No. 10-16696 United States Court of Appeals For The Ninth Circuit

Case: 10-16696 10/25/2010 Page: 1 of 40 ID: 7521471 DktEntry: 167
No. 10-16696
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
KRISTIN PERRY, et al.,

Plaintiffs-Appellees,
v.
ARNOLD SCHWARZENEGGER, et al.
Defendants,
and
PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, et al.,
Defendant-Intervenors-Appellants.
_______________________________________
Appeal from United States District Court for the
Northern District of California
Civil Case No. 09-CV-2292 VRW
Honorable Vaughn R. Walker
_______________________________________
BRIEF OF AMICI CURIAE CALIFORNIA PROFESSORS

OF FAMILY LAW IN SUPPORT OF APPELLEES
_______________________________________
Herma Hill Kay (SBN 30734) Michael S. Wald (SBN 47219)

BERKELEY SCHOOL OF LAW STANFORD LAW SCHOOL
University of California 559 Nathan Abbott Way
Berkeley, CA 94720 Stanford, CA 94305
Telephone: (510) 643-2671 Telephone: (650) 723-0322
Facsimile: (510) 643-2673 Facsimile: (650) 725-0250
[email protected] [email protected]
Attorneys for Amici Curiae
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................................................. iii
IDENTITY AND INTEREST OF AMICI ......................................................... 1
ARGUMENT ...................................................................................................... 3
I. The Legal Issues ....................................................................................... 3
II. The Nature and Purposes of Civil Marriage ............................................. 4
A. Civil Marriage Is a State-Created Legal Status .............................. 4
B. Why the State Provides for Marriage ............................................. 5
C. Choice of Partners Is a Critical Aspect of Marriage ...................... 7
III. California Law Recognizes Same-Sex and Opposite-Sex Couples as

Functionally Equivalent with Respect to the Purposes That Underlie
Marriage Law............................................................................................ 9
IV. There Is No Constitutionally Adequate Basis for Denying Same-Sex

Couples Access to the Institution of Marriage ....................................... 12
A. The Legal Standard ...................................................................... 12
B. Claimed Rationales....................................................................... 13
1. Appellants’ claim based on “responsible procreation”

is both factually unsupportable and counter to
important family law interests ........................................... 13
2. The desire to preserve a “traditional” definition of

marriage is not an adequate or acceptable claim ............... 18
(a) Marital Roles ........................................................... 19

i
TABLE OF CONTENTS -- Continued
Page
(b) Marital Dissolution Reforms ................................... 20

(c) Access to Marriage .................................................. 21
V. Marriage Is a Unique Legal, Social, and Cultural Status That

Provides Advantages That Cannot Be Matched by a Domestic
Partnership .............................................................................................. 23
CONCLUSION ................................................................................................. 29
ii
TABLE OF AUTHORITIES
Page(s)
CASES
DeBurgh v. DeBurgh,
250 P.2d 598 (Cal. 1952) ............................................................................. 21
Dunn v. Mullan,
296 P. 604 (Cal. 1931) ................................................................................. 20
Elden v. Sheldon,
758 P.2d 582 (Cal. 1988) ............................................................................... 6
Elisa B. v. Superior Court,
117 P.3d 660 (Cal. 2005) ............................................................................. 15
Griswold v. Connecticut,
381 U.S. 479 (1965) ................................................................................. 9, 17
In re Estate of De Laveaga,
75 P. 790 (Cal. 1904) ..................................................................................... 5
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) ...................................................................... passim
In re Marriage of Haines,
39 Cal. Rptr. 2d 673 (Cal. Ct. App. 1995) ..................................................... 7
Johnson v. Calvert,
851 P.2d 776 (Cal. 1993) ............................................................................. 15
Johnson v. Rockefeller,
365 F. Supp. 377 (S.D.N.Y. 1973) (Lasker, J., concurring & dissenting),
aff'd sub nom. Butler v. Wilson, 415 U.S. 953 (1974) ................................. 24
Kerrigan v. Comm’r. of Public Health,
957 A.2d 407 (Conn. 2008) ......................................................................... 27
Knight v. Superior Court,
128 Cal.App.4th 14 (Cal. App. 2005) .......................................................... 26
Lockyer v. City & County of San Francisco,
95 P.3d 459 (Cal. 2004) (Kennard, J., concurring & dissenting) ................ 26
Loving v. Virginia,
388 U.S. 1 (1967) ..................................................................................... 8, 12
Moss v. Superior Court,
950 P.2d 59 (Cal. 1998) ............................................................................... 15
Perez v. Sharp,
198 P.2d 17 (Cal. 1948) ........................................................................... 8, 22
iii
TABLE OF AUTHORITIES -- Continued

Page(s)
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) ............................................... 5, 16, 18
Shaw v. Bernal,
124 P. 1012 (Cal. 1912) ............................................................................... 20
Strauss v. Horton
207 P.3d 48 (Cal. 2009) ............................................................................... 11
Turner v. Safley,
482 U.S. 78 (1987) ................................................................. 8, 12, 17, 18, 24
Van Maren v. Johnson,
15 Cal. 308 (1860) ....................................................................................... 19
Weber v. Aetna Cas. & Sur. Co.,
406 U.S. 164 (1972) ..................................................................................... 15
Zablocki v. Redhail,
434 U.S. 374 (1978) ............................................................................... 12, 17
CONSTITUTIONAL AUTHORITIES
Cal. Const. art I, § 7.5 ......................................................................................... 3
U.S. Const. amend. XIV ............................................................................... 3, 22
STATUTES
A.B. 25, 2001 Gen. Assem., Reg. Sess. (Cal. 2001) .................................... 9, 10
A.B. 26, 1999 Gen. Assem., Reg. Sess. (Cal. 1999) .......................................... 9
A.B. 2216, 2002 Gen. Assem., Reg. Sess. (Cal. 2002) .................................... 10
Cal. Civ. Code, § 4506 ...................................................................................... 21
Cal. Fam. Code § 7600 et seq. .......................................................................... 15
Cal. Fam. Code § 297.5(a)(d) ........................................................................... 11
Cal. Fam. Code § 297(a) ..................................................................................... 9
Cal. Fam. Code § 299.......................................................................................... 9
Cal. Fam. Code § 300.......................................................................................... 4
Cal. Fam. Code §§ 301-03 .................................................................................. 8
Cal. Fam. Code § 420(c) ..................................................................................... 5
Cal. Fam. Code § 1100(e) ................................................................................... 7
iv

