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

Case: 10-16696 09/24/2010 Page: 1 of 42 ID: 7486577 DktEntry: 51
No. 10-16696
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
KRISTIN PERRY, et al.,

Plaintiffs-Appellees,
v.
ARNOLD SCHWARZENEGGER, et al.

Defendants,
and
DENNIS HOLLINGSWORTH, et al.,

Defendant-Intervenors-Appellants.
On Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 VRW (Honorable Vaughn R. Walker)
BRIEF AMICUS CURIAE FOR THE HAUSVATER PROJECT

IN SUPPORT OF DEFENDANT-INTERVENORS-APPELLANTS
FOR REVERSAL OF THE DISTRICT COURT’S RULING
DONALD W. MacPHERSON, Esq.

THE MacPHERSON GROUP
3039 W. Peoria Ave., #102-620
Phoenix, Arizona 85029
(623) 209-2003; fax 2008
Attorney for Amicus Curiae

The Hausvater Project
AUTHORITY TO FILE
The Hausvater Project has authority to file this brief amicus curiae pursuant
to Fed. R. App. P., Rule 29(a), in view of the fact that all parties have consented to
receive all briefs from all amici:
1. Defendant-Intervenor-Appellants’ Notice of Consent to the
Filing of Amicus Curiae Briefs, submitted by Brian W. Raum, counsel for
Defendant-Intervenor-Appellants (Sept. 9, 2010).
2. Plaintiff-Appellees’ Notice of Consent to the Filing of Amicus
Curiae Briefs, submitted by Theodore B. Olson, et al., counsel for Plaintff-
Appellees (Sept. 13, 2010).
3. Appellees City and County of San Francisco Notice of Consent
to the Filing of Amicus Curiae Briefs, submitted by Dennis J. Herrerra, et al.,
counsel for Appellees (Sept. 13, 2010).
CORPORATE DISCLOSURE STATEMENT

The Hausvater Project is a Minnesota nonprofit corporation registered as a
public charity under 26 U.S.C. § 501(c)(3). It has no parent corporation,
subsidiary, nor affiliate, nor any 10% or greater owner corporation, as defined in
Fed. R. App. P., Rule 26.1(a).
Page i
TABLE OF AUTHORITIES
Cases
Bowers v. Hardwick, 478 U.S. 186 (1986) .............................................................25
Christian Legal Society v. Martinez, 561 U.S. __, slip op. (2010) .........................18
Doe v. California Lutheran High School, 170 Cal. App. 8th 828 (2009) ..............17
Griswold v. Connecticut, 381 U.S. 479 (1965) ......................................................6,7
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ...............................13,14,16,17,19
In re Rachel L., 160 Cal. App. 4th 624 (Feb. 28, 2008), superseded by
rehearing, 165 Cal. App. 4th 1074 (Aug. 8, 2008) .................................................19
Jonathan L. v. Superior Court (Los Angeles County Dept. of Children and

Family Services), 165 Cal. App. 4th 1074 (2008) ...................................................19
Lawrence v. Texas, 539 U.S. 558 (2003) .............................................................6,25
Loving v. Virginia, 388 U.S. 1 (1967) .................................................................. A-2
Lockyer v. City of San Francisco, 95 P3d 459 (Cal. 2004) ....................................13
Meyer v. State of Nebraska, 262 U.S. 390 (1923) .....................................................3
Moore v. East Cleveland, 431 U.S. 494 (1977).........................................................4
Osterkamp v. Stiles, nos. S-13297, S-13317, Sup. Ct. Alaska (June 25, 2010) .....25
Parham v. J. R., 442 U.S. 584 (1979)........................................................................4
Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008) ..............................................10,14,21
Pierce v. Society of Sisters, 268 U.S. 510 (1925) ......................................................4
Planned Parenthood of Southwestern Pa. v. Casey, 505 U.S. 833 (1992) ...........6,7
Page ii
Rideout v. Riendeau, 761 A.2d 291 (2000) .............................................................25
Roe v. Wade, 410 U.S. 113 (1973) ............................................................................6
Santosky v. Kramer, 455 U.S. 745 (1982) .................................................................4
Smith v. Organization of Foster Families, 431 U.S. 816 (1977)...............................5
Tatum v. Laird, 408 U.S. 1 (1972) ..........................................................................20
Troxel v. Granville, 530 U.S. 57 (2000) ............................................................4,5,26
Washington v. Glucksburg, 521 U.S. 702 (1997) ......................................................3
Weinstein v. Weinstein, no. 17425, 280 Conn. Sup. 15 (Jan. 2, 2007) ...................25
United States Constitution

First Amendment ......................................................................................16,18,20,21
Fourteenth Amendment .................................................................................. passim
California Constitution
Cal. Const., art. I, § 7.5 (Prop. 8) .............................................................. 15, passim
California Statutes
Cal. Education Code, § 51930(b)(2) .............................................................. 14, A-3
Cal. Education Code, § 51933(a) ................................................................... 14, A-3
Cal. Education Code, § 51933(b)(7) .............................................................. 14, A-3
Cal. Family Code, § 308.5 .......................................................................................13
Page iii
Miscellaneous
Allen Quist, America’s Schools: The Battleground for Freedom (2005) ..........11,12
Amanda Alquist, “The Migration of Same-Sex Marriage from Canada to the

United States: An Incremental Approach,” 30 University of La Verne Law
Review 200 (2008) ..................................................................................................23
American Law Institute, Principles of the Law of Family Dissolution

(2002) ................................................................................................................ 23-25
Bob Unruh, “California ‘Mom,’ ‘Dad’ Ban Garners International Scorn: World
Congress of Families Condemns Promotion of ‘Polymorphous Perversion,’”
World News Daily, Oct. 17, 2007, http://www.wnd.com/?pageId=44064
(accessed Sept. 17, 2010) ........................................................................................13
California Dept. of Education, Frequently Asked Questions,

www.cde.ca.gov/ls/hese/faq.asp (last retrieved Sept. 13, 2010) ........................14,15
Kristin Kloberdanz, “Criminalizing Homeschoolers,” Time, Mar. 7, 2008,

http://www.time.com/time/nation/article/0,8599,1720697,00.html (last accessed
Sept. 22, 2010) .........................................................................................................18
Marsha Garrison, “Marriage Matters: What’s Wrong with the ALI’s Domestic
Partnership Proposal,” in Robin Fretwell Wilson, ed., Reconceiving the Family:
Critiques on the American Law Institute’s Principles of the Law of Family
Dissolution 305, 328 (2006) ...................................................................................24
Mary Anne Case, “Feminist Fundamentalism on the Frontier between

Government and Family Responsibility for Children,” 2 Utah Law Review 381
(2009), 11 Journal of Law and Family Studies 332 (2009) .............................. 22-23
Mary Coombs, “Insiders and Outsiders: What the American Law Institute Has
Done for Gay and Lesbian Families,” 8 Duke Journal of Gender Law and
Policy 87 (2001).......................................................................................................24
The Political Writings of Thomas Jefferson (ed. Merril D. Peterson 1993) .............6
Robert Kunzman, Write These Laws on Your Children: Inside the World of
Conservative Christian Homeschooling (2009) ................................................12,21
Page iv
Robin Fretwell Wilson, “Undeserved Trust: Reflections on the ALI’s Treatment

of De Facto Parents,” in Robin Fretwell Wilson, ed., Reconceiving the Family:
Critiques on the American Law Institute’s Principles of the Law of Family
Dissolution 90 (2006) ..............................................................................................24
Seanna Sugrue, “Soft Despotism and Same-Sex Marriage,” in Robert P. George

and Jean Bethke Elshtain, eds., The Meaning of Marriage: Family, State,
Market, and Morals, 172 (2006) .............................................................................27
Page v
TABLE OF CONTENTS
AUTHORITY TO FILE ............................................................................................i
CORPORATE DISCLOSURE STATEMENT .........................................................i
TABLE OF AUTHORITIES ................................................................................... ii

