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No. 10-16696

IN THE
United States Court of Appeals for the Ninth Circuit

KRISTEN M. PERRY, ET AL.,

Plaintiffs-Appellees,
v.
ARNOLD SCHWARZENEGGER, ET AL.,
Defendants,
and
PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, ET AL.,
Defendants-Intervenors-Appellants.

Appeal from the United States District Court for the Northern District of California
Hon. Vaughn R. Walker, District Judge, Case No. 09-CV-2292 VRW

BRIEF OF AMICUS CURIAE

CONSTITUTIONAL ACCOUNTABILITY CENTER
IN SUPPORT OF PLAINTIFFS-APPELLEES

Elizabeth B. Wydra
David H. Gans
Douglas T. Kendall
Judith E. Schaeffer
CONSTITUTIONAL ACCOUNTABILITY CENTER
1200 18th Street, N.W., Suite 1002
Washington, D.C. 20036
(202) 296-6889
Counsel for Amicus Curiae
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STATEMENT REGARDING CONSENT TO FILE

The parties have filed with the Court blanket letters of consent to

the filing of amicus curiae briefs. Accordingly, Constitutional Accoun-

tability Center has consent to file this brief.

i
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CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,

amicus states that it is not a publicly-held corporation, does not issue

stock and does not have a parent corporation. Amicus Constitutional

Accountability Center is a non-profit 501(c)(3) organization.

ii
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TABLE OF CONTENTS
Statement Regarding Consent to File ....................................................... i
Corporate Disclosure Statement ............................................................... ii
Table of Contents .....................................................................................iii
Table of Authorities .................................................................................. iv
Interest of the Amicus Curiae ................................................................... 1
Summary of Argument .............................................................................. 1
Argument ................................................................................................... 2

PROPOSITION 8 VIOLATES THE FOURTEENTH

AMENDMENT’S EQUAL PROTECTION CLAUSE………...……….2
A. The Text Of The Equal Protection Clause Unambiguously
Protects All Persons From Arbitrary And Invidious Dis-
crimination……………………………………………………..7
B. The Original Meaning Of The Equal Protection Clause
Confirms That Its Guarantee Of Equality Under The
Law And Equality Of Rights Applies Broadly To All
Persons…………………………………………………………12
C. The Equal Protection Clause Guarantees To All Persons
An Equal Right To Marry The Person Of One’s
Choice…………………………………………………………..18
D. Proposition 8’s Infringement Of The Right To Marry
Violates The Guarantee Of The Equal Protection Clause
That All Persons Shall Have Equality of Rights and
Equality Under the Law……………………………………..25

Conclusion ............................................................................................... 32
Certificate of Compliance ........................................................................ 33
Certificate of Service ............................................................................... 34

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TABLE OF AUTHORITIES

Page
Cases

Barbier v. Connolly,
113 U.S. 27 (1885) ............................................................................... 17

Bd. of County Comm’rs, Waubunsee County, Kan. v. Umbehr,

518 U.S. 668 (1996) ........................................................................ 28-29

Boddie v. Connecticut,
401 U.S. 371 (1971) ......................................................................... 5, 24

Bowers v. Hardwick,
478 U.S. 186 (1986) ............................................................................. 28

Civil Rights Cases,

109 U.S. 3 (1883) ............................................................................. 7, 17

Dred Scott v. Sandford,

60 U.S. (19 How.) 393 (1857) ................................................................ 8

Goodridge v. Dep’t of Public Health,

440 Mass. 309 (Mass. 2003) ................................................................ 32

Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) .................................................................... 31

Ho Ah Kow v. Nunan,
12 F. Cas. 252 (C.C.D. Cal. 1879) ....................................................... 17

Illinois State Employees Council 34 v. Lewis,

473 F.2d 561 (7th Cir. 1972) ................................................................ 30

Kerrigan v. Comm’r of Public Health,

957 A.2d 407 (Conn. 2008) .................................................................. 31

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TABLE OF AUTHORITIES (continued)

Page

Lawrence v. Texas,
539 U.S. 558 (2003) ........................................................................ 27-28

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

M.L.B. v. S.L.J.,
519 U.S. 102 (1996) ......................................................................... 5, 25

Maynard v. Hill,
125 U.S. 190 (1888) ............................................................................. 26

McDonald v. City of Chicago,

130 S. Ct. 3020 (2010) .......................................................... 8, 11-12, 14

Planned Parenthood v. Casey,

505 U.S. 833 (1992) ....................................................................... 28, 30

Plessy v. Ferguson,
163 U.S. 537 (1896) ........................................................................ 17-18

Plyler v. Doe,
457 U.S. 202 (1982) ............................................................................. 14

Romer v. Evans,
517 U.S. 620 (1996) ..................................................................... passim

Rutan v. Republican Party of Illinois,

497 U.S. 62 (1990) .......................................................................... 27-28

Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535 (1942) ................................................................. 4-5, 23-26

Strauder v. West Virginia,

100 U.S. 303 (1880) ....................................................................... 17, 29

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TABLE OF AUTHORITIES (continued)

Page

Turner v. Safley,
482 U.S. 78 (1987) ........................................................................... 5, 25

United States v. Virginia,

518 U.S. 515 (1996) ............................................................................... 4

Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009)............................................................... 31

Yick Wo. v. Hopkins,

118 U.S. 356 (1886) ............................................................................... 7

Zablocki v. Redhail,
434 U.S. 374 (1978) .................................................................... 5, 24-26

Constitutional Provisions, Statutes, and Legislative Materials

U.S. CONST. amend. XIV .................................................................. passim

Cong. Globe:

39th Cong., 1st Sess. (1866):

42. ................................................................................................... 20

318 .................................................................................................. 20

343 .................................................................................................. 20

504 .................................................................................................. 20

1090 ................................................................................................ 10

1093 ................................................................................................ 11

1263 ................................................................................................ 11

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TABLE OF AUTHORITIES (continued)

Page
39th Cong., 1st Sess. (1866) (continued):

2279 ................................................................................................ 20