Page(s)
Cal. Fam. Code § 1612(c) ................................................................................... 7
Cal. Fam. Code §1620......................................................................................... 7
Cal. Fam. Code § 2201........................................................................................ 8
Cal. Fam. Code § 2310...................................................................................... 21
Cal. Fam. Code § 3040(a) (1) ........................................................................... 20
Cal. Fam. Code § 3900...................................................................................... 15
Cal. Fam. Code § 4300...................................................................................... 20
Cal. Fam. Code § 7570 et seq. .......................................................................... 15
Cal. Fam. Code § 7602...................................................................................... 15
Cal. Fam. Code § 9000...................................................................................... 11
Cal. Stat. § 316 (1865-66) ................................................................................. 19
Cal. Stat. §§ 1897-1905 (1973) ......................................................................... 20
Domestic Partner Rights and Responsibilities Act of 2003, Cal. Stats. 2003,
ch. 421. ......................................................................................................... 10
Uniform Parentage Act, 1975 Cal. Stat. 3196-3204 ......................................... 15
OTHER AUTHORITIES
Blumberg, Grace, G., COMMUNITY PROPERTY IN CALIFORNIA
(5th ed. 2007) ............................................................................................... 20
Blumberg, Grace G., Legal Recognition of Same-Sex Conjugal
Relationships: The 2003 California Domestic Partner Rights and
Responsibilities Act in Comparative Civil Rights and Family Law
Perspective, 51 UCLA L. REV 1555 (2004) ................................................ 10
Bramlett, Matthew & William Mosher, Centers for Disease Control,
Advance Data from Vital and Health Statistics, First Marriage,
Dissolution, Divorce, and Remarriage: United States (2001) .................... 24
Case, Mary Anne, Marriage Licenses, 89 MINN. L. REV. 1758 (2005) ........... 23
1 CODES AND STATUTES OF CALIFORNIA (T. Hittell, ed. 1876) ......................... 19
Dworkin, Ronald M., Three Questions for America, N.Y. REVIEW OF
BOOKS, Sept. 21, 2006 ................................................................................. 27
v

Page(s)
Herdt, Gilbert and Robert M. Kertzner, I Do, But I Can’t: The Impact of
Marriage Denial on the Mental Health and Sexual Citizenship of Lesbian
and Gay Men in the United States ............................................................... 28
Nock, Steven, Marriage as a Public Issue, 15 THE FUTURE OF CHILDREN 13
(2005) ........................................................................................................... 25
Scott, Elizabeth M., Marriage, Cohabitation and Collective Responsibility
for Dependency, 2004 U. CHI. LEGAL F. 225 (2004) ................................... 25
Wald, Michael, Same-Sex Couple Marriage: A Family Policy Perspective, 9
VA. J. SOC. POL’Y & L. 291 (2001) ................................................................ 6
vi
IDENTITY AND INTEREST OF AMICI
Amici, named below, are all law professors who teach and write in the area
of family law in California. Amici are extremely familiar with California and
national family law history, legislation, case law, and policy as they apply to this
case. As specialists in California family law, Amici believe our knowledge with
respect to these issues will contribute to the deliberations of this Court. This brief
is being filed with the parties’ consent.
Scott Altman, Virginia and Fred. H. Bice Professor of Law, University of
Southern California Law Center; R. Richard Banks, Jackson Eli Reynolds
Professor of Law Professor of Law, Stanford University; Grace Ganz Blumberg,
Professor of Law, University of California, Los Angeles School of Law; Janet
Bowermaster, Professor of Law, California Western School of Law; Carol S.
Bruch, Distinguished Professor Emerita, University of California, Davis School of
Law; Patricia Cain, Professor of Law, Santa Clara School of Law; Jan C.
Costello, Professor of Law, Loyola Law School, Loyola Marymount University;
Barbara J. Cox, Clara Shortridge Foltz Professor of Law, California Western
School of Law; R. Jay Folberg, Professor of Law Emeritus, University of San
Francisco School of Law; Deborah L. Forman, Professor of Law and J. Allan
Cook & Mary Schalling Cook Children’s Law Scholar, Whittier Law School; Joan
H. Hollinger, Lecturer-in-Residence/Director Child Advocacy Program,
1
University of California, Berkeley School of Law; Lisa Ikemoto, Associate
Professor of Law, University of California, Davis School of Law; Courtney G.
Joslin, Acting Professor of Law, University of California, Davis School of Law;
Herma Hill Kay, Barbara Nachtrieb Armstrong Professor of Law, University of
California, Berkeley School of Law; Lawrence Levine, Professor of Law,
University of the Pacific, McGeorge School of Law; Maya Manian, Associate
Professor of Law, University of San Francisco School of Law; Melissa Murray,
Assistant Professor of Law, University of California, Berkeley School of Law;
John Myers, Distinguished Professor and Scholar, University of the Pacific,
McGeorge School of Law; Douglas NeJaime, Assistant Professor of Law, Loyola
Law School, Loyola Marymount University; Patti Paniccia, Assistant Professor of
Law, Pepperdine School of Law; Shelley Saxer, Professor of Law, Pepperdine
School of Law; Nomi Stolzenberg, Nathan and Lilly Shappell Professor of Law,
University of Southern California Law Center; Michael S. Wald, Jackson Eli
Reynolds Professor of Law Emeritus, Stanford University; D. Kelly Weisberg,
Professor of Law, Hastings College of the Law; Lois Weithorn, Professor of Law,
Hastings College of the Law; Michael Zamperini, Professor of Law, Golden Gate
University.
2
ARGUMENT
I. The Legal Issues
The central issue in this case is whether Proposition 8, a voter-enacted
amendment to the California Constitution, Cal. Const. art I, § 7.5, deprives gay and
lesbian individuals of due process and denies them equal protection of the laws
under the Fourteenth Amendment of the U.S. Constitution by preventing them
from marrying the person of their choice because that person is of the same sex. In
resolving this issue, this Court must determine what the State seeks to accomplish
when it enables people to marry and whether there is a constitutionally adequate
basis, in light of these purposes, for making the sex of the partners a factor in
providing access to marriage. Because of developments in California law, the
Court also must decide a second question: are the registered domestic partnerships
that same sex couples may now enter a satisfactory alternative to marriage from a
constitutional perspective?
In this brief, Amici focus on three of the arguments proffered by those
seeking to justify the constitutionality of denying same-sex couples the opportunity
to marry: a) that special treatment is due heterosexual relationships because
heterosexual individuals can procreate “by accident” and by limiting marriage to
heterosexual couples the State is helping induce heterosexual couples who have
children accidentally to marry; b) that the desire to preserve a “traditional”
definition of marriage is an adequate justification for denying individuals the

