(California Proposition 8/Marriage Amendment)
Filed with the U.S. Court of Appeals for the Ninth Circuit, September 24, 2010
Note: The case has been renamed Perry v. Brown.
SUMMARY OF THE ARGUMENTS
Parents have a fundamental right to determine their children’s education, protected under the Fourteenth Amendment’s Due Process clause. California citizens voting in favor of Prop. 8 (“Prop. 8 Supporters”) had, and on their behalf the defendant-intervenors-appellants (“Prop. 8 Proponents”) in this case continue to have, good reason to regard Prop. 8 as a safeguard of that fundamental constitutional right. Since the safeguarding of a constitutional right properly serves the state’s interest, the district court erred in concluding that Prop. 8 serves no legitimate or compelling state interest. Moreover, parents’ fundamental right to determine their children’s education should take priority over the competing claims of plaintiffs-appellees Kristin Perry et al./same-sex couples (“Prop. 8 Opponents”) who plea for Equal Protection and Due Process rights to same-sex marriage. Therefore, the district court’s decision should be reversed and the injunction against Prop. 8 should be lifted.
ARGUMENTS (OUTLINE)
- I. THE SUPREME COURT HAS REPEATEDLY RECOGNIZED PARENTS’ FUNDAMENTAL RIGHT TO DIRECT THEIR CHILDREN’S EDUCATION.
- A. Nine Decades Of Case Law Bear Strong Witness To Parents’ Fundamental Right To Direct Their Children’s Education.
- B. Parents’ Fundamental Right To Direct Their Children’s Education Has A More Enduring Constitutional Foundation Than The Purported Right Of Prop. 8 Opponents To Attain Same-Sex Marriage.
- II. THE CAMPAIGN FOR PROP. 8 APPEALED TO PARENTS SEEKING TO PRESERVE THEIR CONSTITUTIONAL RIGHT TO DIRECT THEIR CHILDREN’S EDUCATION.
- A. The District Court Acknowledged That The Campaign For Prop. 8 Appealed To Parents Seeking To Preserve Their Constitutional Right To Direct Their Children’s Education.
- B. The District Court Quoted Selectively From The Record To Construe The Campaign For Prop. 8 As A Disingenuous Attempt To Misinform And Frighten Voters Into Supporting Prop. 8.
- III. VOTERS SUPPORTING PROP. 8 HAD GOOD REASON TO BELIEVE THAT PROP. 8 WOULD SAFEGUARD THEIR CONSTITUTIONAL RIGHT TO DIRECT THEIR CHILDREN’S EDUCATION.
- A. Controversies Abound Nationwide Concerning Public School Curricula Pertaining To Matters Of Sexuality And Marriage.
- B. Recent California Education Code Reform Has Heightened The Concerns Of Parents Seeking To Direct Their Children’s Education.
- C. Marriage Cases Substantially Changed California’s Curriculum Mandate Concerning The Value Of Marriage, Which Change Prop. 8 Sought To Remedy.
- D. The District Court Erred In Claiming That Prop. 8 Supporters Had No Legitimate State Interest In Mind.
- IV. PROP. 8 PROPONENTS HAVE GOOD REASON TO FEAR THAT A JUDICIAL NULLIFICATION OF PROP. 8 WILL FOSTER LIMITATIONS UPON CONSTITUTIONAL LIBERTIES, DESPITE ASSURANCE TO THE CONTRARY IN MARRIAGE CASES.
- A. Marriage Cases Reasoned That State Recognition of Same-Sex Marriage Would Not Constrain Religious Liberties, But Was Silent With Respect To Other Constitutional Protections.
- B. Recent Case Law Developments Suggest That The Marriage Cases Doctrine That Preserves Religious Free Association Is Likely To Be Challenged.
- C. The Judicial Repeal Of Prop. 8 Would Have A “Chilling Effect” On Religious Liberty And Other First Amendment Rights.
- V. SUBSTANTIAL OBJECTIVE EVIDENCE IDENTIFIES INCREMENTAL STRATEGIES CONNECTING STATE RECOGNITION OF SAME-SEX MARRIAGE TO CONSTRAINTS OF PARENTS’ RIGHT TO DIRECT THEIR CHILDREN’S EDUCATION.
- A. Openly Acknowledged Incremental Strategies Seek To Effect Radical Changes In The Relationship Between Family, Society, And Government, Thereby Displacing Parental Rights.
- B. Judicial Nullification Of Prop. 8 Contributes To A Redefinition Not Only Of Marriage But Also Of Parenthood And Hence Of Parental Rights.
EXCERPTS
One would be narrow-minded to conclude that parents who do not wish their kindergartners to becoming card-carrying gay rights activists necessarily desire them to be five-year-old bigots instead. Many middle roads of tolerant accommodation can be traveled by those wishing to raise their children in the codes of civility, which, let us trust, is true of most parents regardless of their politics or religion. Prop. 8 Supporters reasonably worried that their government might not long continue to permit them to seek those middle paths, hence their desire for a state constitutional amendment in defense of the natural law of marriage. ...
Obviously, the safeguarding of a constitutional right that the Supreme Court repeatedly has identified as fundamental [parents’ right to direct their children’s education], section I.A, supra, is a state interest under the Fourteenth Amendment. Indeed, were the nation’s, or California’s, founding fathers to suddenly awake in this brave new world, like Rip Van Winkel after sleeping for twenty years, they surely would be shocked that it is not marriage remaining intact unless and until a competing interest can be shown to be compelling, narrowly tailored, and least obstructive (a strict scrutiny test), but rather marriage must be re-defined beyond recognition and the people of the State of California may not be permitted to restore it unless and until they provide a compelling state interest, narrowly tailored, and least obstructive, to disallow same-sex couples from claiming themselves to be married. ...
