October 14, 2009
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE VAUGHN R. WALKER
KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO,
Plaintiffs,
VS.
ARNOLD SCHWARZENEGGER, in his official capacity as Governor of
California; EDMUND G. BROWN, JR., in his official capacity as
Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O'CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles,
Defendants.
NO. C 09-2292-VRW
San Francisco, California
Wednesday
October 14, 2009
10:05 a.m.
TRANSCRIPT OF PROCEEDINGS
Reported By: Lydia Zinn, CSR #9223, RPR
Official Reporter - U.S. District Court
APPEARANCES:
For Plaintiffs:
Gibson, Dunn & Crutcher
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 955-8668
(202) 467-0539 (fax)
BY: THEODORE B. OLSON
AMIR CAMERON TAYRANI
MATTHEW D. MC GILL
Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7804
(213) 229-7520 (fax)
BY: THEODORE J. BOUTROUS, JR.
CHRISTOPHER D. DUSSEAULT
Boies, Schiller & Flexner
333 Main Street
Armonk, NY 10504
(914) 749-8200
(914) 749-8300 (fax)
BY: THEODORE H. UNO
JEREMY M. GOLDMAN
Dennis J. Herrera, City Attorney
Office of the City Attorney
Fox Plaza
1390 Market Street, Sixth Floor
San Francisco, CA 94102-5408
BY: DANNY YEH CHOU
San Francisco City Attorney's Office
Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
(415) 554-4655
BY: THERESE STEWART
For Defendant-Intervenors:
Cooper & Kirk
1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
(202) 220-9600
BY: CHARLES J. COOPER
HOWARD C. NIELSON, JR.
PETER A. PATTERSON
Also for Defendant-Intervenors:
Alliance Defense Fund
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020
(480) 444-0028 (fax)
BY: BRIAN W. RAUM
JAMES A. CAMPBELL
For Defendants:
Mennemeier, Glassman & Stroud
980 9th Street, Suite 1700
Sacramento, CA 95814-2736
(916) 553-4000
BY: ANDREW WALTER STROUD
Also for Defendants:
County of Alameda
1221 Oak Street, Suite 450 Oakland, CA 94612-4296
(510) 272-6710
BY: CLAUDE FRANKLIN KOLM
Also For Defendant:
State Attorney General's Office
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5506
(415) 703-5480 (fax)
BY: TAMAR PACHTER
Office of the Attorney General
State of California
Department of Justice
1300 I Street, 17th Floor
Sacramento, California 95814
(916) 324-3081
BY: GORDON BRUCE BURNS
THE CLERK: Calling Civil Case 09-2292, Kristine Perry, et al., versus Arnold Schwarzenegger, et al. State your appearances for the plaintiffs, please.
MR. OLSON: Good morning, Your Honor. Theodore Olson, Gibson, Dunn & Crutcher, for the plaintiffs. Thank you.
THE COURT: Good morning, Mr. Olson.
MR. BOUTROUS: Good morning, Your Honor. Theodore Boutrous, for the plaintiffs.
THE COURT: Mr. Boutrous, good morning. MR. DUSSEAULT: Good morning, Your Honor. Christopher Dusseault, of Gibson, Dunn & Crutcher, also for the plaintiffs.
THE COURT: Good morning.
MR. MC GILL: Good morning, Your Honor. Matthew McGill, Gibson, Dunn & Crutcher, for the plaintiffs.
THE COURT: Good morning.
MR. TAYRANI: Good morning, Your Honor. Amir Tayrani, for the plaintiffs.
THE COURT: Good morning.
MR. GOLDMAN: Good morning, Your Honor. Jeremy Goldman, from Boies, Schiller & Flexner, for the plaintiffs.
THE COURT: Mr. Goldman.
MR. UNO: Good morning, Your Honor. Theodore Uno, Boies, Schiller & Flexner, for the plaintiffs.
MS. STEWART: Good morning, Your Honor. Therese Stewart, for the plaintiff, City and County of San Francisco.
THE COURT: Ms. Stewart, good morning.
MR. CHOU: Danny Chou, for the City and County of San Francisco. Danny Chou.
THE COURT: Mr. Chou, good morning.
MR. COOPER: Good morning, Chief Judge Walker. Chuck Cooper, for the Defendant-Intervenors. Thank you.
THE COURT: Mr. Cooper, good morning.
MR. NIELSON: Good morning, Chief Judge Walker. Howard Nielson, also of Cooper & Kirk, for the Defendant-Intervenors.
THE COURT: Mr. Nielson.
MR. PATTERSON: Good morning, Chief Judge Walker. Pete Patterson, also from Cooper & Kirk, for the Defendant-Intervenors.
MR. STROUD: Good morning, Your Honor. Andrew Stroud, Mennemeier, Glassman & Stroud, on behalf of Governor Schwarzenegger and the Administration defendants.
THE COURT: Good morning.
MR. STROUD: Good morning.
MR. RAUM: Good morning, Your Honor. Brian Raum, Alliance Defense Fund, for the Defendant-Intervenors.
THE COURT: Mr. Raum, good morning.
MR. CAMPBELL: Good morning, Your Honor. James Campbell, with the Alliance Defense Fund, on behalf of the Defendant-Intervenors.
THE COURT: Good morning. Anybody else?
MR. KOLM: Good morning, Your Honor. Claude Kolm, from the Alameda County Counsel's office, for Defendant Alameda County Clerk-Recorder.
THE COURT: Good morning.
MS. PACHTER: Good morning, Your Honor. Tamar Pachter, for the California Attorney General.
THE COURT: Good morning.
MR. BURNS: Good morning, Your Honor. Gordon Burns, for the California Attorney General.
THE COURT: Very well. Good morning. I believe that's all.
All right. Well, Mr. Cooper, it's your motion that I think we're going to spend most of the time on.
We have a couple of items that are before us. We have a motion for summary judgment that the proponents have filed.
We have also a motion to stay which has not been fully briefed, as I understand it; and furthermore, that may possibly be mooted by a ruling on the motion for summary judgment. So it would be my inclination to postpone hearing 2 the motion to stay until we work through the motion for summary 3 judgment.
And so, unless counsel have some other plan or need that they feel that the proper management of the case demands, I would suggest we proceed immediately to the motion for summary judgment. How does that sound to you, Mr. Cooper?
MR. COOPER: Your Honor, that suits me just fine. Thank you very much.
THE COURT: And you, Mr. Olson?
MR. OLSON: Thank you, Your Honor. That's fine with us.
THE COURT: All right. Fine.
Now, let's begin. If you don't mind, before you get into your argument, talk a little bit about civil procedure; the subject that is of some interest to me, at least.
As I understand the five grounds that you have asserted in support of your motion for summary judgment, there is only one -- the first ground, the Baker v. Nelson ground -- that would dispose of the case in its entirety.
MR. COOPER: Yes, Your Honor.
THE COURT: Is that correct?
MR. COOPER: That is correct, except to the extent that the Court would agree with our submission that the facts relevant to the various issues before you are legislative facts, as we've submitted before, and that they don't require a trial in order for you to fully master -- fully master the relevant factual information to render your decisions. That would be the only other scenario I can think of in which a summary judgment would be appropriate.
And, in fact, that is the procedure that, as we've noted before, all the other same-sex-marriage cases have essentially followed; but as a matter of law, the only case I have that -- that takes care of everything, in my opinion, is Baker against Nelson, yes, sir.
THE COURT: All right. The others are essentially motions for partial summary judgment, having to do with the standard of review, or perhaps one of your grounds is to eliminate the Due Process claim, which would be one of the plaintiffs' claims, and so forth; but essentially, four out of the five grounds should be analyzed under Rule 54(b) rather than summary judgment on the entire case.
MR. COOPER: That's right, Your Honor. And I should only add that one of our purposes, as we mentioned from the outset, was to submit to the Court partial motions on – on discrete legal issues that we thought might skinny down the discovery, and skinny down this trial.
THE COURT: All right.
MR. COOPER: So that is the purpose of those other --
THE COURT: Sure. Well, that's a perfectly reasonable approach. And -- and I fully understand that.
So why don't we bite off the big one first, and talk about Baker versus Nelson?
MR. COOPER: Very well, Your Honor. If the Court please, however, I'd like to place the -- our arguments under Baker against Nelson and the other ones in a perspective here; kind of an introductory perspective.
The purpose of Proposition 8, according to the California Supreme Court in the Strauss case, Your Honor – and these are its words -- was simply to restore the traditional definition of marriage, referring to a union of a man and a woman.
So the voters, last November in California, elected to restore the definition of marriage that had prevailed not only in the State of California since it became a state, but had prevailed in every civilized society throughout the ages.
And the traditional definition of marriage still prevails, Your Honor, everywhere in the world, with the exception of five American states and seven foreign countries.
Now, plaintiffs' constitutional challenge to Proposition 8 is founded, in large part, on their claim that the traditional opposite-sex definition of marriage serves no legitimate societal purpose; that is to say the opposite-sex definition of marriage that has been adopted by all societies in all places at all times in recorded history has been adopted for no good societal reason.
Now, Your Honor, the plaintiffs go even farther, because they say that the opposite-sex definition – the traditional definition of marriage -- is so irrational, so utterly baseless, that it can only be explained on grounds of naked animus to gays and lesbians: antipathy.
Mr. Boies has put it, too, discussing this very case, in these terms; that marriage is nothing more than the residue of centuries of figurative and literal gay bashing.
Now, Your Honor, this claim we resist and we reject. It condemns as bigoted most Californians; the vast majority of all Americans, including, for example, President Obama; large majorities in both houses of Congress -- at least, the Congress that passed DOMA; a large majority of every state and federal judge that has examined the issues that are now before you.
By our count, 70 of 108 judges -- state and federal -- have concluded that marriage is, indeed, supported by a rational justification, and they either did uphold it, or they would have upheld it.
Justice O'Connor, in her concurring opinion, in Lawrence, said that preserving traditional marriage is supported by legitimate state interests other than moral disapproval of gays; but, Your Honor, I think the point that I'm trying to make here is best put by the New York Court of Appeals in the Robles case, when they said this, very efficiently.
Until a few decades ago, it was an accepted truth for almost everyone who ever lived in any society in which marriage existed that there could be no – marriages only between participants of different sex.
A court should not lightly conclude that everyone who held this belief was irrational ignorant or bigoted.
Your Honor, this case -- at the heart of it are two competing conceptions of the institution of marriage, and of its central purpose.
We say that the central and defining purpose of marriage is to channel naturally procreative sexual activity between men and women into stable, enduring unions for the sake of begetting, nurturing, and raising the next generation.
Plaintiffs say that the central and the constitutionally mandated purpose of marriage is simply to provide formal government recognition to loving, committed relationships. And, in keeping with that purpose, the plaintiffs say that they have a fundamental constitutional right to marry the person of their choice; to marry the person that they love.
Now, there are several implications that I want to draw out at the outset of the Court's consideration here for acceptance of that conception of the institution, and of its defining purpose.
The first one is simply this. We submitted – this is really difficult to think and to imagine what general governmental interest the state has in recognizing and regulating all committed loving relationships.
The second point is this. There are a host of personal -- uniquely idiosyncratic, sometimes -- reasons and motivations for people to get married. Love and commitment is, to be sure, common and perhaps hopefully most common, but it's not the only motivation for people to get married.
And the -- and the state certainly doesn't – and it's impossible to imagine how it could -- restrict marriage to people who are loving, committed couples. And so, Your Honor, the underinclusiveness –
THE COURT: I suppose also the state could not require that, could they?
MR. COOPER: No, that's -- they could not. And so the underinclusiveness problem –
THE COURT: Well --
MR. COOPER: -- that my friends claim --
THE COURT: Underinclusive?
MR. COOPER: I'm sorry?
THE COURT: Underinclusiveness?
MR. COOPER: The plaintiffs challenge our conception, our procreation-based definition and conception of marriage as being fatally underinclusive, Your Honor, because it is not confined to people who intend to or are able to procreate.
THE COURT: Well, the last marriage that I performed, Mr. Cooper, involved a groom who was 95 and the bride was 83.
I did not demand that they prove that they intended to engage in procreative activity.
Now, was I missing something?
MR. COOPER: No, Your Honor, you weren't. Of course, you didn't.
THE COURT: And I might say it was a very happy relationship.
MR. COOPER: I'm very -- I rejoice to hear that, Your Honor.
Our point is the institution of marriage, like other institutions that states establish, that governments establish and they bring into being to serve certain important societal interests –
THE COURT: Well, apropos that, what is the difference, from the point of view of the state, between an opposite-sex marriage and a same-sex marriage? From the state's point of view, how are they different?
MR. COOPER: Your Honor, they're different in one fundamental respect, with respect to this purpose, this – the central purposes that we cite to you for the institution of marriage: it's simple biological reality that same-sex couples do not naturally procreate. Opposite-sex couples -- that is the -- the natural outcome of sexual activity between opposite-sex couples.