3
opportunity to marry someone of the same sex; and c) that by providing same-sex
couples the opportunity to enter domestic partnerships, a marriage-like status,
California has satisfied the State’s obligations under the Equal Protection Clause.
Amici, all professors of California family law, examine the constitutionality
of Proposition 8 in the context of California law and policy. California law and
policy make clear that there are 1) no reasonable justifications, relevant to the
purposes of family law, for treating same-sex couples differently from opposite-sex
couples with respect to marriage; and 2) domestic partnerships are not equal to
marriage. Thus, Amici contend that the district court was correct in holding
Proposition 8 unconstitutional, as a matter of both due process and equal
protection.
II. The Nature and Purposes of Civil Marriage
A. Civil Marriage Is a State-Created Legal Status
In resolving the constitutional issues in this case, this Court must first
determine the legal nature and purposes of marriage. In California, civil marriage
always has been a legal status, created by the Legislature, which individuals may
choose to assume. Cal. Fam. Code § 300. Civil marriage has always been separate
from any form of religious marriage. The original California Constitution, former
art. XI, § 12, provided: "No contract of marriage, if otherwise duly made, shall be
4
invalidated for want of conformity to the requirements of any religious sect." This
later became Cal. Fam. Code § 420(c). Individuals can express their commitment
to each other through religious vows, but without the State’s sanction they cannot
claim the legal status of being married.
B. Why the State Provides for Marriage
While civil marriage is a status arising out of a contract between individuals,
California public policy has always regarded marriage as a special social
institution, warranting public acknowledgment, regulation, support, and
encouragement. In re Estate of De Laveaga, 75 P. 790, 794-95 (Cal. 1904); In re
Marriage Cases, 183 P.3d 384, 423 (Cal. 2008) (“Marriage Cases”).
Historically, the State has supported marriage for a number of reasons. As
discussed in more detail below, Section IV B 2, some of the original purposes for
providing for the institution of marriage have been eliminated or become less
salient over time. One historical purpose for marriage was to establish and further
the division of labor by gender; this goal was evident throughout much of the 19th
century. See Transcript 239:1- 249:15, 307:1-308:25, 340:14-342:18 (Testimony
of Nancy Cott). This is no longer a purpose of marriage; the legal division of
marital roles based on gender has been eliminated and public policies that would
perpetuate these once prevalent gender-role distinctions have been abandoned or
declared unconstitutional. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 992-
5
93 (N.D.CAL. 2010) (“Perry”); Marriage Cases, 183 P.3d at 439-40 fn. 58, 448.
Another purpose of marriage was to legitimate children and to prescribe the child
support and custodial rights and obligations of their married fathers. This too has
changed, as the State has eliminated the distinction between legitimate and
illegitimate children and has increasingly prescribed and expanded the rights and
obligations of fathers and mothers regardless of their marital status. Cal. Fam.
Code § 7602.
While these and other purposes have been eliminated or redefined, the core
purpose of marriage has remained constant. That core purpose is to enable two
individuals to choose to integrate their lives, legally and emotionally, and to
express their commitment publicly, through marriage. California courts have long
recognized that this integration benefits all of society, as well as the couple. Elden
v. Sheldon, 758 P.2d 582, 586-87 (Cal. 1988) (noting that the State accords
marriage a special place because marriage is “the most socially productive and
individually fulfilling relationship that one can enjoy in the course of a lifetime”)
(internal quotation omitted). The State favors marriage because marriage
encourages stable family relationships, promotes economic interdependence and
security for all members of the marital household, and can enhance the physical
and emotional well-being of both the partners and any children they may have. See
6
Michael Wald, Same-Sex Couple Marriage: A Family Policy Perspective, 9 Va. J.
Soc. Pol’y & L. 291, 300-03 (2001).
Reflecting the fact that marriage involves the commitment of two adults to
integrate their lives, California, like all states, has, over time, created a legal
regime that supports this integration and protects the commitment married couples
make to promote their joint well-being. See In re Marriage of Haines, 39 Cal. Rptr.
2d 673, 679-80 (Cal. Ct. App. 1995). Thus, under California law, marital partners
have obligations of mutual support, a joint interest in assets acquired during the
marriage, and a right to a share of their decedent spouse’s estate.1 These
obligations flow from the fact of marriage. This is in sharp contrast to the
obligations of each parent to her or his children, which now do not arise solely
from marriage but remain the same whether the parents are married or divorced, or
the children are born in or out of wedlock. See Section IV B 1 below.
C. Choice of Partners Is a Critical Aspect of Marriage
Given this core and consistent purpose of marriage, California has long
regarded the choice of a partner as a central element of marriage, essential both to
1
See Cal. Fam. Code §1620 (except as otherwise provided by law, a husband
and wife cannot, by a contract with each other, alter their legal relations, except as
to property); Cal. Fam. Code § 1612(c) (under some circumstances, couples cannot
waive spousal support obligations in a premarital agreement); Cal. Fam. Code §
1100(e) (married couples cannot waive the statutory imposition of a fiduciary
obligation in their management and control of community property and they cannot
waive spousal support obligations under some circumstances.)
7
the personal decision to marry and to the societal benefits that follow from
marriage. Perez v. Sharp, 198 P.2d 17, 19 (Cal. 1948) (“Perez”). Choice is central
because the benefits of marriage come from the emotional bonds between the
individuals and their commitment to a shared future. Today, California places
almost no restrictions on marital choice;2 virtually all adults are able to marry the
person of their choice, without regard to their race, national origin, religion,
income, fertility, or other characteristics.
The U.S. Supreme Court also has recognized the critical importance of
choice of marital partners, elevating choice to a constitutionally protected right.
The Court first held that a state may not restrict an individual’s choice to marry
someone of a different race. Loving v. Virginia, 388 U.S. 1,2,12 (1967) (“Loving”).
Subsequently, in Turner v. Safley, 482 U.S. 78, 96 (1987) (“Turner”), the Court
held that a state may not prevent a person from marrying someone who was in
prison, because the state-imposed limitation, even though related to the important
2
California prohibits bigamous and polygamous marriages. Cal. Fam. Code §
2201. These relationships are less susceptible to the emotional integration and
stability that the State seeks to further through marriage and thus they are
“potentially detrimental [to]…a sound family environment.” Marriage Cases, 183
P.3d at 434 fn. 52. There also are a limited number of restrictions based on
consanguinity. Finally, marriage must be entered into voluntarily and both
participants must be capable of making that choice. To ensure that capability, each
person must be at least 18 years old, or, if 16 or 17, must obtain parental consent
and a court order allowing the marriage. Cal. Fam. Code §§ 301-03.
8
interest of regulating prisons, too substantially burdened the individual’s right of
choice in marriage.3
III. California Law Recognizes Same-Sex and Opposite-Sex Couples as

