Case: 10-16696 03/17/2011 Page: 1 of 14 ID: 7685573 DktEntry: 326

No. 10-16696
Argued December 6, 2010
(Reinhardt, Hawkins, N. Smith)

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
_________________________

KRISTIN M. PERRY, et al.,

Plaintiffs-Appellees,
v.
EDMUND G. BROWN, JR., et al.,
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendants-Intervenors-Appellants.
_________________________
On Appeal From The United States District Court
For The Northern District Of California
No. CV-09-02292 VRW (Honorable Vaughn R. Walker)
____________________________________________________
REPLY IN SUPPORT OF MOTION TO VACATE STAY PENDING
APPEAL OF PLAINTIFFS-APPELLEES KRISTIN M. PERRY ET AL.
____________________________________________________
DAVID BOIES THEODORE B. OLSON
JEREMY M. GOLDMAN Counsel of Record
THEODORE H. UNO MATTHEW D. MCGILL
BOIES, SCHILLER & FLEXNER LLP AMIR C. TAYRANI
333 Main Street GIBSON, DUNN & CRUTCHER LLP
Armonk, New York 10504 1050 Connecticut Avenue, N.W.
(914) 749-8200 Washington, D.C. 20036
(202) 955-8500
THEODORE J. BOUTROUS, JR.
CHRISTOPHER D. DUSSEAULT
ENRIQUE A. MONAGAS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7804
Attorneys for Plaintiffs-Appellees
Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo
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TABLE OF CONTENTS
Page

INTRODUCTION......................................................................................................1

ARGUMENT .............................................................................................................1

CONCLUSION ..........................................................................................................9

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TABLE OF AUTHORITIES

Page(s)
Cases
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) .................................................................................................3
Ben-Shalom v. Marsh,
881 F.2d 454 (7th Cit. 1989) ..................................................................................6
Demosthenes v. Baal,
495 U.S. 731 (1990) ...................................................................................... 1, 2, 3
Doe v. Gallinot,
657 F.2d 1017 (9th Cir. 1981)................................................................................5
High Tech Gays v. Defense Industrial Security Clearance Office,
895 F.2d 563 (9th Cir. 1990)..............................................................................6, 7
Lawrence v. Texas,
538 U.S. 558 (2003) ...............................................................................................6
Lockyer v. City & County of San Francisco,
95 P.3d 459 (Cal. 2004)..........................................................................................5
Nken v. Holder,
129 S. Ct. 1749 (2009) .................................................................................. 3, 4, 7
Perry v. Schwarzenegger,
628 F.3d 1191 (9th Cir. 2011)............................................................................1, 4
United States v. United Mine Workers of Am.,
30 U.S. 258 (1947) .................................................................................................2
United States Catholic Conference v. Abortion Rights Mobilization,
487 U.S. 72 (1988) .................................................................................................2
Woodward v. United States,
871 F.2d 1068 (Fed. Cir. 1989) ..............................................................................6
Yick Wo v. Hopkins,
118 U.S. 356 (1886) ...............................................................................................9

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INTRODUCTION

This Court should lift the stay of the Order of the district court enjoining en-

forcement of Proposition 8, and allow loving and committed gay and lesbian couples

in California to marry while the challenge to the judgment by Proponents proceeds to

its conclusion. The mandatory requirements of a stay are plainly not met, and the cir-

cumstances that existed at the time the stay was first imposed have now changed mate-

rially against any arguable justification for a stay.

ARGUMENT

Proponents’ assertion in their Opposition that there has been no “significant

change in facts or law” (Opp. 2) blinks reality. The events identified by Plaintiffs in

their motion to vacate the stay pending appeal are unquestionably “significant” and

should compel this Court to lift the stay.