The district court insinuated that Prop. 8 Supporters acted merely or primarily out of “bigotry” or “animus.” The judge frequently quoted expert witnesses’ references to “stigma,” “prejudice,” “stereotypes,” and “discrimination.” ER34-171 (passim). Beyond doubt, some homosexual individuals and couples have been targeted with hatred, and beyond doubt, hatred toward them is wrong. The remedy the district court provided, however, cannot forge a lasting peace. Rather, it alienates Prop. 8 Supporters from the public square. The district court failed to exhibit a capacity to contemplate a moderate middle ground in which a person may have reasonable objections to homosexuality while still desiring to act compassionately toward gays and lesbians. Instead, the judge labeled the convictions of Prop. 8 Supporters as categorically unacceptable to the social sciences, to the law, and to civic respectability. If such dicta vindictiva do not deter Free Speech, then it never snows in Minnesota. ...
The nation’s debate over same-sex marriage encompasses more than the two people desiring to make public their private commitment to one another; it also impacts the children of other families, since it requires a legal redefinition of all families in order to make room for innumerable new possibilities. “Being entirely a creation of the state, [same-sex marriage] is an institution that needs to be coddled, and which demands cocooning to protect it. … The need for same-sex unions to be culturally coddled also increases the likelihood that the state will use public education for this end.” Seanna Sugrue, “Soft Despotism and Same-Sex Marriage,” in Robert P. George and Jean Bethke Elshtain, eds., The Meaning of Marriage: Family, State, Market, and Morals, 172, 190 (2006). ...
A tremendous burden falls now to this court as to whether those asserting the freedom to chose a spouse of the same sex can secure that socially constructed status apart from denying, with increasing tenacity, the fundamental right of a man and a woman to direct the education of the children whom nature calls their own. The social engineers of incremental strategies favoring same-sex marriage have themselves answered the question in the negative. Whatever disappointment a reversal of the district court’s decision may bring to the particular homosexual couples who originated the complaint, at least they will be liberated from serving as pawns in a larger scheme that ultimately would constrain not only their neighbors’ liberties, but also their own. ...
Response to Ninth Circuit ruling, 10 February 2012:
The following comment was posted by Dr. MacPherson to www.leagle.com, a legal analysis website which invited participants in the Proposition 8 case to offer an evaluation of the Ninth Circuit ruling.
Judge Reinhardt’s ruling for the 9th Circuit in Perry v. Brown unfortunately perpetuates the claim, expressed earlier in Judge Walker’s district court ruling, that nothing other than religiously motivated bigotry can account for the decision by the majority of California voters to define civil marriage as a union between a man and a woman. Both the district court and the 9th Circuit have supported this view by a selective reading of the evidence.
For example, Reinhardt, slip op. at 68, dismisses the argument presented by Br. Amicus Curiae for the Hausvater Project 13-15, that Marriage Cases had resulted in a de facto mandatory school curriculum supportive of same-sex marriage. Although Reinhardt correctly notes that local schools have the discretion to teach or not to teach sex education, his ruling did not acknowledge what Hausvater demonstrated: according to the California Dept. of Education 96% of the state’s schools participate in sex education programs and state law prevents them from using curricula that reflect negatively on homosexual behavior and requires them to promote a respect for “marriage,” which Marriage Cases had judicially redefined when nullifying Proposition 22 (an initiative statute defining marriage as between a man and a woman). Proposition 8 (an initiative to transpose Proposition 22 into an amendment to the state constitution) may, therefore, reasonably be viewed as an attempt by parents to re-assert control over their children’s education in keeping with a fundamental right long recognized by the U.S. Supreme Court. The reasonableness of parental concerns is also confirmed by the fact that during the campaign period for Proposition 8 homeschooling had been declared illegal by the California Court of Appeals in In re Rachel L. See Br. Hausvater at 19.
Furthermore, Reinhard’s ruling failed to correct the district court’s selective quotations from the trial exhibits that have resulted in a mischaracterization of the Proposition 8 proponents. Br. Hausvater at 9-10 contrasted the excerpts that the district court quoted from Shubert-Flint (who designed the ad campaign for Proposition 8 with the full text of the exhibit, where Shubert-Flint identified specific historical examples, in both Massachusetts and California, demonstrating that their ad campaign was based not on irrational fears but on actual events directly pertinent to the question on the ballot. Therefore, California voters did have a rational basis for adopting Proposition 8, namely, protecting the rights of parents to direct the education of their children. For the 9th Circuit to claim instead that supporters of Proposition 8 had no rational basis and were motivated solely by religiously motivated bigotry dangerously engenders a chilling effect upon religious liberty and free speech. The decision should be reversed.
Learn More:
- Full Text Download of The Hausvater Project’s Brief Amicus Curiae (PDF)
- News Release issued by the Alliance Defense Fund (ADF), attorneys for Proposition 8 Proponents
- Links (courtesy of ADF) to PDF downloads of other amici curiae briefs submitted in support of Proposition 8
- Ninth Circuit Docket and Filings for Perry v. Schwarzenegger/Brown (courtesy of justia.com)
- Radio Interview with Issues, Etc., 13 February 2012