Functionally Equivalent with Respect to the Purposes That Underlie
Marriage Law
In assessing the constitutionality of Proposition 8, the Court must take
account of the fact that California law clearly establishes that same-sex and
opposite-sex couples are functionally equivalent with respect to all the purposes
that underlie the State’s creation and regulation of marriage. Over the past ten
years, the Legislature has passed a number of laws expressing this conclusion.
In 1999, the California Legislature created the first “domestic partnership”
registry, with the goal of recognizing the critical importance of same sex
relationships to the State. A.B. 26, 1999 Gen. Assem., Reg. Sess. (Cal 1999)
(Stats. 1999, ch. 588, § 2 [adding Fam. Code §§ 297-299.6.]). The legislation
defined “domestic partners” as “two adults who have chosen to share one another’s
lives in an intimate and committed relationship of mutual caring.” Cal. Fam. Code
§ 297(a). The legislation granted domestic partners hospital visiting privileges and
health benefits to the domestic partners of some state employees. In the next few
years, many additional rights were provided by A.B. 25, 2001 Gen. Assem., Reg.
3
As the Supreme Court indicated in Griswold v. Connecticut, 381 U.S. 479,
485 (1965), the constitutional right to marry also may be understood as constituting
a subset of the right of intimate association, to which choice is obviously critical.
9
Sess. (Cal. 2001) (“A.B. 25”) and by A.B. 2216, 2002 Gen. Assem., Reg. Sess.
(Cal. 2002).
In 2003, the Legislature enacted a comprehensive domestic partnership
statute, the Domestic Partner Rights and Responsibilities Act of 2003, Cal. Stats.
2003, ch. 421 (“A.B. 205”), which became effective on January 1, 2005. This
statute makes it clear that the State considers committed same-sex couples’
relationships to be the functional equivalent of marriage relationships. See Grace
G. Blumberg, Legal Recognition of Same-Sex Conjugal Relationships: The 2003
California Domestic Partner Rights and Responsibilities Act in Comparative Civil
Rights and Family Law Perspective, 51 UCLA L. REV 1555, 1616 (2004).
For example, in the findings, the Legislature explained that, despite
substantial obstacles, same-sex couples can, and do, integrate their lives by
forming stable, deep, emotional relationships. See A.B. 205 § 1(b) (“despite
longstanding social and economic discrimination, many lesbian, gay, and bisexual
Californians have formed lasting, committed, and caring relationships”). The
Legislature also found that, as is true with regard to opposite-sex couples,
extending legal protections to and imposing legal obligations on the individuals in
these relationships “further[s] the state's interests in promoting stable and lasting
family relationships.” Id. at 1(a). In addition, A.B. 205, A.B. 25, and other
legislative developments, and a long line of case law, make clear that California
10
views lesbian and gay people as equally capable of having and raising children as
heterosexuals. For example, in 2001 the California Legislature provided that
registered domestic partners could utilize the more streamlined stepparent adoption
procedures previously available only to married couples. Cal. Fam. Code § 9000.
Most importantly, A.B. 205 provided that all of the parenting rights and obligations
of heterosexual married spouses must be extended equally to same-sex registered
domestic partners. Cal. Fam. Code § 297.5(a)(d).
Consistent with these legislative findings, and other established California
law and policy, the California Supreme Court, citing earlier precedent, held “[i]t is
clear from both the language of section 297.5 and the Legislature's explicit
statements of intent that a chief goal of the Domestic Partner Act is to equalize the
status of registered domestic partners and married couples.” Marriage Cases, 183
P.3d at 804.
The Supreme Court has determined that the passage of Proposition 8 did not
alter any of the legislative and judicial determinations regarding the functional
equivalence of same-sex and opposite-sex partnerships. Strauss v. Horton 207 P.3d
48, 78 (Cal. 2009). California law continues to recognize that same-sex partners
are equal to opposite-sex partners with respect to the goals of family law,
especially child-rearing. It is in the context of these legislative and judicial
determinations that that the constitutionality of Proposition 8 must be assessed.
11
IV. There Is No Constitutionally Adequate Basis for Denying Same-

Sex Couples Access to the Institution of Marriage
A. The Legal Standard

The opportunity to marry is unquestionably a fundamental right. Loving, 388
U.S. at 12. Even where a suspect classification under the equal protection clause
was not at issue, the Supreme Court concluded that a statutory classification that
significantly interferes with the exercise of the fundamental right to marry “cannot
be upheld unless it is supported by sufficiently important state interests and is
closely tailored to effectuate only those interests.” Zablocki v. Redhail, 434 U.S.
374, 388 (1978) (“Zablocki”). In light of the purposes Appellants articulate for
excluding same-sex couples from the marriage relationship, Zablocki is
particularly instructive because the statute at issue, which precluded adults with
unfulfilled child support obligations from marrying absent court permission, was
intended to protect the interests of children. Yet the Supreme Court concluded that
only “reasonable regulations that do not significantly interfere with decisions to
enter into the marital relationship may legitimately be imposed.” Id. at 386. In
Turner, the Court again emphasized the importance of marriage as a fundamental
right and that any restrictions limiting this right must be narrowly tailored.
Proposition 8 denies individuals who wish to marry a person of the same
sex the opportunity to do so, while virtually any two individuals of the opposite sex
may marry. This Court must decide whether there is a constitutionally permissible
12
State interest for making the sex of the partners a determinative factor in providing
access to marriage and whether denying a person the opportunity to choose a
partner of the same sex sufficiently furthers any such interest. While Amici agree
with Appellees that Proposition 8 should be subject to evaluation under a
heightened scrutiny standard, we submit that, in light of the relevant California law
and policy, there is not even a rational basis for denying individuals the right to
marry someone of the same sex.
B. Claimed Rationales
Appellants rely primarily on two arguments: 1) reserving marriage for
heterosexual couples encourages responsible procreation and child rearing among
heterosexuals by channeling “potentially procreative conduct” into stable family
units (Brief 77-93); and 2) California should be permitted to proceed with caution
in considering changes to a vitally important social institution (Brief 93-104).
These rationales are as deficient as were the other rationales rejected by the U. S.
Supreme Court in previous cases regarding access to marriage.
1. Appellants’ claim based on “responsible procreation” is