THE COURT: Well, fair enough; but procreation doesn't require marriage.
MR. COOPER: No. No, Your Honor, it doesn't; but the state's purpose –
THE COURT: And I think I -- I don't want to base any decisions on what I hear on the radio coming to Court in the morning, but there was some statistic that 40 percent – can this be right? -- 40 percent of female pregnancies in the United States are to unwed females? Is that -- is that right?
MR. COOPER: I've -- I would not be surprised. I can't confirm it myself, Your Honor, but I've heard similar depressing statistics such as that. And so, yes -- no, the state doesn't require people to get married in order to procreate or to have sexual activity.
It doesn't prohibit sexual activity among people who are not married, but it definitely attempts to discourage it through -- and especially to discourage sexual activity outside of the marriage union. That's the purpose of the fidelity requirement in the state statute, the pledge of fidelity that civil marriage places on -- on both parties to the marriage; but my -- but my central point here, Your Honor – the difference -- the key difference -- is that the state has vital interests in the procreative -- naturally procreative activity of opposite-sex couples. It has vital interests to encourage it, to promote it, and to provide benefits to it. That has been the purpose of marriage through the ages.
And its purpose is related to two central concerns; concerns that are the state's, in a defensive sense, and that are concerns of the state about its citizenry.
The first concern is its own vital interest -- existential interest -- in perpetuating society. Without the procreative activity of opposite-sex couples, as every Supreme Court on marriage has said, the existence of and survival of society would be threatened; but equally important, Your Honor, is this notion of responsible procreation. That is the closely related interest in ensuring or at least promoting and encouraging that children are raised in stable, lasting environments by the couple who brought them into the world.
That is -- that is both a defensive interest, as I say, so that the state itself does not have to endure the burdens of raising that child, either through the kind of public assistance that often -- almost always accompanies the depressing statistic that the Court referenced earlier, or through other means by which the body politic ultimately has to take responsibility or shoulder some burdens in connection with the raising of children, when their natural parents -- the people who brought them into the world -- don't take that responsibility properly.
This is what Congress said, Your Honor. This is what Congress said in passing DOMA.
THE COURT: Well --
MR. COOPER: At bottom, civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child rearing. That was Congress' judgment in DOMA.
It plainly is a rational interest on the part of society; we would say, indeed, a vital interest on the part of society.
And the Court referenced a vivid reason why that is so and -- with the statistic you reference about the phenomenon -- the unfortunate phenomenon of many children growing up in this country without both of their parents to nurture them.
THE COURT: Well, let's assume I agree with you that that's an unfortunate phenomenon; but how does that convert to a constitutional standard?
It may be unfortunate. It may be unwise. It might not be desirable from a societal point of view, but how does that convert to a prohibition to people who do have all of the essential incidents of the marital relationship? How does that justify precluding them from the marriage estate?
MR. COOPER: Your Honor, that gets to the heart of what is a real, fundamental disagreement with my side and Mr. Olson's side about the nature of the Equal Protection analysis before the Court; the nature of rational basis review, which, as you know -- as we submit -- is the governing standard. And I will come back in due time, I hope, to why we think the Court is bound by -- by that standard; but, Your Honor, to -- to just go back quickly, and bring into hopefully a clearer focus my point about the state's interests -- its legitimate interests in responsible procreation, it's not just to ensure that the child is brought up by its natural parents. It's, again, to ensure that the state doesn't have to suffer the additional and shoulder the additional responsibilities that would naturally and inevitably devolve upon it for the nurturing of this child in the absence of its natural parents taking responsibility to do that.
President Obama's Father's Day speech just this past Father's Day is a vivid statement for -- for why this is so, and why this -- and why society -- the government -- has a crucial interest in promoting these stable, enduring, heterosexual relationships as marriages; why it has that interest.
THE COURT: This is all very interesting, but let come down out of the mountain for a moment, and talk about a little law, and get back to Baker versus Nelson.
And in that connection, I'm just reading again -- rereading again this morning Justice O'Connor's opinion in Turner versus Safely, which I'm sure you're familiar with.
That's the prison-marriage case.
MR. COOPER: Yes, Your Honor.
THE COURT: 1987, I believe; a decision in the Supreme Court. Yes. '87.
Justice O'Connor wrote, ‘The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration.’
Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life.
First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance for some inmates and their spouses. Therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore, most inmate marriages are formed in the expectation that they will ultimately be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits, and so forth.
These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate correctional goals.
There's nothing in there about procreation.
MR. COOPER: Well --
THE COURT: That -- that was an essential element of permitting the individuals in that case to marry.
And what of those elements that Justice O'Connor identified would not apply equally to a same-sex marriage?
MR. COOPER: Your Honor, I disagree with the proposition that none of those elements made reference to – a necessary reference to the procreative element of marriage.
Justice O'Connor recognized that in most – even inmate -- marriages, the conjugal element of marriage, consummating that marriage -- that the naturally procreative element of that marriage was an expectation of taking place, even with respect to inmates who are confined.
In that respect, there --
THE COURT: But the marriage wasn't delayed until that event.
MR. COOPER: No, Your Honor. No. And we don't pass perfectly -- we don't ask couples to delay their marriage until they assure the state that now they're ready to have – to have -- to have children.
THE COURT: And it's certainly not a precondition of marriage to be able to prove that you can have children.
MR. COOPER: No, Your Honor, that's true. And -- and, Your Honor, there's no -- and this does get back to my earlier point. There is no purpose of marriage -- there is no definition of marriage that would -- that would offer clear and dividing lines between those people who enter into it, and -- and its purposes; even this purpose that the -- and maybe I should say especially this purpose that the plaintiffs cite as being the central purpose of marriage: to recognize loving, committed relationships. Even that can't possibly be restricted to only those couples who can fulfill that purpose or who intend to fulfill that purpose.
And -- but what we have to step back and try to analyze is: what is the state's -- what is government's purpose in regulating marriage, in recognizing these unions?
Not: what is the individuals' motivation to get married?
It's the state's purpose that's important here. And if the state has any conceivable rational purpose, I have to win. Proposition 8 has to be upheld, we believe, under the authorities that control this issue. And so the focus has to be on: what is the state's purpose?
And, Your Honor, the state has, we submit, two vital purposes for restricting, among its many eligibility requirements --
THE COURT: Well --
MR. COOPER: -- restricting marriage to opposite-sex couples. Yeah.
THE COURT: All right. Let me throw in a question here.
Assume I agree with you that the state's interest in marriage is essentially procreative, as you've put it.
MR. COOPER: Yes, Your Honor.
THE COURT: Assume that I agree with that.
How does permitting same-sex marriages impair or adversely affect that interest?
MR. COOPER: Your Honor, I have two responses I want to make to you.
The first one is: that's not the legally relevant question. And I will come back and walk through and examine why I believe that to be so.
THE COURT: It depends upon the standard of review we apply. And we're going to come to that, I'm sure, before we're done this morning.
MR. COOPER: Obviously, my submission here to you is that this rational-basis standard applies. And so, yes, my arguments here are premised upon –
THE COURT: I've given you one assumption. Give me one, for purposes of argument. And that is that this is not rational basis review; this is intermediate scrutiny.
MR. COOPER: Well, then, Your Honor, I'm going to be coming back to you with arguments.
THE COURT: Now we're having a dialogue here. Now assume that you have to have established that this is the minimally effective means of imposing this discrimination between same-sex marriages and opposite-sex marriages. So what is the harm to the procreative purpose or function of marriage that you outline of permitting same-sex marriages?
MR. COOPER: Your Honor, even under a compelling-state-interest standard, I would submit to the Court that the state's interests in channeling procreative activity into enduring relationships would be vital, and would satisfy a compelling-interest standard.
And I would also submit to the Court that there would be no reasonable available way for -- for that purpose to be fulfilled and advanced, other than the way the state has chosen -- every state has chosen, with five exceptions, and California has chosen through Proposition 8. And, Your Honor, that gets to the -- to the fundamental, I think, theoretical disagreement that I mentioned earlier between the Plaintiffs and the Defendant-Intervenors here. They say that it's not enough, as you were suggesting here, for opposite-sex unions to further and advance these vital state interests; that we have to prove, in addition to that, that including same-sex unions into the definition of marriage would actually harm those purposes and interests.
That is not the Equal Protection construct, Your Honor.
THE COURT: I'm asking you to tell me how it would harm opposite-sex marriages.
MR. COOPER: All right.
THE COURT: All right. Let's play on the same playing field for once. Okay.
MR. COOPER: Your Honor, my answer is: I don't know. I don't know.
THE COURT: Does that mean -- does that mean if this is not determined to be subject to rational basis review, you lose?
MR. COOPER: No, Your Honor.
THE COURT: Okay.
MR. COOPER: I don't believe it -- it does.
THE COURT: Just haven't figured out how you're going to win on that basis yet?
MR. COOPER: Well, Your Honor, by -- by saying that the state and its electorate are entitled, when dealing with radical proposals for change, to a bedrock institution such as this to move with incrementally, to move with caution, and to adopt a wait-and-see attitude.
Keep in mind, Your Honor, this same-sex marriage is a very recent innovation. Its implications of a social and cultural nature, not to mention its impact on marriage over time, can't possibly be known now.
THE COURT: So this is a political question, and the Court should abstain? Is that it?
MR. COOPER: Well, Your Honor, certainly at the root of all our arguments here are that this is a question of social/cultural dimension that the people themselves in this state -- and every other -- have the authority to answer. So, yes, the Court -- the Court should do as the Supreme Court did in the assisted-suicide case, and say that this issue is being debated throughout the land on -- in terms of its legality, its morality -- its morality, and its practicality in the democratic process. And that's where it should be, and that's where it should remain. So, yes, Your Honor that's at the root of our --
THE COURT: All right. Let's talk about that. It's an appropriate matter.
As we discussed when the case came here for the first case-management conference, I made the observation that I didn't think this case was doing more than touching down in this court; it was going to go on.
What you've just outlined is an appropriate decision for the Supreme Court to make from its position, but now that
the case has been filed here and been presented, is that an appropriate approach for the District Court to make, or should I simply decide the issue the best I can, based upon what is presented; and if the Supreme Court decides one way or the other not to review the matter, that's a matter -- prudential decision on the part of the Court, but it's really not a decision that I should exercise?
MR. COOPER: Your Honor, I think that the inescapable responsibility, unfortunately, for all of us here, including you -- especially you -- is to do our level best to use the legal standards that we've -- we have from what we believe, anyway, are the controlling precedents, and, you know, follow them where ever they lead, Your Honor.
We -- it's our earnest submission to you that they lead to the proposition that, in fact, our Constitution, our Equal Protection and our Due Process Clauses of the Fourteenth Amendment haven't decided this question for California and everyone else in the country. They haven't decided this. Opposite-sex marriage --
THE COURT: Shouldn't I bite the bullet here?
Shouldn't I decide one way or the other, and not just abstain, and say, "Oh, this is a political question, and it's too soon for the federal courts to get involved"?
MR. COOPER: Yes, Your Honor, you have to do that.
It's not my submission -- and forgive me if I wasn't clear. It's not my submission that the Court should simply decline to answer these constitutional issues. They are before the Court. This isn't a political question in the sense that the Court doesn't have jurisdiction over it; but our submission is it's a political question in the sense that the Constitution doesn't mandate the plaintiffs' conception of marriage, nor does it mandate my conception of marriage.
If California had decided this the other way, Your Honor, I have no doubt that there would be rational bases for it to have come to that conclusion. And I would be content to defend the State of California's judgment on that score.
The Constitution isn't the decision maker here; it's the people acting here, and everywhere else in this country.
THE COURT: I mean, why do we have this series of Supreme Court decisions applying constitutional principles to marital relationships?
MR. COOPER: Well, Your Honor -- THE COURT: The Turner case, the Loving case, all -- I mean, there was a whole string of those cases.
MR. COOPER: Yes, Your Honor. And the question becomes: do those -- do -- does application of those decisions and the principles in those decisions compel the Court to invalidate Proposition 8, and the traditional opposite-sex definition of marriage? Do they compel that?
You know, just an objective, careful, unbiased application of those principles.
And, Your Honor, our submission -- earnest submission is: no, they don't. You can't get there from here. You can't -- they -- they don't compel that conclusion.
And, in fact, a careful application of them leads to my proposition, Your Honor, I earnestly submit, that, in fact, this is a decision over -- which the people in a democratic process are free to make.
Your Honor -- and again, this does come back to my points about rational basis review. The fact that, under rational basis review, any conceivable state interest, even if I haven't conceived of it, but you can, whether or not it was ever articulated, for example, by the Legislature or here in the Proposition 8 campaign -- if any conceivable state interest is rationally served by Proposition 8 and the opposite-sex definition of marriage, then it has to be upheld.
