In The United States Court of Appeals For The Ninth Circuit: K M. P, C C S F - A S, P 8 O P D H, .

Case: 10-16696 10/25/2010 Page: 1 of 48 ID: 7520687 DktEntry: 152
No. 10-16696
In the United States Court of Appeals

For the Ninth Circuit
KRISTIN M. PERRY, ET AL., Plaintiffs-Appellees,

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor-Appellee
V.
ARNOLD SCHWARZENEGGER, ET AL., Defendants

PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, ET AL.,
Defendants-Intervenors-Appellants.
On Appeal from the United States District Court for the Northern District of
California, Case No. 09-02292 VRW
The Honorable Vaughn R. Walker, United States District Judge
BRIEF OF AMICI CURIAE BAY AREA LAWYERS FOR

INDIVIDUAL FREEDOM (“BALIF”), ET AL.
IN SUPPORT OF PLAINTIFFS-APPELLEES
Supporting Affirmance
Jerome C. Roth
Michelle Friedland
Mark R. Conrad
Miriam L. Seifter
Munger, Tolles & Olson LLP
560 Mission Street, 27th Floor
San Francisco, CA 94105-2907
Telephone: 415 512-4000
Facsimile: 415 512-4077
Attorneys for Amici Curiae BALIF, et al.
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TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ..................................................... vii
STATEMENT OF INTEREST.................................................................................1
SUMMARY OF ARGUMENT ................................................................................1
ARGUMENT ............................................................................................................3
I. CLASSIFICATIONS THAT SERVE ONLY TO DISADVANTAGE
THE BURDENED GROUP FAIL RATIONAL BASIS REVIEW...............3
II. PROPOSITION 8 ESTABLISHES AN UNEQUAL, TWO-TIERED
REGIME AND HARMS GAY AND LESBIAN INDIVIDUALS ...............4
A. The Legalistic Designation of Domestic Partnership Is Patently
Inferior to the Revered Institution of Marriage....................................4
1. Marriage Is a Uniquely Revered Institution in American
Society........................................................................................5
2. Domestic Partnership Is a Legalistic Mechanism That
Lacks the Significance, Stability, and Meaning of
Marriage .....................................................................................8
B. Excluding Same-Sex Couples from Marriage Causes Harm and
Perpetuates Discrimination Against Gay Men and Lesbians.............12
1. Restricting Same-Sex Couples to Domestic Partnerships
Stigmatizes Same-Sex Relationships.......................................13
a. Excluding Same-Sex Couples from Marriage
Expresses Government Disapproval of Same-Sex
Relationships..................................................................13
b. The Stigma Created by Proposition 8 Causes
Emotional and Physical Harm .......................................16
c. The Stigma Created by Proposition 8 Perpetuates
Discrimination Against Gay Men and Lesbians............17
2. Excluding Same-Sex Couples from Marriage Causes
Economic Harm .......................................................................19
3. Excluding Same-Sex Couples from Marriage Harms
Children....................................................................................21
CONCLUSION.......................................................................................................22
Certificate of Compliance .......................................................................................25
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TABLE OF CONTENTS
(continued)
Page
Certificate of Service ..............................................................................................26
APPENDIX: STATEMENTS OF AMICI........................................................... A-1
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TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Brown v. Bd. of Educ.,
347 U.S. 483 (1954)...................................................................................2, 4, 15
Brown v. Louisiana,
383 U.S. 131 (1966).............................................................................................5
City of Cleburne, Tex. v. Cleburne Living Ctr.,

473 U.S. 432 (1985).............................................................................................3
Dep’t of Agric. v. Moreno,

413 U.S. 528 (1973).............................................................................................3
Eisenstadt v. Baird,
405 U.S. 438 (1972).........................................................................................3, 4
Gayle v. Browder,
352 U.S. 903 (1956).............................................................................................4
Griswold v. Connecticut,
381 U.S. 479 (1965).............................................................................................6
Holmes v. City of Atlanta,

350 U.S. 879 (1955).............................................................................................4
Lawrence v. Texas,
539 U.S. 558 (2003).....................................................................................15, 18
Loving v. Virginia,
388 U.S. 1 (1967).............................................................................................3, 6
Mayor & City Council of Balt. v. Dawson,

350 U.S. 877 (1955).............................................................................................4
New Orleans City Park Improvement Ass’n v. Detiege,

358 U.S. 54 (1958)...........................................................................................4, 5
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(continued)
Page(s)
Perry v. Schwarzenegger,
No. C09-2292, slip op. (N.D. Cal. Aug. 4, 2010)...................................... passim
Peterson v. City of Greenville,

373 U.S. 244 (1963).............................................................................................5
Plessy v. Ferguson,
163 U.S. 537 (1896).............................................................................................2
Romer v. Evans,
517 U.S. 620 (1996)...............................................................................1, 2, 3, 23
Strauder v. West Virginia,
100 U.S. 303 (1879).....................................................................................15, 18
Sweatt v. Painter,
339 U.S. 629 (1950).............................................................................................5
Turner v. Safley,
482 U.S. 78 (1987)...............................................................................................6
United States v. Virginia,
518 U.S. 515 (1996).......................................................................................5, 23
Williams v. North Carolina,
317 U.S. 287 (1942).............................................................................................6
STATE CASES
Goodridge v. Dep’t of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ..................................................................6, 14, 21
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) ........................................................................... passim
Kerrigan v. Comm’r of Public Health,
957 A.2d 407 (Conn. 2008) .....................................................................6, 13, 21
Perez v. Lippold,
198 P.2d 17 (Cal. 1948) .......................................................................................6
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(continued)
Page(s)
Strauss v. Horton,
207 P.3d 48 (Cal. 2009) .......................................................................................9
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) ..............................................................................8
STATE STATUTES
Cal. Fam. Code § 297 (2005)....................................................................................5
LEGISLATIVE MATERIALS
California Assembly Bill 205 ...................................................................................9
Maine Department of Health and Human Services,
Instructions and Information for the Domestic Partnership Registry,
available at http://www.maine.gov/dhhs/boh/phs/odrvs/vital-
records/order/domstcprtnrspge.html..................................................................10
Nevada Domestic Partnership Act, SB 283 (effective Oct. 1, 2009) .....................10
Office of the City Clerk, City of New York,

Domestic Partnership Registration, available at
http://www.cityclerk.nyc.gov/html/marriage/domestic_partnership_reg.sh
tml#disclaimer....................................................................................................10
The Legal, Medical, Economic and Social Consequences of New Jersey’s
Civil Union Law, Final Report of New Jersey Civil Union Review
Commission (Dec. 10, 2008) ................................................................12, 18, 22
Wisconsin Legislative Fiscal Bureau,
Establishment of Domestic Partnership and Related Rights and Benefits,
available at http://www.legis.wisconsin.gov/lfb/2009-
11Budget/Budget%20 Papers/391.pdf...............................................................10
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(continued)
Page(s)
OTHER AUTHORITIES
Jeffrey M. Adams & Warren H. Jones,
The Conceptualization of Marital Commitment: An Integrative Analysis
72 J. of Personality and Social Psychology 1177 (1997) ....................................7
Nancy Cott,
Public Vows: A History of Marriage and the Nation (2000) ............................23
Gregory M. Herek et al.,
Correlates of Internalized Homophobia in a Community Sample of
Lesbians and Gay Men,
2 J. of the Gay and Lesbian Medical Association 17 (1997).............................17
Robin A. Lenhardt,
Understanding the Mark: Race, Stigma, and Equality in Context, 79
N.Y.U. L. Rev. 803 (2004) ................................................................................19
National Center for Lesbian Rights,
The Evolution of California’s Domestic Partnership Law (Sept. 5, 2007),
http://www.nclrights.org/site/DocServer/timeline-
ab205_042307.pdf?docID=1265 .........................................................................9
James G. Pawelski et al.,
The Effects of Marriage, Civil Union, and Domestic Partnership Laws on
the Health and Well-being of Children,
118 Pediatrics 1 (2006) ......................................................................................21
Marc R. Poirier,
Name Calling: Identifying Stigma in the “Civil Union”/ “Marriage”
Distinction,
41 Conn. L. Rev. 1425(2009) ............................................................................19
Elizabeth S. Scott,
Social Norms and the Legal Regulation of Marriage,
86 Va. L. Rev. 1901 (2000) .................................................................................6
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CORPORATE DISCLOSURE STATEMENT
None of Amici Curiae (identified in n.1, infra) has a parent

