United States Court of Appeals For The Ninth Circuit: Plaintiffs-Appellees, Defendants, Defendants-Intervenors-Appellants

Case: 10-16696 09/23/2010 Page: 1 of 20 ID: 7484702 DktEntry: 32
No. 10–16696
In The
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.,
Defendants–Intervenors–Appellants
Appeal from the United States District Court
for the Northern District of California
Civil Case No. 09–2292 VRW
The Honorable Judge Vaughn R. Walker
BRIEF OF LIBERTY INSTITUTE, ASSOCIATION OF MARYLAND
FAMILIES, CALIFORNIA FAMILY COUNCIL, CENTER FOR ARIZONA
POLICY, CITIZENS FOR COMMUNITY VALUES, CORNERSTONE
ACTION, CORNERSTONE FAMILY COUNCIL, DELAWARE FAMILY
POLICY COUNCIL, FAMILY ACTION COUNCIL OF TENNESSEE,
THE FAMILY FOUNDATION, THE FAMILY POLICY COUNCIL OF
WEST VIRGINIA, FAMILY POLICY INSTITUTE OF WASHINGTON,
FLORIDA FAMILY POLICY COUNCIL, GEORGIA FAMILY COUNCIL,
ILLINOIS FAMILY INSTITUTE, INDEPENDENCE LAW CENTER,
IOWA FAMILY POLICY CENTER, LOUISIANA FAMILY FORUM
ACTION, MASSACHUSETTS FAMILY INSTITUTE, MICHIGAN
FAMILY FORUM, MINNESOTA FAMILY COUNCIL, MISSOURI FAMILY
POLICY COUNCIL, MONTANA FAMILY FOUNDATION, NEW JERSEY
FAMILY FIRST, NEW JERSEY FAMILY POLICY COUNCIL, NORTH
CAROLINA FAMILY POLICY COUNCIL, OKLAHOMA FAMILY
POLICY COUNCIL, OREGON FAMILY COUNCIL, PALMETTO FAMILY
COUNCIL, PENNSYLVANIA FAMILY INSTITUTE, WISCONSIN
FAMILY ACTION, AND WYWATCH FAMILY ACTION AS AMICI
CURIAE IN SUPPORT OF APPELLANTS AND REVERSAL
Kelly J. Shackelford, Counsel of Record
Jeffrey C. Mateer
Hiram S. Sasser, III
Justin E. Butterfield
Liberty Institute
2001 W. Plano Parkway, Suite 1600
Plano, Texas 75075
(972) 941–4444
Attorneys for Amici Curiae
Circuit Rule 26.1 Disclosure Statement
1. The full name of every party that the attorneys represent in this
case:
Liberty Institute, Association of Maryland Families, California
Family Council, Center for Arizona Policy, Citizens for Com-
munity Values, Cornerstone Action, Cornerstone Family Coun-
cil, Delaware Family Policy Council, Family Action Council of
Tennessee, The Family Foundation, The Family Policy Council
of West Virginia, Family Policy Institute of Washington, Florida
Family Policy Council, Georgia Family Council, Illinois Family
Institute, Independence Law Center, Iowa Family Policy Center,
Louisiana Family Forum Action, Massachusetts Family Institute,
Michigan Family Forum, Minnesota Family Council, Missouri
Family Policy Council, Montana Family Foundation, New Jersey
Family First, New Jersey Family Policy Council, North Carolina
Family Policy Council, Oklahoma Family Policy Council, Oregon
Family Council, Palmetto Family Council, Pennsylvania Family
Institute, Wisconsin Family Action, and WyWatch Family Action
2. The names of all law firms whose partners or associates have ap-
peared for the party in this case or are expected to appear:
Kelly J. Shackelford, Jeffrey C. Mateer, Hiram S. Sasser III, and
Justin E. Butterfield are attorneys with Liberty Institute, a public-
interest law firm in Texas.
3. For all amici curiae that are corporations:
i. Identify all parent corporations for all amicus parties:
None.
ii. List any publicly held company that owns 10% or more of
any amicus party’s stock:
None.
s/ Kelly J. Shackelford
Kelly J. Shackelford
i
Table of Contents
Circuit Rule 26.1 Disclosure Statement.......................................................i
Table of Contents...........................................................................................ii
Table of Authorities..................................................................................... iii
Interest of Amici Curiae................................................................................. 1
Introduction................................................................................................... 2
Summary of Argument................................................................................ 2
Argument........................................................................................................ 4
I. Initiatives promote the will of the people

better than government solely by the elite................................ 4
II. Self-government is foundational to California’s

sovereignty and should not be lightly overruled.....................8
Conclusion................................................................................................... 14
Certificate of Compliance with Fed. R. App. P. Rule 32(a)....................15
Certificate of Service................................................................................... 16
ii
Table of Authorities
Cases
Civil Rights Cases,

109 U.S. 3 (1883)................................................................................10
Dred Scott v. Sandford,