And, Your Honor, we've offered, we believe, several; including several vital state interests.
In addition, though, as I said, it is a perfectly rational thing for the state and its people not to act precipitously with a bedrock institution such as marriage, but 28 to proceed incrementally. And on this score, I have Attorney General Brown to call upon for support, to my great satisfaction. In the marriage cases in the brief that the Attorney General put in defending Proposition 22, he said,
-- maintaining the longstanding and traditional definition of marriage while providing same-sex couples with legal recognition comparable to marriage is a measured approach to a complex and divisive social issue.
THE COURT: Well, it does appear the Attorney General's views have evolved on this.
MR. COOPER: Yes, it appears they have. It does, indeed; but, Your Honor, in my opinion, he was right when he was defending Proposition 22; but, Your Honor, I guess it's important now to come back to this -- to this point about why it's not necessary for me to prove including same-sex unions in the traditional definition of marriage would actually harm that institution, or harm the vital purposes that that institution --
THE COURT: Well, I understand your answer to that question is you don't know. You don't know.
MR. COOPER: No. Well, Your Honor, that's --
THE COURT: It's a fair answer. If you don't know, you don't know; or if you can't -- you can't say, or it depends on the development of a factual records, well, but --
MR. COOPER: Well, Your Honor, it depends on things we can't know. This is a -- this is a -- that's my point.
And the people of the State of California were
entitled to step back and watch this experiment unfold in Massachusetts and the other places where it's unfolding, and to assess whether or not -- oh, our concerns about this -- about this new and -- and heretofore unknown marital union have either been confirmed by what's happening in marriage in Massachusetts, or perhaps they've been completely allayed; but my point is: California was entitled not to follow those examples, and to wait and see. That's the whole purpose of federalism.
The whole purpose of it, Your Honor -- they were -- and when dealing with a bedrock, fundamental institution such as marriage, the state -- it's perfectly rational for it to be risk averse. It doesn't know what possible harms may flow. It may well be that there are no harms; but the state isn't required by the Constitution to take that risk.
Does the Constitution demand that the state proceed itself with this experiment, and -- and run the risks of whatever possible adverse consequences might flow?
It doesn't. That's our point. And it's rational.
THE COURT: What are those potential adverse consequences?
MR. COOPER: Well, Your Honor --
THE COURT: Has anybody identified them?
MR. COOPER: There have been some, yes, Your Honor.
For example, there seems to us to be little doubt that if the plaintiffs prevail here, and the definition of marriage is to be expanded to include same-sex couples, then the existing parallel institution of domestic partnership will also have to be expanded to include opposite-sex couples. And that parallel institution, with all the same benefits, will be available to opposite-sex couples. That's exactly how things are proceeding in The Netherlands. And in The Netherlands --
THE COURT: What's the effect of that? Is that harmful?
MR. COOPER: Well, Your Honor, there do appear to be a number of adverse social consequences in The Netherlands from this. Domestic partnership is now used, apparently, more by heterosexual couples -- opposite-sex couples -- than is marriage. So marriage -- the effort to channel procreative activity into that institution has abated quite a bit.
There's -- there are -- there are other socially unfortunate --
THE COURT: But --
MR. COOPER: Whether there's a causal relationship, Your Honor --
THE COURT: Has that been harmful to the society in The Netherlands? Has it been harmful to children? What's the adverse effect?
MR. COOPER: Well, Your Honor, again, I don't -- I don't have a presentation for you on that; but I do, Your Honor, submit that it is not self-evident that there is no chance of any harm. And unless it is, the people of California are entitled not to run the risk. And unless he can prove -- Mr. Olson and his colleagues can prove that there is no harm that can possibly come from this, then the people of California are entitled to make the decision that they did.
THE COURT: When do constitutional rights depend upon proof of no harm?
Freedom of speech? Freedom of press?
Lots of harm flows from those fundamental and basic freedoms of ours -- misinformation, incitement to passion, and so forth -- but we tolerate those risks in a free society.
So when does the application of a constitutional principle require proof that its application will not impose any risk?
MR. COOPER: When, Your Honor, the state is not entitled to make a social decision if it has a rational purpose and interest that is served by that decision.
And, once again, if its rational and legitimate basis for the eligibility restriction of opposite-sex couples in the marriage institution is procreation based, then it follows that opposite-sex couples serve that interest in a way that same-sex couples do not.
They also threaten that interest in a way that same-sex couples do not, because, again, it is the naturally procreative activity of opposite-sex couples that raises the natural result of -- of procreation and childbirth that represents concern for the body politic.
And, Your Honor, if -- if -- it just doesn't follow that because the state creates an institution for the purpose and -- and nurtures an institution like marriage for a social purpose that opposite-sex couples serve, that it must also include within that institution couples that do not serve it.
They're simply not similarly situated with respect to that rational -- and we would say vital -- purpose of this institution.
And, Your Honor, that's the ultimate --
THE COURT: Okay.
MR. COOPER: That's the ultimate proposition.
We don't have to prove that including them, in fact, would bring about a positive harm. It's simply that not including them is rational because they don't serve the interest.
Let me share with you, Your Honor, the Court's -- the Supreme Court's commonsense observation on precisely this point.
When the inclusion of one group promotes a legitimate government purpose, and the addition of other groups would not, we cannot say that the state's classification of beneficiaries and non-beneficiaries is invidiously discriminatory.
THE COURT: What case are you referring to?
MR. COOPER: This is Johnson against Robison, Your Honor: 415 United States at 385.
I would also offer the Court the University of Alabama against Garrett case, where the Court said this: Under rational basis review, where a group possesses distinguishing characteristics relevant to the interests the state has authority to implement, a state's decision to act on the basis of those differences does not give rise to a constitutional violation.
And this is my point precisely, Your Honor. The state -- the group of opposite-sex couples possess a distinguishing characteristic that is -- that is plainly relevant to the state's purpose of -- that are related to procreation.
THE COURT: All right. You've done a very good job of covering basically issues two through five.
I want to bring you back to Baker versus Nelson.
MR. COOPER: Very well, Your Honor.
THE COURT: All right. We can't put very much stock in that case, now, can we? It's old. Old cases are usually the best cases, in the view of some of us; but this is a -- it's a very limited case. It's not a considered decision of the Supreme Court.
MR. COOPER: No, no.
THE COURT: The issue came up out of Minnesota. The statute there was neutral on its face. It didn't prohibit same-sex marriage. The issue really wasn't squarely presented to the Supreme Court to decide in Baker versus Nelson.
And there have been very substantial doctrinal developments in Equal Protection jurisprudence since 1972.
So --
MR. COOPER: Well, let me -- let me --
THE COURT: Can we put any stock in that case at all?
MR. COOPER: Yes, Your Honor. I believe it continues to be binding on this Court.
THE COURT: All right.
MR. COOPER: And certainly with respect to the Due Process claim and the sex-discrimination claim; but the first point I want to make is this: that four out of five District Courts that have looked at this have concluded that it is, in fact, binding.
One District Court -- the Smelt Court -- said that it isn't binding.
THE COURT: That was the don't-ask-don't-tell case, wasn't it?
MR. COOPER: The Smelt case?
THE COURT: Yes. Wasn't it?
MR. CAMPBELL: (Shakes head from side to side).
THE COURT: Was that the DOMA case?
MR. COOPER: Yes, it was the DOMA case.
And the Court distinguished Baker against Carr [sic] because it was dealing with DOMA, and it was dealing with a claim to federal benefits of marriage; but, Your Honor, in Baker against Carr [sic], the Court was looking at really --
THE COURT: Baker against Carr, or Baker versus Nelson? That's a whole different --
MR. COOPER: I'm sorry. Forgive me.
THE COURT: A whole different ball of wax, Mr. Cooper.
MR. COOPER: Yes, it is.
THE COURT: We can only tackle one of these big issues.
MR. COOPER: Yes. Your political question got me off on the wrong track here.
THE COURT: All right.
MR. COOPER: Baker against Nelson, Your Honor, we believe brought forward exactly the same claims that you are now treating under the Fourteenth Amendment the Due Process clause and the Equal Protection clause.
And the Due Process claim was -- it sounded in all of the terms that the plaintiffs use here -- the plaintiffs there -- the same-sex couple there -- their right to marry the person of their choice, relying specifically, Your Honor, on the case that the plaintiffs here specifically and heavily primarily rely on: Loving against Virigina.
The Court did not see enough merit in that argument even to take it up and consider it, Your Honor. So the Due Process claim and the plaintiffs' definition of their Due Process right simply can't be squared with Baker against Nelson. And, again, four federal district courts, as I read them, anyway, have held that.
With respect to the language of the Minnesota statute, yes, it doesn't specifically forbid same-sex marriage. It only allowed -- permitted opposite-sex marriage. In that respect, it's precisely like Proposition 8.
And in terms of Lawrence, Your Honor, Lawrence specifically held -- or specifically observed, I should say, that the question before you here was not before that Court, and the Court was not making any adjudgments about at all; and that is the question whether the government must give formal recognition to any relationships that homosexual persons seek to enter.
So the Court negated -- the Lawrence Court negated the notion that its judgment about private sexual activity among consenting adults in that most private of places -- the bedroom -- that that judgment had -- had any relevance or was treating with this very different question. So it took care, Your Honor, not, I would submit to you, to cast doubt on Baker against Nelson and its Due Process ruling.
And there's just no way to understand a Court that summarily rejects the claim that, from two -- from a same-sex couple that we have a constitutional Fourteenth Amendment right to marry the person of our choice. There's no way to understand -- to attribute any substance to that claim, in light of the fact that, in Baker, it was rejected without any hearing argument.
With respect to the sex claim as well -- that is, that -- that Proposition 8 discriminates on the basis of gender -- that was foursquare the claim made by the plaintiffs in Baker against Nelson.
That the opposite sex-eligibility restriction in Minnesota law, just like the one here, was a gender-based discrimination. And the Court didn't find enough merit in it to hear argument.
It did resolve it on the merits, though, Your Honor.
And, as a merits decision, it is binding. And we would submit that there's -- there's simply no basis for concluding that this -- that the plaintiffs' claims on those two scores, anyway, can survive Baker.
THE COURT: Well, if you could, wrap up.
MR. COOPER: Your Honor, I do want to come to why we believe that this Court is bound with respect to the Equal Protection claims that the plaintiffs have advanced to apply a rational basis standard of review; that is, its level of scrutiny must be a rational basis. We believe that that is not an open question here; and that is controlled, instead, by the Ninth Circuit's decision in High Tech Gays.
The Court there held specifically homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny.
Now, it is true, as the plaintiffs say, that the Court reference to Bowers, an incongruous incongruity that would be created if, in the face of the Bowers case, which has been --
THE COURT: Well, relied on Bowers. In the High Tech case, Bowers was overruled.
MR. COOPER: True. True enough, Your Honor, but the Court, after noting the incongruity with the claim of quasi-suspect-class classification in the Bowers decision, the Court went on to quite independently analyze whether sexual orientation is a suspect class under the standard factors. And it concluded that -- that sexual orientation is not, because it's not immutable, and because the class affected that are gays and lesbians are not politically powerless. So it independently concluded that rational basis review applies, and that this class is not a quasi-suspect class, Your Honor.
And since that time, the Ninth Circuit, after Lawrence, overruled Bowers. The Ninth Circuit has credited that ruling and -- and the judgment made by the Ninth Circuit in High Tech Gays that rational basis review applies. And that is the Witt case. And that is the don't-ask-don't-tell case, Your Honor.
The other point I want to emphasize --
THE COURT: Well, "Don't ask; don't tell" is different, isn't it? "Don't ask; don't tell" condemns conduct or expression, whereas we're not dealing here with expressive conduct; we're dealing with a classification.
MR. COOPER: But the -- but, Your Honor, it's the same classification that was at issue in Witt.
And the Court there said that the ruling in High Tech Gays was not disturbed by Lawrence with respect to Equal Protection.
It then went on and said that, under Due Process considerations, we -- they applied a heightened standard of scrutiny to that rule; but it wasn't under Equal Protection -- the Equal Protection clause, Your Honor.
And the other point, Your Honor, I want to emphasize here is that every court of appeals that has looked at the issue of whether or not gays and lesbians are a quasi suspect or a suspect class has ruled that they're not, and that rational basis review obtains. That's ten circuit courts of appeal; six of them reiterating it after Lawrence.
So, Your Honor, this is -- this is an issue that not only is the Court bound by, but it -- it is an issue, we submit, is plainly correct.
THE COURT: All right.
MR. COOPER: Your Honor, thank you. THE COURT: Thank you, Mr. Cooper. Mr. Olson.