2459 ................................................................................................ 15

2462 ................................................................................................ 15

2502 ................................................................................................ 15

2539 .................................................................................................. 9

2766 ................................................................................................ 14

2961 ............................................................................................ 8, 14

app. 219 .......................................................................................... 14

41st Cong., 2nd Sess. (1870):

3658 ................................................................................................ 10

3871 ................................................................................................ 10

42nd Cong., 2nd Sess. (1872):

847 .................................................................................................. 16

Enforcement Act of 1870, 16 Stat. 140 ................................................... 10

REPORT OF THE JOINT COMMITTEE ON RECONSTRUCTION (1866) .............. 12

Books, Articles, and Other Materials

BENJAMIN B. KENDRICK, THE JOURNAL OF THE JOINT COMMITTEE OF

FIFTEEN ON RECONSTRUCTION (1914) .................................................. 12

AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION

(1998)................................................................................................... 12

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TABLE OF AUTHORITIES (continued)

Page

Charles Fairman, Does the Fourteenth Amendment Incorporate

the Bill of Rights?, 2 STAN. L. REV. 5 (1949) ....................................... 16

HERBERT G. GUTMAN, THE BLACK FAMILY IN SLAVERY AND FREEDOM,

1750-1925 (1976) ................................................................................. 19

PEGGY COOPER DAVIS, NEGLECTED STORIES: THE CONSTITUTION &

FAMILY VALUES (1997) ................................................................... 20-21

Steven G. Calabresi & Livia Fine, Two Cheers for Professor Balkin’s
Originalism, 103 NW. U. L. REV. 663 (2009) ...................................... 21

Jill Elaine Hasday, Federalism and the Family Reconstructed,

45 U.C.L.A. L. REV. 1297 (1998) ................................................... 21, 22

II FREEDOM: A DOCUMENTARY HISTORY OF EMANCIPATION, 1861-1867

(I. Berlin et al. eds. 1982) .............................................................. 21-22

LEON F. LITWACK, BEEN IN THE STORM SO LONG: THE AFTERMATH OF

SLAVERY (1979).................................................................................... 22

JAMES MCPHERSON, THE NEGROES’ CIVIL WAR (1991) ............................ 22

Cincinnati Commercial
June 21, 1866 ................................................................................. 15-16
Aug. 20, 1866 ...................................................................................... 16

Chicago Tribune, Aug. 2, 1866 ................................................................ 16

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INTEREST OF THE AMICUS CURIAE

The Constitutional Accountability Center (CAC) is a think tank,

public interest law firm, and action center dedicated to fulfilling the

progressive promise of our Constitution’s text and history. CAC works

in our courts, through our government, and with legal scholars and the

public to improve understanding of the Constitution and to preserve the

rights, freedoms, and structural safeguards that our charter guaran-

tees. CAC accordingly has a strong interest in this case and in the

scope of the Fourteenth Amendment’s protections for liberty and equali-

ty. CAC has filed amicus briefs in the U.S. Supreme Court in cases

raising significant issues regarding the text and history of the Four-

teenth Amendment, including McDonald v. City of Chicago, 130 S. Ct.

3020 (2010), and Northwest Austin Municipal Util. Dist. v. Holder, 129

S. Ct. 2504 (2009).

SUMMARY OF ARGUMENT

The text of the Fourteenth Amendment’s guarantee of the “equal

protection of the laws” is sweeping and universal. It protects all per-

sons, whether African American or white, man or woman, gay, lesbian

or heterosexual, young or old, native-born or immigrant. It secures the

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same rights and same protection under the law for all. History shows

that the original meaning of the Equal Protection Clause—explained by

the framers during debates over the Fourteenth Amendment, detailed

in contemporaneous press coverage of those debates and the ratification

of the Amendment, and confirmed in the earliest Supreme Court cases

interpreting the Equal Protection Clause—guaranteed equality under

the law and equality of rights for all persons without exception, thus

forbidding arbitrary and invidious discrimination.

History also shows that one of the basic civil rights the Fourteenth

Amendment was written and ratified to secure was the right to marry.

The framers recognized the right to marry the person of one’s choosing

as a protected civil right inherent in liberty and freedom, and the equal-

ity of rights secured by the Fourteenth Amendment’s Equal Protection

Clause included the equal right to marry the person of one’s choice. By

denying same-sex couples the right to marry, Proposition 8 contravenes

this original meaning.

These fundamental constitutional principles, anchored in the text

and history of the Fourteenth Amendment, must control the outcome of

this appeal, notwithstanding any alleged “tradition” of discrimination

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against marriage between two people of the same sex. The Fourteenth

Amendment was designed to destroy discriminatory traditions that de-

ny persons equal rights under law, not perpetuate them in the name of

the Constitution.

If the Court finds that the Appellants have standing to appeal the

district court’s ruling and proceeds to the merits, the ruling below

should be affirmed.

ARGUMENT
PROPOSITION 8 VIOLATES THE FOURTEENTH
AMENDMENT’S EQUAL PROTECTION CLAUSE
The Equal Protection Clause of the Fourteenth Amendment pro-

vides: “No state shall . . . deny to any person within its jurisdiction the

equal protection of the laws.” U.S. CONST. amend. XIV, § 1. Drafted in

1866 and ratified in 1868, these words establish a broad guarantee of

equality for all persons, demanding “the extension of constitutional

rights and protections to people once ignored and excluded.” United

States v. Virginia, 518 U.S. 515, 557 (1996). History shows that the

original meaning of the Equal Protection Clause secures to all persons

“‘the protection of equal laws,’” Romer v. Evans, 517 U.S. 620, 634

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(1996) (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535,

541 (1942)), prohibiting arbitrary and invidious discrimination and se-

curing equal rights for all classes and groups of persons.

To be sure, the Constitution also protects fundamental rights un-

der the substantive liberty provisions of the Fourteenth Amendment.

