, et al.
Respondents.
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit
BRIEF OF AMICUS CURIAE CENTER
FOR CONSTITUTIONAL JURISPRUDENCE
IN SUPPORT OF PETITIONER
EDWIN MEESE III JOHN C. EASTMAN
214 Massachusetts Ave. N.E. Counsel of Record
Washington D.C. 20002 ANTHONYT. CASO
Center for Constitutional
Jurisprudence
c/o Chapman Univ. Sch. of Law
One University Drive
Orange, California 92886
[email protected]
(714) 628-2587
Counsel for Amicus Curiae
Center for Constitutional Jurisprudence
12-144 EQCF#9 Filed 08/31/12
,
, '
1
QUESTIONS PRESENTED
1. Whether the federal Constitution prohibits the
people of a State from defining marriage as it has
been traditionally understood, a union of one
many and one women, when the procreative func-
tion that inheres in such relationships makes
them differently situated from same-sex relation-
ships?
11
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICUS CURIAE ............................. 1
INTRODUCTION AND PROCEDURAL HISTORY .2
REASONS FOR GRANTING THE WRIT .................. 5
I. The Holding Below Altering the Definition of
Marriage Is Monumentally Important .................. 5
A. Equal Protection Analysis Is Only
Triggered If People Who Are "Similarly
Situated" Are Treated Differently ................... 5
B. Fundamentally, The Issue Here is Who
Makes The Policy Judgment About the
Purpose of Marriage, The People, or the
Courts? ............................................................ 11
II. The Ninth Circuit Has Intervened in a Heated
Political and Policy Dispute, An Arena Where
Judicial Authority Is At Its Lowest Ebb ............. 14
III. Alternatively, Given the Serious Collusion
and Appearance of Bias Concerns That Taint
The Decisions Below, Granting the Petition,
Vacating the Judgment, and Remanding for
New Consideration Would Be An Appropriate
Exercise of this Court's Supervisory Function ... 17
CONCLUSION .......................................................... 24
111
TABLE OF AUTHORITIES
CASES
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) .................................................. 19
Baker v. Baker,
13 Cal. 87 (1859) ...................................................... 7
Boynton v. Virginia,
364 U.S. 454 (1960) ................................................ 23
City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432 (1985) .............................................. 5, 6
DeBurgh v. DeBurgh,
250 P.2d 598 (Cal. 1952) .......................................... 7
Flast v. Cohen,
392 U.S. 83 (1968) .................................................. 18
Hollingsworth v. Perry,
130 s. Ct. 705 (2010) ................................................ 3
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) .................................... 2, 12
In re Marriage of Ramirez,
81 Cal. Rptr. 3d 180 (Cal. Ct. App. 2008) ............... 7
In re Murchison,
349 U.S. 133 (1955) ................................................ 18
Izumi Seimitsu Kogyo Kabushiki Kaisha v. US
Philips Corp., 510 U.S. 27 (1993) .......................... 23
Keevan v. Smith,
100 F.3d 644 (8th Cir. 1996) .................................... 6
Liljeberg, v. Health Servs. Acquisition Corp.,
486 U.S. 847 (1988) ................................................ 21

IV
Lockyer v. City and County of San Francisco,
95 P.3d 459 (2004) ................................................... 2
Lord v. Veazie,
49 U.S. (8 How.) 251 ................................. 18
M'Culloch v. Maryland,
17 U.S. (4 Wheat.) 316 (1819) ............................... 16
Meltzer v. C. Buck LeCraw & Co.,
402 U.S. 936 (1971) .............................................. 2, 7
Murphy v. Ramsey,
114 U.S. 15 (1885) .................................................... 7
Neese v. Southern R. Co.,
350 U.S. 77 (1955) .................................................. 23
Perry v. Brown,
52 Cal.4th 1116 (2011) ........................................... 19
Perry v. Proposition 8 Official Proponents,
587 F.3d 947 (9th Cir. 2009) .................................... 3
Perry v. Schwarzenegger,
630 F.3d 909 (9th Cir., 2011) ................................. 21
Perry v. Schwarzenegger, No. C 09-2292-VRW,
Transcript of Record (N.D. Cal. June 16, 2010) ... 16
Plyler v. Doe,
457 U.S. 202 (1982) .................................................. 5
Reed v. Reed,
404 U.S. 71 (1971) .................................................... 6
Roe v. Wade,
410 U.S. 113 (1973) ................................................ 14
Rostker v. Goldberg,
453 U.S. 57 (1981) .................................................... 6
v
Strauss v. Horton,
207 P.3d 48 (Cal. 2009) ...................................... 3, 12
United States v. Johnson,
319 U.S. 302 (1943) ................................................ 18
White v. Samsung Electronics America, Inc.,
989 F.2d 1512 (9th Cir. 1992) ................................ 13
CONSTITUTIONAL PROVISIONS &
STATUTES
28 U.S.C. 455(a)(4) ................................................. 18
28 U.S.C. 455(e) ...................................................... 20
Cal. Const. art. 1, 7.5 ("Proposition 8") ................ 2, 3
Cal. Const. art. 2, 10(c) ............................................. 2
Cal. Fam. Code 308.5 ............................................... 2
Cal. Gov't Code 12512 ........................................ 3, 18