both factually unsupportable and counter to important
family law interests.
Appellants argue that that by restricting marriage to opposite-sex couples the
State provides an incentive necessary to channel accidental procreation, and more
particularly, the sexual impulses of heterosexual males, into stable family
13
relationships that will benefit children. A similar incentive is allegedly not required
for same-sex couples because they cannot produce children accidentally.
Appellants also claim that only by restricting marriage to opposite-sex couples will
heterosexual males marry and stay married to their children’s mothers, and play an
active role in parenting their children.
California certainly is concerned with increasing the likelihood that children
are raised in stable and enduring family units. However, the “responsible
procreation” argument rests on a faulty premise and relies on faulty logic. See
Marriage Cases 183 P.3d at 432.
Most critically, the “responsible procreation” argument undermines the exact
policy it seeks to further – the stability of families raising children. As everyone in
this case acknowledges, children benefit when their parents are able to marry.
California law strongly supports the choice of lesbians and gay men to form
families by having or adopting children. Proposition 8 directly harms the children
of same-sex couples by depriving their families of the stability and protection of
marriage. As Appellants own expert witness stated at trial, permitting same-sex
couples to marry “would be likely to improve the well-being of gay and lesbian
households and their children.” Transcript 2803:13-15. See also id. at 2839:22-24.
Both California and federal law clearly reject the principle that it is
permissible to impose harms upon, or deny legal protection to, children in order to
14
influence the sexual behavior of their parents. See, e.g., Weber v. Aetna Cas. &
Sur. Co., 406 U.S. 164, 175 (1972) (“[I]mposing disabilities on the illegitimate
child is contrary to the basic concept of our system that legal burdens should bear
some relationship to individual responsibility or wrongdoing. Obviously, no child
is responsible for his birth and penalizing the illegitimate child is an ineffectual-as
well as an unjust-way of deterring the parent.”).
Consistent with this principle, in 1975, California enacted the Uniform
Parentage Act, 1975 Cal. Stat. 3196-3204 (codified now at Cal. Fam. Code § 7600
et seq.), the purpose of which is “to eliminate the legal distinction between
legitimate and illegitimate children.” Johnson v. Calvert, 851 P.2d 776, 778-79
(Cal. 1993). The UPA expressly provides that: “The parent and child relationship
extends equally to every child and to every parent, regardless of the marital status
of the parents.” Cal. Fam. Code § 7602. In applying the parentage presumptions of
the UPA, as well as other family and adoption laws, California courts have been
extremely responsive and sensitive to the changing circumstances of children.
California imposes child support obligations on all parents regardless of their
gender or marital status, and no longer denies custody and visitation rights to
fathers of children born out of wedlock. Cal. Fam. Code § 3900; § 7570 et seq.;
Moss v. Superior Court, 950 P.2d 59, 64 (Cal. 1998); Elisa B. v. Superior Court,
117 P.3d 660, 664 (Cal. 2005).
15
These changes in California family law directly affect the rights and
obligations of heterosexual men who father or may father children. While, taken
together, these changes remove some incentives for unmarried heterosexual
couples to marry, California has recognized that these changes are crucial to
ensuring that all children are provided with the legal rights and protections they
need and deserve. California law and policy try to facilitate all children’s well-
being, regardless of the means of conception, and regardless of whether a parent is
wed or unwed, biological or adoptive, heterosexual or homosexual.
Second, even if the underlying premise of this argument was supportable as
a matter of law, there is no evidence supporting the claim that excluding same-sex
couples from marriage will affect the behavior of any adults in opposite-sex
relationships. Appellants produced no evidence at trial or in their briefs supporting
their claims or providing any logical reason to believe that excluding same-sex
couples from marriage will induce more heterosexual men to marry and remain
with the women who bear their children. See Transcript 3037:25 (Appellants’
counsel insisted that “you don’t have to have evidence of this point.”); Perry, 704
F. Supp. 2d at 999 (district court concludes that the “proponents presented no
reliable evidence that allowing same-sex couples to marry will have any negative
effects on society or on the institution of marriage.”). Indeed, it strains credulity to
assert that heterosexual men, whose sexual behavior the state is constitutionally
16
prohibited from seeking to influence by burdening their own children, would be
influenced by the exclusion of same-sex couples from marriage. Appellants would
thus risk the well-being of children living with same-sex parents on totally
speculative claims of societal benefit.4 Not surprisingly, the State defendants in the
Marriage Cases never relied on such claims, choosing instead to rest their defense
of the marriage exclusion on the state interest in maintaining the traditional
definition of marriage as requiring one man and one woman.
Finally, as a matter of policy, marriage has never been restricted to
individuals capable of and desiring to procreate and, as a matter of law, the
constitutional right to marry has never been viewed as the sole preserve of
individuals who are physically capable of having children or who desire to have
children. Indeed, in Griswold, the Supreme Court upheld a married couple’s right
to use contraception to prevent procreation. Griswold, 381 U.S. at 485-86.
Similarly, in Turner, the Court held that the constitutional right to marry extends to
an individual confined in state prison — even a prisoner who has no right to
conjugal visits with his would-be spouse — emphasizing that “[m]any important
attributes of marriage remain . . . after taking into account the limitations imposed
by prison life . . . [including the] expressions of emotional support and public
4
In this regard, it is significant that the law struck down in Zablocki, which
limited a parent’s right to marry if the parent had outstanding child support
obligations, might well have encouraged “deadbeat” parents to pay support thus
benefitting their children. Nonetheless, the Court struck it down.
17
commitment [that] are an important and significant aspect of the marital
relationship.” Turner, 482 U.S. at 95-96.5
2. The desire to preserve a “traditional” definition of marriage