The Supreme Court’s cases protecting the equal right to marry have

been rooted in both the Equal Protection Clause’s guarantee of equality

under the law and equality of rights and the Fourteenth Amendment’s

protection for substantive liberty. See, e.g., Loving v. Virginia, 388 U.S.

1 (1967) (invalidating ban on marriages between interracial couples un-

der both the Equal Protection and Due Process Clauses); Zablocki v.

Redhail, 434 U.S. 374 (1978) (applying the Equal Protection Clause to

strike down a state law that discriminatorily denied the right to marry);

Turner v. Safley, 482 U.S. 78 (1987) (applying Zablocki and finding,

even under a rational basis standard, that prisoners’ right to marry was

infringed by prison regulations). Cf. M.L.B. v. S.L.J., 519 U.S. 102, 117

(1996) (“Choices about marriage . . . are among associational rights this

Court has ranked as ‘of basic importance in our society,’ rights sheltered

by the Fourteenth Amendment against the State’s unwarranted usur-

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pation, disregard, or disrespect.”) (quoting Boddie v. Connecticut, 401

U.S. 371, 376 (1971)). The Fourteenth Amendment’s protection of

equality and substantive liberty converge in securing to all persons an

equal right to marry.

The Plaintiffs-Appellees make a compelling argument for affir-

mance based on the Supreme Court’s rulings under both the Equal Pro-

tection Clause and the Due Process Clause. Brief of Appellees at 39-55

(due process argument); 55-104 (equal protection argument). In this

brief, amicus Constitutional Accountability Center will specifically focus

on supporting Appellees’ argument for marriage equality under the

Equal Protection Clause of the Fourteenth Amendment. This brief will

demonstrate that the text of the Equal Protection Clause was intended

to be universal in its protection of “any person” within the jurisdiction of

the United States; that this broad and sweeping guarantee of equality

of rights was understood at the time of the Fourteenth Amendment’s

ratification to protect any person, of any group or class; and that, in

looking to what rights were understood to be protected equally, the

framers of the Fourteenth Amendment understood marriage as a fun-

damental right protected by the Amendment. This text and history

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make clear that Proposition 8 unconstitutionally denies the equal pro-

tection of the laws regarding marriage, a fundamental right, to same-

sex couples, who are unquestionably included within the Equal Protec-

tion Clause.

A. The Text Of The Equal Protection Clause Unambi-

guously Protects All Persons From Arbitrary And
Invidious Discrimination.
The plain text of the Fourteenth Amendment’s guarantee of the

“equal protection of the laws” is sweeping and universal. While the

Amendment was written and ratified in the aftermath of the Civil War

and the end of slavery, it protects all persons. It secures the same

rights and same protection under the law for all men and women, of any

race, whether young or old, citizen or alien, gay, lesbian, or heterosex-

ual. See Yick Wo. v. Hopkins, 118 U.S. 356, 369 (1886) (“These provi-

sions are universal in their application, to all persons within the terri-

torial jurisdiction, without regard to any differences of race, color, or of

nationality . . . .”); Civil Rights Cases, 109 U.S. 3, 31 (1883) (“The four-

teenth amendment extends its protection to races and classes, and pro-

hibits any state legislation which has the effect of denying to any race

or class, or to any individual, the equal protection of the laws.”). No

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person, under the Fourteenth Amendment’s text, may be consigned to

the status of a pariah, “a stranger to [the State’s] laws.” Romer, 517

U.S. at 635.

The framers crafted this broad guarantee to bring the Constitu-

tion back into line with fundamental principles of American equality as

set forth in the Declaration of Independence, which had been betrayed

and stunted by the institution of slavery. See McDonald v. City of Chi-

cago, 130 S. Ct. 3020, 3059 (2010) (Thomas, J., concurring) (“[S]lavery,

and the measures designed to protect it, were irreconcilable with the

principles of equality . . . and inalienable rights proclaimed by the Dec-

laration of Independence and embedded in our constitutional struc-

ture.”). After nearly a century in which the Constitution sanctioned ra-

cial slavery and the Supreme Court found that African Americans, as

an entire class of people, “had no rights which the white man was bound

to respect,” Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1857),

the Fourteenth Amendment’s framers wrote our Founding promise of

equality explicitly into the text of the Equal Protection Clause. As the

Amendment’s framers explained time and again, the guarantee of the

equal protection of the laws was “essentially declared in the Declaration

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of Independence,” Cong. Globe, 39th Cong., 1st Sess. 2961 (1866) (Sen.

Poland), and was necessary to secure the promise of liberty for all per-

sons. “How can he have and enjoy equal rights of ‘life, liberty, and the

pursuit of happiness’ without ‘equal protection of the laws?’ This is so

self-evident and just that no man . . . can fail to see and appreciate it.”

Id. at 2539 (Rep. Farnsworth).

The Fourteenth Amendment, of course, was intended not only to

restore the guarantee of equality to its rightful constitutional place and

redeem the Constitution from the sin of slavery, but also to secure a

broad, universal guarantee of equal rights that would protect all per-

sons. Focused on ensuring equality under the law not only for newly

freed slaves but for all persons in America, the Equal Protection Clause

sought to eliminate a whole host of discriminatory state practices, both

in the South and throughout the nation.

For example, the Fourteenth Amendment’s framers wanted to

guarantee equal protection of the laws to non-citizens, who faced perva-

sive discrimination and prejudice in the western United States. John

Bingham, one of the framers responsible for drafting the Fourteenth

Amendment, demanded that “all persons, whether citizens or strangers,

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within this land, . . . have equal protection in every State in this Union

in the rights of life and liberty and property.” Cong. Globe, 39th Cong.,

1st Sess. 1090 (1866). Indeed, in 1870, two years after the ratification of

the Fourteenth Amendment, Congress used its express constitutional

power to enforce the Amendment’s guarantee of equality under the law

to all persons by passing the Enforcement Act of 1870. This Act secured

for “all persons within the jurisdiction of the United States . . . the same

right . . . to make and enforce contracts, to sue, be parties, give evi-

dence, and to the full and equal benefit of all laws and proceedings for

the security of person and property as is enjoyed by white citizens,” and

protected against the “deprivation of any right secured or protected by

the last preceding section of this act, or to different punishment, pains,

or penalties on account of such person being an alien . . . .” 16 Stat. 140,

144; Cong. Globe, 41st Cong., 2nd Sess. 3658 (1870) (Sen. Stewart) (“[W]e

will protect Chinese aliens or any other aliens whom we allow to come

here, . . .; let them be protected by all the laws and the same laws that

other men are.”); id. at 3871 (Rep. Bingham) (observing that “immi-

grants” were “persons within the express words” of the Fourteenth

Amendment “entitled to the equal protection of the laws”).

