Case: 10-16696 09/24/2010 Page: 1 of 19 ID: 7486510 DktEntry: 50

No. 10-16696
IN THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT

KRISTIN PERRY, ET AL.,

Plaintiffs-Appellees,
CITY AND COUNTY OF SAN FRANCISCO,
Plaintiff-Intervener-Appellee,
v.
ARNOLD SCHWARZENEGGER, ET AL.,
Defendants,
DENNIS HOLLINGSWORTH, ET AL.,
Defendant-Intervenors-Appellants.
___________________________________________________
On Appeal from the United States District
Court for the Northern District of California

AMICUS BRIEF OF THE AMERICAN CENTER

FOR LAW AND JUSTICE IN SUPPORT OF
APPELLANTS AND URGING REVERSAL

JAY ALAN SEKULOW

STUART J. ROTH
WALTER M. WEBER
Lead Counsel
AMERICAN CENTER FOR
LAW & JUSTICE
201 Maryland Ave., N.E.
Washington, DC 20002
(202) 546-8890

Attorneys for Amicus

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1, Fed. R. App. P., amicus the American Center

for Law and Justice states that it has no parent corporation, and no

publicly held corporation holds 10% or more of its stock.

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ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. LIMITING MARRIAGE TO THE UNION OF A MAN

AND A WOMAN IS RATIONAL. . . . . . . . . . . . . . . . . . . . . . . . 1

II. MORALITY IS A LEGITIMATE BASIS FOR

LEGISLATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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iii

TABLE OF AUTHORITIES

CASES Page

Barnes v. Glen Theater, 501 U.S. 560 (1991) . . . . . . . . . . . . . . . . . . . . . 9

Holden v. Hardy, 169 U.S 366 (1898) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . . . . . . . . . 6, 10, 11

Loving v. Virginia, 388 U.S. 1 (1967) ..........................5

Maynard v. Hill, 125 U.S. 190 (1888) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) . . . . . . . . . 9

Perry v. Schwarzenegger, No. C 09-2292

(N.D. Cal. Aug. 4, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4, 5, 6

Poe v. Ullman, 367 U.S. 497 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

St. Louis Poster Advertising Co. v. City of St. Louis,

249 U.S. 269 (1919) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Extreme Associates,

352 F. Supp. 2d 578 (W.D. Pa. 2005),
rev’d, 431 F.3d 150 (3d Cir. 2005),
cert. denied, 547 U.S. 1143 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 11

Vacco v. Quill, 521 U.S. 793 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Washington v. Glucksberg, 521 U.S. 702 (1997) . . . . . . . . . . . . . . . . . . 2

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) . . . . . . . . . . . . . 10

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iv

OTHER AUTHORITIES

Alexis de Tocqueville, Democracy in America

(George Adlard ed., Henry Reeves trans.,
Scatcherd and Adams, 2d ed. 1838) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Daniel Webster, The Dignity and Importance of

History (Feb. 23, 1852), in
13 The Writings and Speeches of Daniel Webster
492-93 (JW McIntire ed., 1903) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

George & Bradley, Marriage and the Liberal Imagination,

84 Geo. L.J. 301 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

George Washington, The Farewell Address of

George Washington (Sept. 17, 1796), in Gateway
Series of English Texts 36 (Frank W. Pine ed., 1911) . . . . . . . . . . . 8

Letter from Charles Carroll to James McHenry of

November 4, 1800, in Bernard C. Steiner,
The Life and Correspondence of James McHenry 475 (1907) . . . . . . 6

Richard Henry Lee, Letter to Colonel Mortin Pickett

on March 5, 1786, in 2 The Letters of Richard
Henry Lee 411 (James Curtis Ballagh, ed., 1914) . . . . . . . . . . . . . . 7

The Works of John Adams, Second President of the United States:

with a Life of the Author, Notes and Illustrations,
1799-1811 (Charles Francis Adams ed., Little,
Brown & Co. 1854) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
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INTEREST OF AMICUS

The American Center for Law and Justice (ACLJ) is an organization

dedicated to the defense of constitutional liberties secured by law. The

ACLJ believes that marriage inherently consists of the conjugal union of

one man and one woman and that attempts to redefine that institution

strike at the heart of this fundamental unit of society.

This brief is being filed with the consent of the parties.