MR. OLSON: Thank you, Your Honor.
THE COURT: Why don't you begin where Mr. Cooper left off, with discussion of Baker versus Nelson?
MR. OLSON: I will, Your Honor.
I think that the points that you made in your question are the points that I would make, but let me make them item by item. It is a 1972 decision. A lot has happened since then.
It is a summary of affirmance which the Court, in Mandel versus Bradley, specifically said is limited. Its precedential value is limited to the precise issues presented, and necessarily decided.
And, as the Court pointed out in Morse versus Republican Party, it is a slender reed on which to rest future decisions, which is very close to the words that you used.
Secondly, as the Court pointed out in Mandel, it's very important that the Court -- this Court -- look at the facts of that case and the doctrinal basis of that case. The facts here are very, very different.
THE COURT: How so?
MR. OLSON: One, the domestic partnerships which -- that was a big, important point for the Court in Baker, because it said: if the same-sex marriage right is upheld, it will disturb laws with respect to inheritance, contracts, taxation, and so on, and so forth. It pointed out this is the Minnesota Supreme Court; that there were many things that would fall if that distinction fell.
That is not true here, because, as everyone recognizes, the rights of domestic partners are virtually identical in most respects -- virtually all respects -- to the responsibilities and obligations of marriage individuals. So that's different.
Secondly, another fact that's different is the 18,000 marriages that the State of California recognized between same-sex individuals, so you have three classes of persons.
And there are other -- the -- the third fact that is different is the whole Romer situation -- California's counterpart to the Romer situation, where a recognized right is taken away from a class of individuals; but those are not the only differences.
The Baker case -- the Minnesota Supreme Court in Baker relied on -- referred to the Loving case, which was cited by the proponents of the change, and specifically rejected that, distinguished Loving on the ground that it was a racial -- it was based upon racial considerations.
The United States Supreme Court, in Zablocki, specifically addressed that point, and said, "No, no. While Loving involved racial classifications, the right to marry is of fundamental importance to all individuals."
So the basis that the -- the Minnesota Supreme Court used as distinguishing Loving is no longer effective.
There are other aspects of this. Baker was -- the Baker case did not involve a specific claim of discrimination based upon sexual orientation. I think you noted that in your questions to Mr. Cooper.
So that is an issue that's here, but not in that case. The Romer case has been decided since then. The sex-discrimination cases, the law of the Supreme Court has changed; evolved enormously. It was 20 years before the V.M.I. U.S. versus Virginia case in which Justice Ginsburg articulated for the Court different standards for reviewing sexual-discrimination cases.
And, importantly, you cited the Turner case for the various different characteristics that make marriage valuable to individuals: the associational right, the liberty right, the privacy right, the spiritual -- spirituality right.
That same page from which you were quoting -- right in the very next paragraph, the Turner Court rejects an argument based upon summary affirmance. Of another case involving prisoners and life imprisonment, the Court said, "Well, that involved life imprisonment."
This doesn't involve, necessarily, life imprisonment, so we're not going to be bound by or persuaded by the summary affirmance in the case that the Court was referring to there.
So there were eight or nine reasons why Baker versus Nelson is not controlling on this Court. And it's not of precedential value if the Court is to do what the Supreme Court has said in the Mandel case and others: to look at how the facts have changed, and the distinctions that have occurred indoctrinally from the Supreme Court. All of those things have changed. The ground has shifted enormously since 1972.
THE COURT: All right.
MR. OLSON: Now --
THE COURT: Now, if there is essentially no difference between the incidents of domestic partnership and marriage, how can denying same-sex couples the term "marriage" constitute an Equal Protection violation?
MR. OLSON: Well, there are a number -- in the first place, as our opponents have acknowledged, the entitlement to the recognition by the state as marriage is important in and of itself. It has symbolic personal value to the individuals that are engaged in that relationship.
THE COURT: Are there other instances where symbolic significance has -- the denial of symbolic significance has been held to mean an Equal Protection violation?
MR. OLSON: I don't know of a direct, specific answer to that in terms a case citation; but let me posit this example.
Suppose that the State of California decided -- and it could have decided something like this a hundred years ago -- that if you came from another country and you went through the various processes and you had lived here for a while, you would be entitled to all of the characteristics of citizenship -- you could vote; you could do all of the things that citizens did -- but you could not call yourself a citizen.
That is is a significant difference. And I think -- and there's no question that you, the Ninth Circuit, the United States Supreme Court would have said that is a denial of Equal Protection to say that you are a little bit different; you will be characterized differently; you will have to explain to your children.
Now, I'm not just saying this from the standpoint of the plaintiffs, which can prove, if we do have the trial, that there are various different ways -- and we're in the midst of discovery, as you know, with respect to various different facets of the case; facts which you said you thought might be important for us to prove.
That is one of the things we could prove, but I submit that it is self-evident that, to say -- and the -- and the Defendant-Intervenors admit this -- that it is a very important quality. In fact, they defend -- the whole defense of their case is that it is really a meaningful distinction when you call it "marriage." It means so much to so many people, the individuals affected, the people that are viewing these individuals affected, their neighbors, their employers, and so forth.
Plus the government, in connection with the defense of DOMA case, referred to -- when DOMA was coming along, referred to something over a thousand different distinctions at the federal level that are affected by whether the state recognizes your relationship as marriage.
So, while the state is, in a sense, undermined -- and the Attorney General admits it -- any claim that marriage would -- by same-sex individuals would harm any state objectives -- and you were asking questions about that -- the federal government does make a difference. And there are effects of the ability to call oneself marriage –
THE COURT: Well, that gets to the point that Mr. Cooper made repeatedly and very ably; and that is, with all of the changes that are going on in the states that are, one by one, recognizing same-sex marriage, and the expansion of domestic-partnership rights, and so forth, aren't you just getting ahead of yourself by asserting this claim under the federal constitutional provisions?
MR. OLSON: Well, that would be exactly the same argument that was made and was rejected in Loving versus Virginia.
THE COURT: Well, but at that time, if I remember correctly, only about a third of the states prohibited interracial marriage at that time. Is that not correct?
MR. OLSON: That's correct, but there was a trend in the direction of states eliminating those prohibitions that were -- the U.S. Supreme Court held to be unconstitutional.
THE COURT: Right.
MR. OLSON: We don't say to the people in this country, "Wait until the population agrees that your constitutional rights can be recognized."
THE COURT: Why, then, did the Supreme Court wait from 1948, when California decided the Perez case, to 1960 -- what was it? '64?
MR. OLSON: '67, in Loving.
THE COURT: '67 in Loving. Almost 30 years; 20 years.
MR. OLSON: I know what Justices of the Supreme Court would say. "We don't determine our own agenda. We have to wait until a case comes to us."
Why did the Supreme Court -- and, in fact, the fact that there was that 20-some-year difference doesn't mean that it was constitutional in 1965, two years before Loving, or 1961, six years before. That doesn't mean it was constitutional during that period of time.
When the Supreme Court rendered that decision in Loving, it said that that practice that had been practiced and the -- and the state of Virginia was making the same arguments that Mr. Cooper was making: it's been that way for a long, long time, and therefore, it ought to stay that way.
The Supreme Court said, "No. That violates the constitutional rights of those individuals." The people that we represent in this case -- THE COURT: Well, when did same-sex marriage become unconstitutional?
MR. OLSON: Well, the Supreme Court of the State of California --
THE COURT: The prohibition of same-sex marriage become unconstitutional?
MR. OLSON: It didn't become unconstitutional, Your Honor.
We submit that when the Supreme Court of California decided that it violated the State's Constitution, it was deciding what the State of California Constitution required from its beginning. It had not been recognized.
And the United States Supreme Court says that when it decides a constitutional question, it isn't deciding prospectively what the Constitution means; it is deciding what the law is, in the words of Marbury versus Madison.
So what we're asking you is to declare in this case ultimately what the law is; and that is that it is unconstitutional.
THE COURT: But what makes a single Federal District Judge in San Francisco able to recognize these profound constitutional principles that 52 or -3 percent of the people of the State of California could not?
MR. OLSON: That is why you are there. And that is why we have a federal Constitution. That is why we have a federal judiciary. And that is the obligation that's given to you when you took the oath of office.
Whether or not the City of Cleburne case by the United States Supreme Court, the Religious Freedom Restoration Act, and that whole lineup of cases -- the argument was being made in that case that, 97 to one or 97 to zero, the Senate of the United States had voted for this enactment.
It didn't make any difference when it came to the United States Supreme Court. If it was unconstitutional, it's unconstitutional. And it is your burden to recognize that if you come to that conclusion, that you -- whether or not 52 percent or 51 percent or whatever percentage of the voters of the State of California are, they do not decide federal Constitutional questions.
My opponents' 123 pages of argumentation, and the very --
THE COURT: I think it was 117. Give him credit for six pages.
MR. OLSON: I thought it was 98, and 25 of them -- maybe it was 98 and 15.
THE COURT: Well, it may have seemed like that.
MR. OLSON: It seemed like that when I got to about page 15, Your Honor --
THE COURT: All right.
MR. OLSON: -- but that exhaustive presentation of arguments and the arguments that Mr. Cooper, as you said, very articulately made today are virtually identical to the very same points made by Justice Scalia in his opinions in Romer and Lawrence, but those were dissenting opinions.
The majority of the Court -- six justices in each of those cases -- rejected what Justice Scalia had to say, and rejected, therefore, what Mr. Cooper is saying. And at the end of his dissent, Mr. Cooper pointed out that Justice Kennedy, in his opinion for the Court in Lawrence, said, "We're not deciding relationships such as marriage," but Justice Scalia knew he was defeated.
And at the end of his dissenting opinion, Justice Scalia said -- he had acknowledged that defeat. He said, "What justification could there possibly be for denying the benefit of marriage to homosexual couples exercising the liberty protected by the Constitution? Surely not the encouragement of procreation," he added, "since the sterile and the elderly are allowed to marry."
THE COURT: Perhaps it shows why dissenters shouldn't always write an opinion?
MR. OLSON: It hasn't discouraged Justice Scalia.
As much as I respect him, he was outvoted in those two cases, but he was right about that point. What is the justification?
We do have a difference -- Mr. Cooper and I -- with respect to this right of marriage that the Supreme Court has mentioned over and over again, and has said is among the most fundamental rights, if not the most fundamental right. It is a right of the individual. It is not a right granted by the state. It's a right of an individual.
And Mr. Cooper's arguments about the right -- the recognition of marriage as serving procreational values might well be true; I mean, it might be true that allowing people of opposite sex to marry or have the institution of marriage might have some -- scarcely provable, as you pointed out, because of the number of children that are born out of wedlock, if you didn't get into the statistics about the number of divorces.
Mr. Cooper talks about the importance of children being raised by both of their biological parents. The recognition -- the exclusion of same-sex individuals to the relationship of marriage doesn't change any of those things; nor does the recognition -- the recognition of same-sex individuals to marry will not harm the right of heterosexual couples to get married. It doesn't have any effect on procreation.
And if the whole thing is about procreation, what if California decided tomorrow: we have a population explosion. We can't feed all of the people. Let's not -- let's discourage procreation. Let's stop this right of marriage.
If the -- if my opponents are right -- Let's take away marriage, because we want to discourage procreation.
I have no doubt that the Supreme Court would say that that was unconstitutional.
I think, because we covered so thoroughly in our reply brief, and I --
THE COURT: Well, let's talk about rational basis.
Mr. Cooper argues very effectively that if Proposition 8 is assessed under the rational basis standard, then there is a rational basis in the tradition and history of opposite-sex marriage. Why isn't he absolutely correct?
MR. OLSON: Because he's asking the wrong question.
He's saying: is there a rational basis for opposite-sex couples to get married?
Of course, there's a rational basis for that. And there's --
THE COURT: Sometimes there's not a rational basis.
MR. OLSON: That's -- someone once told me that's the elevation of hope over experience.
THE COURT: Hope over experience, right.
Dr. Johnson, I think it was. All right.
MR. OLSON: But that's the wrong question.
THE COURT: Why?
MR. OLSON: Because, as the Court taught us in Romer and as the Court taught us in Lawrence, it's the exclusion that has to be -- there has to be a rational basis for the classification. And the classification is excluding a group of individuals which the Supreme Court said in those cases is a distinct class of individuals.
The Court has to determine whether -- and the state has to establish a rational basis for the exclusion of those individuals.
THE COURT: Well, Mr. Cooper has said, "Look. This train is moving down the track": Massachusetts, Maine, various other states, Iowa, and so forth. Why isn't it rational for California to sit back and see how this plays out, and decide at some point or other whether it wants to get on board or not get on board? Why isn't that perfectly rational?
MR. OLSON: Is it a rational?
I would ask, rhetorically: is it rational to say to individuals who may have a constitutional right to be married that you have got to wait until that popular evolution takes place?