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In addition, white Unionists needed the equal protection of the

laws to ensure that Southern state governments respected their funda-

mental rights. McDonald, 130 S. Ct. at 3043 (discussing the “plight of

whites in the South who opposed the Black Codes”); Cong. Globe, 39th

Cong., 1st Sess. 1093 (1866) (Rep. Bingham) (“The adoption of this

amendment is essential to the protection of the Union men” who “will

have no security in the future except by force of national laws giving

them protection against those who have been in arms against them.”);

id. at 1263 (Rep. Broomall) (“[W]hite men . . . have been driven from

their homes, and have had their lands confiscated in State courts, under

State laws, for the crime of loyalty to their country . . . .”).

To secure equality not only for the newly freed slaves but for all

persons within the United States, the Fourteenth Amendment’s framers

chose broad universal language specifically intended to prohibit arbi-

trary and invidious discrimination and secure equal rights for all per-

sons. 1 Indeed, the Joint Committee that drafted the Fourteenth

1 The Fourteenth Amendment’s framers settled on the wording of the

Equal Protection Clause after an exhaustive investigation by the Joint
Committee on Reconstruction, which took the lead in drafting the
Amendment in Congress. The Joint Committee’s June 1866 report,
“widely reprinted in the press and distributed by Members of the 39th
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Amendment rejected numerous proposals that would have limited the

Fourteenth Amendment’s equality guarantee to a prohibition on laws

that discriminated on account of race, preferring the universal guaran-

tee of equal protection, which secured equal rights to all persons, to a

race-specific guarantee of equality that proscribed racial discrimination

and nothing else. See BENJAMIN B. KENDRICK, THE JOURNAL OF THE

JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION 46, 50, 83 (1914).

Whether the proposals were broad in scope or were narrowly drafted to

prohibit racial discrimination in civil rights, the framers consistently re-

jected limiting the Fourteenth Amendment’s equality guarantee to ra-

cial discrimination. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREA-

TION AND RECONSTRUCTION 260-261 n.* (1998) (“[S]ection 1 pointedly

spoke not of race but of more general liberty and equality.”).

Congress to their constituents,” McDonald, 130 S. Ct. at 3039, found

that the Southern states “refused to place the colored race . . . upon
terms even of civil equality,” or “tolerat[e] . . . any class of people friend-
ly to the Union, be they white or black . . . .” See REPORT OF THE JOINT
COMMITTEE ON RECONSTRUCTION xvii (1866). As the extensive testimo-
ny taken by the Joint Committee showed, the newly freed slaves and
their Unionist allies in the South had as much chance of having their
equal rights respected as “a rabbit would in a den of lions.” Id., pt II,
17. Accordingly, the committee charged with drafting the Fourteenth
Amendment wrote the Equal Protection Clause to eliminate state laws
and practices that violated the fundamental rights of particular classes
of people, based on more than just race.
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The Fourteenth Amendment’s sweeping guarantee of equal legal

protection meant, first and foremost, equality under the law and equali-

ty of rights for all persons. Under the plain text, this sweeping guaran-

tee unambiguously applies to the plaintiffs in this case and to all gay

men and lesbians who seek to marry the person of their choice.

B. The Original Meaning Of The Equal Protection

Clause Confirms That Its Guarantee Of Equality Un-
der The Law And Equality Of Rights Applies Broadly
To All Persons.
The original meaning of the Equal Protection Clause confirms

what the text makes clear: that equality of rights and equality under

the law apply broadly to any and all persons within the United States.

The Fourteenth Amendment’s framers’ own explanations of the Equal

Protection Clause during the debates on the Fourteenth Amendment,

press coverage of the Amendment, and the Supreme Court’s earliest de-

cisions interpreting the Clause all affirm this basic understanding.

Introducing the Amendment in the Senate, Jacob Howard ex-

plained that the Equal Protection Clause “establishes equality before

the law, and . . . gives to the humblest, the poorest, and most despised

. . . the same rights and the same protection before the law as it gives to

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the most powerful, the most wealthy, or the most haughty.” Cong.

Globe, 39th Cong., 1st Sess. 2766 (1866). The guarantee of equal protec-

tion, he went on, “abolishes all class legislation in the States and does

away with the injustice of subjecting one caste of persons to a code not

applicable to another. . . . It protects the black man in his fundamental

rights as a citizen with the same shield which it throws over the white

man.” Id. See also id. at 2961 (Sen. Poland) (noting that the Equal Pro-

tection Clause aimed to “uproot and destroy . . . partial State legisla-

tion”); id. at app. 219 (Sen. Howe) (explaining that the Clause was ne-

cessary because Southern states had “an appetite so diseased as seeks .

. . to deny to all classes of its citizens the protection of equal laws”).

Senator Howard’s reading of the Fourteenth Amendment—never

once controverted during the debates and widely reported “in major

newspapers across the country,” McDonald, 130 S. Ct. at 3074 (Thomas,

J., concurring)—demonstrated that “[t]he Equal Protection Clause was

intended to work nothing less than the abolition of all caste-based and

invidious class-based legislation,” Plyler v. Doe, 457 U.S. 202, 213

(1982), ensuring “the law’s neutrality where the rights of persons are at

stake.” Romer, 517 U.S. at 623.