ARGUMENT

I. LIMITING MARRIAGE TO THE UNION OF A MAN

AND A WOMAN IS RATIONAL.

It is rational for a state to recognize that different things are

different. The district court therefore erred when it held that Proposition

8, limiting marriage to the union of a man and a woman, “fails to advance

any rational basis,” Perry v. Schwarzenegger, No. C 09-2292, slip op. at

135 (N.D. Cal. Aug. 4, 2010) (ER 170).

There is a basic difference between a heterosexual marriage and any

other kind of sexual union. Only a man and a woman have the inherent,

categorical capacity (even if disabled in particular cases) to engage in

genital intercourse of the type that can procreate. A union of man and

man, or of woman and woman, by contrast, lacking sexual

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complementarity, is inherently, categorically incapable of consummating

a marriage1 and generating children.

It is not irrational for a state to notice this categorical difference.

Nor is it irrational for a state to act upon it by formally recognizing man-

woman unions, but not others, as the kind of union which can constitute

a marriage. In constitutional terms, treating dissimilar things differently

is not a denial of equal protection. “The Constitution does not require

things which are different in fact or opinion to be treated in law as though

they were the same.” Vacco v. Quill, 521 U.S. 793, 799 (1997) (internal

quotation marks and citations omitted). Likewise, declining to jettison the

concept of marriage, in order to assign the label “marriage” to something

inherently, categorically different, is not a denial of due process. See

Washington v. Glucksberg, 521 U.S. 702, 711 (1997) (rejecting due process

challenge to ban on assisted suicide where ban reflected “enduring themes

of our philosophical, legal, and cultural heritages”).

1
George & Bradley, Marriage and the Liberal Imagination, 84 Geo.
L.J. 301, 308 (1995) (“This requirement [consummation] for the validity
of a marriage, where in force, has never been treated as satisfied by an act
of sodomy, no matter how pleasurable. Nothing less (or more) than an act
of genital union consummates a marriage”) (footnotes omitted).
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The district court sought to downplay the inherent, categorical

difference between male-female unions and other unions by stating that

only “some” opposite-sex couples “are capable through sexual intercourse

of producing . . . offspring,” slip op. at 122 (ER 157). This is like saying

only “some” people have two arms or only “some” birds can fly. The

existence of exceptions does not negate the categorical validity of the rule.

The Constitution does not compel states to legislate for the

exceptions to a rule so much as for the rule itself. Otherwise, the age-of-

consent laws for marriage in various states would be unconstitutional, as

surely there are those under the pertinent ages who possess sufficient

maturity, and those over the pertinent ages who lack maturity.

In the case of Proposition 8, the line drawn is far less arbitrary than

in the case of an age-of-consent law, as the entire category of same-sex

couples is inherently incapable of a bodily sexual union that is procreative.

Thus, the district court’s focus, slip op. at 60, 111 (ER 95, 146), upon

the failure of states to screen would-be married couples, on a case-by-case

basis, for procreative capacity, is irrelevant. Leaving aside the practical

impossibility and tyrannically invasive nature of such fertility inquiries

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(themselves sufficient reasons for not conducting them), the state is

entitled to rely upon the categorical physiological norm, just as it does

with age-of-consent laws.

The district court saw no reason “why the government may need to

take account of fertility when legislating.” Slip op. at 122 (ER 157). This

assertion is facially absurd, equivalent to saying that procreation and

demographics are of no concern to the state.

Marriage, then, is not “an artifact of a foregone notion that men and

women fulfill different roles in civic life,” slip op. at 124 (ER 159), but

rather a sober reflection of the biological reality that male and female

humans, while equal in dignity, are in fact different in physical ways that

have procreative significance.2

Indeed, what plaintiffs-appellees seek is not so much marriage, as

2
The district court’s assertion that marriage as an opposite-sex
arrangement “arose” out of legally enforced gender roles, slip op. at 124
(ER 159), implies a preexisting world of genderless marriage. The court
below identified no evidence of such a world.
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the fundamental redefinition of that institution.3 The district court, for

example, redefined marriage as follows:

Marriage is the state recognition and approval of a couple’s choice

to live with each other, to remain committed to one another and
to form a household based on their own feelings about one
another and to join in an economic partnership and support one
another and any dependents.