INTEREST OF AMICUS CURIAE ...........................................................................1
STANDARD OF REVIEW ......................................................................................2
SUMMARY OF THE ARGUMENTS .....................................................................2
ARGUMENTS
I. THE SUPREME COURT HAS REPEATEDLY RECOGNIZED

PARENTS’ FUNDAMENTAL RIGHT TO DIRECT THEIR
CHILDREN’S EDUCATION. .......................................................................3
A. Nine Decades Of Case Law Bear Strong Witness To Parents’

Fundamental Right To Direct Their Children’s Education. .................3
B. Parents’ Fundamental Right To Direct Their Children’s Education

Has A More Enduring Constitutional Foundation Than The
Purported Right Of Prop. 8 Opponents To Attain Same-Sex
Marriage. ..............................................................................................5
II. THE CAMPAIGN FOR PROP. 8 APPEALED TO PARENTS

SEEKING TO PRESERVE THEIR CONSTITUTIONAL RIGHT TO
DIRECT THEIR CHILDREN’S EDUCATION. ...........................................7
A. The District Court Acknowledged That The Campaign For Prop. 8

Appealed To Parents Seeking To Preserve Their Constitutional
Right To Direct Their Children’s Education. .......................................7
B. The District Court Quoted Selectively From The Record To

Construe The Campaign For Prop. 8 As A Disingenuous Attempt
To Misinform And Frighten Voters Into Supporting Prop. 8. .............8
Page vi
III. VOTERS SUPPORTING PROP. 8 HAD GOOD REASON TO

BELIEVE THAT PROP. 8 WOULD SAFEGUARD THEIR
CONSTITUTIONAL RIGHT TO DIRECT THEIR CHILDREN’S
EDUCATION. ..............................................................................................11
A. Controversies Abound Nationwide Concerning Public School

Curricula Pertaining To Matters Of Sexuality And Marriage. ..........11
B. Recent California Education Code Reform Has Heightened The

Concerns Of Parents Seeking To Direct Their Children’s
Education. ...........................................................................................13
C. Marriage Cases Substantially Changed California’s Curriculum

Mandate Concerning The Value Of Marriage, Which Change Prop.
8 Sought To Remedy ..........................................................................13
D. The District Court Erred In Claiming That Prop. 8 Supporters Had

No Legitimate State Interest In Mind. ................................................15
IV. PROP. 8 PROPONENTS HAVE GOOD REASON TO FEAR THAT A

JUDICIAL NULLIFICATION OF PROP. 8 WILL FOSTER
LIMITATIONS UPON CONSTITUTIONAL LIBERTIES, DESPITE
ASSURANCE TO THE CONTRARY IN MARRIAGE CASES. ................16
A. Marriage Cases Reasoned That State Recognition of Same-Sex

Marriage Would Not Constrain Religious Liberties, But Was Silent
With Respect To Other Constitutional Protections. ...........................16
B. Recent Case Law Developments Suggest That The Marriage

Cases Doctrine That Preserves Religious Free Association Is
Likely To Be Challenged. ..................................................................17
C. The Judicial Repeal Of Prop. 8 Would Have A “Chilling Effect”

On Religious Liberty And Other First Amendment Rights. ..............20
V. SUBSTANTIAL OBJECTIVE EVIDENCE IDENTIFIES INCRE-

MENTAL STRATEGIES CONNECTING STATE RECOGNITION OF
SAME-SEX MARRIAGE TO CONSTRAINTS OF PARENTS’ RIGHT
TO DIRECT THEIR CHILDREN’S EDUCATION. ..................................22
Page vii
A. Openly Acknowledged Incremental Strategies Seek To Effect

Radical Changes In The Relationship Between Family, Society,
And Government, Thereby Displacing Parental Rights. ....................22
B. Judicial Nullification Of Prop. 8 Contributes To A Redefinition

Not Only Of Marriage But Also Of Parenthood And Hence Of
Parental Rights. ..................................................................................25
CONCLUSION .......................................................................................................28
CERTIFICATE OF COMPLIANCE ......................................................................29
CERTIFICATE OF SERVICE ...............................................................................30
APPENDIX:
Vision Statement of The Hausvater Project .............................................. A-1
Trial Transcript (Excerpt)........................................................................... A-2
Cal. Education Code (SB 71, signed Oct. 1, 2003) .................................... A-3
Page viii
INTEREST OF AMICUS1
The Hausvater Project (“Hausvater”2), a Minnesota nonprofit corporation
registered as a public charity under 26 U.S.C. § 501(c)(3), files this brief to show
that Proposition 8 (“Prop. 8”) serves to safeguard the Fourteenth Amendment right
of parents to determine their children’s education—a state interest that Hausvater
exists to promote, Vision Statement, in Appendix at A-1, infra. Hausvater has a
nationwide constituency consisting of clergy and laity who are affiliated with a
variety of religious denominations. These denominations include the Lutheran
Church Missouri Synod (“LCMS”), which operates one of the nation’s largest
parochial school systems. The district court specifically labeled LCMS as a
religious organization fostering bigotry against homosexual persons, ER138, and
based its injunction against Prop. 8, in part, on the claim that Prop. 8 lacks a
legitimate state interest and instead serves primarily to promote bigotry, ER167.
Hausvater maintains that Prop. 8 does not reflect bigotry and in fact safeguards
parents’ fundamental rights—a most legitimate state interest.
1
Credit for authorship of this brief is principally due Ryan C. MacPherson,
Ph.D. (History and Philosophy of Science, University of Notre Dame, 2003),
founding president of The Hausvater Project (www.hausvater.org).
2
A German word for “head of household,” pronounced HAUS-fah-ter.
Page 1
STANDARD OF REVIEW
Amicus Hausvater adopts and herein incorporates defendant-intervenors-
appellants’ Standard of Review. See Opening Brief at 18. In any event, the
scholarly sources herein cited present facts worthy of judicial notice under any
standard of review.
SUMMARY OF THE ARGUMENTS
Parents have a fundamental right to determine their children’s education,
protected under the Fourteenth Amendment’s Due Process clause. California
citizens voting in favor of Prop. 8 (“Prop. 8 Supporters”) had, and on their behalf
the defendant-intervenors-appellants (“Prop. 8 Proponents”) in this case continue
to have, good reason to regard Prop. 8 as a safeguard of that fundamental
constitutional right. Since the safeguarding of a constitutional right properly serves
the state’s interest, the district court erred in concluding that Prop. 8 serves no
legitimate or compelling state interest. Moreover, parents’ fundamental right to
determine their children’s education should take priority over the competing claims
of plaintiffs-appellees Kristin Perry et al./same-sex couples (“Prop. 8 Opponents”)
who plea for Equal Protection and Due Process rights to same-sex marriage.
Therefore, the district court’s decision should be reversed and the injunction
against Prop. 8 should be lifted.
Page 2
ARGUMENTS
I. THE SUPREME COURT HAS REPEATEDLY RECOGNIZED