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In the House, the framers, too, emphasized that equality of rights

and equality under the law were the touchstone of the equal protection

guarantee. Thaddeus Stevens observed that “[w]hatever law protects

the white man shall afford ‘equal’ protection to the black man. Whatev-

er means of redress is afforded to one shall be afforded to all,” Cong.

Globe, 39th Cong., 1st Sess. 2459 (1866), while future President James

Garfield explained that the Clause “h[e]ld over every American citizen,

without regard to color, the protecting shield of the law.” Id. at 2462.

The plain meaning of equal protection, framer after framer explained,

was that the “law which operates upon one man shall operate equally

upon all,” id. at 2459 (Rep. Stevens) (emphasis in original), thereby “se-

curing an equality of rights to all citizens of the United States, and of

all persons within their jurisdiction.” Id. at 2502 (Rep. Raymond).

Newspaper coverage of the debates over ratification of the Four-

teenth Amendment affirms this same basic understanding of the equal

protection guarantee. In an article entitled “The Constitutional

Amendment,” published shortly after Congress sent the Fourteenth

Amendment to the states for ratification, the Cincinnati Commercial

explained that the Fourteenth Amendment wrote into the Constitution

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“the great Democratic principle of equality before the law,” invalidating

all “legislation hostile to any class.” Cincinnati Commercial, June 21,

1866, at 4. “With this section engrafted upon the Constitution, it will be

impossible for any Legislature to enact special codes for one class of its

citizens . . . .” Id. Press coverage emphasized that the Amendment “put

in the fundamental law the declaration that all citizens were entitled to

equal rights in this Republic,” Chicago Tribune, Aug. 2, 1866, p.2, plac-

ing all “throughout the land upon the same footing of equality before

the law, in order to prevent unequal legislation . . . .” Cincinnati Com-

mercial, Aug. 20, 1866, p.2. See Charles Fairman, Does the Fourteenth

Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5, 72-75

(1949) (discussing press coverage). In short, it was commonly unders-

tood at the time the Fourteenth Amendment was ratified that the Equal

Protection Clause “was intended to promote equality in the States, and

to take from the States the power to make class legislation and to create

inequality among their people.” Cong. Globe, 42nd Cong., 2nd Sess. 847

(1872) (Sen. Morton).

Consistent with this history and the clear and unequivocal consti-

tutional text, the Supreme Court quickly confirmed the broad reach of

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the Equal Protection Clause’s guarantee of equality under the law and

equality of rights. In 1880, in Strauder v. West Virginia, 100 U.S. 303,

310 (1880), the Court explained that “[t]he Fourteenth Amendment

makes no attempt to enumerate the rights it [is] designed to protect. It

speaks in general terms, and those are as comprehensive as possible.

Its language is prohibitory; but every prohibition implies the existence

of rights and immunities, prominent among which is an immunity from

inequality of legal protection, either for life, liberty, or property.” See

also Barbier v. Connolly, 113 U.S. 27, 31 (1885) (“The fourteenth

amendment . . . undoubtedly intended . . . that equal protection and se-

curity should be given to all under like circumstances in the enjoyment

of their personal and civil rights; that all persons should be equally en-

titled to pursue their happiness . . . .”); Civil Rights Cases, 109 U.S. at

24 (“[C]lass legislation . . . [is] obnoxious to the prohibitions of the Four-

teenth Amendment . . . .”); Ho Ah Kow v. Nunan, 12 F. Cas. 252, 256

(C.C.D. Cal. 1879) (Field, J.) (“[H]ostile and discriminating legislation

by a state against persons of any class, sect, creed or nation, in whatev-

er form . . . is forbidden by the fourteenth amendment . . . .”). 2

2 In Plessy v. Ferguson, 163 U.S. 537 (1896), the Supreme Court turned
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The Supreme Court’s precedents today firmly establish that the

Equal Protection Clause requires “neutrality where the rights of per-

sons are at stake,” forbidding states from “singling out a certain class of

citizens for disfavored legal status or general hardships . . . .” Romer,

517 U.S. at 623, 633. As Romer teaches, these settled equal protection

principles apply with full force to legislation and state constitutional

amendments, such as Proposition 8, that discriminate based on sex and

sexual orientation. Under the Equal Protection Clause, states may not

deny to gay men or lesbians rights basic to “ordinary civic life in a free

society,” id. at 631, “to make them unequal to everyone else.” Id. at

635.

its back on these principles, upholding enforced racial segregation on

the theory that laws requiring the separation of African Americans and
white persons in public places “do not . . . imply the inferiority of either
race to the other . . . .” Id. at 544. Justice Harlan, alone faithful to the
Fourteenth Amendment’s text and history, demonstrated that enforced
racial segregation violated the Fourteenth Amendment’s guarantee of
equality under the law and equality of rights: “[I]n the eye of the law,
there is in this country no superior, dominant ruling class of citizens.
There is no caste here. Our constitution is color-blind, and neither
knows nor tolerates classes among citizens. In respect of civil rights, all
citizens are equal before the law. . . .” Id. at 559 (Harlan, J., dissent-
ing). Justice Harlan’s views, disregarded then, are fortunately now set-
tled law.
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C. The Equal Protection Clause Guarantees To All Per-

sons An Equal Right To Marry The Person Of One’s
Choice.

The framers of the Fourteenth Amendment recognized the right to

marry as a basic civil right of all persons, “one of the vital personal

rights essential to the orderly pursuit of happiness . . . .” Loving, 388

U.S. at 12 (discussing how the Fourteenth Amendment’s Due Process

Clause protects substantive, fundamental rights such as marriage).

The equality of rights secured by the Fourteenth Amendment’s Equal

Protection Clause thus unquestionably includes the equal right to mar-

ry the person of one’s choice.