corporation. No publicly held company owns more than 10% of stock in any of
Amici Curiae.
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STATEMENT OF INTEREST
Amici comprise 42 organizations, including national, metropolitan,
local, and minority bar associations and national and local non-profit
organizations.1 Each organization supporting this amicus brief is dedicated to
ensuring that its constituents and all others in this country, including gay men and
lesbians, receive equal treatment under the law. See Appendix. All parties have
consented to Amici’s submission of this brief, pursuant to Federal Rule of
Appellate Procedure 29(a).
SUMMARY OF ARGUMENT
Foundational to the Equal Protection Clause of the Fourteenth
Amendment is the principle that “the Constitution ‘neither knows nor tolerates
classes among citizens.’” Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting
1
The organizations are: Bay Area Lawyers for Individual Freedom; Alameda
County Bar Association; Bar Association of San Francisco; Los Angeles County
Bar Association; Marin County Bar Association; Santa Clara County Bar
Association; AIDS Legal Referral Panel; API Equality–LA; Asian American Bar
Association of the Greater Bay Area; Asian Pacific American Bar Association of
Los Angeles County; Asian Pacific Bar Association of Silicon Valley; Asian
Pacific Islander Legal Outreach; Bay Area Association of Muslim Lawyers;
California Employment Lawyers Association; California Women’s Law Center;
East Bay La Raza Lawyers Association; Equal Justice Society; Family Equality
Council; Filipino Bar Association of Northern California; Freedom to Marry;
Impact Fund; Japanese American Bar Association of Greater Los Angeles; Korean
American Bar Association of Northern California; Latina and Latino Critical Legal
Theory, Inc.; Law Foundation of Silicon Valley; Lawyers’ Committee for Civil
Rights of the San Francisco Bay Area; Legal Aid Society-Employment Law
Center; Lesbian and Gay Lawyers Association of Los Angeles; Marriage Equality
USA; Mexican American Bar Association; National Asian Pacific American Bar
Association; National Lawyers Guild San Francisco Bay Area Chapter; People for
the American Way Foundation; Queen’s Bench Bar Association; San Francisco
Chamber of Commerce; San Francisco La Raza Lawyers Association; San
Francisco Trial Lawyers Association; Santa Clara County Black Lawyers
Association; Society of American Law Teachers; South Asian Bar Association of
Northern California; Transgender Law Center; and Women Lawyers of Alameda
County.
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Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). In line with
this principle, it has long been bedrock law that “separate but equal” treatment
does not satisfy the federal Constitution. The very notion is a contradiction in
terms: As the Supreme Court has emphasized since Brown v. Board of Education,
the Constitution’s promise of true equality is necessarily breached by government-
sponsored separation of a disfavored class.
Proposition 8 betrays these longstanding values. It excludes a class of
people—gay men and lesbians—from the venerated institution of marriage,
relegating them instead to the inherently unequal and legalistic apparatus of
domestic partnership. It does so for no purpose other than to deny that class of
people access to real marriage. Proposition 8 thus “classifies homosexuals not to
further a proper legislative end, but to make them unequal to everyone else.”
Romer, 517 U.S. at 635. Enacted solely “for the purpose of disadvantaging the
group burdened by the law,” id. at 633, Proposition 8 cannot survive even rational
basis review.
This brief explains the harm inflicted on gay men and lesbians as a
result of Proposition 8’s pernicious classification. Because Proposition 8 excludes
them from marriage, gay men and lesbians and their families are stigmatized,
deprived of benefits enjoyed by their heterosexual counterparts, and exposed to
increased discrimination. These effects are repugnant to the Constitution’s
equality guarantee and in no way mitigated by access to the separate and inherently
inferior mechanism of domestic partnership. Amici urge this Court to affirm the
district court’s conclusion that Proposition 8 disadvantages gays and lesbians
without any legitimate justification. Perry v. Schwarzenegger, No. C09-2292, slip
op. at 135 (N.D. Cal. Aug. 4, 2010).
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ARGUMENT
I. CLASSIFICATIONS THAT SERVE ONLY TO DISADVANTAGE
THE BURDENED GROUP FAIL RATIONAL BASIS REVIEW
The Equal Protection Clause of the Fourteenth Amendment is “a
commitment to the law’s neutrality where the rights of persons are at stake.”
Romer, 517 U.S. at 623. The Clause “requires the consideration of whether the
classifications drawn by any statute constitute an arbitrary and invidious
discrimination.” Loving v. Virginia, 388 U.S. 1, 10 (1967). Even under the most
deferential review—the rational basis test—a state law must be “rationally related
to a legitimate state interest.” E.g., City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432, 440 (1985). “The State may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render the distinction arbitrary
or irrational.” Id. at 446.
A law that classifies persons for no reason other than to confer
disfavored legal status fails even rational basis review, for it serves no legitimate
governmental purpose. See Romer, 517 U.S. at 633–35. As the Supreme Court
has repeatedly explained, “if the constitutional conception of ‘equal protection of
the laws’ means anything, it must at the very least mean that a bare . . . desire to
harm a politically unpopular group cannot constitute a legitimate governmental
interest.” Id. at 634 (quoting Dep’t of Agric. v. Moreno, 413 U.S. 528, 534
(1973)). Accordingly, in Romer, the Supreme Court struck down a Colorado
constitutional amendment that prohibited governmental protection of gay and
lesbian individuals. Id. at 636. The amendment, the Court found, was a “status-
based enactment” that “impose[d] a special disability upon [gays and lesbians]
alone.” Id. at 631, 635. It “inflict[ed] on [gays and lesbians] immediate,
continuing, and real injuries that outrun and belie any legitimate justifications that
may be claimed for it.” Id. at 635; see also Eisenstadt v. Baird, 405 U.S. 438,
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454–455 (1972) (law prohibiting distribution of contraceptives to unmarried

individuals lacked a rational basis and violated the Equal Protection Clause).
So too here. The injuries that Proposition 8 visits upon gay men and
lesbians, as amici explain below, “outrun and belie” any legitimate governmental
purpose that might be claimed for it.
II. PROPOSITION 8 ESTABLISHES AN UNEQUAL, TWO-TIERED
REGIME AND HARMS GAY AND LESBIAN INDIVIDUALS
Proposition 8’s overt discrimination against same-sex couples
establishes a two-tiered regime in which same-sex couples hold second-class
status: “Proposition 8 does nothing more than enshrine in the California
Constitution the notion that opposite-sex couples are superior to same-sex
couples.” Perry, slip op. at 135. As explained below, the availability of domestic
partnerships—a plainly inferior option—does not cure Proposition 8’s
constitutional deficiency. By excluding same-sex couples from marriage,
Proposition 8 causes severe, actual harm to gay and lesbian individuals and their
families.
A. The Legalistic Designation of Domestic Partnership Is Patently
Inferior to the Revered Institution of Marriage
Time-honored precedent establishes that state-created, separate
institutions for disfavored groups are inherently unequal. As the Supreme Court
has repeatedly recognized since Brown v. Board of Education, 347 U.S. 483, 495
(1954), such separate institutions offend the guarantees of the Equal Protection
Clause. See, e.g., Mayor & City Council of Balt. v. Dawson, 350 U.S. 877 (1955)
(public beaches and bathhouses); Holmes v. City of Atlanta, 350 U.S. 879 (1955)
(public golf courses); Gayle v. Browder, 352 U.S. 903 (1956) (public
transportation); New Orleans City Park Improvement Ass’n v. Detiege, 358 U.S. 54
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(1958) (public parks); Peterson v. City of Greenville, 373 U.S. 244 (1963)
(restaurants); Brown v. Louisiana, 383 U.S. 131 (1966) (public libraries).
Even where separate institutions have the trappings of their more
well-regarded counterparts, inequalities necessarily remain. Though the
distinctions may be intangible, their social significance is real, and they remain
constitutionally impermissible. See Sweatt v. Painter, 339 U.S. 629, 634 (1950)
(noting, in striking down Texas’s segregated law schools, that “the [all-white] Law
School possesses to a far greater degree those qualities which are incapable of
objective measurement but which make for greatness in a law school”); United
States v. Virginia, 518 U.S. 515, 557 (1996) (holding that Virginia could not
restrict women to a military program that lacked, among other features, the
“prestige” of Virginia Military Institute).
The unequal separation wrought by Proposition 8 is blatant and
pernicious. The resulting regime welcomes opposite-sex couples into the revered
institution of marriage, yet shunts same-sex couples into the newly minted,
legalistic apparatus of “domestic partnership.” See Cal. Fam. Code § 297 (2005).
As the record in this case makes clear, domestic partnership is far inferior to and
less desirable than marriage. The availability of domestic partnership thus does not
remedy the harm caused by exclusion from marriage, but rather pours salt in the
wound. As in Sweatt, “[i]t is difficult to believe that one who had a free choice”
between domestic partnership and marriage “would consider the question close.”
Sweatt, 339 U.S. at 634.
1. Marriage Is a Uniquely Revered Institution in American
Society
Marriage holds a hallowed status in our society. As courts have
repeatedly recognized, marriage is an essential aspect of the human experience.
Far more than a mere bundle of legal rights and responsibilities, marriage is “an
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institution of transcendent historical, cultural and social significance,” Kerrigan v.