PARENTS’ FUNDAMENTAL RIGHT TO DIRECT THEIR
CHILDREN’S EDUCATION.
A. Nine Decades Of Case Law Bear Strong Witness To Parents’

Fundamental Right To Direct Their Children’s Education.
The Supreme Court has long recognized and recently reaffirmed parents’
rights to determine their children’s education:
In a long line of cases, we have held that, in addition to the specific

freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by
the Due Process Clause includes the rights … to direct the education and
upbringing of one’s children. … The Fourteenth Amendment “forbids the
government to infringe ... ‘fundamental’ liberty interests at all, no matter
what process is provided, unless the infringement is narrowly tailored to
serve a compelling state interest.”
Washington v. Glucksburg, 521 U.S. 702, 720, 721 (1997) (internal citations
omitted; emphasis original).
The Court’s recognition of this fundamental right dates at least as far back as
the 1920s. In Meyer v. State of Nebraska, 262 U.S. 390, 399 (1923), the Court
acknowledged that “it is the natural duty of the parent to give his children
education suitable to their station in life” and sustained the right of immigrant
parents desiring to have their children instructed in the language of their ancestral
homeland. Two years later, the Court reinforced the parental rights doctrine:
The fundamental theory of liberty upon which all governments in this Union
repose excludes any general power of the State to standardize its children by
forcing them to accept instruction from public teachers only. The child is not
Page 3
the mere creature of the State; those who nurture him and direct his destiny
have the right, coupled with the high duty, to recognize and prepare him for
additional obligations.
Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). In recent decades, too, the
Court has re-affirmed the primacy of parental rights:
Our decisions establish that the Constitution protects the sanctity of the
family precisely because the institution of the family is deeply rooted in this
Nation’s history and tradition. It is through the family that we inculcate and
pass down many of our most cherished values, moral and cultural.
Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (internal citations omitted).
Indeed, the Court has identified “the interest of parents in the care, custody, and
control of their children” as “perhaps the oldest of the fundamental liberty interests
recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). The Court
accordingly has called for strict scrutiny before permitting state interposition into
parents’ custodial rights over children. See also Parham v. J. R., 442 U.S. 584,
602, 603 (1979) (“The statist notion that governmental power should supersede
parental authority in all cases because some parents abuse and neglect children is
repugnant to American tradition.”); Santosky v. Kramer, 455 U.S. 745, 753 (1982)
(“the fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not been
model parents or have lost temporary custody of their child to the State”).
#
Page 4
B. Parents’ Fundamental Right To Direct Their Children’s Education

Has A More Enduring Constitutional Foundation Than The Purported
Right Of Prop. 8 Opponents To Attain Same-Sex Marriage.
The case law supportive of parents’ right to determine their children’s
education has not established a new entitlement, but rather has testified to a
primordial right intrinsic to human nature and embodied naturally in the parent-
child relationship. “The liberty interest in family privacy has its source, and its
contours are ordinarily to be sought, not in state law, but in intrinsic human rights,
as they have been understood in ‘this Nation’s history and tradition.’” Smith v.
Organization of Foster Families, 431 U.S. 816, 845 (1977) (internal citation
omitted). Supreme Court precendents testify unambiguously that parents’ rights
receive Fourteenth Amendment protection. “[I]t cannot now be doubted that the
Due Process Clause of the Fourteenth Amendment protects the fundamental right
of parents to make decisions concerning the care, custody, and control of their
children.” Troxel, at 66; cf. at 91-93 (Scalia, J., dissenting) (identifying “a right of
parents to direct the upbringing of their children” as “among the ‘inalienable
Rights’ with which the Declaration of Independence proclaims ‘all men … are
endowed by their Creator,’” and affirming that the people through the legislative
process have authority to delineate and protect such natural rights, even more so
than judges).
Page 5
As a safeguard of the natural rights of humankind, the application of the Due
Process clause to parental rights has the character Thomas Jefferson identified for
the Virginia statute he authored in protection of a closely related fundamental right,
liberty of conscience: “[T]he rights hereby asserted are of the natural rights of
mankind, and … if any act shall be hereafter passed to repeal the present or to
narrow its operation, such act will be an infringement of natural right.” A Bill for
Establishing Religious Freedom, §3, in Merril D. Peterson, ed., The Political
Writings of Thomas Jefferson 42, 44 (1993).
The same cannot, however, be said for the claim of Prop. 8 Opponents that
same-sex couples have a fundamental right to marriage. Despite the shared
acknowledgment by the district judge and Opponents’ counsel during closing
argument3 that the Griswold-Roe-Casey-Lawrence4 lineage would make for an
unstable foundation upon which to construct a right to same-sex marriage, the
judge nonetheless stood atop that foundation to issue an injunction against Prop. 8.
ER43, 96, 145-47, 149, 155, 163, 168.
But in Lawrence, at 578, 585, the Supreme Court made clear that its holding
did not extend to a right to same-sex marriage. Therefore, the district court lacked
authority to extract from the Fourteenth Amendment a right to same-sex marriage.
3
Transcript, in Appendix, at A-2, infra.
4
Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113
(1973); Planned Parenthood of Southwestern Pa. v. Casey, 505 U.S. 833 (1992)
(“Casey”); Lawrence v. Texas, 539 U.S. 558 (2003).
Page 6
An asserted right to same-sex marriage cannot compete legitimately with, much
less pre-empt, the fundamental right of parents to direct their children’s education,
given the enduring basis upon which the Court has for so long recognized that
natural right. In practice, however, experiments with same-sex marriage in this
nation already have manifestly resulted in the curtailment of parental rights. See
sections II.B, III.C, and IV.C, infra. Here, too, the district court’s sanctioning of
same-sex marriage, resting as it does upon the expansion of a privacy right
constructed in Griswold, ironically perpetuates a “jurisprudence of doubt,” Casey,
at 844. Prop. 8 Supporters justly demand a more stable foundation for family law.
II. THE CAMPAIGN FOR PROP. 8 APPEALED TO PARENTS

SEEKING TO PRESERVE THEIR CONSTITUTIONAL RIGHT TO
DIRECT THEIR CHILDREN’S EDUCATION.
A. The District Court Acknowledged That The Campaign For Prop. 8

Appealed To Parents Seeking To Preserve Their Constitutional Right
To Direct Their Children’s Education.
The district court’s ruling refers to at least eight distinct plantiff trial
exhibits (“PX”) as evidence that the campaign for Prop. 8 warned voters that
without that proposition parents’ rights to direct their children’s education would
be compromised:
1. PX0011, California Voter Information Guide, California General Election,
Tuesday, November 4, 2008, ER41-42;
Page 7
2. PX0557, Frank Schubert and Jeff Flint, “Passing Prop 8,” Politics 45 (Feb.
2009) (“Shubert-Flint”), discussed infra;
3. PX0015, Video, Finally the Truth, ER141;
4. PX0016, Video, Have You Thought About It?, ER141;
5. PX0091, Video, Everything to Do With Schools, ER141;
6. PX0391, Video, Ron Prentice Addressing Supporters of Prop. 8, Part II,
ER142;
7. PX0008, Memorandum, Protect Marriage, New YouTube Video Clarifies
Yes on 8 Proponents’ Concerns: Education and Protection of Children is
[sic] at Risk (Oct. 31, 2008), ER144,
8. PX1565, News Release, Protect Marriage, First Graders Taken to San
Francisco City Hall for Gay Wedding (Oct 11, 2008), ER144.
B. The District Court Quoted Selectively From The Record To Construe