OTHER AUTHORITIES
"Lawmakers Urge Governor to Appeal Prop 8
Ruling," Associated Press (Sept. 1, 2010),
available at http://www.cbsnews.com/stories/
2010109/01lnationall main6827966.shtml. ............. .4
Blackstone, William, Commentaries .......................... 8
Bracton, H., 1 On the Laws and Customs of
England (S. Thorne ed. 1968) ................................. 8
Brooks, David, Roe's Birth, and Death,
N.Y. Times, at A23 (Apr. 21, 2005) ....................... 14
Cherlin, Andrew J., The Deinstitutionalization
of American Marriage,
66 J. Marriage & Fam. 848 (2004) ........................ 11
VI
Code of Conduct for U. S. Judges, Canon 3.C .......... 21
Eskridge, William N. Jr., Pluralism and Distrust:
How Courts Can Support Democracy by Lowering
the Stakes of Politics, 114 Yale L.J. 1279 (2005) .. 15
Eskridge, William N., Jr. & Spedale, Darren R., Gay
Marriage: For Better or for Worse? What We've
Learned from the Evidence 19 (2006) ................... 10
George, Robert P., Gay Marriage, Democracy, and
the Courts, Wall St. J., at All (Aug. 3, 2009} ....... 14
Graff, E. J., Retying the Knott, The Nation at 12
(June 24, 1996} ....................................................... 10
Levi-Strauss, Claude, Introductionk in Andre
Burguiere, et al. (eds.), 1 A History of the Family:
Distant Worlds, Ancient Worlds 5 (1996) ............... 9
Levi-Strauss, Claude, The View From Afar (1985} .... 9
Locke, John, Second Treatise of Civil Government
(1690) ........................................................................ 8
Quale, G. Robina, A History of Marriage Systems
(1988} ........................................................................ 9
Sunstein, Cass, Three Civil Rights Fallacies,
79 Calif. L. Rev. 751 (1991) ................................... 15
Willis, Ellen, "Can Marriage Be Saved? A Forum,
The Nation at 16-17 (June 24, 1996) .................... 11
RULES
F.R.A.P. 4(a}(1}(A} ....................................................... 4
Sup. Ct. R. 37.2(a} ....................................................... 1
Sup. Ct. R. 37.6 ............................................................ 1
Sup. Ct. Rule 14.1(a} ................................................. 22
1
INTEREST OF AMICUS CURIAEI
Amicus Curiae Center for Constitutional Juri-
sprudence was established in 1999 as the public in-
terest law firm of the Claremont Institute, the stated
mission of which is to "restore the principles of the
American Founding to their rightful and preeminent
authority in our national life." The Center advances
that mission through strategic litigation and the fil-
ing of amicus curiae briefs in cases of constitutional
significance, including cases such as this in which
the very right of the sovereign people to retain the
centuries-old definition of marriage as a cornerstone
of civil society, in the face of government officials
holding a different personal view, is at stake. The
Center has previously appeared as counselor as
amicus curiae before this Court and other courts in
cases involving the authority of the people, as the ul-
timate sovereign, to direct and control the actions of
their agents, the elected officials of government,
through written constitutions, including United
States v. Morrison, 529 U.S. 598 (2000); Amodei v.
Nevada State Senate, 99 Fed.Appx. 90 (9th Cir.
2004); Howard Jarvis Taxpayers Ass'n v. Legislature
of the State of California, No. S170071 (Cal. 2009).
1 Pursuant to this Court's Rule 37.2(a), all parties have con-
sented to the filing of this brief. Letters evidencing such con-
sent have been filed with the Clerk of the Court. Counsel of
record for all parties received notice at least 10 days prior to the
due date of the Amicus Curiae's intention to file in support of
certiorari. Pursuant to Rule 37.6, Amicus Curiae affirms that
no counsel for any party authored this brief in whole or in part,
and no counselor party made a monetary contribution intended
to fund the preparation or submission of this brief. No person
other than Amicus Curiae, its members, or its counsel made a
monetary contribution to its preparation or submission.
2
INTRODUCTION AND
PROCEDURAL HISTORY
Over the past decade, the People of California
have engaged in an epic battle over the very defini-
tion of marriage, a bedrock institution that has long
been recognized as "one of the cornerstones of our ci-
vilized society." Meltzer v. C. Buck LeCraw & Co.,
402 U.S. 936, 957 (1971) (Black, J., dissenting from
denial of cert.)
The battle has pitted the majority of the People of
California against every branch of their state gov-
ernment. In 2005, for example, the Legislature at-
tempted, in violation of the California Constitution,
art. 2, 10(c), to negate Proposition 22, a statutory
initiative adopted by the People in 2000 that con-
firmed the age-old definition of marriage, see Cal.
Fam. Code 308.5. Similarly, a local elected official,
the Mayor of San Francisco, took it upon himself to
issue marriage licenses in direct violation of Proposi-
tion 22. Although the California Supreme Court re-
buffed that blatant disregard of the law, Lockyer v.
City and County of San Francisco, 95 P.3d 459
(2004), it ultimately ruled that Proposition 22 was
unconstitutional under the state constitution. In re
Marriage Cases, 183 P.3d 384, 452 (Cal. 2008).