Comm’r of Pub. Health, 957 A.2d 407, 418 (Conn. 2008), “an institution more
basic in our civilization than any other.” Williams v. North Carolina, 317 U.S.
287, 303 (1942). Its significance to the couple involved is unparalleled; it is
“intimate to the degree of being sacred.” Griswold v. Connecticut, 381 U.S. 479,
486 (1965). Furthermore, marriage is a time-honored demonstration to family,
friends, and the community of a loving commitment between two people—and
implies a return promise by society to respect that commitment. See Turner v.
Safley, 482 U.S. 78, 95 (1987) (recognizing that marriage is an “expression[] of
emotional support and public commitment”). The institution is “a highly public
celebration of the ideals of mutuality, companionship, intimacy, fidelity, and
family.” Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 954 (Mass. 2003).
The right to marry, accordingly, “has long been recognized as one of the vital
personal rights essential to the orderly pursuit of happiness by free men [and
women]” and “fundamental to our very existence and survival.” Loving, 388 U.S.
at 12; see also Perez v. Lippold, 198 P.2d 17, 18–19 (Cal. 1948) (“Marriage is . . .
something more than a civil contract subject to regulation by the state; it is a
fundamental right of free men.”). The enormous personal and social significance
of marriage is, indeed, a core premise of appellants’ position. See, e.g., Defendant-
Intervenors-Appellants’ Opening Brief at 18 (describing marriage as a “bedrock
social institution”).
As a result of the special significance of marriage in society, the
institution has a critical “signaling” role, apart from the specific legal obligations it
entails. Elizabeth S. Scott, Social Norms and the Legal Regulation of Marriage, 86
Va. L. Rev. 1901, 1917 (2000). The designation of marriage affects both how the
two individuals in a married couple behave toward one another and how society
behaves toward them.
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First, married people understand how they are supposed to behave

toward one another: they are to be emotionally and financially supportive, honest,
and faithful. See Trial Tr. 201:9–14 (testimony of historian Nancy Cott).
Although married couples may modify their expectations and behavior over time,
they benefit by beginning with a common understanding of the marital
relationship, gleaned from a lifetime of participating in society and observing
married couples. See Jeffrey M. Adams & Warren H. Jones, The
Conceptualization of Marital Commitment: An Integrative Analysis, 72 J. of
Personality and Social Psychology 1177 (1997). This shared understanding assists
married individuals in meeting their own and their spouse’s expectations and
motivates them to work through temporary difficulties. See Trial Tr. 612:6–18
(testimony of psychologist Letitia Peplau) (marriage “enhances the likelihood that
. . . commitments will, in fact, be acted upon and be enforceable,” and that
marriage is associated with “a degree of seriousness and sort of gravitas that leads
[married couples] to take those obligations seriously”).
The institution of marriage likewise provides common ground for
others in society to understand a couple’s relationship. Because marriage is
universally recognized, married couples are readily treated in a manner that reflects
their legal and social status. See American Psychoanalytic Association Position
Statement, PX0752 at 2 (noting that the “milestone of marriage moves a couple
and its children into full citizenship in American society”). Spouses are
immediately seen as family members. See Trial Tr. 1234:23–1237:22 (testimony
of Helen Zia) (getting married helped Zia’s family understand her relationship; her
mother now refers to Lia Shigemura as Zia’s “daughter-in-law,” and “people
understand that”); id. at 1237:20–22 (“[I]n those most important moments in our
lives, marriage made it very clear that I was family, that we are family, and where
we stand.”). When a married couple opens a joint bank account, checks into a
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hotel, applies for a credit card, attends a parent-teacher conference, or accompanies

a child on a plane flight, there is no need for explanation or documentary proof of
the relationship. See Trial Tr. 844:5–845:20 (testimony of Dr. Ilan Meyer, social
psychologist); see generally Varnum v. Brien, 763 N.W.2d 862, 883–84 (Iowa
2009) (“Iowa’s marriage laws” are “designed to bring a sense of order to the legal
relationships of committed couples and their families in myriad ways.”).
For these reasons and others, many people regard getting married as
the most important day in their lives—“the principal happy ending in all of our
romantic tales,” and “a destination to be gained by any couple who love one
another.” Trial Tr. 207:9–208:6 (Cott testimony); id. at 88:19–21 (testimony of
plaintiff Paul Katami) (“[W]hen you find someone who is not only your best friend
but your best advocate and supporter in life, it’s a natural next step for me to want
to be married to that person.”); id. at 145:12 (testimony of plaintiff Kristin Perry)
(getting married was “as amazed and happy as I could ever imagine feeling”).
2. Domestic Partnership Is a Legalistic Mechanism That
Lacks the Significance, Stability, and Meaning of Marriage
Domestic partnership plainly lacks the status, cultural significance,
and social meaning of marriage. Unlike marriage, domestic partnership is not an
effective marker of family relationships. And same-sex couples who have access
only to domestic partnerships clearly are deprived of many of the tangible and
intangible benefits that married couples enjoy.
First, the legal category of domestic partnership is novel and unstable.
The category was invented recently,2 and its meaning is ever-shifting. In
California alone, its contours have recently and repeatedly changed.3 Domestic
2
The City of West Hollywood enacted the first domestic partnership ordinance in
the mid-1980s and San Francisco has operated its domestic partnership registry
since 1990.
3
Both West Hollywood’s and San Francisco’s ordinances essentially permitted
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partnership began in California as a term used in local ordinances that conferred

few legal benefits. It is now the label for registered same-sex couples (and
unmarried opposite-sex couples in which one individual is over the age of 62) who,
according to the California Supreme Court, must receive the same substantive
state-conferred legal entitlements as married couples. See Strauss v. Horton, 207
P.3d 48, 61–62 (Cal. 2009). But see In re Marriage Cases, 183 P.3d 384, 416 n.24
(Cal. 2008) (listing legal differences between domestic partnership and marriage).
Moreover, domestic partnership lacks consistent meaning across
jurisdictions. In contrast to California, many states and municipalities afford
domestic partners fewer rights. For example, Maine advises citizens to “remember
that a registered domestic partnership is NOT the same as a marriage and does not
entitle partners to rights other than those for which the registry was intended,”
namely “rights of inheritance as well as the rights to make decisions regarding
public acknowledgement of the intent of two individuals, regardless of their

gender, to commit to caring for one another and to be responsible for one another’s
basic living expenses, with very little legal effect. In 1999, California established a
statewide domestic partnership registry, which granted some benefits for certain
state employees and permitted domestic partners to visit each other in the hospital.
In 2001, the state expanded the list of benefits available to domestic partners,
including the right to sue for wrongful death, the right to use sick leave to care for
one’s partner, and the right to use stepparent adoption procedures. In 2002, the
legislature passed a series of six bills aimed at expanding the rights of domestic
partners. Finally, in 2003, the Legislature enacted Assembly Bill 205, which
provided domestic partners with most of the rights and duties enjoyed by married
couples. See National Center for Lesbian Rights, The Evolution of California’s
Domestic Partnership Law (Sept. 5, 2007), http://www.nclrights.org/
site/DocServer/timeline-ab205_042307.pdf?docID=1265. In 2009, the California
Supreme Court noted that after Proposition 8, domestic partners in California
retain “all of the constitutionally based incidents of marriage” except its label.
Strauss v. Horton, 207 P.3d 48, 61 (Cal. 2009) (quoting In re Marriage Cases, 183
P.3d 384, 433–34 (Cal. 2008) ). In contrast to the institution of marriage, whose
very label instantly conveys the nature of the relationship, only students of domestic
partnership law in California can determine what domestic partnership means at any
given moment.
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disposal of their deceased partners[’] remains.”4 In New York City, domestic

partners may enjoy, inter alia, visitation rights and city health benefits, but “cannot
be considered spouses,” and therefore “do not benefit from state income tax
advantages, the spousal privilege and confidential marital communications, the
ability to take out insurance policies on the other spouse, and other benefits of
marriage.”5 In some jurisdictions, domestic partnership is exclusively for same-sex
couples; in others, it is available to cohabitating couples more broadly.6
Not surprisingly in light of its novel and uncertain stature, domestic
partnership is not valued by society in a way that compares to marriage. As one
expert witness put it: “young children do not aspire to be domestic partners.” Trial
Tr. 826:24–827:16 (Meyer testimony). People do not associate the relationship
with the stability and permanence that characterize marriage. This is evident in the
way government treats domestic partnership. In 2004, for example, the State of
California mailed a letter to registered domestic partners explaining how they
could dissolve their partnerships in light of new legal responsibilities. See Letter
from California Secretary of State Kevin Shelley, PX2265. It is unimaginable that
the state would advise couples to consider divorce in similar circumstances. See
Trial Tr. 2047:13–2048:13 (testimony of Dr. Gregory Herek).
4
See Maine Department of Health and Human Services, Instructions and
Information for the Domestic Partnership Registry, available at
http://www.maine.gov/dhhs/boh/phs/odrvs/vital-records/order/
domstcprtnrspge.html.
5
See Office of the City Clerk, City of New York, Domestic Partnership
Registration, http://www.cityclerk.nyc.gov/html/marriage/domestic_
partnership_reg.shtml#disclaimer.
6
Compare, e.g., Wisconsin Legislative Fiscal Bureau, Establishment of Domestic
Partnership and Related Rights and Benefits, available at
http://www.legis.wisconsin.gov/lfb/2009-11Budget/Budget%20 Papers/391.pdf
(domestic partners in Wisconsin must be of the same sex) with, e.g., Nevada
Domestic Partnership Act, SB 283 (effective Oct. 1, 2009) (domestic partnership is
available to same-sex and opposite-sex couples).
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In turn, the registration of a domestic partnership may be less