The Campaign For Prop. 8 As A Disingenuous Attempt To Misinform
And Frighten Voters Into Supporting Prop. 8.
One clear example suffices to demonstrate the district court’s misconstrual
of the record. The judge painted a picture of a marketing ploy fabricating a
scenario that without Prop. 8 children would be indoctrinated to accept the
homosexual lifestyle. The judge did so by quoting quite selectively from the lead
strategists’ self-reflective account, Shubert-Flint:
“We strongly believed that a campaign in favor of traditional marriage

would not be enough to prevail.” “We probed long and hard in countless
Page 8
focus groups and surveys to explore reactions to a variety of consequences

our issue experts identified” and they decided to create campaign messaging
focusing on “how this new ‘fundamental right’ would be inculcated in young
children through public schools.”
ER141, excerpting from Shubert-Flint, 45-47.
The elided text, however, suggests a different account. The campaign
strategists recognized that the elevation of a “gay couple” to “‘protected class’
legal status” would lead to same-sex couples’ rights prevailing over other rights.
We settled on three broad areas where this conflict of rights was most likely
to occur … religious freedom … freedom of expression … and in how this
new ‘fundamental right’ would be inculcated in young children through the
public schools. And we made sure that we had very concrete examples we
could share with voters of things that had actually occurred.
Shubert-Flint, at 45, emphasis added. The district court cited expert testimony from
the trial in support of the claim that Prop. 8 Supporters “relied on stereotypes to
show that same-sex relationships are inferior,” including this extended quotation
from historian George Chauncey:
The most striking image is of the little girl who comes in to tell her mom
that she learned that a princess can marry a princess, which strongly echoes
the idea that mere exposure to gay people and their relationships is going to
lead a generation of young people to become gay, which voters are to
understand as undesirable.
Quoted in ER143. The pertinent trial exhibit, however, offers a far different
perspective:
We ran an ad featuring a young Hispanic girl coming home from school,

explaining how she had learned in class that a prince could marry another
prince, and she could marry a princess! This ad was based on the actual
Page 9
experience in Massachusetts, the only state in the nation where gay

marriage had been legalized long enough to see how it would be handled by
the public school system. … What they [disfavorable editorialists] never did
do, because they couldn’t do, was contest the accuracy of what had
happened in Massachusetts.
Shubert-Flint, at 46, 47, emphasis added. Indeed, Shubert-Flint relied on two
litigated situations in Massachusetts: Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008)
(involving one family’s child exposed to the kindergarten story about a prince
marrying the prince, and another family’s child exposed to material favoring same-
sex marriage in second grade). Clearly, then, the Prop. 8 campaign did not parade
speculations to incite unreasonable fear, but offered a rational argument from
analogy.
Fortuitously for Prop. 8 Supporters, a San Francisco public school confirmed
that analogy by taking first graders on a field trip to “witness the wedding of their
lesbian teacher … Now we not only had an example of something that had
happened in California (as opposed to might happen), we had video footage to
prove it.” Shubert-Flint, at 47, emphasis added. If that was not enough to alarm
parents desiring to direct their children’s education in keeping, if the parents so
prefer, with the time-honored definition of marriage, a Hayward, California, school
“celebrated ‘coming out week’ while urging kindergartners to sign pledge cards
promising to be an ally of gay students,” Shubert-Flint, at 47.
Page 10
One would be narrow-minded to conclude that parents who do not wish their
kindergartners to becoming card-carrying gay rights activists necessarily desire
them to be five-year-old bigots instead. Many middle roads of tolerant
accommodation can be traveled by those wishing to raise their children in the
codes of civility, which, let us trust, is true of most parents regardless of their
politics or religion. Prop. 8 Supporters reasonably worried that their government
might not long continue to permit them to seek those middle paths, hence their
desire for a state constitutional amendment in defense of the natural law of
marriage.
III. VOTERS SUPPORTING PROP. 8 HAD GOOD REASON TO

BELIEVE THAT PROP. 8 WOULD SAFEGUARD THEIR
CONSTITUTIONAL RIGHT TO DIRECT THEIR CHILDREN’S
EDUCATION.
A. Controversies Abound Nationwide Concerning School Curricula

Pertaining To Matters Of Sexuality And Marriage.
Few American parents today can claim to be unaware of the intense debates
surrounding public school curricula with respect to matters of sexuality and
marriage. See, for example, Allen Quist, America’s Schools: The Battleground for
Freedom (2005), at 147 (“Quist”) (contrasting progressive elementary school
curricula in which “two-parent families are rarely included” and “[d]ifferences
between males and females are viewed as being the result of conditioning only”—
versus traditional education in which “[t]he complementary nature of gender roles
Page 11
is recognized” and “[m]arriage is viewed as being the oneness of a man and a
woman … forming the ideal basis for the family.”).
Debate focuses not only on public school curricula, but also on the curricula
of parochial schools and homeschools, Quist, chap. 15. The scrutiny placed upon
religiously conservative homeschool families does not, however, necessarily
indicate the unreasoning animus asserted by the expert witnesses for Prop. 8
Opponents, ER34-171 (passim), concerning Prop. 8 Supporters. A more balanced
sociological analysis suggests that significant critical thinking is involved, by both
parents and their children, in cultivating even the most conservative of values
within their private homes. Robert Kunzman, Write These Laws on Your Children:
Inside the World of Conservative Christian Homeschooling, at 36 (2009)
(“Kunzman”) (“While [homeschooled child] Carly hasn’t thought through all the
details of these complicated questions, I’m [i.e., researcher Kunzman] encouraged
to see that even though she holds some strong conservative opinions (for example,
abortion and homosexuality are wrong), she is nonetheless willing to consider
other perspectives and the need to make room for them in our pluralistic society.”).
But regardless of who is open-minded and who is not, controversy rages on, an
important contextual clue for properly evaluating the constitutional merits of Prop.
8.
Page 12
B. Recent California Education Code Reform Has Heightened The

Concerns Of Parents Seeking To Direct Their Children’s Education.
Californians engaged in significant debate during the 2007 legislative
session, when Senate Bill 777 was enacted to reform the state’s Education Code by
mandating curricula that forbids gender-specific language that might be construed
as a bias against homosexuality.5 Following the heels of this education reform, In
re Marriage Cases, 183 P.3d 384 (Cal. 2008) (“Marriage Cases”), legalized same-
sex marriage. The response of California voters in enacting Prop. 8 should,
therefore, be understood within this context.
C. Marriage Cases Substantially Changed California’s Curriculum