is not an adequate or acceptable claim.
Appellants also argue that it is acceptable to establish two different
marital regimes — marriage and domestic partnerships — because there is a
legitimate societal value in preserving a “traditional” definition of marriage. Even
assuming it was correct as a matter of law to say that this interest is at least a
legitimate state interest, the underlying premise is faulty as a matter of fact. As
Professor Nancy Cott’s testimony at trial established with respect to the history of
marriage in this country since the late 18th century, there is no single form or
definition of “traditional marriage.” Here, we demonstrate that this assertion is
also faulty in the context of California law and policy.
While only opposite-sex couples were permitted to marry in California
until the Marriage Cases decision, the legal meaning of marriage has evolved
5
The “responsible procreation” claim also reflects gender stereotypes
regarding women’s dependence on men that have long been rejected as a matter of
both family law and constitutional equal protection principles. The district court
correctly concluded that Proposition 8 undermines the substantial state interest in
“equality, because it mandates that men and women be treated differently based
only on antiquated and discredited notions of gender.” Perry, 704 F. Supp. 2d at
998.
18
considerably since the beginning of California’s Statehood. Basic elements,
including who may marry, the roles of the spouses, the management and control of
marital assets, and the duration of the marital entity have been totally altered to
reflect changes in societal views about the purposes of marriage. These changes
have been brought about both by shifts in the Legislature’s conception of the
elements needed to achieve the goals of marriage and by court decisions requiring
equal treatment of married spouses in their family status. Since Statehood, the
only constant element has been the goal of facilitating the decision of two people
to integrate their lives into a single entity called marriage.
(a) Marital Roles
Under California’s initial marital regime in 1850, the husband was given a
dominant role in the family. Although California adopted a community property
regime, the husband was the sole owner and manager of the community property
estate during the marriage. Van Maren v. Johnson, 15 Cal. 308, 311 (1860). Over
the years, the Legislature and courts totally altered this construction of
marriage. In 1866, the Legislature granted the wife power to control the
disposition of her separate property at her death. Act of March 20, 1866, ch. 285, §
1, 1865-66 Cal. Stat. 316. In 1872, it granted her management of her separate
property. 1 CODES AND STATUTES OF CALIFORNIA § 5162, at 595 (T. Hittell ed.
1876). Beginning in 1891, the Legislature further equalized the legal status of
19
husbands and wives by enacting various statutes restricting the husband’s power
over the community property. GRACE G. BLUMBERG, COMMUNITY PROPERTY
IN CALIFORNIA 78-79 (5th ed. 2007). California courts interpreted these statutes in
ways that benefited the wife’s property interests, thereby paving the way for even
further equalization of the status of husbands and wives. Shaw v. Bernal, 124 P.
1012, 1013 (Cal. 1912); Dunn v. Mullan, 296 P. 604, 606-07 (Cal. 1931). These
changes culminated in 1975 when California conferred on either spouse equal
powers of management and control over the community real and personal property.
Act of Oct. 1, 1973, ch. 987, 1973 Cal. Stat. 1897-1905.
California has also abolished gender-based laws regarding child custody,
Cal. Fam. Code § 3040(a) (1) and created equal obligations of spousal support
during marriage, Cal. Fam. Code § 4300. As a result of both legislative enactments
and court decisions, almost all of the gender-based requirements that were once a
core aspect of the marital relationship have been eliminated, except for the genders
of the marital partners themselves.
(b) Marital Dissolution Reforms
Initially, California greatly limited the right of spouses to dissolve their
relationship. California’s 1872 divorce statute recognized only fault-based grounds
for divorce, permitting courts to dissolve marriages only upon a showing of the
commission of specific acts by an offending spouse. In 1952, the California
20
Supreme Court instituted the first major change with respect to marriage
dissolution. In DeBurgh v. DeBurgh, 250 P.2d 598, 603-07 (Cal. 1952), the Court,
led by Justice Traynor, abolished the rule disallowing divorce if both parties were
“at fault.” In 1969, California became the first state to enact a no-fault divorce law
in which all the fault-based grounds for divorce were abolished and only two no-
fault grounds, “irreconcilable differences which have caused the irremediable
breakdown of the marriage” and “incurable insanity” remained available. Former
Cal. Civ. Code, § 4506 now Cal. Fam. Code § 2310.
The adoption of a no-fault system reflected the legislative judgment that
marriage should be viewed as a means of supporting relationships where the
parties are committed to integrating their lives and choosing to stay married. It
reflects the Legislature’s understanding that the benefits of marriage, to the adults
and children, depend upon a relationship that is based on the continuing choice of
one’s partner. The Legislative changes rejected traditional elements of marriage
when the tradition was no longer perceived as furthering the societal purposes for
supporting marriage.
(c) Access to Marriage
While most of the changes in the definition of marriage came through the
Legislature, one element, of direct relevance here, was altered by the judiciary.
California law once prohibited individuals from marrying someone of another race
21
or nationality. This limitation was struck down by the California Supreme Court in
Perez. When the Court declared the anti-miscegenation statute unconstitutional, the
majority of the Legislature and public strongly believed that the need for racial
separation outweighed the importance of marital choice. Yet, the Court realized
that stereotypical beliefs about racial mixing could not withstand scrutiny under the
U. S. Constitution’s Fourteenth Amendment Equal Protection Clause, when they
were embodied in laws that restricted an individual’s opportunity to marry a person
of her or his choice, even though the restrictions were long-standing.
The above discussion not only shows that the “traditional” marriage of
which Appellants speak no longer exists, it also shows that the elements of the
marital relationship thought to be necessary to achieve the State’s purposes in
authorizing and encouraging marriage have evolved over time in response to
changing legislative, judicial, and societal views about the functions of marriage.
The core element of marriage that has remained constant over time is the
understanding of marriage as an institution that enables two consenting adults to
integrate their lives. This legal and social meaning carries with it substantial
intangible benefits for the marriage partners. It is the opportunity to participate in
this tradition and to enjoy its intangible benefits that same-sex couples seek.
Many of the changes in California marriage law were implemented over
strong opposition, with opponents often claiming that the changes would fatally
22
impair the institution of marriage. However, both the Legislature and the courts
adopted these changes in order to promote and protect equality and fairness, as
well as to further the goals of the State in providing for marriage. Far from
harming the institution of marriage, the elimination of gendered roles and
discriminatory restrictions on marriage has strengthened its vitality and importance
in California. For similar reasons, it now clearly is discriminatory to deny marital
status to same-sex couples.
V. Marriage Is a Unique Legal, Social, and Cultural Status That