That has never been in any case that has been cited to me that I remember reading. In Mr. Cooper's excellent briefs, there is no case that says, "Well, the idea the state doesn't want to do it now, but might want to recognize it later" -- that's not a rational basis.
The Court in Lawrence and the Court in Romer -- and there are other cases, too, but those, of course, stand out, because they focus directly on this issue -- say that common sense must be applied to the rational-basis thing.
THE COURT: Lawrence was a criminal statute. We're not dealing with a criminal statute here.
There's no criminal penalty that's involved. It's simply the denial of the incidents or the terminology of marriage to individuals who otherwise would seek it.
MR. OLSON: Well, what Lawrence said was not that not only could the state not prosecute the conduct, but that the conduct was protected; the intimate conduct between individuals was protected; was a protected liberty interest under the Constitution, protected by Constitution. So the conduct itself is protected by the Constitution.
To say that, well, we can't put someone in jail for engaging in constitutionally protected activity, but we can deny them rights we give to other people because of that conduct -- because of that -- that is the conduct that connotes the relationship between same-sex individuals.
That -- when the Supreme Court has said -- and it says it in Romer, too -- cutting these people out because of that conduct, because of that label we give to that conduct, and take away the rights that the state has recognized is unconstitutional.
And in Lawrence -- and that's why Justice Scalia said what he did; because he said, "You can't say that it would not apply to marriage." He points out if you are concerned at all about logic and principle, you can't get to that point by limiting Lawrence to a criminal context, and then say that the practice itself is protected by the Constitution, but because you engage in that practice, you can't have the same rights as other citizens in the State of California.
The questions you are asking are a part, I submit, of some of the reasons procreation doesn't require marriage.
The -- the other part -- Let me interrupt myself.
The other part of what Mr. Cooper says is that if you can envision any conceivable argument at all, then -- then the prohibition on same-sex marriage must stand. That's not the test.
And, as you pointed out, if you can't -- if you can, hypothetically imagine: Well, California doesn't want to become a marriage mill.
I mean, that's nonsense. I submit it's not a good argument.
California doesn't want its citizens to have rights in California, and then be denied those rights in other states.
I could go through the various points that were made by our opponents in their brief about what the rational basis would be. They don't make any sense.
What does -- what -- the reason why they keep coming back to procreation and the raising of children is that that might be a rational basis, but it doesn't work in terms of excluding individuals who wish to marry someone of the same sex, because procreation doesn't require marriage, as your question pointed out. Marriage doesn't yield procreation.
Same-sex marriage does not dilute, diminish, inhibit, or deter opposite-sex persons from getting marriage.
And the prohibition of same-sex marriage doesn't mean that individuals who would prefer to be married to someone of the same sex is going to go out and marry someone of the opposite sex, produce children, and raise them in a happy relationship. That blinks reality.
All of those arguments that are made about -- you asked the point: if you had to prove that there was a harm by allowing same-sex marriages to exist alongside heterosexual marriages, what would that harm be?
And I think I heard Mr. Cooper say he didn't know.
Now, he's spent a lot of time on this case. And I don't know, either, what the harm could be to heterosexual marriages by allowing same-sex marriage. What it comes back to is the phrase that you see over and over again in the briefs of my opponents: the traditional definition of marriage.
THE COURT: Tradition is not an unimportant consideration when it comes to interpreting constitutional principles.
MR. OLSON: It is not.
THE COURT: It's very important, isn't it?
MR. OLSON: It is the -- but it is not dispositive.
And that's what the Court said in the Illinois case, where, when the Supreme Court of the United States says centuries of tradition --
THE COURT: The Illinois case?
MR. OLSON: Winter?
MR. BOUTROUS: Williams.
MR. OLSON: Williams versus Illinois. It's the case that said that no longer may we in this country put someone in jail because they can't pay the fine $30 or 30 days, which we used to see here on television. The Supreme Court said, "Centuries of tradition does not mean that we can continue to put people in jail because they can't pay the fine."
The same argument was made in Lawrence. Years, decades of tradition of prohibiting conduct -- that was mentioned in Lawrence.
Yes, tradition is important, but the tradition that we're talking about here is marriage. It has been recognized in the past for a long time as a relationship between individuals of the opposite sex. We can see that. There's no argument about that; but the points you were making, I think, by reading that paragraph or two from the Turner case, is what the Supreme Court has said. It is the right of an individual to associate oneself in a permanent relationship with an individual of one's choice.
None of those Supreme Court decisions preclude recognition of the -- the status of a marriage between people of the same sex.
And if the interests are privacy, liberty, spiritual -- spirituality, a union with another individual, the same things that Justice O'Connor was talking about in the Turner case that made marriage so important, then those things apply with equal force to people who are of the opposite sex, and the -- whatever interests of the state are served by marriage between opposite-sex individuals.
I have yet to see anyone identify a harm to that relationship by allowing someone else who has a loving relationship such as the plaintiffs in this case: the loving relationship with another individual of the same sex. That is not harming. That is not --
THE COURT: In your view, what are the state interests that are advanced by permitting opposite-sex marriages?
MR. OLSON: The right -- I'll use the words of the Supreme Court.
The recognition by the state of the value of a relationship between two individuals and -- and the recognition by the state of the unity of that, and that that provides stability and an acknowledgment that this is a good relationship. It forms the back -- backbone for our society.
It doesn't mean that those people must procreate or can procreate.
You married a couple just recently -- a 95-year-old person and an 87-year-old person, or something like that. And my mother was married three years ago. And she, at the time, was 87, and married someone who was the same age. I don't mean to bring this down to particular examples of individuals; but we want in our society the relationship between -- the loving, stable relationship between the individuals, because that's good for the stability of our society and the relationships of people to one another.
That -- every single one of those things apply to people of the same sex.
THE COURT: Now, are we in a different situation in this case, Mr. Olson, because, as matters have been left by the California Supreme Court after the Strauss case, it has left this intact: some 18,000 marriages that were performed between the marriage cases in the Strauss case?
And, perhaps even more complicated now, in some sense, because, although I haven't read the Bill, it's my understanding the Legislature has authorized recognition of out-of-state-performed marriages in California. Does that put a different wrinkle on this case that would, say, not apply in a case that didn't have that particular history?
MR. OLSON: Yes. And that's one of the reasons why this case is completely unlike Baker versus Nelson. That was not the case in Minnesota in 1972.
Yes, we have pointed out in our complaint and in our briefs that the irrationality is brought into bright focus by California saying that some people who are heterosexuals can get married; homosexuals -- gay and lesbian people -- can stay married if they were married. 18,000 couples who were married during that period -- we will recognize those marriages; but gays and lesbians who weren't married during that window cannot be married. That's three classes of individuals.
And now you're mentioning -- and I did read the same thing that the Legislature is proposing. And I think the Governor said he would sign a Bill that would provide those rights to people who were married outside of the state.
We have a crazy quilt of relationships in California.
THE COURT: What's the implication of that? I know I didn't allow the Intervenors from the Alliance Group, who wanted to argue that these 18,000 marriages were invalidly performed and should be annulled in some fashion. Mr. Cooper is not taking that position, but isn't that the -- a logical conclusion to be drawn from the crazy-quilt situation that you've described?
MR. OLSON: Well, I don't think that it would -- under -- I haven't heard an argument that would say there was a federal constitutional right that somehow has to be undone because California, under its law, has recognized those 18,000 relationships.
What it does do, Your Honor, it seems to me, is to point out the irrationality of the distinctions that are being made; because whether we talk about rational basis or what we believe the heightened scrutiny that would apply because of gender discrimination or -- or strict scrutiny -- the reasons that would justify that pattern of recognition of relationships in California do not make sense.
THE COURT: Well, does that mean that you could prevail in this case against Proposition 8, but that would not necessarily establish a basis to overturn a similar provision in a state that had never recognized same-sex marriages?
MR. OLSON: That is entirely possible because, I mean, the exercise that you, as a Judge, go through is to look at the facts of the situation.
What the Mandel Court said, when you do look at summary affirmance, is: what are the facts of the situation? What doctrinal changes are being made?
I would say that many of the arguments that we are making could be made in a state that has never recognized any same-sex marriages, but they are enhanced and put into very sharp focus by the strange pattern that now exists in California.
And one other part of that is that -- what if one of those 18,000 couples gets divorced, and then they decide they'd like to remarry? Can they in California, or can't they in California?
THE COURT: Well, they can go to Massachusetts.
MR. OLSON: Well, but they shouldn't have to, if they have a constitutional right to be married in this state and a constitutional right not to be treated as a second-class citizen in this state and a constitutional right not to be put in a separate class and -- and treated irrationally. We think, Your Honor, that it is very clear.
And I want to make a point that Mr. Cooper made at the very beginning -- he's made it before -- that we are -- we are making an argument that everyone who supported Proposition 8 or was opposed to same-sex marriage is a bigot. We are not making that point, and we do not believe that to be the case. And, if anything has been said by anyone, I expressly disavow it.
What we're saying is that there may be an animus, as the Supreme Court has said, against certain practices. There may be a feeling that certain relationships just aren't the same thing.
Mr. Cooper calls the idea of same-sex marriage radical, and novel, and that sort of thing. Well, many people might feel that that relationship is radical or novel or just not right. And they might feel that should be -- it always should be the way it is.
That's what we mean by an animus towards the relationship or towards the conduct which the Supreme Court has said is constitutionally protected.
What California has done is created a classification -- individuals who are gay or lesbian -- and put them in a different status with respect to rights accorded by the State of California: recognition of the fundamental right of marriage.
That is constitutionally impermissible. It violates the Due Process clause, and it violates the Equal Protection clause.
If anything, the motion by the proponents for summary judgment has illustrated the fact that judgment, in fact, should be entered in favor of the plaintiffs, and that injunction that we seek, which we hope we will have an opportunity to talk to you about again on January 11th, should be granted.
THE COURT: Very well. Thank you, Mr. Olson.
Do you want a quick rebuttal, Mr. –
MR. COOPER: Cooper.
THE COURT: -- Cooper?
MR. COOPER: Your Honor, I would appreciate a few moments, if you don't mind.
THE COURT: Sure.
MR. COOPER: First of all, with respect to this repeated point that the burden is on us to show that some harm would come forward if same-sex couples were included within the definition of marriage is simply not right under rational basis review.
We simply and only have to show that the rational purpose that is served by the traditional definition of marriage is one that would not be served or not served as well if the excluded group was included.
THE COURT: Take up the --
MR. COOPER: That's what makes it rational.
THE COURT: Take up the point that Mr. Olson made, that the -- as he put it, the crazy-quilt fashion in which this issue has developed in California --
MR. COOPER: Yes.
THE COURT: -- might very well result in what at first glance might appear to be an anomalous situation, in that Proposition 8 is unconstitutional, but that a similar provision in a state that had never permitted same-sex marriage might not.
MR. COOPER: Your Honor --
THE COURT: What's your response to that?
MR. COOPER: Well, certainly it is true that, as a result of the California Supreme Court's decision in the Strauss case, there is some number of valid same-sex marriages in -- in this state.
And that isn't -- that isn't a surprising or unusual phenomenon when a state makes a decision to step back and, say, repeal a measure that went beyond what the Constitution of the federal government required them to do, and to step back and go back to a previous policy.
If you analogize this case to the Crawford case, there is nothing in the Constitution that prevents them.
And grandfathering the individuals who were married during that interregnum is not an unusual phenomenon in the law. They were simply grandfathered.
THE COURT: Are there analogous situations?
MR. COOPER: I'm sorry?
THE COURT: Are there analogous situations?
MR. COOPER: I think there are analogous situations every time you have a change in the law, but you don't apply it retroactively.
The California Supreme Court concluded that Proposition 8 does not apply retroactively. Whether that was right or not, as a matter of interpretation, that was their ruling. And it obviously is binding. And they concluded that the individuals -- it should not be retroactive, because there were reliance interests that were at stake that were important.
So those individuals were grandfathered. Does that create some new constitutional -- does that, by itself, render Proposition 8 unconstitutional?
No, Your Honor, it doesn't.
And, to the extent the crazy-quilt character of it that Mr. Olson has referenced would threaten the Constitutionality of either the Proposition 8 or the laws that -- under which these marriages that he's referencing -- this new law that Mr. Olson referenced, and the 18,000 grandfathered marriages came into collision, then I think, under standard federal constitutional remedial practice, the policy contained in Proposition 8 would have to prevail.
So if there's -- if -- if something has to fall here, it not going to be Proposition 8, which is the most prominent and forceful voice of the State of California with respect to the policy on this.
And the case of Heckler against Matthews, at 465 U.S. 728, I believe, supports that proposition.
Your Honor, with respect to --
THE COURT: The name of that case, again, is what?