Mandate Concerning The Value Of Marriage, Which Change Prop. 8
Sought To Remedy.
Prior to the May 2008 Marriage Cases ruling, California had always defined
marriage as the union between a man and a woman. Marriage Cases, at 407.
Proposition 22 (adopted Nov. 2000) solidified this common law consensus by
enacting Cal. Family Code, § 308.5 (“Only marriage between a man and a woman
is valid or recognized in California.”). Aside from a short-lived and unlawful
issuing of marriage licenses to same-sex couples in San Francisco, which licenses
were later revoked, Lockyer v. City of San Francisco, 95 P3d 459 (Cal. 2004), the
5
Bob Unruh, “California ‘Mom,’ ‘Dad’ Ban Garners International Scorn:
World Congress of Families Condemns Promotion of ‘Polymorphous Perversion,’”
World News Daily, Oct. 17, 2007, http://www.wnd.com/?pageId=44064 (accessed
Sept. 17, 2010).
Page 13
“a man and a woman” definition remained until Marriage Cases. It was during the
pre-Marriage Cases era that California’s legislature amended its education code to
include mandatory instruction regarding the value of marriage.
Enacted in 2003, Cal. Education Code, § 51930(b)(2), requires that teachers
“encourage a pupil to develop healthy attitudes concerning … marriage,” and §
51933(b)(7) requires that “Instruction and materials shall teach respect for
marriage and committed relationships.” See Appendix, at A-3, infra. Despite the
law’s allowance for schools to opt out of the curriculum mandate, the California
Department of Education reports that 96% of the state’s public schools participate6,
creating a de facto universal curriculum. Prior to Marriage Cases, the value of
marriage between a man and a woman would be taught. After Marriage Cases,
with “marriage” now being redefined by court order, schools would be required to
instill identical attitudes concerning same-sex marriage and opposite-sex marriage,
as early as “kindergarten,” § 51933(a). The First Circuit has so ruled in an
analogous circumstance, Parker, at 16 (“Given that Massachusetts has recognized
gay marriage under its state constitution, it is entirely rational for its schools to
educate their students regarding that recognition.”).
6
California Dept. of Education, Frequently Asked Questions,
www.cde.ca.gov/ls/hese/faq.asp (last retrieved Sept. 13, 2010) (“Dept. of Educ.
FAQs”).
Page 14
True, parents have the opportunity to withhold active or passive consent,
Dept. of Educ. FAQs, but such a safeguard, while it may satisfy de minimis
parental rights requirements, does not ensure optimal protection. Prop. 8, in
restoring marriage as “[o]nly … between a man and a woman,” Cal. Const., art. I,
§ 7.5, serves parents’ interests in directing their children’s education in a manner
consistent with that definition of marriage. It is not unreasonable to assume that
Prop. 8 Supporters included a substantial number of parents desiring to exercise
their right to direct their children’s education concerning marriage.
D. The District Court Erred In Claiming That Prop. 8 Supporters Had No

Legitimate State Interest In Mind.
Obviously, the safeguarding of a constitutional right that the Supreme Court
repeatedly has identified as fundamental, section I.A, supra, is a state interest
under the Fourteenth Amendment. Indeed, were the nation’s, or California’s,
founding fathers to suddenly awake in this brave new world, like Rip Van Winkel
after sleeping for twenty years, they surely would be shocked that it is not
marriage remaining intact unless and until a competing interest can be shown to be
compelling, narrowly tailored, and least obstructive (a strict scrutiny test), but
rather marriage must be re-defined beyond recognition and the people of the State
of California may not be permitted to restore it unless and until they provide a
compelling state interest, narrowly tailored, and least obstructive, to disallow
same-sex couples from claiming themselves to be married.

Page 15
Even if Prop. 8 Supporters must be on the defensive, they can readily
identify a legitimate state interest in the protection of parents’ Fourteenth
Amendment right to determine their children’s education—a right which is itself
fundamental and deserving of further scrutiny before this court permits its
incremental displacement to continue one more step. The district court therefore
erred in claiming Prop. 8 serves no legitimate or compelling state interest.
IV. PROP. 8 PROPONENTS HAVE GOOD REASON TO FEAR THAT A

JUDICIAL NULLIFICATION OF PROP. 8 WILL FOSTER
LIMITATIONS UPON CONSTITUTIONAL LIBERTIES, DESPITE
ASSURANCE TO THE CONTRARY IN MARRIAGE CASES.
A. Marriage Cases Reasoned That State Recognition of Same-Sex

Marriage Would Not Constrain Religious Liberties, But Was Silent
With Respect To Other Constitutional Protections.
The district court asserted, “Prop. 8 does not affect any First Amendment
right or responsibility of parents to educate their children,” ER164. The court here
relied upon Marriage Cases, at 451-452 (“[A]ffording same-sex couples the
opportunity to obtain the designation of marriage will not impinge upon the
religious freedom of any religious organization, official, or any other person; no
religion will be required to change its religious policies or practices with regard to
same-sex couples, and no religious officiant will be required to solemnize a
marriage in contravention of his or her religious beliefs.”).
Marriage Cases did not, however, specifically mention parents’ right to
determine their children’s education, nor did it address other fundamental rights,
Page 16
such as Free Association or Free Speech, beyond religious contexts. It is doubtful
that the Marriage Cases doctrine will suffice to protect the full range of the First
and Fourteenth Amendment rights of Prop. 8 Supporters and other parties.
Troubling implications for Free Association will be discussed in section B, infra;
for Free Speech, in section C, infra.
B. Recent Case Law Developments Suggest That The Marriage Cases

Doctrine That Preserves Religious Free Association Is Likely To Be
Challenged.
California Lutheran High School, a parochial school affiliated with a church
body that identifies homosexuality as a sin, recently endured a lawsuit for
expelling two students on charges of lesbian behavior. A California appellate court
ruled in favor of the school, but on narrow statutory grounds, not addressing the
tension between the students’ statutory anti-discrimination claims and the school’s
constitutional Expressive Association claim. The court also declined to address
parents’ right to determine their children’s education through expressive
association. Doe v. California Lutheran High School, 170 Cal. App. 8th 828
(2009). The constitutional arguments that future defendants in California
Lutheran’s situation might wish to raise would apparently be weakened in view of
the present district court’s insistence, at ER165, that nothing short of religiously
motivated bigotry against a protected class could motivate opposition to same-sex
marriages.
Page 17
The Supreme Court held quite recently that a public university’s
commitment to a “viewpoint neutral” policy justifies its withholding of official
recognition from a student organization that seeks to limit its membership to those
who adhere to an organizational mission statement, including, in that case, a
biblical prohibition of homosexual as well as heterosexual fornication. Christian
Legal Society v. Martinez, 561 U.S. __, slip op., at 29 (2010) (“CLS”). The Court
rejected the student organization’s First Amendment pleas for Free Speech and
Expressive Association. The nation has thus been launched on a trajectory in which
“viewpoint neutral” means that groups desiring to establish a recognized
organization committed to a particular viewpoint, in both word and deed, in a
freely competing marketplace of ideas among other groups, sponsoring other ideas,
may not do so.
If the district court’s ruling stands, more families from among Prop. 8
Supporters likely will retreat into the privacy of their home to educate their
children. But homeschoolers, too, were under fire in California during the Prop. 8
campaign, noted not merely in local but national news.7 What began as allegations
of child abuse in one particular family mushroomed into a ruling that implicated
the families of some 200,000 home-schooled children in California. In addressing
7
Kristin Kloberdanz, “Criminalizing Homeschoolers,” Time, Mar. 7, 2008,
http://www.time.com/time/nation/article/0,8599,1720697,00.html (last accessed
Sept. 22, 2010).
Page 18
the charges of abuse, the court concluded in a February 28, 2008, ruling that
California case law forbids homeschooling, except by parents who have teaching
licenses. In re Rachel L., 160 Cal. App. 4th 624 (2008). The court superseded this
finding by a grant of rehearing; in an August 8 ruling, the court reversed in part,
concluding that California parents generally may homeschool without a license by
registering as a private school. Jonathan L. v. Superior Court (Los Angeles County
Dept. of Children and Family Services), 165 Cal. App. 4th 1074 (2008).
During the months between the In re Rachel L. and Jonathan L. rulings,
some Prop. 8 Supporters no doubt worried that their rights to direct their children’s
education would be squished into oblivion: Marriage Cases meant that public
school curricula would teach the “value” of same-sex marriage, whereas In re
Rachel L. apparently had foreclosed the option of homeschooling. Some “breathing
room” was restored as parents reasonably foresaw, in Prop. 8, a reversal of the
curriculum reform entailed by Marriage Cases, and when Jonathan L. re-asserted
parents’ rights to homeschool in California. Nevertheless, Prop. 8 Supporters
continue to have reason to fear curtailment of their rights, whether by a “chilling
effect” upon Free Speech (section C, infra) or by an incremental strategy involving
many subtle factors (Part V, infra).
Page 19
C. The Judicial Repeal Of Prop. 8 Would Have A “Chilling Effect” On