Provides Advantages That Cannot Be Matched By a Domestic
Partnership
The fact that California permits same-sex couples to enter into registered
domestic partnerships with many of the tangible rights and responsibilities that
inhere in marriage does not eliminate the existing constitutional violation. While
domestic partnerships provide many advantages to same-sex couples and their
children, the two statuses are far from equal and cannot be equalized. By denying
same-sex couples the opportunity to marry, the State devalues their unions both
symbolically and practically. See Mary Anne Case, Marriage Licenses, 89 MINN.
L. REV. 1758, 1775 (2005). Even if all the economic and other legal benefits
associated with marriage were provided to domestic partners, being married is a
unique status, with attendant social and cultural meanings that provide
considerable and irreplaceable advantages to married couples. By prohibiting
23
individuals from marrying someone of the same sex, California has effectively
denied same-sex partners the opportunity to experience and benefit from the large
array of intangible benefits enjoyed by married couples. No alternative to, or
substitute for, marriage can be constitutionally adequate.
For the vast majority of individuals in our society, marriage is probably the
single most important social, as well as legal, institution. A substantial majority of
all adults will marry at some point in their lives. See Matthew Bramlett & William
Mosher, Centers for Disease Control, Advance Data from Vital and Health
Statistics, First Marriage, Dissolution, Divorce, and Remarriage: United States
(2001).
Even if the legal and economic benefits that come with marriage were
repealed, people still would marry because marriage has profound personal
meaning and social significance. No other institution provides a comparable
opportunity for the personal expression of mutual commitment. By preventing
same-sex couples from marrying “the State deprives [them] of the critical
emotional support to be found in the formalized and symbolic relation itself.”
Johnson v. Rockefeller, 365 F. Supp. 377, 382 (S.D.N.Y. 1973) (Lasker, J.,
concurring & dissenting), aff'd sub nom. Butler v. Wilson, 415 U.S. 953 (1974);
See also Turner, 482 U.S. at 95-96. For many couples, no other state-recognized
relationship can have the same spiritual significance.
24
The difference is more than just spiritual, as important as that is. Marriage
combines legal privileges and duties with an extralegal, socially understood set of
conventions that affect the impact of marriage on the individuals themselves, on
their children, and on the ways in which married couples are treated by others.
Leading researchers from many disciplines and differing value perspectives agree
that formal marriage, both in its meaning to the couple and its treatment by the
broader society, contributes to the quality and stability of the relationship. See
Steven Nock, Marriage as a Public Issue, 15 THE FUTURE OF CHILDREN 13, 17-21
(2005). Substantial research indicates that the status of being married is a universal
concept that conveys multiple messages to the community prompting the
community to support the marriage. Married couples are treated differently from
single individuals or those cohabiting. Their relationships generally receive
affirmation and support from extended family, employers, and the community-at-
large. As Professor Elizabeth Scott has written “[m]arriage is an institution that has
a clear social meaning and is regulated by a complex set of social norms that
promote cooperation between spouses-norms such as fidelity, loyalty, trust,
reciprocity, and sharing. They are embodied in well-understood community
expectations about appropriate marital behavior that are internalized by individuals
entering marriage.” Elizabeth M. Scott, Marriage, Cohabitation and Collective
Responsibility for Dependency, 2004 U. CHI. LEGAL F. 225, 241 (2004).
25
These expectations cannot just be transferred to a new institution. Domestic
partnerships lack the historic prestige of marriage. Excluding same-sex couples
from marriage deprives them of the unique public validation and understanding
that only marriage provides. See, e.g., Lockyer v. City & County of San Francisco,
95 P.3d 459, 507-08 (Cal. 2004) (Kennard, J., concurring & dissenting) (discussing
“the public validation that only marriage can give”); Knight v. Superior Court, 128
Cal.App.4th 14, 31 (Cal. App. 2005) (“[M]arriage is considered a more substantial
relationship and is accorded a greater stature than a domestic partnership”).
The consequences of being married are pervasive and often subtle. For
example, the language associated with marriage conveys clear meanings to the
general public. There are no domestic partnership analogues to the verb “to marry”
or the adjective “married.” The status of “spouse” or “husband” or “wife” is
distinctly different from the status of “partner” or even “domestic partner,” terms
that apply to many types of relationships and do not connote the same degree of
commitment. Children of same-sex couples cannot simply describe their parents
as married. “The institution of marriage is unique: it is a distinct mode of
association and commitment with long traditions of historical, social, and personal
meaning. . . [Its] . . . meanings depend on associations that have been attached to
the institution by centuries of experience. We can no more now create an alternate
mode of commitment carrying a parallel intensity of meaning than we can now
26
create a substitute for poetry or for love.” Ronald M. Dworkin, Three Questions for
America, N.Y. REVIEW OF BOOKS, Sept. 21, 2006, at 30; Kerrigan v. Comm’r. of
Public Health, 957 A.2d 407, 418 n.15 (Conn. 2008). Granting individuals of the
same sex the opportunity to marry will not guarantee that they will get the support
of all members of the public, but it is a necessary precondition for garnering that
support.
The challenges domestic partners face in being recognized as the equivalent
of married couples are exacerbated by the differences in the statutory entry and
exit requirements for married spouses and domestic partners. See Marriage Cases,
183 P.3d at 416 n.24. The legislative structure implies that a domestic partnership
is a less permanent, less committed relationship than is a marriage. These
differences send a message — to the couple as well as to their relatives, friends,
colleagues, and the general public — that domestic partnership is a less weighty,
less substantial, and less esteemed institution than marriage. In addition, because
the legal rights and obligations of domestic partners are not clear, individuals
entering these relationships endure considerable uncertainty and complexity in
managing both the internal and external aspects of their partnership, especially
with respect to recognition by employers and other third-parties. From a legal, as
well as a social, perspective, the surest way to provide same-sex couples with the
27
status and benefits of marriage is to allow them to marry. Any other approach will
necessarily make their legal status subject to a range of uncertainties.
Finally, by consigning lesbian and gay couples to a marriage substitute, the
State signals that their relationships are inferior and less worthy, regardless of any
intentions to the contrary. As Chief Justice George of the California Supreme
Court explained:
One of the core elements of this fundamental right (to marry) is the
right of same-sex couples to have their official family relationship
accorded the same dignity, respect, and stature as that accorded to all
other officially recognized family relationships. The current statutes —
by drawing a distinction between the name assigned to the family
relationship available to opposite-sex couples and the name assigned to
the family relationship available to same-sex couples, and by reserving
the historic and highly respected designation of marriage exclusively to
opposite-sex couples while offering same sex couples only the new and
unfamiliar designation of domestic partnership —pose a serious risk of
denying the official family relationship of same-sex couples the equal
dignity and respect that is a core element of the constitutional right to
marry.
Marriage Cases, 183 P.3d at 830-31.
The separate status for same-sex couples can cause substantial harms.
See Gilbert Herdt and Robert M. Kertzner, I Do, But I Can’t: The Impact of
Marriage Denial on the Mental Health and Sexual Citizenship of Lesbian and
Gay Men in the United States, 3 J. SEXUALITY RES. SOC. POL’Y 33 (2006).
The fact that domestic partnerships are provided the legal elements of
marriage but denied the right to access the symbolic benefits of the name
28
marriage highlights the devaluation of the relationships of same-sex couples,
which in turn may undermine the benefits to relationships that the legal
institution of marriage is meant to further. Their children may suffer from the
perception that their parents are being singled out for a separate and lesser
status. The exclusion of same-sex couples from marriage is all the more
significant because, as a matter of family law policy, virtually everyone else is
welcomed into the marital circle.
As discussed above, the exclusion of same-sex couples from marriage also
disadvantages their children. As the California Supreme Court explained, “a stable
two-parent family relationship, supported by the state’s official recognition and
protection, is equally as important for the numerous children in California who are
being raised by same-sex couples as for those children being raised by opposite-
sex couples….” Marriage Cases, 183 P.3d at 828. This conclusion was fully
supported by the scientific evidence presented at trial.
CONCLUSION
The historic tradition of limiting marriage to opposite-sex couples cannot be
a constitutionally sound justification for maintaining the exclusion of same-sex
couples. The exclusion of these couples is irrational in light of the changes in the
legally established elements of marriage over time and the recognition in
California law of the value and importance of same sex couple partnerships. In
29
contrast, the historic social meaning associated with marriage, namely the societal
recognition of the mutual commitment and interdependence of two consenting
adults, is a tradition that remains critical to our contemporary and ongoing
veneration of marriage. This social meaning is of great importance to the partners
and their children. Being excluded from this tradition limits the ability of same-sex
couples and their children to participate fully in the cultural fabric of our society.
We ask this Court to rectify this denial of Appellees’ fundamental right to
participate in the tradition and values of marriage and to the equal protection of the
law and affirm the decision of the district court.
Dated: October 25, 2010 Respectfully submitted,
Herma Hill Kay (SBN 30734)