meaningful to same-sex couples than getting married would be. For plaintiff
Sandy Stier, a domestic partnership registration was “just a legal document” that
“doesn’t have anything to do . . . with . . . the type of enduring relationship we
want.” Id. at 170:12–171:14. The complex emotions people experience when they
get married—as well as the joy and human closeness they feel when they attend a
wedding—simply do not attach to the ministerial step of registering a domestic
partnership. See id. at 1225:22–1227:7 (Zia and her wife did not notify friends or
send invitations to the “anticlimactic” event of their registration as domestic
partners); id. at 1281:1–1282:3 (Mayor Sanders’ daughter notified him of her
domestic partnership via text message stating she had “got the DP taken care of”).
Even when domestic partners celebrate their registration with a ceremony, the
terrain is unfamiliar: Is the event a wedding? A commitment ceremony?
Something else? The lack of a common vocabulary underscores the institution’s
lack of societal stature, and serves as a reminder to same-sex couples of the choice
that remains unavailable to them.
These reminders continue throughout the relationship. Even the
simple act of referring to one’s “partner” can be wrought with embarrassment and
misunderstanding: same-sex couples can be left searching for a manner to explain,
no matter how uncomfortable the setting, whether they are referring to their
domestic partner or their professional, athletic, or law partners. See Trial Tr.
1233:11–25 (Zia testimony) (when Zia and her wife were just domestic partners,
they would tell people they were partners and would be asked, “Partner in what
business?”); id. at 154:20–24 (Perry testimony) (“I don’t have access to the words
that describe my relationship right now. I’m a 45-year-old woman. I have been in
love with a woman for 10 years and I don’t have a word to tell anybody about that.
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I don’t have a word.”). Subsequently, same-sex couples must often explain the
intricacies of state family law to friends and potentially hostile strangers alike.
Such ambiguities, and the resulting risk of differential treatment,
would be less likely if same-sex couples could accurately refer to themselves as
“married” and as husband or wife, a vocabulary that is universally understood. See
The Legal, Medical, Economic and Social Consequences of New Jersey’s Civil
Union Law, Final Report of New Jersey Civil Union Review Commission, at 2, 16
(Dec. 10, 2008) (“New Jersey Commission Report”); Trial Tr. 89:1–12 (Katami
testimony) (“Being able to call him my husband is so definitive, it changes our
relationship . . . . It is absolute, and it comes with a modicum of respect and
understanding that your relationship is not temporal, it’s not new, it’s not
something that could fade easily.”).
In sum, marriage has a unique status in American society. No party to
this case disputes that marriage means far more than inheritance rights, powers of
attorney, or community property. It is, instead, “the definitive expression of love
and commitment in the United States.” Perry, slip op. at 80. Domestic partnership
is a patently inferior alternative. As trial witness Helen Zia explained, the
difference between being in a domestic partnership and being married has been the
difference of “night and day.” Trial Tr. 1251:6–1252:6. Put simply: “[T]here is
nothing that is like marriage except marriage.” Trial Tr. 208:9–209:3 (Cott
testimony).
B. Excluding Same-Sex Couples from Marriage Causes Harm and
Perpetuates Discrimination Against Gay Men and Lesbians
Proposition 8 causes real harm to same-sex couples and their families.
Even to the extent that domestic partnership may confer the legal benefits of
marriage, the two-tiered regime disadvantages same-sex couples in numerous
ways. First, barring same-sex couples from the valued institution of marriage
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demeans and stigmatizes them. This stigma, in turn, affects their physical and
emotional health and well-being and encourages further discrimination against gay
and lesbian individuals. Second, barring same-sex couples from marrying causes
economic harm. Third, the exclusion of same-sex couples from marriage harms
their children.
1. Restricting Same-Sex Couples to Domestic Partnerships
Stigmatizes Same-Sex Relationships
It demeans and stigmatizes same-sex couples to bar them from the
valued institution of marriage. The two-tiered regime effected by Proposition 8
sends an unmistakable, government-backed message that same-sex relationships
are less worthy than opposite-sex relationships. This official disapproval, and the
concomitant stigma, is damaging: gay and lesbian individuals suffer “minority
stress” that harms their physical and emotional well-being, and they face increased
discrimination.
a. Excluding Same-Sex Couples from Marriage Expresses
Government Disapproval of Same-Sex Relationships
The two-tiered regime that Proposition 8 establishes conveys official
disapproval of same-sex relationships. As the California Supreme Court
explained, “the statutory provisions that continue to limit access to [marriage]
exclusively to opposite-sex couples—while providing only a novel, alternative
institution for same-sex couples—likely will be viewed as an official statement that
the family relationship of same-sex couples is not of comparable stature or equal
dignity to the family relationship of opposite-sex couples.” In re Marriage Cases,
183 P.3d at 452; Kerrigan, 957 A.2d at 474 (same). Indeed, “there is a very
significant risk that retaining a distinction in nomenclature with regard to this most
fundamental of relationships whereby the term ‘marriage’ is denied only to same-
sex couples inevitably will cause the new parallel institution that has been made
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available to those couples to be viewed as of a lesser stature than marriage and, in

effect, as a mark of second-class citizenship.” In re Marriage Cases, 183 P.3d at
445; see also Goodridge, 798 N.E.2d at 962 (statutory bar on same-sex marriage
“confers an official stamp of approval on the destructive stereotype that same-sex
relationships are inherently unstable and inferior to opposite-sex relationships and
are not worthy of respect”).
Evidence adduced at trial reinforces the role of Proposition 8 as an
expression of government disapproval of same-sex relationships. See Perry, slip
op. at 93 (describing evidence that “Proposition 8 singles out gays and lesbians and
legitimates their unequal treatment”); Trial Tr. 2054:7–11 (Herek testimony)
(Proposition 8 is an instance of structural stigma in “a definitional sense,” because
it is “part of the legal system” and “differentiates people in same-sex relationships”
from “those in heterosexual relationships”); id. at 854:5–22 (Meyer testimony)
(Proposition 8 “sends a strong message about the values of the state” and “sends a
message that gay relationships are not to be respected”).
The government disapproval expressed through Proposition 8 is
exacerbated by the clear animus behind the measure. As the district court found,
the evidence at trial demonstrated that “the campaign to pass Proposition 8” was
motivated substantially by “a desire to advance the belief that opposite-sex couples
are morally superior to same-sex couples.” Perry, slip op. at 133–34. Indeed,
Proposition 8’s express purpose was to divest gay and lesbian individuals of a
constitutional right, thereby imposing on them a unique disability. See California
Voter Information Guide, PX0001 at 4 (Proposition 8 “[c]hanges California
Constitution to eliminate the right of same-sex couples to marry”); see also id. at 7
(Proposition 8 “protects our children from being taught in public schools that
‘same-sex marriage’ is the same as traditional marriage”).
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Furthermore, the Proposition 8 campaign and the Official Voter Guide

stoked fear and anti-gay prejudice. See Trial Tr. 424:24–429:6 (testimony of
historian George Chauncey); Video: “Stand up for Righteousness: Vote Yes on
Proposition 8,” PX0401 (“The devil wants to blur the lines between right and
wrong when it comes to family structure”; “If Prop. 8 fails, it opens up the door for
all the other laws that the homosexual agenda wants to enforce on other people”;
“We will see a further demise of the family”). Hak-Shing William Tam, an official
proponent of Proposition 8 who testified about messages he disseminated during
the Proposition 8 campaign, stated that he gets “very very upset” about the idea of
children thinking about marrying people of the same sex, but he is reassured by
knowing that gay couples are not allowed to get married, and that parents can
explain to their children that the domestic partnership gay couples can enter “is not
‘marriage.’” Trial Tr. 1962:17–1963:8. He testified that “just changing the name
of domestic partnerships to marriage will have this enormous moral decay,” and
that “permitting gays and lesbians to marry” would mean “one by one other states
would fall into Satan’s hand,” id. at 1960:1–9, 1928:6–13.
Proposition 8’s disapproval of same-sex couples is stigmatizing. In
both judicial decisions and social science, it is well-established that government
action singling out a group for disfavored treatment stigmatizes that group. See
Lawrence v. Texas, 539 U.S. 558, 575 (2003) (stating that the “stigma” imposed by
the Texas statute criminalizing “homosexual conduct” was “not trivial”); Brown v.
Bd. of Educ., 347 U.S. 483, 494 (1954) (describing the “feeling of inferiority” that
inevitably accompanies differential treatment); Strauder v. West Virginia, 100 U.S.
303, 308 (1879) (noting that exclusion of non-white citizens from juries was
“practically a brand upon them, affixed by the law, an assertion of their
inferiority”); Trial Tr. 819:7–820:6, 826:2–20 (Meyer testimony discussing
stigmatizing effects of discriminatory laws). In the same mold, the “dual system”
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effected by Proposition 8 imposes “structural stigma” on gay and lesbian