The Fourteenth Amendment’s framers recognized the right to

marry the person of one’s choosing as a crucial component of freedom

and liberty—a right that had long been denied under the institution of

slavery. Slaves did not have the right to marry, and slaves in loving re-

lationships outside the protection of the law were time and again sepa-

rated when one slave was sold to a distant part of the South. See HER-

BERT G. GUTMAN, THE BLACK FAMILY IN SLAVERY AND FREEDOM, 1750-

1925, at 318 (1976) (“[O]ne in six (or seven) slave marriages were ended

by force or sale”). As Sen. Jacob Howard explained, a slave “had not the

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right to become a husband or father in the eye of the law, he had no

child, he was not at liberty to indulge the natural affections of the hu-

man heart for children, for wife, or even for friend.” Cong. Globe, 39th

Cong., 1st Sess. 504 (1866).

In the Fourteenth Amendment, the framers sought to guarantee

to the newly freed slaves the right to marry that they had long been de-

nied. “The attributes of a freeman according to the universal under-

standing of the American people,” Sen. Jacob Howard observed, in-

cluded “the right of having a family, a wife, children, home.” Id.; id. at

42 (Sen. Sherman) (demanding that the freed slaves “be protected in

their homes and family”); id. at 2779 (Rep. Eliot) (“[N]o act of ours can

fitly enforce their freedom that does not contemplate for them the secu-

rity of home.”). The framers insisted that the “poor man, whose wife

may be dressed in a cheap calico, is as much entitled to have her pro-

tected by equal law as is the rich man to have his jeweled bride pro-

tected by the laws of the land.” Id. at 343 (Sen. Wilson). Indeed, even

opponents of the Fourteenth Amendment recognized that “marriage ac-

cording to one’s choice is a civil right.” Id. at 318 (Sen. Hendricks). See

also PEGGY COOPER DAVIS, NEGLECTED STORIES: THE CONSTITUTION &

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FAMILY VALUES 39 (1997) (“Speaker after speaker pronounced marriage

rights fundamental and resolved that freedom in the United States

would entail the right to marry.”); Steven G. Calabresi & Livia Fine,

Two Cheers for Professor Balkin’s Originalism, 103 NW. U. L. REV. 663,

670 (2009) (“The common law of families and of contracts had long rec-

ognized a right of marriage, and it would be astonishing if that right

were not also described in 1868 as having been fundamental.”); Jill

Elaine Hasday, Federalism and the Family Reconstructed, 45 U.C.L.A.

L. REV. 1297, 1338 (1998) (noting framers’ judgment that the freedom

promised by abolition “was ultimately worthless without the right to

marry, to raise a family, and to maintain a home”). 3

Indeed, few rights were more precious to the newly freed slaves

than the right to marry. With the abolition of slavery, “ex-slaves them-

selves pressed for ceremonies and legal registrations that at once cele-

brated the new security of black family life and brought their most in-

timate ties into conformity with the standards of freedom.” II FREEDOM:

3 In the debates during the 39th Congress, only one member of the
House, Rep. Moulton, denied that the right to marry was a protected
right, “[b]ut he knew that he was in the minority. . . . Reconstruction’s
advocates were intent on creating . . . constitutional protection for fa-
milial rights . . . .” Hasday, 45 U.C.L.A. L. REV. at 1350.
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A DOCUMENTARY HISTORY OF EMANCIPATION, 1861-1867, at 660 (I. Berlin

et al. eds. 1982). “[M]ass wedding ceremonies involving as many as se-

venty couples at a time became a common sight in the postwar South.”

LEON F. LITWACK, BEEN IN THE STORM SO LONG: THE AFTERMATH OF SLA-

VERY 240 (1979).

The newly freed slaves rejoiced to finally, at long last, have the

right to marry the person of their choice protected and secured by law.

As one African American soldier put it, “I praise God for this day! I

have long been praying for it. The Marriage Covenant is at the founda-

tion of all our rights. In slavery we could not have legalised marriage:

now we have it.” II FREEDOM: A DOCUMENTARY HISTORY at 672 (empha-

sis omitted). On January 1, 1866, African Americans called the first

anniversary of the Emancipation Proclamation “a day of gratitude for

the freedom of matrimony. Formerly, there was no security for our do-

mestic happiness. . . . But now we can marry and live together till we

die . . . .” Hasday, 45 U.C.L.A. L. REV. at 1338 n.146. In short, the right

to marry “by the authority and protection of Law,” confirmed that the

newly freed slaves, finally, were “beginning to be regarded and treated

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as human beings.” JAMES MCPHERSON, THE NEGROES’ CIVIL WAR 604

(1991).

In writing into the Fourteenth Amendment a requirement of

equality under the law and equality of basic rights for all persons,

which included the right to marry, the framers ensured that discrimina-

tory state laws would not stand in the way of Americans exercising

their right to marry the person of their own choosing. Laws that dis-

criminate and deny to members of certain groups the right to marry the

person of one’s choice thus contravene the original meaning of the Four-

teenth Amendment.

The Supreme Court has many times vindicated this principle. In

Loving v. Virginia, the Supreme Court invalidated the laws of Virginia

and fifteen other states that outlawed marriage between people of dif-

ferent races. Observing that marriage is “one of the basic civil rights of

man,” Loving, 388 U.S. at 12 (quoting Skinner, 316 U.S. at 541), 4 the

4 Loving rested on two independent grounds: that Virginia’s restrictive

marriage law violated the Equal Protection Clause by discriminating on
the basis of race and also that it violated the fundamental right to mar-
ry the person of one’s own choosing, a right protected under the subs-
tantive aspects of the Due Process Clause. In this brief focusing on the
textual and historical bases under the Constitution for invalidating
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Court held the denial of the “fundamental freedom” to marry “solely be-

cause of racial classifications violates the central meaning of the Equal

Protection Clause.” Id. “The Fourteenth Amendment requires that the

freedom of choice to marry not be restricted by invidious racial discrim-

inations. Under our Constitution, the freedom to marry or not marry, a

person of another race resides with the individual . . . .” Id.