BERKELEY SCHOOL OF LAW
University of California
Berkeley, CA 94720
Telephone: (510) 643-2671
Facsimile: (510) 643-2673
Michael S. Wald (SBN 47219)

STANFORD LAW SCHOOL
559 Nathan Abbott Way
Stanford, CA 94305
Telephone: (650) 723-0322
Facsimile: (650) 725-0253
By: /s/ Michael S. Wald

CALIFORNIA PROFESSORS OF FAMILY LAW
30
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME

LIMITATION, TYPEFACE REQUIREMENTS, AND
TYPE STYLE REQUIREMENTS
1. The foregoing Brief of Amici Curiae California Professors of Family
Law complies with the type-volume limitation of Fed. R. App. P. 32 and this
Circuit’s Rule 29-2(c)(3) because this brief contains 6,903 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and thus falls below
the limit of 7,000 words.
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief was prepared in a double-spaced, 14-point, proportionally spaced font (Times
New Roman for Word).
/s/ Michael S. Wald

Family Law Professors
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the

Appellate CM/ECF System
U.S. Court of Appeals Docket Number(s): 10-16696
I hereby certify that I electronically filed the foregoing Brief of Amici

Curiae California Professors of Family Law with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system on October 25, 2010.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
I further certify that some of the participants in the case are not registered
CM/ECF users. I have mailed the foregoing document by First-Class mail, postage
prepaid, to the following non-CM/ECF participants on the attached Service List:
/s/ Michael S. Wald

Family Law Professors
SERVICE LIST
Thomas Brejcha Stuart J. Roth

THOMAS MORE SOCIETY AMERICAN CENTER FOR LAW
29 S. La Salle Street, Suite 440 AND JUSTICE
Chicago, IL 60603 201 Maryland Avenue, N.E.
Washington, DC 20002
Von G. Keetch
KIRTON & McCONKIE, PC Anita L. Staver
Eagle Gate Tower LIBERTY COUNSEL
60 E. South Temple P.O. Box 540774
Salt Lake City, UT 84111 Orlando, FL 32854
Jeffrey Mateer Mathew D. Staver

LIBERTY INSTITUTE LIBERTY COUNSEL
2001 W Plano Parkway, Suite 1600 1055 Maitland Center Commons
Plano, TX 75075 2nd Floor
Maitland, FL 32751
Jeffrey Hunter Moon
Anthony R. Picarello, Jr. James F. Sweeney
Michael F. Moses SWEENEY & GREENE LLP
UNITED STATES CATHOLIC 8001 Folsom Boulevard, Suite 101
CONFERENCE Sacramento, CA 95826
3211 Fourth Street, N.E.
Washington, DC 20017 M. Edward Whelan, III
ETHICS AND PUBLIC POLICY
Lincoln C. Oliphant CENTER
COLUMBUS SCHOOL OF LAW 1730 M Street N.W., Suite 910
The Catholic University of America Washington, DC 20036
3600 John McCormack Road, NE
Washington, DC 20064

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Case: 10-16696 10/25/2010 Page: 1 of 40 ID: 7521471 DktEntry: 167

UNITED STATES COURT OF APPEALS

KRISTIN PERRY, et al.,

BRIEF OF AMICI CURIAE CALIFORNIA PROFESSORS

Herma Hill Kay (SBN 30734) Michael S. Wald (SBN 47219)

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

IDENTITY AND INTEREST OF AMICI ......................................................... 1

I. The Legal Issues ....................................................................................... 3

II. The Nature and Purposes of Civil Marriage ............................................. 4

A. Civil Marriage Is a State-Created Legal Status .............................. 4

B. Why the State Provides for Marriage ............................................. 5

C. Choice of Partners Is a Critical Aspect of Marriage ...................... 7

III. California Law Recognizes Same-Sex and Opposite-Sex Couples as

IV. There Is No Constitutionally Adequate Basis for Denying Same-Sex

A. The Legal Standard ...................................................................... 12

1. Appellants’ claim based on “responsible procreation”

2. The desire to preserve a “traditional” definition of

(a) Marital Roles ........................................................... 19

TABLE OF CONTENTS -- Continued

(b) Marital Dissolution Reforms ................................... 20

V. Marriage Is a Unique Legal, Social, and Cultural Status That

TABLE OF AUTHORITIES -- Continued

TABLE OF AUTHORITIES -- Continued

TABLE OF AUTHORITIES -- Continued

IDENTITY AND INTEREST OF AMICI

is being filed with the parties’ consent.

Scott Altman, Virginia and Fred. H. Bice Professor of Law, University of

Southern California Law Center; R. Richard Banks, Jackson Eli Reynolds

Professor of Law Professor of Law, Stanford University; Grace Ganz Blumberg,

Professor of Law, University of California, Los Angeles School of Law; Janet

Bowermaster, Professor of Law, California Western School of Law; Carol S.

Bruch, Distinguished Professor Emerita, University of California, Davis School of

Costello, Professor of Law, Loyola Law School, Loyola Marymount University;

Barbara J. Cox, Clara Shortridge Foltz Professor of Law, California Western

School of Law; R. Jay Folberg, Professor of Law Emeritus, University of San

Francisco School of Law; Deborah L. Forman, Professor of Law and J. Allan

H. Hollinger, Lecturer-in-Residence/Director Child Advocacy Program,

University of California, Berkeley School of Law; Lisa Ikemoto, Associate

Professor of Law, University of California, Davis School of Law; Courtney G.

Joslin, Acting Professor of Law, University of California, Davis School of Law;

Herma Hill Kay, Barbara Nachtrieb Armstrong Professor of Law, University of

California, Berkeley School of Law; Lawrence Levine, Professor of Law,

University of the Pacific, McGeorge School of Law; Maya Manian, Associate

Professor of Law, University of San Francisco School of Law; Melissa Murray,

Assistant Professor of Law, University of California, Berkeley School of Law;

John Myers, Distinguished Professor and Scholar, University of the Pacific,

McGeorge School of Law; Douglas NeJaime, Assistant Professor of Law, Loyola

Law School, Loyola Marymount University; Patti Paniccia, Assistant Professor of

Law, Pepperdine School of Law; Shelley Saxer, Professor of Law, Pepperdine

University of Southern California Law Center; Michael S. Wald, Jackson Eli

Reynolds Professor of Law Emeritus, Stanford University; D. Kelly Weisberg,

The central issue in this case is whether Proposition 8, a voter-enacted

under the Fourteenth Amendment of the U.S. Constitution by preventing them

when it enables people to marry and whether there is a constitutionally adequate

providing access to marriage. Because of developments in California law, the

In this brief, Amici focus on three of the arguments proffered by those

seeking to justify the constitutionality of denying same-sex couples the opportunity

to marry: a) that special treatment is due heterosexual relationships because

heterosexual individuals can procreate “by accident” and by limiting marriage to