The People responded immediately, adopting at
the very next election an initiative that was already
being circulated for consideration at the time of the
decision in In re Marriage Cases. Proposition 8 was
thus adopted in November 2008 as a constitutional
amendment, effectively overturning the decision of
the California Supreme Court. That initiative was
immediately challenged as a supposed unconstitu-
3
tional revision of the state constitution rather than a
valid constitutional amendment. The Attorney Gen-
eral of the State, an opponent of Proposition 8 during
the election, not only refused to defend the initiative
in court, but affirmatively argued that it was uncons-
titutional. The California Supreme Court upheld
Proposition 8 as a valid amendment to the state con-
stitution only after the initiative's proponents were
allowed to intervene and provide a defense. Strauss
v. Horton, 207 P.3d 48, 122 (Cal. 2009).
Another group of plaintiffs, supported by many of
the same organizations that had just lost in Strauss,
then filed this action in federal court, naming as de-
fendants several government officials, including the
same Attorney General who had previously refused
to defend the initiative in state court, none of whom
offered any defense to the lawsuit.
Despite governing precedent from the Ninth Cir-
cuit as well as this Court, the Attorney General
again refused to defend Proposition 8, instead sup-
porting Plaintiffs' contention that the Proposition
was unconstitutional. See Perry v. Proposition 8
Official Proponents, 587 F.3d 947, 949 (2009).
After what can only be described as a show trial-
the Chief Judge of the District Court, who presided,
was even chastised by this Court for attempting to
broadcast the trial in violation of existing court rules,
Hollingsworth v. Perry, 130 S. Ct. 705, 715 (2010)-
the District Court issued a 136-page opinion that
purported to contain numerous findings of fact os-
tensibly discrediting all of the oral testimony while
simply ignoring the extensive documentary and his-
torical evidence supporting the rationality of Propo-
sition 8. It also articulated conclusions of law that
4
likewise simply ignored binding precedent of this
Court and the Ninth Circuit, as well as persuasive
authority from every other state and federal appel-
late court to have considered the issues presented by
the case.
The district judge retired shortly thereafter, and
only then revealed that he was in a long-term same-
sex relationship-that is, identically situated with
the plaintiffs and in a position to be a direct benefi-
ciary of his own ruling in the case. A motion by Pro-
ponents to vacate the decision because of the district
judge's failure to recuse himself or at least provide
the required disclosures were denied by the Chief
Judge of the district court.
Finally, despite concerted efforts by the People of
California
2
to have Defendants-their elected Gover-
nor and Attorney General-file a notice of appeal to
guarantee that the Ninth Circuit had jurisdiction to
consider whether the decision by the District Court
invalidating a solemn act of the sovereign people of
California was erroneous, none of the governmental
defendants filed a notice of appeal within the 30-day
window specified by F.R.A.P. 4(a)(1)(A).
Nevertheless, after receiving confirmation from
the California Supreme Court that initiative propo-
nents have authority on behalf of the State to defend
the initiatives they sponsored, thereby meeting Ar-
ticle III standing requirements, the Ninth Circuit
reached the merits, holding that the people of the
2 See, e.g., "Lawmakers Urge Governor to Appeal Prop 8 Rul-
ing," Associated Press (Sept. 1, 2010), available at
http://www.cbsnews.com/stories/ 2010109/01lnationall mam
6827966.shtml.
5
state could not correct an erroneous decision of their
own Supreme Court by amending their constitution
to restore the law of marriage to what it had been
since before the state was a state.
REASONS FOR GRANTING THE WRIT
I. The Holding Below Altering the Definition
of Marriage Is Monumentally Important.
A. Equal Protection Analysis Is Only Trig-
gered If People Who Are "Similarly Si-
tuated" Are Treated Differently.
By way of this federal court action, plaintiffs seek
to dramatically change both the definition and the
purpose of marriage. They claim that for the State to
deny same-sex couples the same access to the insti-
tution of marriage that is available to opposite-sex
couples is a violation of the Equal Protection Clause
of the Fourteenth Amendment.
Yet, as this Court has frequently recognized,
"[t]he Equal Protection Clause ... is essentially a di-
rection that all persons similarly situated should be
treated alike." City of Cleburne, Tex. v. Cleburne Liv-
ing Ctr., 473 U.S. 432, 439 (1985) (emphasis added).
"The Constitution does not require things which are
different in fact or opinion to be treated in law as
though they were the same." Plyler v. Doe, 457 U.S.
202, 216 (1982).
Accordingly, the issue is whether same-sex and
opposite-sex relationships are similarly situated.
This is a "threshold" inquiry, for the Equal Protec-
tion clause is not even triggered if the relationships
6
are not similarly situated. See, e.g., Keevan v. Smith,
100 F.3d 644, 648 (8th Cir. 1996).
Moreover, the issue is not whether the relation-
ships might be similarly situated in some respect,
but whether they are similarly situated in ways rele-
vant "to the purpose that the challenged laws pur-
portedly intended to serve." Cleburne, 473 U.S. at
454 (Stevens, J., joined by Burger, C.J., concurring);
see also Rostker v. Goldberg, 453 U.S. 57, 78 (1981)
(rejecting challenge to male-only selective-service
registration on ground that "[m]en and women ... are
simply not similarly situated for purposes of a draft
or registration for a draft") (emphasis added); Reed v.
Reed, 404 U.S. 71, 77 (1971) (upholding Equal Pro-
tection challenge to state probate preference for men
over women as estate administrators, because men
and women were "similarly situated with respect to
[the] objective" of the statute").
