The Prop 8 Proponents’ Emergency Motion


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

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

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

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

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

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

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

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

● that “[t]he evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,” Ex. A at 130, despite the undeniable biological fact that only a man and a woman can produce offspring, whether intentionally or as the unintended result of casual sexual behavior;

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

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

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

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



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