individuals: it sends the message that “if you are gay or lesbian, you cannot
achieve” the “desirable and respected” goal of marriage. Trial Tr. 826:18–20,
984:21–985:13 (Meyer testimony).
b. The Stigma Created by Proposition 8 Causes Emotional
and Physical Harm
The stigma resulting from Proposition 8’s two-tiered regime has
harmful consequences. By virtue of the stigma attached to them, gay men and
lesbians suffer “minority stress,” which manifests itself through “prejudice
events”; expectations of rejection and discrimination; concealment of identity; and
internalized homophobia. See Ilan H. Meyer, Prejudice, Social Stress, and Mental
Health in Lesbian, Gay and Bisexual Populations: Conceptual Issues and
Research Evidence, PX1003; Trial Tr. 832:20–833:16.
Trial testimony revealed the prevalence of each form of minority
stress. Individuals experience “prejudice events” daily. Even filling out a form in
a doctor’s office can become a source of stress and shame. As plaintiff Stier
testified, forms that ask whether an individual is single, married, or divorced
require domestic partners to cross out the existing text and write in their status.
See Trial Tr. 175:5–17. This evokes a feeling of rejection: “I’m gay and I’m not
accepted here”; “I’m not equal to . . . most people who fill [out] this form.” Id. at
841:17–844:11, 845:7–10, 850:10–851:14 (Meyer testimony). Similarly,
expectations of rejection are a constant issue for gay and lesbian individuals. See
Trial Tr. 152:3–11 (Perry testimony) (“[T]he decision every day to come out or not
come out at work, at home, at PTA, at music, at soccer, is exhausting.”). The
resulting exhaustion often leads gay and lesbian individuals to conceal their
identity. See Trial Tr. 1506:1–19 (witness Kendall kept his homosexuality a secret
because he knew his family and community did not approve). Plaintiffs’ testimony
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revealed that such repeated experiences often cause gay and lesbian individuals to
internalize homophobia. See Trial Tr. 146:15–147:14 (Perry testimony) (“[W]hen
you’re gay, you think you don’t really deserve things,” so her reaction to the
court’s invalidation of her 2004 marriage was that “I really didn’t deserve to be
married.”).
Such stresses negatively affect the mental health and well-being of
gay and lesbian individuals. Trial Tr. 832:23–835:24 (Meyer testimony); Gilbert
Herdt & Robert Kertzner, I Do, But I Can’t: The Impact of Marriage Denial on the
Mental Health and Sexual Citizenship of Lesbians and Gay Men in the United
States, PX1471 at 9–10. Effects may include “anxiety disorders, mood disorders,
such as depression, substance use disorders, . . . [and] excess in suicide attempts,”
as well as more subtle diminishment of well-being. Trial Tr. 870:13–872:10
(Meyer testimony); see also id. at 898:11–899:8. Internalized homophobia, for
example, can lead to lowered self-esteem, anxiety, substance abuse, and
depression. Gregory M. Herek et al., Correlates of Internalized Homophobia in a
Community Sample of Lesbians and Gay Men, 2 J. of the Gay and Lesbian Medical
Association 17 (1997). And “[y]ears of psychological research and experience”
indicate that concealment takes an “extensive mental toll” on gay and lesbian
individuals. American Psychoanalytic Ass’n Position Statement, PX0752 at 3.
c. The Stigma Created by Proposition 8 Perpetuates

Discrimination Against Gay Men and Lesbians
By making sexual orientation a legally salient characteristic,
Proposition 8 also encourages and provides cover for those who seek to treat gay
men and lesbians differently based on their sexual orientation. Indeed, Proposition
8 sends the message “that [it] is very highly valued by our Constitution to reject
gay people, to designate them a different class of people.” Trial Tr. 862:11–863:6
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(Meyer testimony). Because the state provides for separate and lesser treatment of
gay men and lesbians, individuals may logically conclude that it is permissible to
treat them as inferior. See id. 1277:5–1279:8 (testimony of Mayor Sanders
regarding recent anti-gay hate crimes in San Diego) (“I think that when a city,
when leadership talks in disparaging terms about people, or denies the rights that
everybody else have, the fundamental rights, then I think some people in the
community feel empowered to take action in hate crimes and in other ways.”); cf.
Lawrence, 539 U.S. at 575 (criminalizing sexual conduct between same-sex
couples was “an invitation to subject homosexual persons to discrimination both in
the public and in the private spheres”); Strauder, 100 U.S. at 308 (exclusion of
non-white citizens from juries was “a stimulant to . . . race prejudice”).
Moreover, designating same-sex couples as different can trigger
unintentional discrimination. Due to confusion regarding legal requirements,
hospitals may refuse to allow a same-sex partner to be by a loved one’s side during
a medical emergency, and doctors may not permit domestic partners to make
medical decisions on behalf of an incapacitated partner. In an analogous context,
the New Jersey Civil Union Review Commission received testimony that gay and
lesbian individuals who were legally entitled to hospital visitation rights were
delayed in gaining access to their hospitalized partners. For example, a woman
whose partner was admitted to the emergency room with a potentially fatal cardiac
arrhythmia was temporarily prevented from getting information about her partner’s
condition because the doctor was unfamiliar with civil unions. See New Jersey
Commission Report, at 1; see also id. at 14–15 (providing additional examples).
Furthermore, employers may be less understanding of an employee’s taking leave
to care for a domestic partner. Even family members may not understand either
the level of commitment expected of a domestic partner towards the couple’s child,
or the degree of attachment of the child to a domestic partner.
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Moreover, by segregating gay men and lesbians, the State causes

society to focus on sexual orientation to the exclusion of other characteristics. As
with segregation on the basis of race, separating gay men and lesbians based on
their sexual orientation causes that aspect of their identity to eclipse other
attributes. See Robin A. Lenhardt, Understanding the Mark: Race, Stigma, and
Equality in Context, 79 N.Y.U. L. Rev. 803, 818–19 (2004). Thus, when gay men
or lesbians disclose that they are in a domestic partnership, others are likely to see
them only as gay—and treat them accordingly—rather than viewing them as full
persons entitled to the same respect and dignity given to other members of society.
See generally Marc R. Poirier, Name Calling: Identifying Stigma in the “Civil
Union”/ “Marriage” Distinction, 41 Conn. L. Rev. 1425, 1429–30, 1479–89
(2009) (describing the way in which the nomenclature distinction perpetuates bias
and facilitates discrimination).
2. Excluding Same-Sex Couples from Marriage Causes
Economic Harm
In addition, by barring same-sex couples from the institution of
marriage, Proposition 8 causes actual economic harm to gay men and lesbians. See
generally Trial Tr. 1330:14–16 (testimony of economist Lee Badgett) (Proposition
8 has “inflicted substantial economic harm on same-sex couples and their children
who live here in California.”). Because they are not married, same-sex couples
may be denied employment-related benefits. See Trial Tr. 692:4–25 (testimony of
economist Edmund Egan) (individuals in same-sex partnerships may not be
covered by their partners’ healthcare plan); Cal. Employer Health Benefits Survey,
PX1261 at 7 (only 56% of California firms offered health insurance to unmarried
same-sex couples in 2008); Report by the Council on Science and Public Health,
PX0188 at 9 (“Survey data confirm that same-sex households have less access to
health insurance.”); see also American Medical Association Resolution, PX0189 at
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2 (“[E]xclusion from civil marriage contributes to health care disparities affecting