The district court below erroneously emphasized
the ways in which same-sex and opposite-sex rela-
tionships are similarly situated rather than the ways
they are not similarly situated. "Like opposite-sex
couples, same-sex couples have happy, satisfying re-
lationships and form deep emotional bonds and
strong commitments to their partners," Judge Walk-
er found. Pet.App. 235a. "Same-sex couples are
identical to opposite-sex couples in the characteris-
tics relevant to the ability to form successful marital
unions," he concluded. Id.
That was error of the first magnitude. No one
disputes that if marriage as an institution was only
about the relationships adults form among them-
selves, it would violate Equal Protection not to rec-
ognize as marriage any adult relationship seeking
t
t
1\
!
7
the recognition. But marriage is and always has
been about much more than the self-fulfillment of
adult relationships, as history, common sense, legal
precedent, and the trial record in this case itself
demonstrate. Because the institution of marriage is
the principal manner in which society structures the
critically important function of procreation and the
rearing of children, it has long been recognized as
"one of the cornerstones of our civilized society."
Meltzer, 402 U.S. at 957 (Black, J., dissenting from
denial of cert.). Indeed, this Court has itself noted
that "the union for life of one man and one woman" is
"the sure foundation of all that is stable and noble in
our civilization." Murphy v. Ramsey, 114 U.S. 15, 45
(1885).
This purpose has been recognized in California
since the very beginning of the State's existence as a
State. "The first purpose of matrimony, by the laws
of nature and society, is procreation," held the Cali-
fornia Supreme Court in Baker v. Baker, 13 Cal. 87,
103 (1859). A century later, the same court recog-
nized 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). And a half century after
that, on the eve of the Proposition 8 political fight,
the California Court of Appeal recognized that "the
sexual, procreative, [and] child-rearing aspects of
marriage" go "to the very essence of the marriage re-
lation." In re Marriage of Ramirez, 81 Cal. Rptr. 3d
180, 184-85 (Cal. Ct. App. 2008).
8
These cases are not anomalies but carry forward
a long and rich historical and philosophical tradition.
Henri de Bracton wrote in his thirteenth-century
treatise, for example, that from the jus gentium, or
"law of nations," comes "the union of man and wom-
an, entered into by the mutual consent of both, which
is call marriage" and also "the procreation and rear-
ing of children." 1 H. Bracton, On the Laws and Cus-
toms of England 27 (S. Thorne ed. 1968). William
Blackstone described the relationship of ''husband
and wife" as "founded in nature, but modified by civil
society: the one directing man to continue and mul-
tiply his species, the other prescribing the manner in
which that and regulated." 1 William Blackstone,
Commentaries *410. He then described the relation-
ship of "parent and child" as being "consequential to
that of marriage, being its principal end and design."
Id. And John Locke, whose influence on the Ameri-
can constitutional order is perhaps unsurpassed, de-
scribed the purpose of marriage, "the end of the con-
junction of the species," as ''being not barely procrea-
tion' but the continuation of the species." John
Locke, Second Treatise of Civil Government 78, 79
(1690).
This long-standing view was confirmed by the so-
ciological and anthropological evidence introduced
into the trial record. The work of the late Claude
Levi-Strauss, the "father of modern anthropology"3
and former Dean of the Academie Franc;aise, forms
part of the trial record, for example, and includes
this observation: "the family-based on a union,
more or less durable, but socially approved, of two
3 http://www.euronews.com/2009/11103/death-of-french- anthro-
pologist-claude-levi -strauss/.
,
i
I
(
,
!
9
individuals of opposite sexes who establish a house-
hold and bear and raise children-appears to be a
practically universal phenomenon, present in every
type of society."4 Marriage is thus "a social institu-
tion with a biological foundation," he wrote in anoth-
er work.
5
And historian G. Robina Quale's compre-
hensive sociological survey of the development of
marriage from prehistoric times to the present, also
part of the trial record, reveals that "Marriage, as
the socially recognized linking of a specific man to a
specific woman and her offspring can be found in all
societies."6
Given the near universal view, across different
societies and different times, that a principal, if not
the principal, purpose of marriage is the channeling
of the unique procreative abilities of opposite-sex re-
lationships into a societally beneficial institution, it
is beyond peradventure that same-sex and opposite-
sex couples are not similarly situated with respect to
that fundamental purpose.
That is undoubtedly why Plaintiffs' own expert
admitted at trial that redefining marriage to include
same-sex couples would profoundly alter the institu-
tion of marriage. Trial Tr. 268 (testimony of Har-
vard Professor Nancy Cott). And why Yale Law Pro-
fessor William Eskridge, a leading gay rights activ-
ist, has noted that "enlarging the concept to embrace
4 Claude Levi-Strauss, The View From Mar 40-41 (1985) (Trial
Ex. DIX63).
5 Claude Levi-Strauss, Introductionk in Andre Burguiere, et al.
(eds.), 1 A History of the Family: Distant Worlds, Ancient
Worlds 5 (1996).
6 G. Robina Quale, A History of Marriage Systems 2 (1988)
(Trial Ex. DIX79).
10
same-sex couples would necessarily transform [the
institution of marriage] into something new." Wil-
liam N. Eskridge, Jr. & Darren R. Spedale, Gay Mar-
riage: For Better or for Worse? What We've Learned
from the Evidence 19 (2006) (Plaintiffs' Tr. Ex.