MR. COOPER: Heckler against Matthews, 465 U.S. 728.
THE COURT: Is that a Social Security case of some kind?
MR. COOPER: Honestly, Your Honor, you may have a better recollection. I'm not recalling.
THE COURT: Okay.
MR. COOPER: But, Your Honor, with respect to the point that it's simply not rational for the State of California to wait, and if there's a constitutional right at stake, I agree with Mr. Olson on that; but that begs the question. He assumes the existence of his constitutional right. And if, in fact, there's a constitutional right for same-sex couples to get married, then the State of California can't wait to see how this experiment in going to unfold in other jurisdictions.
But, Your Honor, if the issue before you is: is there a rational basis for Proposition 8; any rational explanation for the policy contained in Proposition 8?
We would submit that one of the rational bases and purposes that it serves is to allow the people of California to wait and to see how this experiment unfolds, and to assess whatever harms either may or may not follow from that innovation.
With respect to the Loving case, Your Honor, that involved an explicit racial prohibition on individuals getting married. It went to the heart of the Equal Protection clause of the Fourteenth Amendment. It was tested under strict scrutiny. No question about it; it was not at all neutral.
It, on its face, was designed to preserve the shameful concept of white supremacy. There was no rational reason for it whatsoever; in fact, certainly not procreation. It was the procreative capacity and purpose of marriage that was its very reason for existing. The white supremacists didn't want that ancient purpose of marriage to be fulfilled with interracial couples.
So, Your Honor, the case's just completely -- it is completely nonauthoritative with respect to this much, much different question.
Justice Scalia -- I, too, certainly, admire him very much.
This is one occasion --
THE COURT: Well, let's make three of us.
MR. COOPER: This is an occasion when, to be sure, at least I wish he hadn't written that dissent; but, Your Honor, it -- because it -- it forces me to present to you the proposition that he was simply wrong in that decision.
He references what is -- and we submit to you is the central purpose of marriage: procreation. And he says that that wouldn't -- that wouldn't justify opposite-sex marriage, because of infertility.
Your Honor, there is no understanding of marriage, no definition of marriage, no purpose of marriage, we would submit to you, in which all of the participants that the state has no choice but to allow to get married or not fulfill completely.
How would the state, even if it constitutionally could, restrict marriage to those individuals who either were able to or desired to have children? How could it possibly police that restriction, Your Honor? With premarital fertility tests?
A number of Courts have addressed this -- this issue.
And they have recognized that's just not -- that is not a valid objection to the opposite-sex definition of marriage.
And if that is an objection to the opposite-sex definition of marriage, it is even greater objection to the definition of marriage that has been presented to you today by the plaintiffs: that its purpose is loving committed relationships.
How could that -- how could -- how could marriage be restricted to that?
It wouldn't. That isn't -- and it couldn't be, Your Honor.
So the point is that the institution of marriage, like all institutions, are designed for the general case; for the usual -- the usual case.
And certainly we don't prevent opposite couples who don't intend to have -- have kids, but the state has an interest in still channeling them in their sexual activity, in case they have kids, notwithstanding their planning. That is not -- that is not a phenomenon that can exist with respect to same-sex couples, Your Honor.
And, Your Honor, if it is true, as the plaintiffs suggest -- if it is true that the universal eligibility restriction of opposite-sex couples in marriage must fall for these reasons, then it is very difficult to see how, in -- in -- in a judicial terrain in which procreation was not accepted as a rational basis for the traditional definition of marriage, it is very difficult to understand how the other familiar eligibility restrictions for marriage could possibly survive under the new legal regime.
Your Honor, there's -- we don't see what rational basis there would be, then, to distinguish between loving, committed couples of the same sex versus the opposite sex versus siblings, for example, or -- nor are the age-old restrictions based upon the number of individuals in the marital relationship.
THE COURT: Well, there are --
MR. COOPER: Possibly survive --
THE COURT: There are possibly quite different considerations there, are there not, Mr. Cooper?
You have considerations of abusive relationships that appear in polygamous relationships or in relationships that are incestuous. Those are quite different situations, aren't they?
MR. COOPER: Well, Your Honor, the question would have to be: well, what rationale?
THE COURT: Well, the rationale is the abuse that often accompanies those kinds of relationships.
MR. OLSON: Well, Your Honor, there is -- there is -- there's abuse that accompanies other kinds of relationships, Your Honor.
THE COURT: There's certainly abuse that accompanies what you characterize as traditional marriage. That is certainly true --
MR. COOPER: Yes.
THE COURT: -- but I do think it is probable those dangers are palpable in polygamous and incestuous relationships in a way that they are not in traditional marriage. So I don't know that that argument --
MR. COOPER: Well, Your Honor, that -- I would --
THE COURT: -- is very persuasive.
MR. COOPER: Just to refer you to our briefing for further -- further argument on that point, but I want also finally to address the issue of the nomenclature; a question you put to Mr. Olson.
We agree that certainly in this context, as in many others, the name "marriage" means a lot. It does have, by -- by virtue of its ancient and venerable heritage, an imprimatur that is -- that is special; but it nonetheless follows that it is entirely rational for the State of California and for virtually all other states to establish parallel institutions for these two very different types of relationships; different, at least, insofar as the purposes of marriage that we have articulated to you -- these very different types of relationships, and to call them by different names, Your Honor. It is not irrational to call different things by different names.
And -- and I don't think that raises any question with respect to Mr. Olson's hypothetical about a citizen who was, for some reason, not called a citizen.
I can't think of a rational distinction to be drawn between one citizen and another, although that might well depend upon the context. It might well.
If one citizen is competing with another for a job or
a college admission, and there are Affirmative Action programs in place, it may well be that there are ethnic-based names that will attach to different citizens for consideration of those governed purposes; but in the mine run of cases, I can't imagine any rational basis for simply calling citizens by different names.
There is a rational basis to call a domestic partnership, Your Honor, and a marriage by different names.
THE COURT: All right.
MR. COOPER: Thank you very much, Your Honor.
THE COURT: Thank you, Mr. Cooper.
And thank you, Mr. Olson.
Counsel, what I'm going to suggest is that we take a break; give you a chance to go have some lunch. And then come back at one o'clock, and I'll have ruling for you.
(Recess taken from 11:53 a.m. until 1:00 p.m.)
THE COURT: Very well, counsel. Good afternoon. I hope you've had a chance to do a little relaxing over the past hour.
First of all, I want to commend and thank you both for extremely able arguments, both in written form and here this morning. Obviously, it's a great pleasure to have an exceedingly interesting and important case presented by such able counsel.
I'm always a little hesitant, I confess, to hand out compliments like that, because there was a Judge on this court, Judge Peckham, who used to say when I was practicing law, "What a wonderful argument you made, Mr. Walker. Oh, that was so impressive." And then, of course, he'd proceed to rule against me.
Well, I guess I have to do that with respect to one of you this morning -- or this afternoon.
So let me proceed to that. And then we'll take up the other matters that we need to discuss going forward.
The Defendant-Intervenors, which everyone has been characterizing and calling the "proponents" -- and I think that's an appropriate terminology -- have moved for a summary judgment that Proposition 8 does not violate the Fourteenth Amendment's Due Process or Equal Protection Clauses.
In their motion papers, proponents identify five issues that they claim entitle them to summary judgment.
One, Baker versus Nelson, a 1972 Supreme Court decision, requires the Court to hold plaintiffs have not raised a substantial federal question.
Two, there is no fundamental right to same-sex marriage under the Due Process clause.
Three, Proposition 8 should receive rational basis review under the Equal Protection clause.
Four, Proposition 8 satisfies rational basis review, because it is rationally related to several legitimate state interests.
And, five, Proposition 8 is not tainted by animus or other impermissible considerations.
As noted at the outset of our discussion this morning, this is a motion for summary judgment governed by Rule 56 of the Federal Rules of Civil Procedure, and the well-known trilogy of Supreme Court decisions -- the Celotex, Anderson versus Liberty Lobby, and Matsushita Electrical Industrial Company versus Zenith Radio Corporation cases -- and their various progeny.
Now, despite the heft of the papers that have been submitted, the effect of proponents' motion is considerably more limited than might at first glance appear.
Of the five motions for summary judgment, only a determination favorable to proponents on issue one would decide the entire case.
With regard to the remaining issues, proponents' motion would appear to call for analysis under Rule 56(d). That provision has frequently but somewhat misleadingly been characterized as "partial summary judgment," in that, if proponents were to prevail on Issues Three and Four, the entire action would not be decided. Only the standard of review applied to Proposition 8 would be determined.
Similarly, a grant of the motion on Issue Two would simply eliminate one of plaintiffs' claims, and a grant in favor of proponents on Issue Five would simply determine that one of the grounds of plaintiffs' attack on Proposition 8 could not proceed.
Inevitably, when a Court is faced with a motion for so-called "partial summary judgment," the Court must consider the advisability of adjudicating part of the case on motion when a case will proceed to trial on other issues. A good part of the analysis the Court uses in that situation is whether grant of the motion will significantly shorten or expedite the trial, or whether the issues on which partial summary judgment is sought can better be left for adjudication at trial.
In this case, because only Issue One raised by proponents would decide the action as a whole, the Court will turn first to that issue.
Now, the question basically is: does Baker versus Nelson entitle Defendant-Intervenors/proponents to judgment as a matter of law?
The Court believes that Baker versus Nelson does not settle the dispute that is before the Court in this case.
Baker versus Nelson dismissed "for want of a substantial federal question" an appeal from the Minnesota Supreme Court.
That Court had held that Minnesota's marriage statutes did not permit marriage for same-sex couples, and that this restriction did not violate the First, Eighth, Ninth, or Fourteenth Amendments.
A summary dismissal "for want of a substantial federal question" does constitute a decision on the merits; although it is not entitled to full precedential weight. A summary dismissal prevents a lower court from reaching opposite conclusions on the precise issues presented and necessarily decided in the jurisdictional statement.
Lower federal courts should adhere to the view that if the Court has branded a question insubstantial, it remains so except when "doctrinal developments indicate otherwise." If there are later developments that alter or erode the summary disposition's authority, lower courts are not bound by the Supreme Court's characterization of the issue presented as insubstantial.
The Court does not agree that Baker is either settled law, or that it addresses the issues plaintiffs have raised here. The jurisdictional statement in Baker dealt with constitutional allegations similar to the challenges in this case, but based on a different set of underlying facts. In Baker, plaintiffs challenged a statute which was interpreted to prohibit same-sex marriage, but was neutral on its face. That is, as stated by the Minnesota Supreme Court, the Minnesota statute at issue in Baker did not contain an express statutory prohibition against same-sex marriage.
Proposition 8, by contrast, is not neutral with respect to same-sex and opposite-sex marriage, but expressly distinguishes them, and limits marriage to the latter. Unlike in Minnesota, where same-sex marriage had never been recognized, plaintiffs here challenge California voters' use of the ballot initiative process to strip unmarried gay and lesbian individuals of an existing state constitutional right to marry. Potentially, therefore, Proposition 8 may be invalid, given the history in California, whereas a similar enactment in another state that had never recognized same-sex marriage might not be constitutionally infirm.
In addition, there appear to have been significant doctrinal developments on both Equal Protection and Due Process grounds since Baker was summarily dismissed in 1972.
Supreme Court cases decided since Baker show that the court does not consider "insubstantial a constitutional challenge brought by homosexual individuals" on Equal Protection or Due Process grounds. The Romer case relied on the Equal Protection clause to invalidate a state constitutional amendment which enough filed specific legal protections for homosexuals.
The Court held that home sexuality cannot be singled out for disfavorable treatment, and that the amendment did not further a proper legislative end, but rather classified homosexuals to make them unequal. Plaintiffs' claims are more similar to those made in Romer than those made in Baker, because plaintiffs are challenging an initiative measure which on its face singles out same-sex from opposite-sex relationships.
Lawrence versus Texas would also appear to be a significant doctrinal development under the Due Process clause, because it holds that "persons in homosexual relationships may seek autonomy under the Constitution." The Court noted that laws and traditions in the past half century show an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining sex." Lawrence makes clear that gays and lesbians are able to rely on the Fourteenth Amendment's Due Process guarantee.
Finally, doctrinal developments appear to have altered the landscape for plaintiffs' sex discrimination claim. Baker was decided before the Supreme Court applied intermediate scrutiny to gender discrimination claims. Contemporary Equal Protection doctrine emerged after Baker. Although the Court will address the appropriate standard of review in a few moments, a key fact question appears to be whether Proposition 8 is a gender-neutral enactment or whether, in fact, its operation in practice discriminates on the basis of gender.
Accordingly, the Court cannot find on the basis of the present record that Baker entitles proponents to judgment as a matter of law, and thus, the Court turns to proponents' motions for partial summary judgment.