Religious Liberty And Other First Amendment Rights.
The district court insinuated that Prop. 8 Supporters acted merely or
primarily out of “bigotry” or “animus.” The judge frequently quoted expert
witnesses’ references to “stigma,” “prejudice,” “stereotypes,” and
“discrimination.” ER34-171 (passim). Beyond doubt, some homosexual
individuals and couples have been targeted with hatred, and beyond doubt, hatred
toward them is wrong. The remedy the district court provided, however, cannot
forge a lasting peace. Rather, it alienates Prop. 8 Supporters from the public
square. The district court failed to exhibit a capacity to contemplate a moderate
middle ground in which a person may have reasonable objections to homosexuality
while still desiring to act compassionately toward gays and lesbians. Instead, the
judge labeled the convictions of Prop. 8 Supporters as categorically unacceptable
to the social sciences, to the law, and to civic respectability. If such dicta vindictiva
do not deter Free Speech, then it never snows in Minnesota.
The Supreme Court “has found in a number of cases that constitutional
violations may arise from the deterrent, or ‘chilling,’ effect of governmental
regulations that fall short of a direct prohibition against the exercise of First
Amendment rights,” Tatum v. Laird, 408 U.S. 1, 11 (1972). A judicial mandate
that same-sex marriages be performed by state officials—coupled with legislation
requiring the state’s teachers to instill a corresponding transformation of family

Page 20
values into children’s minds—contributes to an abridgement of parents’
substantive right to direct their children’s education, particularly in view of the
First Circuit’s recent ruling, Parker, at 16, that parents who object to same-sex
marriage lack any constitutional claim to parental consent safeguards once the state
legalizes such marriages.
If the district court’s caricature of Prop. 8 Supporters were to be sustained in
this court’s ruling, then it would seem to follow that parochial schools maintaining
the Prop. 8 definition of marriage thereby endanger the children whom parents
have entrusted to their care. Far from furthering a state interest, such religious
organizations would be in opposition to a state interest, at least insofar as one
accepts the district court’s own identifications of the state’s interest and the
religious groups’ motivations. This is not small potatoes. The targeted groups
include church bodies that operate substantial networks of parochial schools—
notably the Roman Catholic Church and the Lutheran Church Missouri Synod.
ER137-38. Moreover, many families choose to homeschool precisely to preserve
for the next generation a set of values including, inter alia, both the identification
of homosexual acts as sinful and an emphasis upon God’s forgiveness in Christ for
this and any other sin. Kunzman, at 36 and passim. The animus in the district
court’s ruling, if this court fails to check it, not only would have a chilling effect
upon the First Amendment liberties of those schools and homes, but also would set
Page 21
in motion an incremental logic, the terminus of which can stop nothing short of the
abolition of parochial schools and homeschooling. Nor does such an extrapolation
introduce any new ideas; as the next section demonstrates, advocates for same-sex
marriage already have rehearsed these plans most deliberatively.
V. SUBSTANTIAL OBJECTIVE EVIDENCE IDENTIFIES

INCREMENTAL STRATEGIES CONNECTING STATE
RECOGNITION OF SAME-SEX MARRIAGE TO CONSTRAINTS
OF PARENTS’ RIGHT TO DIRECT THEIR CHILDREN’S
EDUCATION.
A. Openly Acknowledged Incremental Strategies Seek To Effect Radical

Changes In The Relationship Between Family, Society, And
Government, Thereby Displacing Parental Rights.
One need not be a social scientist to recognize the manifest contraction of
parental rights occasioned by incremental strategies to legalize same-sex marriage.
In an article simultaneously published by two prominent law journals,
University of Chicago Law Professor Mary Anne Case has suggested
constitutional arguments that would curtail parents’ rights to determine their
children’s education in order to ensure that American boys and girls grow up
believing that biological sex is entirely irrelevant to civic, social, and family life.
Professor Case openly advocates “feminist fundamentalism,” which she defines as
“an uncompromising commitment to the equality [identity?] of the sexes.” She
proposes that public and private schools, as well as homeschooling parents, be
forbidden from providing instruction in distinctive gender roles; each of these
Page 22
educational spheres should instead be required to “challenge sex stereotypes,”
ensure androgynous role outcomes, and celebrate lesbian parenting as more
conducive than heterosexual couples to instilling androgynous values. Mary Anne
Case, “Feminist Fundamentalism on the Frontier between Government and Family
Responsibility for Children,” 2 Utah Law Review 381, 382, 393, 398 (2009), 11
Journal of Law and Family Studies 332, 333, 345, 350 (2009).
Another incremental strategy already has begun to run its course in
California. This strategy begins with discrimination reform, progresses through
adoption and tax reform, then recognizes the “rights and obligations of same-sex
couples who form[] common-law marriages,” and finally culminates in same-sex
marriage. Such was the course traveled by Canada. Amanda Alquist, “The
Migration of Same-Sex Marriage from Canada to the United States: An
Incremental Approach,” 30 University of La Verne Law Review 200, 213 (2008).
To accommodate the ascendancy of same-sex households, replete with non-
biological ties to children, the American Law Institute (“ALI”) has proposed
conflating biological and legally adoptive parents, on the one hand, with de facto
parents and “parents by estoppel,” on the other hand.8 The movement toward same-
sex marriage, both before and upon the state creation of such an institution, has
thus occasioned sweeping transformations in family law that involve a shift of
8
ALI, Principles of the Law of Family Dissolution, chap. 2 (2002).
Page 23
authority from natural parents toward, for example, same-sex ex-partners who
desire custody or visitation rights, or authority to determine a child’s religious
training or medical treatment.9 The resulting expansion of state-recognized family
forms (de facto domestic partnerships, de facto parenthood, etc.) leads not to less,
but to more, government “intru[sion] into relational privacy. It dramatically
expands state control over private life. Despite the liberal rhetoric that cloaks its
illiberal character, the ALI proposal offers nothing more—or less—than a dramatic
expansion of state paternalism and coercion.”10
Now the plea of same-sex-couples to receive marriage recognition in
California has come before this appellate court, which sets precedent for several
states beyond California, all of which have, like California, acted to preserve
marriage as the union of a man and a woman. Alaska, Arizona, Idaho, Montana,
Nevada, and Oregon have each adopted constitutional amendments substantially
identical to Prop. 8, while Washington and Hawaii have done so by statute.11
9
For sample scenarios, see Mary Coombs, “Insiders and Outsiders: What the
American Law Institute Has Done for Gay and Lesbian Families,” 8 Duke Journal
of Gender Law and Policy 87 (2001); Robin Fretwell Wilson, “Undeserved Trust:
Reflections on the ALI’s Treatment of De Facto Parents,” in Robin Fretwell
Wilson, ed., Reconceiving the Family: Critiques on the American Law Institute’s
Principles of the Law of Family Dissolution 90 (2006).
10
Marsha Garrison, “Marriage Matters: What’s Wrong with the ALI’s
Domestic Partnership Proposal,” in Robin Fretwell Wilson, ed., Reconceiving the
Family 305, 328 (2006).
11
Defendant-Intervenors-Appellants Opening Brief, at 67n23-68n24 [ECF]
(Sept. 17, 2010).
Page 24
Nor are such measures superfluous. ALI recommendations frequently serve
as surrogates in the absence of relevant statutory or case law.12 ALI’s authority has
even been invoked against both statutory and case law, most notably in Lawrence,
at 572 (overturning Bowers v. Hardwick, 478 U.S. 186 (1986) and striking down
state anti-sodomy statutes in favor of a 1955 draft of ALI’s Model Penal Code); cf.
at 598 (Scalia, J., dissenting) (alarmed both that ALI could trump the vast array of
state legislatures who maintained anti-sodomy laws and that the deployment of
ALI’s model as “an emerging awareness” somehow could satisfy the “deeply
rooted” criterion for a fundamental right). Prop. 8, like the similar measures
adopted by all other states in this circuit plus most other states throughout the
nation, sends a clear signal that ALI should not have the last word in re-defining
family law.
B. Judicial Nullification Of Prop. 8 Contributes To A Redefinition Not