PX2342). In short, "[s]ame-sex marriage is a breath-
takingly subversive idea." E. J. Graff, Retying the
Knott, The Nation at 12 (June 24, 1996) (Tr. Ex.
DIX1445). If it ever "becomes legal, [the] venerable
institution [of marriage] will ever after stand for
sexual choice, for cutting the link between sex and
diapers." Id.
Yet despite all this evidence, the trial court found,
as a "finding," that "Same-sex couples are identical to
opposite-sex couples in the characteristics relevant to
the ability to form successful marital unions." Find-
ing #48, Pet.App. 235a. This because, in its view,
"Marriage is [only] the state recognition and approv-
al of a couple's choice to live with each other, to re-
main committed to one another and to form a house-
hold based on their own feelings about one another
and to join in an economic partnership and support
one another and any dependents." Finding #34,
Pet.App. 220a-22la. (citing Plaintiffs expert, Nancy
Cott); see also id. at 155a ("The state's primary pur-
pose in regulating marriage is to create stable
households") .
Necessarily, given that conclusion, the court also
had to deny that procreation was part of the histori-
cal purpose of marriage. See Pet.App. 290a ("The
evidence did not show any historical purpose for ex-
cluding same-sex couples from marriage, as states
have never required spouses to have an ability or
willingness to procreate in order to marry") (empha-
11
sis added). And it had to make the further, prepos-
terous claim that "[g]ender no longer forms an essen-
tial part of marriage." Pet.App. 291a. Only then, af-
ter discarding the very thing that is critical to the
threshold Equal Protection inquiry, could the trial
court conclude that "[r]elative gender composition
aside, same-sex couples are situated identically to
opposite-sex couples in terms of their ability to per-
form the rights and obligations of marriage under
California law." Id.
The stakes of this case involve more than just fac-
tual error correction, however. If the Ninth Circuit's
decision is allowed to stand, the very definition and
purpose of marriage will necessarily be altered. Re-
defining marriage to encompass same-sex relation-
ships "will introduce an implicit revolt against the
institution into its very heart." Ellen Willis, "Can
Marriage Be Saved? A Forum, The Nation at 16-17
(June 24, 1996). Indeed, same-sex marriage is "the
most recent development in the deinstitutionaliza-
tion of marriage," the "weakening of the social norms
that define people's behavior in ... marriage." And-
rew J. Cherlin, The Deinstitutionalization of Ameri-
can Marriage, 66 J. Marriage & Fam. 848, 850 (2004)
(DIX49).
B. Fundamentally, The Issue Here is Who Makes
The Policy Judgment About the Purpose of
Marriage, The People, or the Courts?
When the California Supreme Court considered
the initial state constitutional challenge to Proposi-
tion 8, it recognized that "the principal issue before
[it] concerns the scope of the right of the people, un-
der the provisions of the California Constitution, to
change or alter the state Constitution itself through
12
the initiative process so as to incorporate such a limi-
tation as an explicit section of the state Constitu-
tion." Strauss, 46 Cal. 4th at 385, (2009). While that
case involved a unique question of California consti-
tutionallaw (the difference between a constitutional
amendment, which can be accomplished by voter in-
itiative, and a constitutional revision, which requires
a constitutional convention), because federal Equal
Protection analysis requires, as a threshold matter,
an inquiry into the purpose served by a classification
in order to ascertain whether different groups of
people are similarly situated, the same issue per-
tains. What is the scope of the right of the people
under the federal constitution to make basic policy
judgments about the purposes served and to be
served by society's fundamental institutions, when
that definition of purpose will determine whether the
groups on opposite sides of the resulting classifica-
tion are "similarly situated"?
Justice Baxter's observations in In re Marriage
Cases, the decision from the California Supreme
Court's opinion that created the state constitutional
right to same-sex marriage and that lead the people
of the state to adopt Proposition 8 and return the de-
finition of marriage to what it had always been, are
particularly apropos. Recognizing that such policy
judgments are quintessentially the stuff of the demo-
cratic political process, he criticized the court's ma-
jority for engaging in "legal jujitsu," "abruptly fores-
tall[ing] that process and substitute [ing], by judicial
fiat, its own social policy views for those expressed by
the People themselves." In re Marriage Cases, 43
Cal. 4th at 863-64 (Baxter, J., concurring and dis-
senting).
13
The trial court here did exactly the same thing
when presented with this federal constitutional chal-
lenge. By discounting to near zero all the preceden-
tial and historic evidence demonstating that procrea-
tion has always been a significant purpose of mar-
riage, it substituted its views about that threshold
policy judgment for those of the millions of Califor-
nians who, in voting for Proposition 8, necessarily
determined that the historic purpose still mattered.
And in affirming the judgment of the district court,
the Court of Appeals likewise substituted its policy
judgment about the threshold "purpose" inquiry for
that of the people of the State of California.
Whether, en route to the threshold Equal Protec-
tion inquiry whether different groups of people are
similarly situated with the respect to the purpose
served by the classification, the courts or the people
are responsible for determining the purpose that will
be pursued, is an issue that this Court has not
squarely confronted, and yet it is critically important
to the constitutional analysis.