1. This Court’s determination that it requires “an authoritative statement of

California law,” Perry v. Schwarzenegger, 628 F.3d 1191, 1196 (9th Cir. 2011), be-

fore it can determine whether Proponents have standing, and therefore, whether this

Court even has jurisdiction, is unquestionably significant. Indeed, it abnegates this

Court’s authority to issue or maintain provisional relief. See Demosthenes v. Baal,

495 U.S. 731, 736 (1990).

Of course it is true, as Proponents observe, that this Court has jurisdiction to de-

termine its jurisdiction and may issue orders, such as orders compelling jurisdictional

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discovery, to facilitate its determination. See United States Catholic Conference v.

Abortion Rights Mobilization, 487 U.S. 72, 79 (1988). That principle is not ques-
1
tioned by Plaintiffs’ motion. The question is whether this Court has authority to

grant provisional relief in the form of a stay pending appeal—or to maintain such re-

lief—when this Court’s jurisdiction is in doubt. As the City and County of San Fran-

cisco has persuasively explained, the Supreme Court, in the most compelling factual

circumstances imaginable, has definitively resolved that question, holding that

“[b]efore granting a stay . . . federal courts must make certain that an adequate basis

exists for the exercise of federal power.” Demonthenes, 495 U.S. at 737 (emphasis

added).

There can be no doubt that this Court, as in Demosthenes, has not “ma[d]e cer-

tain” that it has Article III jurisdiction. This Court has referred to a coordinate tribu-

nal questions of state law that this Court itself declared to be “dispositive” of Propo-

nents’ claim of standing, and it has done so against the background of an unanimous

1 Nor does Plaintiffs’ motion question whether a court may issue provisional
relief to protect its jurisdiction to determine its jurisdiction. See United
States v. United Mine Workers of Am., 330 U.S. 258, 290 (1947). Propo-
nents suggest that, in the absence of the stay, Plaintiffs could “moot[] the
case” by marrying and thereby “evad[e] appellate review.” Opp. 12. But
because Proponents dispute that marriages performed during the pendency
of the appeal would be valid if Proposition 8 ultimately were upheld, that
suggestion is baseless. If Proponents have standing to appeal at all, their
controversy would remain live even after Plaintiffs married.

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decision of the Supreme Court that expressed “grave doubts” whether ballot proposi-

tion proponents (as a class, not just those before it) could have standing to challenge

an order invalidating the proposition they had sponsored. Arizonans for Official Eng-

lish v. Arizona, 520 U.S. 43, 66 (1997). A court that lacks power to stay an execution

for even a week cannot conceivably retain the authority to stay indefinitely an order

that brings an end to a manifestly harmful act of state-sponsored invidious discrimina-

tion. On what basis could such a distinction be warranted? Surely not the harm im-

posed on the applicant in the absence of a stay. When the stay was lifted in

Demosthenes, Mr. and Mrs. Baal’s son was put to death. If the stay were lifted here,

Proponents would suffer nothing but the psychic harm they alleged in living in a soci-

ety in which loving couples of the same sex may be married, joining the thousands

who married before Proposition 8 and who remain married today.

Even if this Court has the authority under Article III to maintain a stay when it

harbors doubts as to its own jurisdiction, the existence of such doubts means that the

maintenance of a stay is inappropriate because the absence of a clear path to jurisdic-

tion precludes the possibility that the party asserting jurisdiction has made the requi-

site “strong showing” of likelihood of success on the merits. Nken v. Holder, 129 S.

Ct. 1749, 1761 (2009). Proponents have no answer to this argument except to pro-

nounce repeatedly “the strength of Proponents’ arguments for standing.” Opp. 9. But

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this Court heard all of those arguments and determined that they were not a sufficient

basis for the exercise of federal jurisdiction. “[W]e lack an authoritative statement of

California law that would establish proponents’ right to defend the validity of their

initiatives.” Perry, 628 F.3d at 1199. The Court thus referred the issue to the Califor-

nia Supreme Court to seek what it referred to as “an authoritative determination” of

Proponents’ status under state law—a determination that this Court characterized as

“dispositive of [its] very ability to hear the case.” Id. at 1195, 1199.