In Zablocki v. Redhail, 434 U.S. 374 (1978), the Supreme Court

held that a Wisconsin statute that denied the right to marry to parents

who had failed to satisfy pre-existing child support obligations violated

the Equal Protection Clause, emphasizing that the “right to marry is of

fundamental importance for all individuals.” Id. at 384. Zablocki ex-

plained that Loving’s holding did not depend on “the context of racial

discrimination,” but rather that “the laws arbitrarily deprived the

couple of a fundamental liberty . . . , the freedom to marry.” Id. at 383-

84. Applying strict scrutiny, the Court invalidated the statute’s discri-

minatory denial of the right to marry to parents who had failed to pay

Proposition 8 under the Equal Protection Clause, we rely on Loving to

show that the right to marry the person of one’s choosing is a basic civil
right, and thus must be provided equally to all persons.

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child support, finding it imposed “a serious intrusion into . . . freedom of

choice in an area in which we have held such freedom to be fundamen-

tal.” Id. at 387. Because the Equal Protection Clause secured an equal

right to marry to all persons, the government could not pursue its legi-

timate interest in ensuring payment of child support obligations by

“unnecessarily imping[ing] on the right to marry.” Id. at 388. See also

M.L.B., 519 U.S. at 117 (“Choices about marriage . . . are among associ-

ational rights this Court has ranked as ‘of basic importance in our socie-

ty,’ rights sheltered by the Fourteenth Amendment against the State’s

unwarranted usurpation, disregard, or disrespect.”) (quoting Boddie v.

Connecticut, 401 U.S. at 376).

Both the Fourteenth Amendment’s text and history and Supreme

Court precedent establish that the clear command of the Equal Protec-

tion Clause is equality of rights for all persons, including the right to

marry. Laws that discriminatorily deny the fundamental right to mar-

ry are subject to strict scrutiny and must be narrowly tailored to serve a

compelling state interest. See Zablocki, 434 U.S. at 388; 5 see also Skin-

5 In Turner v. Safley, 482 U.S. 78 (1987), the Court did not apply strict
scrutiny, applying instead reasonableness review because the challenge
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ner, 316 U.S. at 541 (applying strict scrutiny under the Equal Protec-

tion Clause to legislation involving “one of the basic civil rights of man

. . . lest unwittingly or otherwise invidious discriminations are made

against groups or types of individuals in violation of the constitutional

guarantee of just and equal laws”). See generally Brief of Appellees at

58-72 (arguing that heightened scrutiny applies in this case).

D. Proposition 8’s Infringement Of The Right To Marry

Violates The Guarantee Of The Equal Protection
Clause That All Persons Shall Have Equality of
Rights and Equality Under the Law.

Proposition 8 violates these basic, well-settled equal protection

principles. By forbidding committed same-sex couples from participat-

ing in the “the most important relation in life,” and the “foundation of

the family in our society,” Maynard v. Hill, 125 U.S. 190, 205, 211

(1888), quoted in Zablocki, 434 U.S. at 386, Proposition 8 contravenes

arose in the prison context. Even under this deferential standard of re-
view, however, the Court nonetheless found that the state had no legi-
timate basis for denying prisoners the right to marry the person of their
own choosing. Certainly, if the right to marry is so fundamental that
there is no reasonable basis for denying the right to incarcerated pris-
oners, there is no basis under any standard of scrutiny—but especially
under strict scrutiny—for denying that right to committed, loving same-
sex couples. See Brief of Appellees at 58-104 (demonstrating that Prop-
osition 8 fails under heightened scrutiny as well as rational basis re-
view).
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the Equal Protection Clause’s central command of equality under the

law and equality of rights reflected in both the text of the Fourteenth

Amendment and its history.

Denying gay men and lesbians the right to marry the person of

their choosing is inconsistent with the text of the Equal Protection

Clause, which secures equality of rights to all persons, regardless of

sexual orientation, see Romer, supra, and its history, which demon-

strates that the right to marry the person of one’s choosing was a basic

and fundamental right, guaranteed to all persons under the Fourteenth

Amendment. Proposition 8 is prohibited class legislation, a “status-

based enactment” that denies gay men and lesbians the right to marry

“to make them unequal to everyone else.” Romer, 517 U.S. at 635. Un-

der Proposition 8, men and women who love and choose to marry a per-

son of the same sex do not stand equal before the law and do not receive

its equal protection. As the district court properly recognized, no consti-

tutionally legitimate rationale—let alone any compelling state inter-

est—justifies California’s refusal to accord gay men and lesbians the

right to marry the person of their choosing.

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Contrary to the arguments suggested by the Proponents, the text

and first principles the framers wrote into the Fourteenth Amendment

control this Court’s constitutional analysis, not purported “traditional”

understandings of marriage. “No tradition can supersede the Constitu-

tion.” Rutan v. Republican Party of Illinois, 497 U.S. 62, 95 n.1 (1990)

(Scalia, J., dissenting). See Lawrence v. Texas, 539 U.S. 558, 577-78

(2003) (“‘[T]he fact that the governing majority in a State has tradition-

ally viewed a particular practice as immoral is not a sufficient reason

for upholding a law prohibiting the practice; neither history or tradition

could save a law prohibiting miscegenation from constitutional at-

tack.’”) (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens,

J., dissenting)); Bd. of County Comm’rs, Waubunsee County, Kan. v.

Umbehr, 518 U.S. 668, 681 (1996) (refusing to carve out a “special ex-

ception” to the First Amendment’s protection of political speech based

on a “long and unbroken tradition” of “allocation of government con-

tracts on the basis of political bias”) (citation and quotation marks omit-

ted); Rutan, 497 U.S. at 92 (Stevens, J., concurring) (“The tradition that

is relevant in these cases is the American commitment to examine and

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reexamine past and present practices against the basic principles em-

bodied in the Constitution.”). 6

These principles apply with special force to the Equal Protection

Clause, which changed the Constitution from one that sanctioned in-

equality to one that prohibited it. The very point of the Equal Protec-

tion Clause was to stop dead in its tracks the state “tradition” of deny-

ing to African Americans, and other disfavored groups, equal rights un-

der the law. As far as the Equal Protection Clause is concerned, discri-

minatory traditions are no part of our nation’s constitutional traditions.