Plaintiffs-Respondents contend that the ruling
below is limited to California, and therefore does not
warrant this Court's attention. Yet, "[f]or better or
worse," the Ninth Circuit is "the Court of Appeals for
the Hollywood Circuit. Millions of people toil in the
shadow of the law" it makes, not just in California
but in all of the states within the Ninth Circuit's ju-
risdiction. White v. Samsung Electronics America,
Inc., 989 F.2d 1512, 1521 (9th Cir. 1992) (Kozinski,
J., dissenting from denial of rehearing). Millions
more-indeed, the entire country-will be affected by
the decision, both because Hollywood's influence in
altering cultural norms has a way of affecting the
14
rest of the country, and because many of the people
who will be married in California under the new pol-
icy imposed by the Ninth Circuit will, at least over
time, fan out to every corner of the nation, forcing
other states to deal with the societal and family-law
implications of the new institutional definition and
purpose. The collateral issues are simply too numer-
ous, and the impact of the Ninth Circuit's decision in
pre-determining them for others too great, for this
Court to await another case.
II. The Ninth Circuit Has Intervened in a
Heated Political and Policy Dispute, An
Arena Where Judicial Authority Is At Its
Lowest Ebb.
This Court is acutely aware of the dangers that
flow from judicial interference in policy disputes,
particularly hotly contested ones. One such attempt,
a century and a half ago, led directly to the Civil
War, the bloodiest war in our nation's history.
Another has so polarized our nation's politics for al-
most a half-century now that respected commenta-
tors legal scholars from both ends of the ideological
spectrum have noted the democracy-destructive con-
sequences. The author of Roe v. Wade, 410 U.S. 113
(1973), "did more inadvertent damage to our democ-
racy than any other 20th-century American," wrote
David Brooks in the New York Times, for example.
"When he and his Supreme Court colleagues issued
the Roe v. Wade decision, they set off a cycle of politi-
cal viciousness and counter-viciousness that has poi-
soned public life ever since." David Brooks, Roe's
Birth, and Death, N.Y. Times, at A23 (Apr. 21, 2005);
see also Robert P. George, Gay Marriage, Democracy,
and the Courts, Wall St. J., at All (Aug. 3, 2009)
15
("By short-circuiting the democratic process, Roe in-
flamed the culture war that has divided our nation
and polarized our politics").
On the other end of the political spectrum, Pro-
fessor Cass Sunstein has noted that "the decision
may well have created the Moral Majority, helped
defeat the equal rights amendment, and undermined
the women's movement by spurring opposition and
demobilizing potential adherents." Cass Sunstein,
Three Civil Rights Fallacies, 79 Calif. L. Rev. 751,
766 (1991). And Professor William Eskridge has
written about the political "distrust" that has arisen
since the decision because it "essentially declared a
winner in one of the most difficult and divisive public
law debates of American history" and allowed no re-
course to the political process. William N. Eskridge,
Jr., Pluralism and Distrust: How Courts Can Sup-
port Democracy by Lowering the Stakes of Politics,
114 Yale L.J. 1279, 1312 (2005).
The poisoned well that results from inappropriate
judicial intervention was even recognized, but then
ignored, by the district court judge who presided over
the trial in this very case:
[I]n other areas where the Supreme Court has
ultimately constitutionalized something that
touches upon highly-sensitive social issues,
and taken that issue out of the political realm,
. . . all that has happened is that the forces,
the political forces that otherwise have been
frustrated, have been generated and built up
this pressure, and have, as in a subject matter
that I'm sure you're familiar with, plagued our
16
politics for 30 years, isn't the same danger
here with this issue?"
Transcript of Record at 3095, Perry v. Schwarzeneg-
ger, No. C 09-2292-VRW (N.D. Cal. June 16, 2010).
The Ninth Circuit's decision below threatens to
drag this Court, and the country, into another such
quagmire. If the Constitution's commands clearly so
require, then it would be the "painful duty" of this
Court to say so. M'Culloch v. Maryland, 17 U.S. (4
Wheat.) 316, 423 (1819). But absent that clear com-
mand-and even the court below studiously avoided
holding that the Constitution actually mandates
same-sex marriage-self-inflicted wound is the more
apt description.
There are powerful democratic forces at play on
both sides of this policy dispute. As a result, there is
little prospect that those forces can be cabined by a
decision from the Ninth Circuit, or any Court, invali-
dating on anything less than clear constitutional
command the results of that political process. Ra-
ther, the opposite result, one which not only prolongs
and heightens the dispute, but threatens as well to
undermine the credibility of the judiciary, is much
more likely. This is simply not going to be a case
where judicial negation of democratically chosen pol-
icy is going to yield full and quiet acceptance of the
judicially-imposed rule.
In short, unless there is a "persuasive basis in our
Constitution or our jurisprudence to justify such a
cataclysmic transformation of th[e] venerable insti-
tution" of marriage, In re Marriage Cases, 43 Cal. 4th
at 865, 183 P.3d at 459 (Baxter, J., concurring and
17
dissenting), the courts should not countermand the
policy judgments of the people. The Ninth Circuit
having done so, only review and reversal by this
Court can restore the playing field on which the con-
tentious political policy dispute at issue here must be
allowed to work itself out.