Are plaintiffs' Due Process claims foreclosed because there is no fundamental right to marry someone of the same sex? Plaintiffs and proponents agree that marriage is a fundamental right protected by the Due Process clause. There's no dispute among the parties that marriage traditionally has involved opposite-sex relationships.
Proponents rely upon Washington versus Glucksberg to argue that the right to same-sex marriage is not grounded in "our nation's history, legal traditions, and practices," and cannot, therefore, be grounded in the Due Process clause.
Plaintiffs, on the other hand, argue that the right at stake is not "the right to same-sex marriage," but instead is "the right to freedom of personal choice in matters of marriage."
In this, as in many instances in the law, how one poses the question determines the answer. Posing the right at stake as the right to same-sex marriage may point in one direction, while posing the question as the right to marriage points in the other. The Supreme Court cases discussing the right to marry do not define the right at stake in those cases as a subset of the right to marry depending on the factual context in which the issue presented itself.
For example, Loving addressed marriage; not interracial or opposite-race marriage. If the Lovings had been asked to demonstrate that interracial marriage was deeply rooted in the nation's history and traditions, they likely would have lost.
Turner versus Safley discusses marriage; not marriage involving inmates in penal institutions.
Proponents attempt to distinguish same-sex marriage from all other forms of marriage because same-sex marriage does not involve procreation, but they fail to address at least two circumstances in which a right to marry has been recognized without regard to the possibility of procreation.
First, the line of authority stemming from Turner allows for marriages that cannot resemble proponents' Definition of traditional marriage, because a prisoner has -- particularly a prisoner with a life sentence and no possibility of parole can still marry, although he cannot provide anything approaching the traditional incidents of parental care, support, or nurture to offspring.
Secondly, in when the Court, in Zablocki, overturned the Wisconsin law requiring payment of outstanding child support before marriage, the Court was concerned with an individual's right to marry; not with children. If the right to marry is about "survival of the race," then a child-support restriction would be unobjectionable.
The argument that recognition of same-sex marriage simply opens the door to incestuous or polygamous marriage ignores that there may well be compelling state interests against recognizing these other forms of relationships, including preventing exploitation and abuse.
Nor is it clear why it is same-sex marriage (and not, for example, infertile marriage) opens the door to require state recognition of polygamy and incest. Whatever prevents California now from recognizing the marriage of a brother and a sister would likewise stop it from recognizing the marriage of two sisters in the absence of Proposition 8.
The Court cannot determine that plaintiffs' Due Process claims are foreclosed as a matter of law. Unresolved by the present record, which consists almost exclusively of legal arguments, is the governmental interests that Proposition 8 fosters. Although that may be akin to a legislative fact, as Mr. Cooper has so forcefully and ably argued, embedded within such a legislative fact are certain assumptions about human behavior and relationships that have simply not been developed in the record that is now before the Court. And the presentation of evidence, I believe, is essential to the resolution of the issues insofar as they bear on that legal question.
Have plaintiffs raised genuine issues of fact that Proposition 8 may be subject to strict scrutiny or intermediate scrutiny review?
Proponents assert that even if plaintiffs can state an Equal Protection claim, that claim must be analyzed under the rational basis review standard.
Proponents' first argument asserts that neither the Supreme Court nor circuit courts have recognized heightened scrutiny, and that the Ninth Circuit's decision in High Tech Gays versus Defense Industry Security Clearance Office forecloses any decision to the contrary.
Second, proponents assert that even if the Court were free to determine what level of scrutiny to apply, the Court should still apply rational basis review.
The Supreme Court has never applied heightened scrutiny to a claim of sexual-orientation discrimination. Romer used rational basis (without discussing what level of scrutiny would be appropriate) and Lawrence, of course, was decided upon Due Process grounds. Nothing in either decision forecloses heightened scrutiny, but neither do these decisions give us much guidance on what standard to apply.
In High Tech Gays, the Ninth Circuit reversed the decision of Judge Henderson of this court that a law discriminating against gays and lesbians needed to survive heightened scrutiny. In doing so, the Ninth Circuit relied explicitly on Bowers, and reasoned that if homosexual conduct can be criminalized, then homosexuals cannot constitute a protected class.
Well, Lawrence, of course, undermined High Tech Gays.
Bowers was subsequently overruled by the Supreme Court's decision in Lawrence.
A subsequent decision of the Ninth Circuit, Witt versus department of the Air Force, addressed a challenge to the military's Don't Ask Don't Tell (DADT) policy. Witt applied rational basis review to Witt's Equal Protection claims. Her Equal Protection claims were, however, based on conduct, not sexual orientation; and for that reason it is not clear whether this determination has much bearing on this case.
Indeed the Don't Ask Don't Tell policy itself is based on homosexual conduct, or at least expression of such conduct, but not on sexual orientation or definition itself.
Proposition 8, by contrast, does not address conduct, but sexual classification or sexual orientation or both.
Proponents' point to other circuits that have applied rational basis review to Equal Protection claims based on sexual-orientation discrimination. The cases decided after Lawrence are perhaps the most important. In Cook versus Gates, the First Circuit applied rational basis review to a challenge to the Don't Ask Don't Tell policy, because the Supreme Court had not indicated that sexual orientation should receive heightened scrutiny. The Fifth Circuit applied rational basis to a gay prisoner's Equal Protection claim that guards failed to protect him adequately because of his sexual orientation.
And the Sixth Circuit has held that homosexuality is not a suspect class. The Eleventh Circuit agreed with that position.
The Supreme Court has been reluctant to expand the list of classifications subject to heightened scrutiny.
The mixed precedent on the issue points in the direction that plaintiffs claim that a heightened level of scrutiny is not foreclosed as a matter of law, but requires a complete factual record for decision making.
The test whether a group receives heightened scrutiny comes, of course, from the famous footnote four in the Carolene Products case. The four factors used to determine whether a group is a discrete and insular minority are: the history of invidious discrimination against the class burdened by the legislation, the characteristics that distinguish the class as indicating a typical class member's ability to contribute to society, the distinguishing character -- whether the distinguishing characteristic is "immutable" or beyond the class member's control, and the political power of the subject class.
Proponents do not present evidence on the first two factors, and appear for purposes of this motion to accept that gays and lesbians have faced discrimination, and contribute equally to society. Instead, proponents focus solely upon the immutability and political power factors. These four factors are generally weighed, and not treated as separate elements.
So proponents' failure to dispute the first two claims does, in fact, impair their claim that heightened scrutiny may not apply to the analysis of Proposition 8.
Plaintiffs contest proponents' facts relating to immutability and political power. These, I think, are prime issues for trial.
For example, while proponents put forth scholarship explaining that an individual's sexual orientation may fall on a continuum, plaintiffs counter that an individual does not experience constant shifts in his or her sexual orientation.
Proponents put forth evidence that gays and lesbians have had some political successes.
Plaintiffs counter with evidence and a Rule 56(f) affidavit that evidence will be gathered that gays and lesbians have been ignored or mistreated by the political process.
The disputed facts on these issues preclude summary judgment at this stage of the proceedings.
Proponents also move for summary judgment that Proposition 8 does not discriminate based on sex or gender. If Proposition 8 discriminated based on sex, it would be subject, of course, to intermediate scrutiny. Proponents argue that Proposition 8 treats men and women the same. Either can marry someone of the opposite sex, and neither can marry someone of the same sex. Plaintiffs counter that because the Supreme Court rejected a similar argument in Loving, Proposition 8 discriminates.
Proponents point out that most state courts addressing same-sex-marriage bans have found they do not discriminate on the basis of sex. Plaintiffs state that Proposition 8 mandates gender roles in marriage, at least superficially; but the California Supreme Court rejected the sex-stereotyping argument in the Marriage Cases.
So I don't believe that at this juncture in the proceedings it possible to determine as a matter of law that a sex-discrimination claim is foreclosed of the plaintiffs.
Now, the plaintiffs demonstrated a genuine issue that Proposition 8 is rationally unrelated to a legitimate state interest.
Proponents put forth the following state interests: preserving the traditional institution of marriage.
Proponents claim that California has an interest in maintaining a definition of marriage that excludes same-sex couples, and in taking an incremental approach to novel social changes. Plaintiffs point to Lawrence's "times can blind us to certain truths, and later generations can see that laws once thought necessary and proper, in fact, serve only to oppress." Tradition alone is not enough, because "the constitutional imperatives of the Equal Protection clause must have priority over the comfortable convenience of the status quo."
Plaintiffs dispute the factual basis for proponents' claim that excluding same-sex couples from marriage preserves traditional marriage, and argue that marriage has not had a stable definition across generations.
These two point to issues appropriate for a fuller record.
Proponents rely upon what they argue to be interests arising out of the male-female procreation process. Proponents maintain that because of the naturally procreative nature of male-female relationships, only opposite-sex marriage can further interests in procreation. These interests include encouraging formation of naturally procreative unions, encouraging stability within naturally procreative unions, and encouraging the bond between parents and biological offspring. Proponents argue that the fit between the law and the interests need not be perfect, and that, therefore, the existence of infertile opposite-sex marriage is irrelevant.
Plaintiffs argue that the interests are not rationally related to Proposition 8. Because Proposition 8 neither encourages gays and lesbians to marry someone of the opposite sex nor makes it more likely that heterosexuals will marry, Proposition 8, in plaintiffs' view, has nothing to do with the state's interest in procreation. Plaintiff states -- plaintiffs state that facts developed during discovery will demonstrate the absence of this link. Proponents counter that they can, if they must, show a link between the procreative interests and the denial of marriage to same-sex couples, because allowing same-sex marriage shifts the focus of marriage away from families and onto individual desires.
Plaintiffs dispute these issues, and claim that proponents' claims state interests in procreation are essentially not the compelling interests that the state has in the marriage estate.
And these, I think, again, point in the direction of issues suitable for a fuller development at trial.
"California has an interest in ensuring its marriages are recognized in other jurisdictions, and ensuring that it does not become a marriage mill for out-of-state gays" is another basis for the proponents' motion.
Because most states and the federal government do not recognize same-sex marriage, proponents claim California has an interest in only issuing marriage licenses that will be recognized in other states.
Proponents point to a case in Massachusetts -- a complaint filed by the Attorney General of that state -- challenging the Defense of Marriage Act, because it forces Massachusetts to categorize its marriage licenses. Proponents do not explain how Proposition 8 furthers this supposed interest.
Plaintiffs state, as an initial matter, that this interest cannot be furthered by Proposition 8, which allowed at least 18,000 California same-sex marriages to stand.
Plaintiffs dispute that California has an interest in preventing out-of-state couples from marrying. Plaintiffs dispute the factual basis for the claimed state interest in not becoming a marriage mill, because marriages do not have the same negative connotation as divorces. The state's interest in not becoming a divorce mill does not lead to a state interest in not becoming a marriage mill.
Well, this claimed interest, in the Court's view, is essentially insubstantial, and is not sufficient to warrant as a matter of law that the issue that was raised with respect to the legitimate state interest in Proposition 8 can be determined as a matter of law.
Have plaintiffs raised a genuine issue that Proposition 8 is tainted by animus?
Finally, proponents ask for summary judgment that Proposition 8 was not passed with animus. First, proponents claim that because Proposition 8 is supported by legitimate interests, animus is legally irrelevant. Their argument stems not from facts, but from a train of logic. Because Proposition 8 acted with surgical precision -- and I'm quoting -- "with surgical precision to preserve and restore the venerable definition of marriage," Californians were not acting with animus, in the proponents' view. The resulting effect on gays and lesbians was "an unavoidable consequence."
Additionally, finding Proposition 8 was passed with animus would mean that the Court concludes that everyone who opposes same sex marriage is a bigot.
That, I think, is reading far too much into any such determination.
Proponents' argument rests on the assumption that the Court accepts that Proposition 8 is supported by legitimate state interests. Plaintiffs point to evidence of the disconnect between the Proposition 8 campaign messages, and the state interests claimed to argue that whether Proposition 8 was passed with a discriminatory intent remains in dispute.
So for those reasons, the proponents' motion for a summary judgment will be denied with respect to Baker versus Neslon grounds. And I don't believe that I can, based on the present record, make a determination of the appropriate standard of review to apply when the case is ultimately decided on the merits.
Now, with that decision, we have some few case-management matters to discuss. One of them, of course, is the motion for stay that has been filed. And let me ask Mr. Cooper if you wish to file a reply memorandum. I think you have not done so. Is that correct?
MR. COOPER: We have not yet, Your Honor, had a chance to do so. And, with the Court's permission, if the Court plans to get into any of the substance of the stay application, my colleague, Mr. Nielson, is prepared to address it, but we haven't filed a reply paper.
THE COURT: It might be --
MR. COOPER: We're content to waive filing a reply.
THE COURT: I'm sorry. You're content to?