Only Of Marriage But Also Of Parenthood And Hence Of Parental
Rights.
A ruling from this court against Prop. 8 may greatly accelerate the
displacement of legal parents from their children in other states as well as forestall
efforts in California to restore parents’ rights to determine their children’s
education. On the other hand, a ruling from this court to uphold Prop. 8,
12
For example, Rideout v. Riendeau, 761 A.2d 291, 307 (2000); Weinstein
v. Weinstein, no. 17425, 280 Conn. Sup. 15 (Jan. 2, 2007); Osterkamp v. Stiles,
nos. S-13297, S-13317, Sup. Ct. Alaska (June 25, 2010).
Page 25
particularly if such a ruling were to include a declaration of parental rights
consistent with pre-Troxel case law and reflective of the natural law of the family,
would, of course, send a more encouraging message to the nation’s biological and
legally adoptive parents. It also would permit both the people and their locally
representative assemblies in the various states to continue to seek the common
good of men, women, and children, through the reform and refinement of family
law.
In holding the line where California voters have drawn it with Prop. 8, this
court also would be protecting the interests of naturally procreative parents in other
jurisdictions who do not wish to surrender their rights to a new post-family order in
which de facto parents and “parents by estoppel” compete with, and at times pre-
empt, their fundamental rights to direct their children’s education or otherwise act
as what nature has made them: parents. When a water pipe leaks, the prudent
homeowner does not wait until the entire basement floods before calling a
plumber. Prop. 8 represents a timely—or perhaps belated, but not irrationally
presumptive—response to an incremental displacement of parental rights.
The nation’s debate over same-sex marriage encompasses more than the two
people desiring to make public their private commitment to one another; it also
impacts the children of other families, since it requires a legal redefinition of all
families in order to make room for innumerable new possibilities. “Being entirely a
Page 26
creation of the state, [same-sex marriage] is an institution that needs to be coddled,
and which demands cocooning to protect it. … The need for same-sex unions to be
culturally coddled also increases the likelihood that the state will use public
education for this end.” Seanna Sugrue, “Soft Despotism and Same-Sex Marriage,”
in Robert P. George and Jean Bethke Elshtain, eds., The Meaning of Marriage:
Family, State, Market, and Morals, 172, 190 (2006).
Rather than dealing with exceptional cases as exceptions, as adoption and
custody law formerly did, the same-sex marriage revolution forges new rules that
marginalize the old standard beyond the pale of normativity. Whether intended by
the plaintiffs or not, the case for Prop. 8 Opponents necessarily remains incomplete
and unstable until this incremental strategy runs its full course.
A tremendous burden falls now to this court as to whether those asserting the
freedom to chose a spouse of the same sex can secure that socially constructed
status apart from denying, with increasing tenacity, the fundamental right of a man
and a woman to direct the education of the children whom nature calls their own.
The social engineers of incremental strategies favoring same-sex marriage have
themselves answered the question in the negative. Whatever disappointment a
reversal of the district court’s decision may bring to the particular homosexual
couples who originated the complaint, at least they will be liberated from serving
Page 27
as pawns in a larger scheme that ultimately would constrain not only their
neighbors’ liberties, but also their own.
CONCLUSION
For the reasons stated above, the district court’s order deeply imperils
parents’ long-recognized natural liberties. The decision should be reversed and the
injunction against Prop. 8 should be lifted; the order is a most pernicious attack
upon English liberties.
DATED: September 24, 2010.
By /s/
Donald W. MacPherson
The MacPherson Group
3031 W. Peoria Ave., #102-620
Phoenix, AZ 85029
(623) 209-2003; fax 2008
Counsel for Amicus Curiae
The Hausvater Project
Page 28
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitations of Fed. R. App. P.

32(a)(7)(B) because it contains 6,099 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and type style requirements of Fed. R. App. P. 32(a)(6) because this brief
has been prepared in a proportionately spaced typeface using Microsoft Word 2007
word processing software in 14-point Times New Roman font.
/s/
Ryan C. MacPherson
Legal Assistant
3039 W. Peoria Ave., #102-620
Phoenix, AZ 85029
Page 29
CERTIFICATE OF SERVICE
I hereby certify that on September 24, 2010, pursuant to Fed. R. App. P., Rule
25(a)(2)(B):
1. I electronically filed the foregoing opening brief with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by
using the appellate CM/ECF system.
2. Participants in the case who are registered CM/ECF users will be