III. Alternatively, Given the Serious Collusion
and Appearance of Bias Concerns That
Taint The Decisions Below, Granting the Pe-
tition, Vacating the Judgment, and Remand-
ing for New Consideration Would Be An Ap-
propriate Exercise of this Court's Supervi-
sory Function.
The lower courts' foray into this hotly contentious
policy dispute is ground enough for this Court to
grant review, if history's lesson about the likely con-
sequences is to be heeded and those consequences
avoided. But the collusion and disqualification is-
sues in this case make review even more urgent, be-
cause the appearance of impropriety has made public
acceptance of the ruling even more unlikely.
Plaintiffs-Respondents treat these problems as
grounds to deny certiorari rather than grant it. They
correctly observe that such vehicle problems normal-
ly counsel this Court to pass over the case, waiting
for another case on another day. But landmark cases
such as this are, or should be, another matter, par-
ticularly when many of the procedural irregularities
are of the lower courts' own making.
One of the most basic commands of due process in
the courts of law is that cases are to be adjudicated
by judges who do not have a personal interest in the
outcome of the case. In re Murchison, 349 U.S. 133,
1
18
136 (1955); see also 28 U.S.C. 455(b)(4) (requiring a
judge to recuse himself whenever he has an "interest
that could be substantially affected by the outcome");
28 U.S.C. 455(a)(4) (requiring recusal in any other
circumstances in which "impartiality might reasona-
bly be questioned"). Another is that collusive suits
are anathema to our adversarial system. Flast v.
Cohen, 392 U.S. 83, 100 (1968) (citing, e.g., United
States v. Johnson, 319 U.S. 302 (1943); Lord v. Vea-
zie, 49 U.S. (8 How.) 251 (1850.
Both of these precepts of Due Process have been
given short shrift in this case, and that has severely
undermined the legitimacy of the decisions below.
From the outset of the case, for example, the gov-
ernment defendants-including the Attorney Gene-
real, who has the statutory duty to "defend all causes
to which the State ... is a party," Cal. Gov't Code
12512-steadfastly refused to defend the initiative in
Court. The misalignment of the parties was so evi-
dent that at one point, the district court directed the
Attorney General--one of the defendants-to "work
together in presenting facts pertaining to the af-
fected governmental interests" with the City and
County of San Francisco, which had been allowed to
intervene in the case as a party plaintiff. 8/9/09
Hearing Tr. at 56 (Dkt.#162); 8/9/09 Minute Order at
2 (Dkt.#160). Even more troubling, circumstantial
evidence from the district court proceedings below
strongly suggests that the Attorney General was ac-
tively colluding with Plaintiffs to undermine the de-
fense of the Initiative, providing responses to inter-
rogatories that, because of the early timetable and
the substance, appear to have been designed to bol-
ster arguments being made in a brief being prepared
19
by the plaintiffs. See Motion to Realign at 4-5 (Dkt.
#216).
As troubling as all that was during the proceed-
ings in the district court, the collusive nature of the
suit was brought even more to the forefront once the
case moved to the appellate phase. Even before
reaching the appellate court, for example, Interve-
nor-Defendants moved for a routine stay pending
appeal. The government defendants joined plaintiffs
in opposing that motion, and the district court denied
the motion, holding that there was little likelihood of
success on the merits of the appeal, in part because it
was questionable whether the Intervenor-Defendants
even had standing to pursue the appeal absent an
appeal by the named governmental defendants, who
were all actively siding with Plaintiffs. (Dkt.#727).7
The adversarial process thus took a beating in the
courts below. But the concerns about the appearance
of judicial bias are even worse.
7 The issue about Petitioner's standing to pursue the appeal un-
ilaterally was ultimately resolved when, after the Ninth Circuit
certified the question, the California Supreme Court held that
official initiative proponents are authorized under California
law to appear and assert the state's interest in the initiative's
validity and to appeal a judgment invalidating the measure ...
. " Perry v. Brown, 52 Ca1.4th 1116, 1127, 265 P.3d 1002, 1007
(2011). Because the "grave doubts" expressed by this Court in
Arizonans for Official English v. Arizona, 520 U.S. 43, 65-66
(1997), about an initiative sponsor's standing were raised be-
cause the Court was "aware of no Arizona law appointing initia-
tive sponsors as agents of the people of Arizona to defend, in
lieu of public officials, the constitutionality of initiatives made
law of the State," the California Supreme Court's definitive res-
olution of that question under California law is dispositive.
20
Most notably, the district judge's after-the-fact
revelation that he was in a long-term same-sex rela-
tionship indicated that he was situated identically
with the plaintiffs in the case, able to benefit perso-
nally from his own ruling in the case if he chooses.
Intervenor-Defendants filed a motion to vacate
shortly after this revelation, noting that this long-
term, committed relationship (but notably not Judge
Walker's sexuality itself) created at the very least a
waivable conflict on the grounds that the judge's
"impartiality might reasonable be questioned." Mo-
tion to Vacate Judgment (Dkt. #768). Such a conflict
can only be waived by the parties, though, if it was
"preceded by a full disclosure on the record of the ba-
sis for disqualification." 28 U.S.C. 455(e). No such
disclosure was ever made, on the record or otherwise,
until well after the proceedings in the district court
had concluded. Moreover, if Judge Walker and his
male partner actually desired to marry, there would
be a non-waivable conflict under Section 455(e) be-
cause that would be an "interest that could be sub-
stantially affected by the outcome of the proceeding."