A cascade of contingencies—a possibility that the California Supreme Court

might provide the “authoritative determination” Proponents seek, tethered to a chance

that such a state-law determination might suffice to confer Article III standing on Pro-

ponents, which then opens the possibility that this Court could adopt Proponents’ ar-

guments on the merits—is not the type of “strong showing” of a likelihood of success

that Supreme Court precedent remotely demands. Nken, 129 S. Ct. at 1761. Indeed,

given the significant hurdles now before them, Proponents have made no showing, let
2
alone a strong showing, that they are likely to succeed at the end of the day.

2 Proponents’ suggestion that this Court should overlook their inability to

demonstrate their standing to appeal because the district court purportedly
“exceeded its jurisdiction by granting relief that extends beyond the four
plaintiffs that were before it” (Opp. 10) is risible. Plaintiffs did not chal-
lenge Proposition 8 only as applied to themselves. They sought, and the dis-
trict court indisputably had jurisdiction to enter, a declaratory judgment that

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2. Assuming that the jurisdictional contingencies all are resolved in Proponents

favor, whatever possibility of success on the merits Proponents might have had in Au-

gust has been severely undermined by the determination of the Attorney General of

the United States, and the President, that laws discriminating against gay men and les-

bians are subject to heightened scrutiny. See Mot. Ex. A at 2.

Proponents cannot seriously believe their assertions that the position of the

chief law enforcement officers of the United States “adds nothing of consequence” to

this case. Opp. 5. In his letter to the Speaker of the House, the Attorney General

[Footnote continued from previous page]

Proposition 8 is unconstitutional on its face. Decades of precedent estab-
lishes that such an order is sufficient to prohibit the application of an uncon-
stitutional measure against any person, even where a class has not been certi-
fied. See, e.g., Doe v. Gallinot, 657 F.2d 1017, 1025 (9th Cir. 1981) (where
a “statutory scheme [is] unconstitutional on its face,” the statutory provisions
are “not unconstitutional as to [plaintiffs] alone, but as to any to whom they
might be applied”). Moreover, the district court’s injunction prohibiting the
Governor and Attorney General—and any state official under their control—
from enforcing this discriminatory measure (which the district also indis-
putably had jurisdiction to enter) plainly suffices to prohibit the enforcement
of Proposition 8 throughout the state. That is because “there can be no ques-
tion but that marriage is a matter of ‘statewide concern’ rather than a ‘mu-
nicipal affair.’” Lockyer v. City & County of San Francisco, 95 P.3d 459,
471 (Cal. 2004) (emphasis added). State officials “establish[] the substan-
tive standards for eligibility for marriage” and those “uniform rules and pro-
cedures apply throughout the state.” Id. The district court’s injunction re-
quires all of the relevant state officials to change the substantive standards
for eligibility for marriage to enable same-sex couples to marry, and munici-
pal officials have no discretion whatsoever to disregard those directives.

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(speaking for himself and the President) rejects the conclusion of this Court in High

Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir.

1990), that “[h]omosexuality is . . . behavioral” (id. at 573) as irreconcilable “with

more recent social science understandings.” Mot. Ex. A at 3 & n.5. And although At-

torney General Holder’s letter did not specifically identify High Tech Gays as among

those circuit court decisions “applying rational basis review to sexual orientation clas-

sifications” that “do[] not survive” Lawrence v. Texas, 538 U.S. 558 (2003), even a

cursory reading of High Tech Gays demonstrates that it is undistinguished from those

decisions in that respect. High Tech Gays reasons that “because homosexual conduct

can [] be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class

entitled to greater than rational basis review for equal protection purposes.” 895 F.2d

at 571. But the premise is no longer true. Homosexual conduct cannot be criminal-

ized. Therefore, that line of reasoning is utterly indistinguishable from that which the

Attorney General determined to be unsustainable: “if consensual same-sex sodomy

may be criminalized under Bowers v. Hardwick, then it follows that no heightened re-

view is appropriate.” Mot. Ex. A at 3. Indeed, High Tech Gays itself relies on two

decisions—Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) and Ben-

Shalom v. Marsh, 881 F.2d 454 (7th Cit. 1989)—that the Attorney General identified

as not surviving Lawrence. See Mot. Ex. A at 3 & n.4.