Slip op. at 67 (ER 102) (transcript citations omitted). The court’s novel

and wildly overbroad redefinition would include friends or relatives who

choose to live together, are committed to each other, and forms a

household based upon mutual affection. But more to the point, this is a

redefinition, not a restatement, of marriage. Leaving “[r]elative gender

composition aside,” slip op. at 113 (ER 148), to equate same-sex and

opposite-sex couples, is like leaving origin and authorship aside when

comparing genuine money or artwork with counterfeits. The district court

simply read out of the equation, as if it were meaningless, precisely the

crucial factor of gender complementarity.

3
This case is thus entirely unlike Loving v. Virginia, 388 U.S. 1
(1967). Ethnic or racial labels do not affect sexual complementary or
prevent either consummation of a marriage or procreation. The ban on
miscegenation in Loving had nothing to do with marriage and everything
to do with notions of racial “purity.”
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The decision below must be reversed.

II. MORALITY IS A LEGITIMATE BASIS FOR

LEGISLATION.

The Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558

(2003), did not abolish the legitimacy of morality as a state interest.

Indeed, to have done so would have been both revolutionary and

destructive, as morality has long been recognized as a basis for law, and

countless laws today rest upon morality. The district court therefore erred

in dismissing moral considerations out of hand. Slip op. at 8, 132 (ER 43,

167).

The Founders and their contemporaries remarked upon the validity,

indeed the essentiality, of morality to the American Experiment:

• “[T]he solid foundation of morals [is] the best security for the

duration of free governments.” Letter from Charles Carroll to James

McHenry of November 4, 1800, in Bernard C. Steiner, The Life and

Correspondence of James McHenry 475 (1907)

• “[I]t is religion and morality alone which can establish the principles

upon which freedom can securely stand. The only foundation of a

free constitution is pure virtue.” Letter from John Adams to Zabdiel

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Adams (June 21, 1776), in 9 The Works of John Adams, Second

President of the United States: with a Life of the Author, Notes and

Illustrations, 1799-1811 401 (Charles Francis Adams ed., Boston,

Little, Brown & Co. 1854)

• “[W]e have no government armed with power capable of contending

with human passions unbridled by morality and religion. . . . Our

constitution was made only for a moral and religious people. It is

wholly inadequate to the government of any other.” John Adams,

To the Officers of the First Brigade of the Third Division of the

Militia of Massachusetts October 11, 1798, in 9 The Works of John

Adams, Second President of the United States, supra, at 229

• “It is certainly true that a popular government cannot flourish

without virtue in the people.” Richard Henry Lee, Letter to Colonel

Mortin Pickett on March 5, 1786, in 2 The Letters of Richard Henry

Lee 411 (James Curtis Ballagh, ed., 1914)

• “Of all the dispositions and habits which lead to political prosperity,

religion and morality are indispensable supports. In vain would

that man claim the tribute of patriotism, who should labour to

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subvert these great pillars of human happiness, these firmest props

of the duties of men and citizens. The mere politician, equally with

the pious man, ought to respect and to cherish them. A volume

could not trace all their connexions with private and public felicity.

. . . It is substantially true, that virtue or morality is a necessary

spring of popular government. The rule, indeed, extends with more

or less force to every species of free government. Who, that is a

sincere friend to it, can look with indifference upon attempts to

shake the foundation of the fabric?” George Washington, The

Farewell Address of George Washington (Sept. 17, 1796), in Gateway

Series of English Texts 36 (Frank W. Pine ed., 1911).

• “[I]f we and our posterity reject religious instruction and authority,

violate the rules of eternal justice, trifle with the injunctions of

morality, and recklessly destroy the political constitution which

holds us together, no man can tell how sudden a catastrophe may

overwhelm us that shall bury all our glory in profound obscurity.”

Daniel Webster, The Dignity and Importance of History (Feb. 23,

1852), in 13 The Writings and Speeches of Daniel Webster 492-93

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(JW McIntire ed., 1903)

• “[M]orality is the best security of law and the surest pledge of

freedom.” Alexis de Tocqueville, Democracy in America 35 (George

Adlard ed., Henry Reeves trans., Scatcherd and Adams, 2d ed. 1838).

The Supreme Court and its members have long recognized as black-

letter law the securing of health, safety, and morals as the traditional

scope of sovereign police powers. “The traditional police power of the

States is defined as the authority to provide for the public health, safety,

and morals, and we have upheld such a basis for legislation.” Barnes v.