In a ruling subsequently affirmed by the Ninth
Circuit panel as not an abuse of discretion, the dis-
trict court denied the motion, holding that recusal is
not warranted when a judge shares a characteristic
with members of the general public and will only be
affected in a similar manner because the judge is al-
so a member of the general public. But given that
any reasonable observer knowledgeable of all the
facts would view the district judge who presided over
the case as a likely direct beneficiary of his own rul-
ing, that holding highly suspect. And in a high-
profile case such as this, even a hint of the appear-
21
ance of bias should compel recusal, lest "the public's
confidence in the judicial process" be undermined.
Liljeberg, v. Health Servs. Acquisition Corp., 486
U.S. 847, 864 (1988).
Moreover, that was not the only recusal issue to
have infected the proceedings below. The wife of one
of the judges on the panel, Judge Stephen Reinhardt,
was at the time the executive director of the ACLU
Foundation of Southern California. Perry v. Schwar-
zenegger, 630 F.3d 909, 911 (9th Cir., 2011) (Rein-
hardt, J., Order Regarding Disqualification). As
Judge Reinhardt himself acknowledged, his wife and
her organization's legal director were consulted by
Plaintiffs' lawyers prior to the filing of the lawsuit.
Id. at 913. Moreover, the organization itself served
as counsel for several groups that unsuccessfully
sought to intervene as a party in this case, and then
filed two briefs as amici curiae. Id. at 913-14; see al-
so Dkt. Nos. 61, 552.
Canon 3.C of the Code of Conduct for United
States Judges provides that the circumstances re-
quiring recusal "includ[e] but [are] not limited to in-
stances in which ... the judge's spouse ... is (i) a par-
ty to the proceeding, or an officer, director, or trustee
of a party; or (ii) acting as a lawyer in the proceed-
ing." In the proceedings before the district court that
rendered the judgment pending before Judge Rein-
hardt on appeal, Judge Reinhardt's wife was an of-
ficer of an entity that acted as a lawyer on behalf of
several amici curiae-a variation on the examples
given in the Code of Conduct too trivial to warrant
22
different treatment. Judge Reinhardt should there-
fore have recused himself from the appeal.
8
Again, in a high-profile case such as this, the pub-
lic's confidence in the judicial process is critical.
Judge Reinhardt's failure to recuse himself from a
case in which his wife's organization participated as
counsel in the court below has severely undermined
that confidence.
We recognize that the recusal issues are not
among the questions presented in the petition, and
we are cognizant of Rule 14.1(a)'s admonition that
only questions "fairly included" in the questions pre-
sented "will be considered by the Court." Sup. Ct.
Rule 14.1(a). The recusal issues are nevertheless
important to the necessity of this Court's review, if
for no other reason than to clear the taint of bias
from the judgment as it now stands. Moreover, "Rule
14.1(a) . . . is prudential; it does not limit [the
Court's] power to decide important questions not
raised by the parties," albeit that exception from the
norm should be only exercised "in the most excep-
tional cases." Izumi Seimitsu Kogyo Kabushiki Kai-
8 The Memorandum Regarding Motion to Disqualify that was
fIled by Judge Reinhardt is mostly devoted to rebutting a claim
that Intervenor-Defendants never made, namely, that recusal
was required because the Judge's wife had expressed her per-
sonal views about the case. Perry, 913 F.3d at 911-913. Toward
the end of the Memorandum, Judge Reinhardt also relied on a
Statement of Recusal Policy prepared in 1993 by seven Justices
of this Court, id. at 914 and n.6, but that memo (and subse-
quent reliance on it) was based on the fact that a disqualifica-
tion by a Supreme Court Justice impairs the functioning of the
Court in ways that do not apply to the lower courts. See Cheney
u. U.S. Dist. Court for Dist. of Columbia, 541 U.S. 913, 914
(2004) (Scalia, J., Memorandum).
23
sha v. US Philips Corp., 510 U.S. 27, 32 (1993) (in-
ternal citations omitted). Given the contentiousness
of this case, its high profile, and the very real con-
cern about the public's confidence in the judiciary be-
ing undermined, this may be one of those "exception-
al cases." Indeed, consideration of the recusal issue
(after inviting further briefing by the parties) may
allow this Court to decide the case on non-
constitutional grounds, furthering its general doc-
trine of constitutional avoidance. Id. at 33 (citing
Boynton v. Virginia, 364 U.S. 454, 457 (1960); Neese
v. Southern R. Co., 350 U.S. 77, 78 (1955.
24
CONCLUSION
The petition for writ of certiorari should be
granted for consideration on the merits of the impor-
tant constitutional questions it presents or, in the
alternative, granted, vacated and remanded for new
proceedings at both the district court and court of
appeals untainted by the collusion of state govern-
mental defendants and the significant appearances
of bias by the district judge and one member of the
appellate panel that warranted recusal.
EDWIN MEESE III
214 Mass. Ave. NE
Washington, DC 20002
Respectfully submitted,
JOHN C. EASTMAN
Counsel of Record
ANTHONY T. CASO
Center for Constitutional
Jurisprudence
c/o Chapman Univ. Sch. of Law
One University Drive
Orange, California 92886
[email protected]
(714) 628-2587
Counsel for Amicus Curiae
Center for Constitutional Jurisprudence