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The Attorney General’s determination that classifications based on sexual ori-

entation should be subject to heightened scrutiny further demonstrates that the founda-

tion High Tech Gays has crumbled and can no longer be viewed as controlling prece-

dent. If, as the Attorney General has determined, heightened scrutiny is the appropri-

ate standard of review, Proponents have no likelihood of success on the merits. They

do not—because they cannot—seriously defend Proposition 8’s state-sponsored dis-

crimination under that standard.

3. Finally, the fact that the California Supreme Court has determined it needs

most of a year to answer this Court’s certified questions materially alters the stay

analysis. That analysis requires a court to determine “whether issuance of the stay

will substantially injure the other parties interested in the proceeding.” Nken, 129 S.

Ct. at 1761. The motions panel presumably determined that a brief delay of a few

months occasioned by an expedited appeal would not substantially injure Plaintiffs.

Whatever the validity of that decision, the question now is a different one: whether a

stay that keeps Proposition 8 in effect at least until the end of 2011, and possibly

longer, will substantially injure Plaintiffs. There can be no serious dispute that deny-

ing Plaintiffs and other gay and lesbian individuals throughout California their funda-

mental right to marry for an additional year constitutes a “substantial injur[y]” that

should weigh heavily against maintaining a stay. And the weight against continuing

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such provisional relief is particularly heavy here where the Attorney General of Cali-

fornia has confirmed that lifting the stay will bring no harm to California or its citi-

zens. See AG’s Stmt., Dkt. 311-1.

Proponents suggest that Plaintiffs and other gay men and lesbians in California

should have no difficulty waiting out the “orderly[] disposition of this appeal.”

Opp. 11. Proponents’ trivialization of the harms suffered by California’s gay men and

lesbians as a result of Proposition 8’s stigmatization of them and their families, which

is the subject of clear, specific, and unequivocal factual findings by the district court,

is particularly audacious emanating as it does, from the individuals who led the effort

to impose these harms. But, of course, it is not Proponents’ fundamental right to

marry that has been abolished; they are not the ones who have been declared to be

unworthy of marriage, and they are not suffering the daily infliction of discrimination

as long as Proposition 8 remains in effect.

Proposition 8—and the stay that allows it to remain in force—is causing great

damage. It is not merely deferring wedding dates, as Proponents suggest. For those

near the end of life, it is denying the right to marry outright. But beyond the damage

done to loving couples’ wishes to marry, Proposition 8 carries an unmistakable mes-

sage—transmitted and enforced by the State and tolerated by this Court—that gay

men and lesbians are members of a class of persons unworthy of the fundamental right

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of marriage and the “protection of equal laws.” Yick Wo v. Hopkins, 118 U.S. 356,

369 (1886). Each day that California’s constitution stigmatizes and disables Plaintiffs

and others like them, it inflicts great and lasting damage. That constitutional injustice

must not be allowed to continue.

CONCLUSION

For the foregoing reasons, the Court should vacate the stay pending appeal.

Dated: March 17, 2011 Respectfully submitted,

/s/ Theodore B. Olson
DAVID BOIES THEODORE B. OLSON
JEREMY M. GOLDMAN Counsel of Record
THEODORE H. UNO MATTHEW D. MCGILL
BOIES, SCHILLER & FLEXNER LLP AMIR C. TAYRANI
333 Main Street GIBSON, DUNN & CRUTCHER LLP
Armonk, NY 10504 1050 Connecticut Avenue, N.W.
(914) 749-8200 Washington, D.C. 20036
(202) 955-8500

THEODORE J. BOUTROUS, JR.

CHRISTOPHER D. DUSSEAULT
SARAH E. PIEPMEIER
THEANE EVANGELIS KAPUR
ENRIQUE A. MONAGAS
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7804

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9th Circuit Case Number(s) 10-16696

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