Glen Theatre, 501 U.S. 560, 569 (1991) (plurality opinion of Rehnquist,

C.J., joined by O’Connor & Kennedy, JJ.). See also id. at 575 (Scalia, J.,

concurring) (providing as examples of morals legislation bans on

“sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution,

and [pre-Lawrence] sodomy” and noting that “absent specific

constitutional protection for the conduct involved, the Constitution does

not prohibit [such laws] simply because they regulate ‘morality’”);

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 530 (1981) (Brennan,

J., joined by Blackmun, J., concurring in judgment) (noting “more

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traditional health, safety, morals, or welfare justification” for laws, as

opposed to mere “aesthetics”); Poe v. Ullman, 367 U.S. 497, 539 (1961)

(Harlan, J., dissenting) (“provision for the health, safety, morals or

welfare of its people” is “inherent” power of sovereignty); West Coast Hotel

Co. v. Parrish, 300 U.S. 379, 391 (1937) (“social organization . . . requires

the protection of law against the evils which menace the health, safety,

morals and welfare of the people”); St. Louis Poster Advertising Co. v. City

of St. Louis, 249 U.S. 269, 274 (1919) (per Holmes, J.) (upholding

restriction “in the interest of the safety, morality, health and decency of

the community”) (internal quotation marks and citation omitted); Holden

v. Hardy, 169 U.S 366, 392 (1898) (“the police power . . . may be lawfully

resorted to for the purpose of preserving the public health, safety or

morals”).

The Lawrence Court by no means purported to overrule this

longstanding legal axiom. Lawrence, of course, expressly distinguished

the question currently before this court, saying that the Lawrence case

“does not involve whether the government must give formal recognition

to any relationship that homosexual persons seek to enter,” 539 U.S. at

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578. On the question of morality, the Lawrence Court held that the

traditional moral “condemn[ation of] homosexual conduct” did not justify

“enforce[ment of] these views on the whole society through operation of

the criminal law.” Id. at 571. This is a context-specific holding that

pursuit of morality does not warrant criminal prohibition of same-sex

sodomy. That holding does not translate into a wholesale repudiation of

morals as a basis for legal enactments.

Indeed, if morality were no longer a legitimate basis for legislation,

a plethora of laws would fall. See, e.g., United States v. Extreme

Associates, 352 F. Supp. 2d 578, 593 (W.D. Pa. 2005) (holding that “[a]fter

Lawrence, . . . upholding the public sense of morality is not even a

legitimate state interest” as to “sexual conduct in private” and

invalidating federal obscenity statutes), rev’d, 431 F.3d 150 (3d Cir. 2005),

cert. denied, 547 U.S. 1143 (2006). Minimum wage laws, intellectual

property laws, legal and medical ethics codes, anti-discrimination laws,

defamation laws, evidentiary privileges, animal cruelty laws -- the list of

morals-based enactments goes on and on.

In fact, the Supreme Court has already specifically placed marriage

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laws within the ambit of state legislative power by reason of, inter alia,

the connection between marriage and morality:

Marriage, as creating the most important relation in life, as having

more to do with the morals and civilization of a people then any
other institution, has always been subject to the control of the
legislature.

Maynard v. Hill, 125 U.S. 190, 205 (1888).

To the extent that Proposition 8 is one more example in the very

large collection of laws reflecting moral judgments, it is not on that

account constitutionally defective.

The decision below must be reversed.

CONCLUSION

This Court should reverse the judgment of the district court.

Respectfully submitted,

JAY ALAN SEKULOW

STUART J. ROTH
WALTER M. WEBER
Lead Counsel
AMERICAN CENTER FOR
LAW & JUSTICE
201 Maryland Ave., N.E.
Washington, DC 20002
(202) 546-8890

September 24, 2010

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Form 6. Certificate of Compliance With Type-Volume Limitation,
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_____________________________________________________________________

Signature /s/ Walter M. Weber

Attorney for Amicus American Center for Law and Justice

Date September 24, 2010

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9 th Circuit Case Number 10-16696

CERTIFICATE OF SERVICE
When All Case Participants are Registered for the
Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the

Clerk of the Court for the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system on
September 24, 2010.
I certify that all participants in the case are registered
CM/ECF users and that service will be accomplished by the
appellate CM/ECF system.

Signature /s/ Walter M. Weber