MR. COOPER: Content to waive filing a reply to the response.
THE COURT: Well, far be it from me to prevent you from waiving a right to file a reply brief.
It may be better if we don't address this on the merits this afternoon.
MR. COOPER: Then we would like an opportunity to reply.
THE COURT: All right. Well, that's fair enough.
And I say that in considerable measure because I'm not sure that I'm as familiar with the issues that have been raised here as I'd like to be before making a determination. And so any further briefing on the subject would probably be helpful.
And, rather than bring you all out here again to argue this motion, I'd be prepared either to decide it on the papers or, if I think that further argument would be helpful, perhaps to do that by telephone, so that if we don't argue the motion to stay today, and an oral argument would be helpful to the Court, I'd be happy to set up a conference call. And we could all get on the line and proceed that way. How does that sound to you, Mr. Olson?
MR. OLSON: It does --
I would like to make, if I might, just one or two points briefly in that connection.
THE COURT: Sure.
MR. OLSON: Deciding it on the papers would be satisfactory. We would not object to that. And also a telephone argument would be also satisfactory.
I did want to make a couple of points with respect to that, and this is not in the form of arguing the merits of it so much as to questions of timing.
THE COURT: I've heard that before, Mr. Olson. "I'm not going to argue the merits."
MR. OLSON: Well, we'll see if I slip into that.
THE COURT: All right.
MR. OLSON: We received a letter yesterday from the proponents' counsel. It said, "While a motion for a stay is pending, our clients intend not to produce any documents subject to their claim of a First Amendment privilege. When and if there is no longer a possibility for a stay from any court, then our clients will produce the documents."
In other words, the proponents are stating -- I will be willing to stand corrected by Mr. Cooper if I misunderstand this letter, but they are going to resist production of these documents as long as there is an application for stay pending before any court.
Therefore, our position is: we're very anxious to have this decided as soon as possible, and we hope that if you decide it to reject the stay application, you order that the documents be produced within a very short period of time.
We -- I won't go into the merits.
THE COURT: One question I have -- and in fairness to Mr. Cooper, I should put that on the table right now. And he may want to address this in his reply memorandum -- excuse me for interrupting -- is a motion to stay appropriate after a petition for a writ of mandate has been filed in the Court of Appeals?
I thought you asked the District Court to stay its Order first, and then you proceed to the Court of Appeals. I wonder what the procedural posture is at the Court of Appeals.
MR. OLSON: We would have thought so, too, but I guess Mr. Cooper would answer that.
Let me just make one point.
THE COURT: All right.
MR. OLSON: The final point I was going to make is that if there is a stay of discovery, which Your Honor has indicated is appropriate, and Your Honor offered a protective order -- and we'd be happy to talk about a protective order, too. So that is something that could be done with respect to this, but if there is a stay of the production of documents, which Your Honor has already decided is appropriate for us -- or appropriate for us to seek.
THE COURT: Well, of course, I ask you -- your side to reframe that document request, too.
MR. OLSON: Yes. And we're willing to do that. So far, we have not been able to get -- that's been resisted, but I understand that. That's a perfectly good point, but if there is a stay that is going to last a long period of time or any substantial period of time, with respect to documents or evidence that you have ruled we are entitled to, our clients are entitled to, we would want to reopen the motion that was considered this summer for a preliminary injunction, because your decision with respect to denying that motion was based upon the premise that there would be a prompt expeditious trial on the merits.
Our position is that our clients are suffering constitutional injury. The State of California has admitted that. And they are -- we believe they are entitled; that Proposition 8 be stayed so that they will not suffer every day irreparable and irremediable constitutional injury.
We understand that if there is a trial on January 11, then we will be getting the relief that we hope if the Court agrees with us; but if there's going to be delays --
THE COURT: Well, fair point.
Mr. Cooper.
MR. COOPER: Your Honor, we have from the outset been sensitive to the plaintiffs' stated desire to move this case expeditiously. And we have cooperated in every respect with that. We remain sensitive to that concern.
And it was in the light of that that we did seek to notice an appeal of the Court's ruling on the discovery issue, with all due respect, of course, and to seek also this Court's stay of that ruling, so that the issue would not be mooted out effectively by the production of the very documents at issue before we had had an opportunity to seek review of the Court's ruling.
Obviously, we are -- we are -- we are attempting to do this in the traditional and proper way: seeking the District Court's consideration of a stay of the Court's ruling while we seek appellate review.
If that isn't forthcoming, if the Court, in its wisdom, decides to deny the stay, then we would ask the Ninth Circuit to stay the -- stay the ruling, and we'd see what happens.
THE COURT: My clerk told me that you had received a briefing schedule from the Ninth Circuit on this. Is that correct?
MR. MC GILL: It is.
MS. STEWART: I think the briefing schedule that the Ninth Circuit has issued has to do with the appeal from the intervention. Is there a briefing schedule? Matt's correcting me.
MR. MC GILL: Go ahead.
THE COURT: What's the story?
MR. MC GILL: Your Honor, there is a briefing schedule.
MR. MC GILL: My name is Matt McGill. Gibson, Dunn & Crutcher.
THE COURT: Mr. McGill.
MR. MC GILL: There is a briefing schedule.
THE COURT: On the motion for --
MR. MC GILL: On Mr. Cooper's appeal of your order denying his motion for protective order.
THE COURT: And what is that schedule?
MR. MC GILL: I believe it calls for the opening briefing to be filed in January.
THE COURT: In January?
MR. MC GILL: That's correct.
MR. COOPER: Your Honor, we've made clear --
THE COURT: The Ninth Circuit grinds finely, ever so slowly.
MR. COOPER: We have made clear in our notice that we would seek to move to expedite that appeal. We would seek expedited treatment of that; and obviously, we would expect that in these circumstances.
And so our attempt here is in no way to try to delay in any unnecessary fashion these proceedings, but it is to -- to exhaust every opportunity and possibility we have for appropriate judicial review of our claim that our First Amendment interests and rights would not be -- would not be preserved if we were required to -- to produce the documents in question.
So we're -- we're happy, of course, with the process that the Court has outlined. We -- if the Court wants to rule on the papers or call us back together for a telephonic argument, we'll abide by the Court's wishes, of course.
MR. MC GILL: Your Honor, just to confirm, I am able to confirm for you that the opening brief is due on January 25th.
THE COURT: January 25th?
MR. MC GILL: That's correct.
MR. COOPER: This must have just come down. I am not --
THE COURT: I wonder if that was just one of their automatic -- one of the automatic orders that they issue from the motions panel.
MR. COOPER: I would suspect that's the case. It hasn't gone to a motions panel yet.
I mean, in other words, we haven't sought a stay from the Court of Appeals until -- until, obviously, we've heard from you, Your Honor, on that issue.
THE COURT: You might address that question: whether or not that petition for writ of mandamus is appropriate in the absence of having applied for a stay from the district court.
MR. COOPER: Your Honor, the petition is in the alternative. We believe that the -- there is appellate jurisdiction over this interlocutory appeal, under the collateral order doctrine. That's our view of the matter, but certainly it is in the alternative; but yes, we will look at that and address it for the court.
THE COURT: All right.
MR. COOPER: Absolutely.
THE COURT: When do you think you could get your reply brief in, Mr. Cooper?
MR. COOPER: Very promptly, Your Honor.
THE COURT: Good.
MR. COOPER: How about the day after tomorrow? Would that be all right?
THE COURT: That's fine. That's fine. Absolutely.
MR. COOPER: Yeah.
THE COURT: All right. I appreciate that.
And I understand Mr. Olson's point that if this case gets hung up for a long period of time on discovery issues, then that does change the equation the Court considered at the outset on the plaintiffs' motion for a preliminary injunction.
So -- and I think it would be unfortunate, as the ruling on the motion for summary judgment indicated, for this case to go up in that posture before there has been a development of the record. For whichever side wins, I think you're going to be benefited by a fuller record. And so I think it would be unfortunate to short-circuit that process to any material degree.
What other issues do we have? Any? How about the other discovery? How's that going? Why is it, when it comes to discovery, everybody looks to the younger lawyers?
MS. DUSSEAULT: Good afternoon, Your Honor. Chris Dusseault, also of Gibson, Dunn & Crutcher.
The other discovery on which progress is moving forward is the expert discovery. We have exchanged initial expert reports. We are scheduling as we speak, in the area of 15 expert depositions that will be happening in the next six weeks or so. So the expert discovery is moving forward.
I think the fact discovery is really not moving forward based on the Defendant-Intervenors' motion.
THE COURT: Anyway, to bifurcate or segregate those issues?
MS. DUSSEAULT: If --
THE COURT: If we get hung up on this fact discovery process?
MS. DUSSEAULT: It might be something we'd want to discuss. We certainly will be moving forward, full speed ahead, with the experts. Even though, for example, we don't have certain documents that some of our experts might ideally hope to consider in reaching their opinions, we are moving that forward, full speed ahead.
Whether it would be possible to, in a bifurcated manner, try any issues without a full factual record, I think, is something we'd need to discuss more fully.
THE COURT: Any views on the other side?
MR. COOPER: Just this point, Your Honor. The only hangup in this discovery process that at least I'm aware of is the -- are these disputed; this disputed category of documents?
We've already produced a large volume of documents to the plaintiffs that we haven't disputed in response to their fact discovery and their document requests.
So the only -- the only hangup I know of is this.
And, yes, the expert discovery is going forward. We've exchanged reports, according to the Court's --
THE COURT: Schedule?
MR. COOPER: -- the Court's schedule. Yes.
And it was quite a back-breaking process, but we all have done that, and so those depositions go forward I don't see those as being in any way related or hung up on this other.
THE COURT: All right. What else can anybody offer for the good of the Order?
Oh, the clerk has reminded me of another matter.
The clerk has reminded me to ask about the motion to realign Mr. Cooper. Do you want to realign the Attorney General? Or maybe "reorient" him would be a better way to put it.
MR. COOPER: It is with no disrespect to our friends.
For the Attorney General, we have asked the Court to realign the Attorney General as a party plaintiff. Yes, Your Honor.
And we set forward our bases and the authorities we think support that in our papers. There has been no response to them as of yet. The Court's calendar evidently, you know, when -- under the Court's rules, as I understand it, you identify the next available calendar date. And so that's quite a ways down the road. And so there's been no briefing that has proceeded on this yet.
THE COURT: Well, why don't we set a briefing on this, so we get that issue fully briefed?
MR. OLSON: I was only going to say: one thing in connection with that is we have brought a lawsuit against the State of California and against the Attorney General. And we believe that the Attorney General, whether he wants to concede defeat or not, wants to concede that Proposition 8 is unconstitutional, as he has. He is and remains a defendant in this case against whom a judgment will have to be entered as a defendant.
THE COURT: Well, why don't you file that in very short order, in the next few days? And if you submit that, and Mr. Cooper, then, has -- what? -- a week to reply?
MR. COOPER: A week would be entirely adequate.
THE COURT: Then the matter will be submitted, and ruled on on the papers.
Yes. The Attorney General wants to be heard on this. Now whose side do you want to be on?
MS. PACHTER: Your Honor, the Attorney General will oppose the motion to realign him as plaintiff in this case. And we would like more than a few days to brief that opposition.
THE COURT: Okay. How much do you need?
MS. PACHTER: Today is Wednesday?
THE COURT: Today is Wednesday.
MS. PACHTER: Two weeks from today, Your Honor.
THE COURT: All right. That's fine.
MS. PACHTER: Thank you, Your Honor.
THE COURT: And then Mr. Cooper's reply can be a week after?
MR. COOPER: Yes, Your Honor. That would be fine.
MS. PACHTER: Thank you, Your Honor.
THE COURT: The clerk will note those precise dates, but that will be fine.
Anything else?
MR. OLSON: I don't know of anything, Your Honor, that -- I don't know of any other motions that are pending.
MR. COOPER: Nothing from our side, Your Honor.
THE COURT: All right.
MR. COOPER: Thank you.
THE COURT: Once again, Counsel, I appreciate your good help. Thank you, and I look forward to our next get-together.
MR. COOPER: Thank you, Your Honor.
(At 1:50 p.m. the proceedings were adjourned.)
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CERTIFICATE OF REPORTER
I, LYDIA ZINN, Official Reporter for the United States Court, Northern District of California, hereby certify that the foregoing proceedings in C. 09-2292-VRW, Kristin Perry, et al., vs. Arnold Schwarzenneger, were reported by me, a certified shorthand reporter, and were thereafter transcribed under my direction into typewriting; that the foregoing is a full, complete and true record of said proceedings as bound by me at the time of filing.
The validity of the reporter's certification of said transcript may be void upon disassembly and/or removal from the court file.
___________________________
/s/ Lydia Zinn, CSR 9223, RPR
Thursday, October 15, 2009