same-sex households.”).
A recent decision of the National Elevator Industry (“NEI”) is
illustrative. The NEI decided that, under its health plan, married spouses—
whether same-sex or opposite-sex—are eligible for benefits. Domestic partners,
however, are not. See Letter from Director, Pension and Eligibility Operations,
NEI (Dec. 30, 2009), PX2260. The result is that same-sex couples who legally
married in California prior to Proposition 8’s enactment are eligible for employer-
provided healthcare benefits, while couples in domestic partnerships must muster
the funds for separate coverage. See also Report by the Council on Science and
Public Health, PX0188 at 9 (finding that same-sex households who do have health
insurance “pay more than married heterosexual workers, and also lack other
financial protections”).
More generally, marriage confers numerous economic benefits that
stem from the unique commitment it represents. See Trial Tr. 1331:12–14
(Badgett testimony). Domestic partnership does not confer comparable economic
benefits. See id. at 1337:14–25. For example, marriage fosters greater
specialization of labor, which can increase a couple’s income and the time
available for family. See id. at 1331:15–21, 1333:2–13. Marriage also tends to
reduce a couple’s transaction costs: as a married couple’s economic fortunes
change, the commitment and stability inherent in marriage permit spouses to avoid
“renegotiat[ing] whatever deal they might have had as unmarried partners.” Id. at
1333:17–1334:2. Furthermore, married individuals may enjoy greater
employment-related economic gains, whereas same-sex couples who cannot marry
face discrimination that may adversely affect their work performance and related
economic rewards. See id. at 1335:25–1336:15. Though difficult to quantify,
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these economic benefits of marriage are well-known and acknowledged in the field
of economics. See id. at 1336:20–22.
3. Excluding Same-Sex Couples from Marriage Harms
Children
It is widely recognized that “the ban on same sex marriage is likely to
have an especially deleterious effect on the children of same sex couples.”
Kerrigan, 957 A.2d at 474. “A primary reason why many same sex couples wish
to marry is so that their children can feel secure in knowing that their parents’
relationships are as valid and as valued as the marital relationships of their friends’
parents.” Id. Indeed, entities and individuals from all corners of the Proposition 8
debate recognize that children suffer when their parents cannot marry. See, e.g.,
American Psychological Association, Professional Association Policies, PX0767 at
2–4, 6 (noting that children of same-sex couples are deprived of the benefits of
marriage); Trial Tr. 1964:17–1965:2 (testimony of William Hak-Shing Tam)
(agreeing that it is important to children of same-sex couples that their parents be
able to marry).
Barring same-sex couples from marrying harms their children.
“Excluding same-sex couples from civil marriage” prevents their children “from
enjoying the immeasurable advantages that flow from the assurance of a stable
family structure in which the children will be reared, educated, and socialized.”
Goodridge, 798 N.E.2d at 964. Whereas “[c]hildren who are raised by civilly
married parents benefit from the legal status granted to their parents,” children of
same-sex couples whose parents are not permitted to marry may suffer
psychological harm. James G. Pawelski et al., The Effects of Marriage, Civil
Union, and Domestic Partnership Laws on the Health and Well-being of Children,
118 Pediatrics 349, 358, 361 (2006). As the President of the New Jersey
Psychological Association attested, children of same-sex relationships whose
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parents are not permitted to marry must cope with stigma, lack of social support
and acceptance, and teasing in school or from peers. New Jersey Commission
Report, at 16 (testimony of Judith Glassgold, Psy.D.).
A corollary to these negative consequences is that children of same-
sex couples would benefit if their parents were able to marry. See Perry, slip op. at
84 (finding that “[t]he children of same-sex couples benefit when their parents can
marry”); Trial Tr. 1042:12–1043:16 (testimony of psychologist Michael Lamb)
(the ability of same-sex couples to get married can improve the likelihood that their
child will achieve a good adjustment outcome). As the record in this case reflects,
a study of married same-sex couples in Massachusetts found that almost all of the
parents who were raising children agreed that, for a variety of reasons—from
having a family that looks like other families to the ease of dealing with healthcare
providers and teachers—their children were better off after marriage. See PX1267
at 1 (report by Christopher Ramos, et al.). And appellants’ expert firmly agreed
that permitting same-sex couples to marry would benefit the children of same-sex
couples. See Trial Tr. 2803:13–15 (testimony of David Blankenhorn) (“I believe
that adopting same-sex marriage would be likely to improve the well-being of gay
and lesbian households and their children.”); id. at 2839:22–24 ( “I do believe it is
almost certainly true that gay and lesbian couples and their children would benefit
by having gay marriage.”); id. at 2848:24–2849:5 (agreeing that marriage “would
improve the happiness and well-being of many gay and lesbian individuals,
couples, and family members”).
CONCLUSION
At odds with time-honored constitutional commands, Proposition 8
creates a separate and unequal regime for a disfavored class of individuals. By
excluding same-sex couples from the hallowed institution of marriage, Proposition
8 inflicts profound injury upon gay and lesbian individuals and their children.
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Because of Proposition 8, gay men and lesbians and their families are deprived of
meaningful benefits; suffer from state-sanctioned stigma; and are exposed to
further discrimination on the basis of their sexual orientation. There is no doubt
that Proposition 8 imposes “immediate, continuing, and real injur[y]” on gay and
lesbian individuals. Romer v. Evans, 517 U.S. 620, 635 (1996). The patently
separate-but-unequal regime effected by Proposition 8 fails any level of judicial
scrutiny.
Marital regulations have long been a way of “draw[ing] lines among
the citizenry” and “defin[ing] what kinds of sexual relations and which families
will be legitimate.” Nancy Cott, Public Vows: A History of Marriage and the
Nation 4 (2000). Numerous racial and religious minorities have, at one time, faced
restrictions on their privilege to marry. See id. But “[a] prime part of the history
of our Constitution . . . is the story of the extension of constitutional rights and
protections to people once ignored or excluded.” United States v. Virginia, 518
U.S. 515, 557 (1996). Continuing to exclude, demean, and stigmatize gay and
lesbian individuals is inconsistent with that constitutional tradition. Amici urge this
court to affirm that Proposition 8 is unconstitutional.
Respectfully submitted,
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DATED: October 25, 2010 MUNGER, TOLLES & OLSON LLP

JEROME C. ROTH
MICHELLE FRIEDLAND
MARK R. CONRAD
MIRIAM L. SEIFTER
By: s/ Jerome C. Roth

JEROME C. ROTH
Attorneys for Amici Curiae
Bay Area Lawyers for Individual
Freedom, et al.
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Certificate of Compliance
1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 6,969 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
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 has been prepared in a proportionally spaced typeface using Microsoft Word
with 14 point Times New Roman.

JEROME C. ROTH
MICHELLE FRIEDLAND
MARK R. CONRAD
MIRIAM L. SEIFTER
By: s/ Jerome C. Roth

JEROME C. ROTH
Freedom, et al.
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Certificate of Service
I hereby certify that I electronically filed the foregoing 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.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.

JEROME C. ROTH
MICHELLE FRIEDLAND
MARK R. CONRAD
MIRIAM L. SEIFTER
By: /s/ Jerome C. Roth

JEROME C. ROTH
Freedom, et al.
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APPENDIX: STATEMENTS OF AMICI

Amici respectfully submit the following statements regarding their
interests in this matter:
Bay Area Lawyers for Individual Freedom (“BALIF”) is the