Cf. Umbehr, 518 U.S. at 681 (explaining that a tradition of political bias

in contracting is “not . . . the stuff out of which the Court’s principles

are to be formed”) (citation and quotation marks omitted).

In drafting the Equal Protection Clause in broad, universal terms,

the framers of the Fourteenth Amendment struck at the entire range of

6 This is true even of traditions existing at the time of the ratification of

the Fourteenth Amendment. See Planned Parenthood v. Casey, 505
U.S. 833, 848 (1992) (rejecting the idea that “the specific practices of
States at the time of the adoption of the Fourteenth Amendment mark[]
the outer limits of the substantive sphere of liberty which the Four-
teenth Amendment protects”); Rutan, 497 U.S. at 82 n.2 (Stevens, J.,
concurring) (rejecting the argument that “mere longevity can immunize
from constitutional review state practices that would otherwise violate
the First Amendment”).
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unequal laws, including a host of longstanding, discriminatory state

practices. At the time of the framing, discrimination against the newly

freed slaves, as well as other persons, “had been habitual. It was well

known that in some States laws making such discriminations then ex-

isted, and others might well be expected.” Strauder, 100 U.S. at 306.

Carving out of the text of the Fourteenth Amendment an exception for

traditional forms of discrimination would have strangled the Equal Pro-

tection Clause in its crib, subverting its central meaning. See Illinois

State Employees Council 34 v. Lewis, 473 F.2d 561, 568 n.14 (7th Cir.

1972) (Stevens, J.) (“[I]f the age of a pernicious practice were a suffi-

cient reason for its continued acceptance, the constitutional attack on

racial discrimination would. . . have been doomed to failure.”). Thus,

“tradition” cannot save a state law or policy that contravenes the Equal

Protection Clause’s command of equality under the law and equality of

rights for all persons.

Indeed, the Supreme Court’s cases vindicating the equal right of

all persons to marry have long recognized this basic point. For many

years in this country, states prohibited marriages between persons of

different races, but Loving held that such a “traditional” concept of

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marriage violated the Fourteenth Amendment because “restricting the

freedom to marry solely because of racial classifications violates the

central meaning of the Equal Protection Clause.” Loving, 388 U.S. at

12. See also Casey, 505 U.S. at 980 n.1 (Scalia, J., dissenting) (denying

that “adherence to tradition would require us to uphold laws against in-

terracial marriage” because such a “tradition” is “contradicted by a

text—an Equal Protection Clause that explicitly establishes racial

equality as a constitutional value.”) (emphasis in original).

It is thus of no constitutional relevance that the marriages plain-

tiffs wish to solemnize have long been denied legal recognition. As the

Supreme Court confirmed in Loving, history is a valid source of inquiry

for identifying basic and fundamental constitutional rights and protec-

tions, but historical “tradition” cannot be used in an Equal Protection

Clause analysis to justify a law or practice that denies any group the

equal protection of the laws. Denial of the equal right to marry—like

other fundamental constitutional protections—“‘cannot be justified on

the basis of ‘history.’ . . . Simply put, a history or tradition of discrimi-

nation—no matter how entrenched—does not make the discrimination

constitutional.’” Kerrigan v. Comm’r of Public Health, 957 A.2d 407, 478

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(Conn. 2008) (quoting Hernandez v. Robles, 855 N.E.2d 1, 33 (N.Y.

2006) (Kaye, C.J., dissenting)). See also Varnum v. Brien, 763 N.W.2d

862, 898-899 (Iowa 2009) (concluding that “some underlying reason oth-

er than the preservation of tradition must be identified” because

“[w]hen a certain tradition is used as both the governmental objective

and the classification to further that objective, the equal protection

analysis is transformed into the circular question of whether the classi-

fication accomplishes the governmental objective, which objective is to

maintain the classification.”); Goodridge v. Dep’t of Public Health, 789

N.E.2d 941, 973 (Mass. 2003) (Greaney, J., concurring) (“[A]s matter of

constitutional law . . . the mantra of tradition . . . can[not] justify the

perpetuation of a hierarchy in which couples of the same sex and their

families are deemed less worthy of social and legal recognition than

couples of the opposite sex and their families.”).

As the text and history of the Fourteenth Amendment show, the

Equal Protection Clause guarantees to all persons—regardless of race,

sexual orientation, or other group characteristics—equality of rights,

including the fundamental right to marry the person of their choosing.

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Proposition 8 conflicts with this fundamental constitutional principle,

and the district court was correct to have invalidated it.

CONCLUSION

For the foregoing reasons, amicus respectfully requests that the

Court affirm the ruling of the district court.

Respectfully submitted,

__/s/ Elizabeth B. Wydra___

Elizabeth B. Wydra
David H. Gans
Douglas T. Kendall
Judith E. Schaeffer
CONSTITUTIONAL ACCOUNTABILITY CENTER
1200 18th Street, N.W.
Suite 1002
Washington, D.C. 20036
(202) 296-6889

Counsel for Amicus Curiae

Dated: October 25, 2010

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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume limi-

tation of Fed. R. App. P. 32(a)(7)(B) and Fed. R. App. P. 29(d) because it

contains 6,623 words, excluding the parts of the brief exempted by Fed.

R. App. P. 32(a)(7)(B)(iii).

I further certify that the attached amicus brief complies with the

typeface requirements of Fed. R. App. P. 32(a)(5)and the type-style re-

quirements of Fed. R. App. P. 32(a)(6), because it has been prepared in

a proportionally spaced typeface using Microsoft Word 2007 14-point

Century Schoolbook font.

Executed this 25th day of October, 2010.

/s/ Elizabeth B. Wydra___

Elizabeth B. Wydra
Counsel for amicus curiae
Constitutional Accountability Center

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CERTIFICATE OF SERVICE

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 October 25, 2010.

I certify that all parties in the case are registered CM/ECF users

and that service will be accomplished by the appellate CM/ECF system.

Executed this 25th day of October, 2010.

/s/ Elizabeth B. Wydra___

Elizabeth B. Wydra
Counsel for amicus curiae
Constitutional Accountability Center

34