served by the appellate CM/ECF system.
/s/
Ryan C. MacPherson
Legal Assistant
3039 W. Peoria Ave., #102-620
Phoenix, AZ 85029
Page 30
APPENDIX
INDEX:
Vision Statement of The Hausvater Project .............................................. A-1
Trial Transcript (Excerpt)........................................................................... A-2
Cal. Education Code (SB 71, signed Oct. 1, 2003) .................................... A-3
Vision Statement of The Hausvater Project
… that the natural family be recognized to consist of one man and one
woman united in marriage for life—and their children, whether begotten or
adopted … that parents take active and primary roles in the Christian
upbringing and general education of their children … that society be
recognized to originate from natural families serving one another (society
does not create and cannot redefine the natural family) … that civil
governments promote peace and justice—protecting citizens’ rights to life,
property, and liberty (especially religious liberty) … that civil governments’
promotion of the common good serve as a supplement to, not a replacement
for, similar work performed by families, and ultimately aim to strengthen the
ability of families to perform such tasks on their own.
www.huasvater.org/about (2008).
Page A-1
Trial Transcript (Excerpt)
The Court: [I]sn’t the danger, perhaps not to you and perhaps not to
your clients, but the danger to the position that you are taking is not that
you’re going to lose this case, either here or at the Court of Appeals or at the
Supreme Court, but that you might win it?
And, as in other areas where the Supreme Court has ultimately
constitutionalized something that touches upon highly-senstitive social
issues, and taken that issue out of the political realm, that all that has
happened is that the forces, the political forces that otherwise have been
frustrated, have been generated and built up this pressure, and have, as in a
subject matter that I’m sure you’re familiar with, plagued our politics for 30
years, isn’t the same danger here with this issue?
Mr. Olson [Counsel for Prop. 8 Opponents]: I think the case that
you’re referring to has to do with abortion.
The Court: It does, indeed.
Mr. Olson: And the cases upon which we rely, in which the courts
have responded to the needs of the civil rights of our citizens, have been
entirely different cases [whereupon Mr. Olson turned to Loving v. Virginia,
388 U.S. 1 (1967)].
Closing Rebuttal, Tr. 3095.
Page A-2
Cal. Education Code (SB 71, signed Oct. 1, 2003)
51930. (a) This chapter shall be known and may be cited as the California
Comprehensive Sexual Health and HIV/AIDS Prevention Education Act.
(b) The purposes of this chapter are as follows:
(1) To provide a pupil with the knowledge and skills necessary to protect
his or her sexual and reproductive health from unintended pregnancy and
sexually transmitted diseases.
(2) To encourage a pupil to develop healthy attitudes concerning
adolescent growth and development, body image, gender roles, sexual
orientation, dating, marriage, and family. …
51933. (a) School districts may provide comprehensive sexual health
education, consisting of age-appropriate instruction, in any kindergarten to
grade 12, inclusive, using instructors trained in the appropriate courses.
(b) A school district that elects to offer comprehensive sexual health
education pursuant to subdivision (a), whether taught by school district
personnel or outside consultants, shall satisfy all of the following criteria:
(1) Instruction and materials shall be age appropriate.
(2) All factual information presented shall be medically accurate and
objective.
(3) Instruction shall be made available on an equal basis to a pupil who is
an English learner, consistent with the existing curriculum and alternative
options for an English learner pupil as otherwise provided in this code.
(4) Instruction and materials shall be appropriate for use with pupils of all
races, genders, sexual orientations, ethnic and cultural backgrounds, and
pupils with disabilities.
(5) Instruction and materials shall be accessible to pupils with disabilities,
including, but not limited to, the provision of a modified curriculum,
materials and instruction in alternative formats, and auxiliary aids.
(6) Instruction and materials shall encourage a pupil to communicate with
his or her parents or guardians about human sexuality.
(7) Instruction and materials shall teach respect for marriage and
committed relationships. …
California Legislature Statutory Record, 1999-2008,
http://www.leginfo.ca.gov/statutory-recordhtml/StatutoryRecord1999-
2008.html#edc (last accessed Sept. 17, 2010).
Page A-3

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Case: 10-16696 09/24/2010 Page: 1 of 42 ID: 7486577 DktEntry: 51

UNITED STATES COURT OF APPEALS

KRISTIN PERRY, et al.,

ARNOLD SCHWARZENEGGER, et al.

DENNIS HOLLINGSWORTH, et al.,

BRIEF AMICUS CURIAE FOR THE HAUSVATER PROJECT

DONALD W. MacPHERSON, Esq.

Attorney for Amicus Curiae

receive all briefs from all amici:

1. Defendant-Intervenor-Appellants’ Notice of Consent to the

Filing of Amicus Curiae Briefs, submitted by Brian W. Raum, counsel for

Defendant-Intervenor-Appellants (Sept. 9, 2010).

2. Plaintiff-Appellees’ Notice of Consent to the Filing of Amicus

Curiae Briefs, submitted by Theodore B. Olson, et al., counsel for Plaintff-

Appellees (Sept. 13, 2010).

3. Appellees City and County of San Francisco Notice of Consent

to the Filing of Amicus Curiae Briefs, submitted by Dennis J. Herrerra, et al.,

counsel for Appellees (Sept. 13, 2010).

CORPORATE DISCLOSURE STATEMENT

public charity under 26 U.S.C. § 501(c)(3). It has no parent corporation,

Fed. R. App. P., Rule 26.1(a).

Bowers v. Hardwick, 478 U.S. 186 (1986) .............................................................25

Griswold v. Connecticut, 381 U.S. 479 (1965) ......................................................6,7

In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ...............................13,14,16,17,19

Jonathan L. v. Superior Court (Los Angeles County Dept. of Children and

Lawrence v. Texas, 539 U.S. 558 (2003) .............................................................6,25

Loving v. Virginia, 388 U.S. 1 (1967) .................................................................. A-2

Lockyer v. City of San Francisco, 95 P3d 459 (Cal. 2004) ....................................13

Meyer v. State of Nebraska, 262 U.S. 390 (1923) .....................................................3

Moore v. East Cleveland, 431 U.S. 494 (1977).........................................................4

Parham v. J. R., 442 U.S. 584 (1979)........................................................................4

Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008) ..............................................10,14,21

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ......................................................4

Rideout v. Riendeau, 761 A.2d 291 (2000) .............................................................25

Roe v. Wade, 410 U.S. 113 (1973) ............................................................................6

Santosky v. Kramer, 455 U.S. 745 (1982) .................................................................4

Smith v. Organization of Foster Families, 431 U.S. 816 (1977)...............................5

Tatum v. Laird, 408 U.S. 1 (1972) ..........................................................................20

Troxel v. Granville, 530 U.S. 57 (2000) ............................................................4,5,26

Washington v. Glucksburg, 521 U.S. 702 (1997) ......................................................3

United States Constitution

Cal. Education Code, § 51933(a) ................................................................... 14, A-3

Cal. Education Code, § 51933(b)(7) .............................................................. 14, A-3

Cal. Family Code, § 308.5 .......................................................................................13

Amanda Alquist, “The Migration of Same-Sex Marriage from Canada to the

American Law Institute, Principles of the Law of Family Dissolution

California Dept. of Education, Frequently Asked Questions,

Kristin Kloberdanz, “Criminalizing Homeschoolers,” Time, Mar. 7, 2008,

Mary Anne Case, “Feminist Fundamentalism on the Frontier between

Robin Fretwell Wilson, “Undeserved Trust: Reflections on the ALI’s Treatment

Seanna Sugrue, “Soft Despotism and Same-Sex Marriage,” in Robert P. George

AUTHORITY TO FILE ............................................................................................i

CORPORATE DISCLOSURE STATEMENT .........................................................i

TABLE OF AUTHORITIES ................................................................................... ii

STANDARD OF REVIEW ......................................................................................2

SUMMARY OF THE ARGUMENTS .....................................................................2

I. THE SUPREME COURT HAS REPEATEDLY RECOGNIZED

A. Nine Decades Of Case Law Bear Strong Witness To Parents’