nation’s oldest and largest bar association of lesbian, gay, bisexual, and
transgender persons (“LGBT”). BALIF serves to take action on questions of law
and justice that affect the LGBT community, strengthen ties among LGBT legal
professionals, build coalitions to combat discrimination, and provide a forum for
members of the LGBT legal community.
Alameda County Bar Association (“ACBA”), established in 1877, is
a nonprofit voluntary membership organization of 2,100 attorneys in Alameda
County. ACBA has a strong interest in having courts ensure equal protection
under the law for all people. One of the core tenets of the ACBA mission is to
promote the fair and equitable administration of justice. Through the work of its
Board of Directors, committees, sections, and public service programs, the ACBA
strives to promote access to justice for all people, and the fair and equitable
administration of justice.
The Bar Association of San Francisco (“BASF”) is a nonprofit
voluntary membership organization of attorneys, law students, and legal
professionals in the San Francisco Bay Area. Founded in 1872, BASF enjoys the
support of more than 7,500 individuals, law firms, corporate legal departments, and
law schools. Through its board of directors, committees, volunteer legal services
programs, and other community efforts, BASF has worked to promote and achieve
equal justice for all and oppose discrimination in all its forms, including, but not
limited to, discrimination based on race, sex, disability, and sexual orientation.
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With more than 27,000 members, the Los Angeles County Bar
Association (“LACBA”) is the largest local voluntary bar association in the
country. For more than 130 years, LACBA has represented the interests of its
membership, encouraged legal reform, and promoted the administration of justice
in California. LACBA opposes discrimination and supports the protection of
fundamental rights. LACBA joined amicus briefs in support of marriage equality
in In re Marriage Cases and Strauss v. Horton, and opposed the passage of
Proposition 8.
The Marin County Bar Association (“MCBA”) is a voluntary
organization of almost 700 attorney members practicing in Marin and surrounding
counties. A primary mission of the MCBA is to promote the sound administration
of justice, which includes supporting an independent judiciary and educating the
public on the importance of the judicial system. The importance of the civil rights
issues raised by Proposition 8 prompted MCBA to adopt a formal position in
opposition to the proposition, a position approved both by board action and a full
membership vote.
Founded in 1917, the Santa Clara County Bar Association
(“SCCBA”) is a nonprofit membership association of approximately 3,400 legal
professionals. The SCCBA is committed to promoting full and equal access to the
legal system by all individuals, and is a leader in opposing discrimination against
gay men and lesbians. The SSCBA, through its formal resolutions and
commitment to amicus briefs in prior relevant litigation, opposes Proposition 8 as
an unconstitutional infringement of the inalienable, fundamental right of all
citizens to marry the person of their choosing, regardless of gender.
The AIDS Legal Referral Panel (“ALRP”) is a non-profit
organization that helps people living with HIV/AIDS maintain or improve their
health by resolving their legal issues. ALRP was founded in 1983 and has handled
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more than 50,000 legal matters for its clients over the last 27 years. ALRP’s goals
are to provide counsel and representation on legal issues for a community of
individuals who might otherwise not be able to afford or obtain legal assistance,
and to leverage the resources of the private bar for the public good. ALRP is
dedicated to addressing discrimination against people with HIV/AIDS and
members of the LGBT community, including working to ensure their marriage
rights.
API Equality – LA (“APIELA”) is a coalition of organizations and
individuals who are committed to working in the Asian/Pacific Islander (“API”)
community in the greater Los Angeles area for equal marriage rights and the
recognition and fair treatment of LGBT families through community education and
advocacy. APIELA recognizes that the long history of discrimination against the
API community, especially California’s history of anti-miscegenation laws and
exclusionary efforts targeted at Asian immigrants, parallels the contemporary
exclusion of gays and lesbians from marriage in California.
The Asian American Bar Association of the Greater Bay Area
(“AABA”) represents the interests of Asian Pacific American attorneys in the
Greater San Francisco Bay Area. It is one of the largest Asian Pacific American
bar associations in the nation and one of the largest minority bar associations in the
State of California. From its inception in 1976, AABA has been actively involved
in civil rights issues and has advocated on issues regarding minority communities,
diversity, and equal protection. Among other things, AABA filed an amicus brief
in the Bakke affirmative action case in the United States Supreme Court in 1977
and in In re Marriage Cases in the California Supreme Court in 2007.
The Asian Pacific American Bar Association of Los Angeles
County (“APABA-LA”) is a membership organization comprised of over 700
attorneys, judges and law students. Since its formation in 1998, APABA-LA has
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advocated on issues that impact the APA community and has demonstrated a
commitment to civil rights, racial justice, and equal opportunity. APABA-LA has,
and continues to, oppose initiatives designed to deprive immigrants, people of
color, and other minorities of their civil rights, including initiatives that
discriminate based upon sexual orientation. APABA-LA strives to address all
issues relevant to the equal treatment of those in the APA community.
The Asian Pacific Bar Association of Silicon Valley (“APBA-SV”)
was formed over twenty years ago and is a forum for Asian American attorneys in
the Silicon Valley to take positions on issues affecting Asian Americans and to
empower Asian Americans in the Valley. Asian American attorneys in the Valley
practice in every legal field (firms of all sizes, large and small corporations,
academia, government, courts, legislature, and public interest) and enrich our legal
and civic communities. One of the central missions of the APBA-SV is to promote
justice and equality for all and oppose discrimination in all its forms, including, but
not limited to, discrimination and injustices targeted towards race, gender,
disabilities and sexual orientation.
Asian Pacific Islander Legal Outreach (“API Legal Outreach”) is a
community-based, social justice organization serving the Asian and Pacific
Islander communities of the Greater Bay Area. Founded in 1975, its mission is to
promote culturally and linguistically appropriate services for the most marginalized
segments of the API community. API Legal Outreach’s work is currently focused
in the areas domestic violence, violence against women, immigration and
immigrant rights, senior law and elder abuse, human trafficking, public benefits,
and social justice issues. API Legal Outreach has been fighting against all forms
of discrimination, especially against the LGBTQ community, for many years.
The Bay Area Association of Muslim Lawyers (“BAAML”)
represents the interests of Muslim-American attorneys in the Greater San Francisco
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Bay Area. BAAML was founded to address the backlash against Arab, Middle
Eastern, Muslim. and South Asian communities in the wake of 9/11. BAAML has
a strong interest in protecting and promoting equal protection for all those living in
the United States and ensuring that they are protected from invidious
discrimination, especially when it comes to ensuring civil rights and civil liberties.
The California Employment Lawyers Association (“CELA”) is an
organization of approximately 925 attorneys who represent primarily plaintiffs in
civil rights and other civil cases arising in the workplace. CELA helps its members
protect and expand the legal rights of working women and men through litigation,
education, and advocacy.
Founded in 1989, the California Women’s Law Center (“CWLC”)
is dedicated to addressing the comprehensive and unique legal needs of women
and girls. Through systemic change, CWLC seeks to ensure that opportunities for
women and girls are free from unjust social, economic, and political constraints.
CWLC is committed to eradicating invidious discrimination, including eliminating
laws that stigmatize non-traditional gender roles.
The East Bay La Raza Lawyers Association (“EBLRLA”) is the
county bar association of Latina/Latino lawyers in Alameda and Contra Costa
counties. Dedicated to expanding legal access, the EBLRLA provides annual
scholarships to Latina/Latino law students, supports Latina/Latino attorneys with a
local professional network, and advocates for increased Latina/Latino
representation in the judiciary. Through its board of directors, committees, and
membership, the EBLRLA opposes all forms of invidious discrimination and
promotes respect for human dignity, equal protection of the law and the
fundamental rights of all persons, including marriage rights.
The Equal Justice Society (“EJS”) is a national organization of
scholars, advocates, and citizens that seeks to promote equality and enduring social
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change through law, public policy, public education, and research. The primary
mission of EJS is to combat the continuing scourge of racial discrimination and
inequality in America. Consistent with that mission, EJS works to confront all
manifestations of invidious discrimination and second-class citizenship. Such
threats to dignity spring from a common source and endanger everyone, no matter
the context in which they arise.
Family Equality Council, founded in 1979, is a national organization
working to achieve social and legal equality for LGBT families by providing direct
support, educating the American public, and advancing policy reform that ensures
full recognition and protection under the law. Family Equality Council has more
than 50,000 supporters, thousands of which are located in California. As a national
organization, Family Equality Council has broad experience protecting the rights
of LGBT-headed families and serving the over 200 local parents’ groups that
support them.
The Filipino Bar Association of Northern California (“FBANC”) is
an association of Filipino and Filipino American attorneys, students, and legal
professionals in Northern California. It is our mission to support, educate,
encourage, and empower the members of our association to excel and succeed in
their educational and professional endeavors. It is further our mission to guard
against injustices affecting our community.
Freedom to Marry is the campaign to end marriage discrimination
nationwide. Freedom to Marry works with partner organizations and individuals to
win the right to marry in more states, solidify and diversify the majority for
marriage, and challenge and end federal marriage discrimination. Freedom to
Marry is based in New York, and has participated as amicus curiae in several
marriage cases in the United States and abroad.
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Impact Fund is a non-profit foundation that provides funding,

training, and co-counsel to public interest litigators across the country. It is a State
Bar Legal Services Trust Fund Support Center, providing services to legal services
projects across California. The Impact Fund is counsel in a number of major civil
rights class actions and is lead counsel in Dukes v. Wal-Mart Stores, Inc., 603 F.3d
571 (9th Cir. 2010), the largest employment discrimination class action in history.
The Japanese American Bar Association of Greater Los Angeles
(“JABA”) is one of the oldest Asian Pacific American bar associations in the
country and consists of a diverse membership of nearly 200 attorneys, judicial
officers, and law students of Japanese and Asian Pacific Islander ancestry in the
greater Los Angeles area and beyond, including gay and lesbian individuals. With
a deep appreciation of the unique history of Japanese Americans in the United
States and the failure of constitutional protections that led to their internment
during World War II, JABA has a proud history of actively advocating and
devoting resources to issues of civil rights and social justice, especially for those
members of society who continue to suffer from discrimination and unequal
treatment.
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The Korean American Bar Association of Northern California

(“KABA-NC”) has served Korean American lawyers and the local Korean
American community since the mid-1980s and was founded to encourage and
promote the professional growth of Korean-American lawyers and law students in
Northern California; to foster networking, support, and the exchange of ideas and
information among its members and with the local Korean-American community;
and to work with other Asian, minority, and community organizations on matters
of common concern. KABA-NC joins this amicus brief to further the protection of
minority rights, including those of gays and lesbians.
Latina and Latino Critical Legal Theory, Inc. (“LatCrit, Inc.”) is a
non-profit organization dedicated to (1) the production of critical and
interdisciplinary “outsider jurisprudence”; (2) the promotion of substantive social
transformation; (3) the expansion and interconnection of antisubordination
struggles; and (4) the cultivation of community and coalition among outsider
scholars. LatCrit’s membership includes primarily academics and advocates based
in the United States. LatCrit’s theory seeks to elucidate intra-and inter-group
diversities across multiple identity axes, including those based on perspective and
discipline, to ensure that African American, Asian American, Native American,
Feminist, Queer, and other OutCrit subjectivities are considered under the law.
LatCrit’s interest in constitutional jurisprudence on marriage equality is
fundamentally related to its central mission.
Founded in 1974, the Law Foundation of Silicon Valley is a private
nonprofit corporation in San Jose that sponsors five free legal services and
advocacy programs. Its mission is to secure justice and protect human rights by
providing legal advocacy, counseling, and access to the legal system for those who
would otherwise be underrepresented. The Law Foundation has a strong interest in
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protecting the equal protection rights of our clients and members of the
communities that we serve, and assuring that they are protected from
discrimination, particularly as to their fundamental rights.
The Lawyers’ Committee for Civil Rights of the San Francisco
Bay Area (“LCCR”) is affiliated with the national Lawyers’ Committee for Civil
Rights Under Law, established in 1963 at the urging of President John F. Kennedy.
LCCR was formed to support the rights of minority and low-income persons by
offering free legal assistance in civil matters and by litigating cases on behalf of
the traditionally underrepresented. In addition, LCCR monitors judicial
proceedings and legislation that affect the traditionally disadvantaged and
frequently files amicus briefs in cases challenging discriminatory policies and
practices. Because advancing the rights of LGBT individuals is integral to any
civil rights agenda, LCCR’s amicus work has encompassed these issues as well.
The Legal Aid Society–Employment Law Center (“LAS-ELC”) is a
non-profit public interest law firm whose mission is to protect, preserve, and
advance workplace rights of individuals from traditionally underrepresented
communities. Since 1970, LAS-ELC has represented plaintiffs in employment
cases, particularly those of special import to communities of color, women, recent
immigrants, individuals with disabilities, and LGBT individuals.
The Lesbian and Gay Lawyers Association of Los Angeles
(“LGLA”) is a non-profit voluntary membership bar association of attorneys, law
students, and legal professionals in the greater Los Angeles area. LGLA is an
affiliate of the Los Angeles County Bar Association. Founded in 1979, LGLA
continues its mission of providing a strong leadership presence of and for lesbian,
gay, bisexual, and transgendered persons in the legal profession and in the
community at large, through education, legal advocacy, and participation in civic
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activities and social functions. LGLA has fought for equal justice for all persons
without regard for their sexual orientation for almost thirty years.
Marriage Equality USA (“MEUSA”) is a national, not-for-profit, all-
volunteer corporation that leads a nonpartisan, grassroots educational effort to
secure legally recognized civil marriage equality at the federal and state level
without regard to gender identity or sexual orientation. MEUSA employs
educational and outreach programs, media presentations, partnerships with other
organizations that support equality, and a strong membership that engages in local
events, including asking for marriage licenses for same-sex couples on Valentine’s
Day. MEUSA has a strong presence in California, with 23 chapters, as well as
chapters in Arizona, Florida, Iowa, New Hampshire, Ohio, Pennsylvania, and
Indiana.
The Mexican American Bar Association (“MABA”) is a non-profit
professional membership organization of Latino attorneys and others involved in
the legal profession. MABA is committed to the advancement of Latinos in the
legal profession and the empowerment of the Latino community through service
and advocacy. MABA is also committed to promoting constitutional principles of
equal protection and fundamental rights, and to opposing discrimination in all
forms.
The National Asian Pacific American Bar Association
(“NAPABA”) is the national association of Asian Pacific American attorneys,
judges, law professors, and law students. NAPABA represents the interests of over
40,000 attorneys and 62 local Asian Pacific American bar associations, who work
variously in solo practices, large firms, corporations, legal services organizations,
non-profit organizations, law schools, and government agencies. Since its
inception in 1988, NAPABA has been at the forefront of national and local
activities in the areas of civil rights. Equal access to the fundamental right to
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marry is one such right which Asian Pacific Americans were long denied through
anti-miscegenation laws, and NAPABA joins amici to continue the defense of
equal access to the fundamental right to marry.
The National Lawyers Guild San Francisco Bay Area Chapter is a
progressive bar association that works for human rights generally. It has an active
Queer Committee that seeks equality and justice for the LGBT community and
supports law student interns who commit their work to furthering LGBT rights.
People For the American Way Foundation (“PFAWF”) is a
nonpartisan citizens’ organization established to promote and protect civil and
constitutional rights. Founded in 1981, PFAWF now has hundreds of thousands of
members nationwide. PFAWF has been involved in litigation and other efforts
nationwide to combat discrimination and promote equal rights and regularly has
supported litigation to secure the right of same-sex couples to marry. PFAWF
joins this brief to vindicate the constitutional right of same-sex couples in
California to equal protection of the law.
Queen’s Bench Bar Association is a non-profit voluntary
membership organization made up of judges, lawyers, and law students in the San
Francisco Bay Area. Established in 1921, Queen’s Bench is one of the oldest
women’s bar associations in the country. Queen’s Bench seeks to advance the
interests of women in law and society, and to serve the professional needs of
women lawyers, judges, and law students. Queen’s Bench has a strong and
demonstrated interest in the preservation of the Constitutional right to equal
protection of the laws.
Founded in 1850, the San Francisco Chamber of Commerce
(“Chamber”) is the oldest business organization in California, representing 1,500
San Francisco businesses of all sizes from every industry. These businesses
employ over 200,000 persons in San Francisco, representing half of the city’s
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workforce. Chamber has a long history of supporting workplace diversity and

equal rights. Chamber believes ending marriage discrimination against same-sex
couples would improve the ability of California businesses to recruit and retain
talented employees, a key to increased business development and economic
growth.
Founded in 1971, San Francisco La Raza Lawyers Association was
the first Latino Bar Association founded in the country. La Raza’s mission is to
serve the public interest by promoting the science of jurisprudence; promoting
reform in the law and facilitating the administration of justice. La Raza has a long
history of advocating for equality under the law. La Raza continues this tradition
in signing this amicus brief.
San Francisco Trial Lawyers Association (“SFTLA”) is a
professional membership organization of trial attorneys from a broad range of
backgrounds. SFTLA has a strong mission statement embracing and promoting
diversity within the organization. SFTLA’s interest in having courts ensure equal
protection under the law is central to its mission. Through its Board of Directors,
community outreach, legal and social events, publications, and continuing
education programs, SFTLA has worked to promote the core constitutional
principles of equal protection and fundamental rights, and to oppose discrimination
in all forms.
Santa Clara County Black Lawyers Association is an advocate for
equal opportunity and justice for all citizens of the United States of America. The
right to marry and choose one’s spouse is a fundamental right that all citizens must
be guaranteed without regard to race, gender, or sexual orientation.
The Society of American Law Teachers (“SALT”) is an association
of law faculty, administrators, and legal education professionals from over 170 law
schools. Incorporated in 1974, SALT was founded by a group of leading law
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professors dedicated to improving the quality of legal education by making it more

responsive to societal concerns. SALT has worked within the legal academy to
develop a jurisprudence to end discrimination of historically underrepresented
groups, including discrimination based on sexual orientation and has appeared as
amicus curiae in federal and state courts to further these claims to equal access to
education, employment, and to full participation in civic life.
The South Asian Bar Association of Northern California (“SABA-
NC”) was founded in 1993 to promote the South Asian bar and to focus on the
legal needs of the South Asian community. Since its inception, SABA-NC has
worked diligently to safeguard the civil rights and civil liberties of South Asians in
California through education, advocacy, and awareness. South Asians are no
strangers to the stigmatization and isolation felt by minority communities that is
especially true for gay and lesbian South Asians who suffer from discrimination
based on both their ethnicity and sexual orientation. SABA-NC believes that all
individuals, regardless of sexual orientation, deserve equal treatment under the law.
including the right to marry.
The Transgender Law Center (“TLC”) is a civil rights organization
advocating for transgender communities. We connect transgender people and their
families to technically sound and culturally competent legal services, increase
acceptance and enforcement of laws and policies that support transgender
communities, and work to change laws and systems that fail to incorporate the
needs and experiences of transgender people. TLC has an interest in protecting
minorities from being denied their civil rights, including the right to marriage.
Women Lawyers of Alameda County (“WLAC”), founded in 1980,
is a voluntary bar association of attorneys, legal professionals, and law students
who live or work in Alameda County. WLAC is an affiliate of California Women
Lawyers, and its mission is to be a voice for women in the law by working to
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promote equality and diversity, combat gender bias, and oppose all forms of
discrimination.
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In The United States Court of Appeals For The Ninth Circuit: K M. P, C C S F - A S, P 8 O P D H, .

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Case: 10-16696 10/25/2010 Page: 1 of 48 ID: 7520687 DktEntry: 152

In the United States Court of Appeals

KRISTIN M. PERRY, ET AL., Plaintiffs-Appellees,

ARNOLD SCHWARZENEGGER, ET AL., Defendants

BRIEF OF AMICI CURIAE BAY AREA LAWYERS FOR

City of Cleburne, Tex. v. Cleburne Living Ctr.,

Dep’t of Agric. v. Moreno,

Holmes v. City of Atlanta,

Mayor & City Council of Balt. v. Dawson,

New Orleans City Park Improvement Ass’n v. Detiege,

Peterson v. City of Greenville,

Office of the City Clerk, City of New York,

CORPORATE DISCLOSURE STATEMENT

None of Amici Curiae (identified in n.1, infra) has a parent

454–455 (1972) (law prohibiting distribution of contraceptives to unmarried

institution of transcendent historical, cultural and social significance,” Kerrigan v.

First, married people understand how they are supposed to behave

hotel, applies for a credit card, attends a parent-teacher conference, or accompanies

partnership began in California as a term used in local ordinances that conferred

public acknowledgement of the intent of two individuals, regardless of their

disposal of their deceased partners[’] remains.”4 In New York City, domestic

In turn, the registration of a domestic partnership may be less

available to those couples to be viewed as of a lesser stature than marriage and, in

Furthermore, the Proposition 8 campaign and the Official Voter Guide

effected by Proposition 8 imposes “structural stigma” on gay and lesbian

c. The Stigma Created by Proposition 8 Perpetuates

Moreover, by segregating gay men and lesbians, the State causes

2 (“[E]xclusion from civil marriage contributes to health care disparities affecting

DATED: October 25, 2010 MUNGER, TOLLES & OLSON LLP

By: s/ Jerome C. Roth

1. This brief complies with the type-volume limitation of Fed. R. App. P.

2. This brief complies with the typeface requirements of Fed. R. App. P.

DATED: October 25, 2010 MUNGER, TOLLES & OLSON LLP

By: s/ Jerome C. Roth

I hereby certify that I electronically filed the foregoing with the

DATED: October 25, 2010 MUNGER, TOLLES & OLSON LLP

By: /s/ Jerome C. Roth

APPENDIX: STATEMENTS OF AMICI

Bay Area Lawyers for Individual Freedom (“BALIF”) is the

Impact Fund is a non-profit foundation that provides funding,

The Korean American Bar Association of Northern California

workforce. Chamber has a long history of supporting workplace diversity and

professors dedicated to improving the quality of legal education by making it more

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