60 U.S. 393 (1857)................................................................................9
Kiernan v. Portland,
112 P. 402 (Ore. 1910)......................................................................7, 8
In re Winship,
397 U.S. 358 (1970)...................................................................... 10, 11
Constitutional Provisions
U.S. Const. amend. X.................................................................................. 12
Other Authorities
Declaration of Independence (U.S. 1776)..........................................12, 13
Mark A. Graber, Dred Scott and the Problem of

Constitutional Evil (2006)................................................................10
John G. Matsusaka, For the Many of the Few

(Benjamin I. Page ed., paperback ed. 2008)............................. 5, 6, 7
Michelle Minkoff et al., Proposition 8 Campaign

Contributions, L.A. Times,
http://projects.latimes.com/prop8/
(last visited September 21, 2010).......................................................9
2 Records of the Federal Convention of 1787

(M. Farrand ed., 1911)........................................................................ 4
iii
Interest of the Amici Curiae1
Liberty Institute is a non-profit law firm dedicated to the preser-
vation of civil rights and the promotion of individual liberty. Liberty
Institute represents clients across the country whose rights have been
trampled by those in authority. One of the most important civil rights
for individual liberty is the right to self-government. The district court
decision below threatens that right for the people of California. The ju-
dicial activism exemplified by the district court threatens the civil rights
of many of Liberty Institute’s clients across the country. If the district
court’s decision is upheld, the core principles that Liberty Institute fights
for will be weakened.
The remaining thirty-one amici are Family Policy Councils—state-
level organizations formed to invest in the future of America’s families.
These Family Policy Councils conduct policy analysis, promote respon-
sible and informed citizenship, and advocate for family ideals. Much of
the Family Policy Councils’ advocacy and work is promoting legisla-
tive change, both directly and by encouraging the citizenry to work for
change. Advocating for legislative change requires that the people be
self-governing and have the power to change the laws or advocate that
1 This brief is filed with the consent of all the parties.
1
their legislators change the laws. The district court’s decision makes
this power mere pretense, undermining the efforts of the Family Policy
Councils and all who would advocate for legislative change.
Introduction
In brushing aside the will of the people of California—declared
in two separate initiatives—for the novel idea that marriage may be
between other groups than one man and one woman, the District Court
sacrificed “the most fundamental individual liberty of our people”: the
right to self-government. Empirical study demonstrates that the initia-
tive process accurately reveals the will of the majority. Allowing the
District Court’s ruling to stand effectively imposes an arbitrary form
of government upon California never chosen by or consented to by the
people.
Summary of the Argument
The United States’ government consists of checks and balances
designed to limit the power of the various parts of the government,
ensuring it follows the will of the people. As an additional check, many
state and local governments provide for an initiative process by which
the people may more directly express their will. Distinguished USC
2
professor Dr. John G. Matsusaka spent ten years performing empirical
research to determine whether the initiative process accurately repre-
sents the will of the people or whether special interests subvert initiative
processes. Dr. Matsusaka’s research led him to the following conclusion:
“Not a single piece of evidence links the initiative to nonmajority policies
as the special interest subversion hypothesis would predict. … [B]ased
on the facts, the initiative serves the many and not the few.”
Twice, California used its initiative process to establish that the tra-
ditional definition of marriage should be used in that state. As the initia-
tive process correctly serves as a check and balance against governmental
appropriation of power, the District Court’s abrogation of California’s
Proposition 8 is anti-majoritarian. At times throughout our nation’s his-
tory, courts have subjugated the will of the people to the judges’ own
desires, often with disastrous results. Doing so is anti-democratic and
ignores that self-governance is an important and essential part of liberty.
Such actions by unelected judges disregard that the Bill of Rights pro-
vides that those powers not granted to the United States are reserved
to the states and the people. These precepts are foundational to liberty
and courts should not discard them as the whims of an elite few change.
3
Argument
When the Framers drafted the Constitution, they sought to se-
cure liberty by implementing two systems of checks and balances: one
horizontal—the tripartite division of the Federal government into the
legislative, executive, and judicial branches—and one vertical—the es-
tablishment of a federal republic in which power was divided among
the local, state, and national levels. As the Framers expected, political
fighting ensued within these divisions of power with each branch of
government and each level of government seeking more power for itself.
At the foundation of this governmental structure, however, there is only
one sovereign: the citizenry. As Benjamin Franklin observed, “In free
Governments the rulers are the servants, and the people their superiors
& sovereigns.” 2 Records of the Federal Convention of 1787, at 120 (M.
Ferrand, ed., 1911). With hesitancy and trepidation, then, should the
one unelected, national branch of government veto the expressed will
of the people.
I. Initiatives promote the will of the people better than govern-

ment solely by the elite.
In addition to the tripartite government and federalism, the initia-
tive process functions as an additional check to ensure that government
4
is responsive to the will of the people. The initiative process dates back
to 1898, when South Dakota became the first state to implement the
initiative process. By 1918, nineteen other states provided for the initia-
tive process. John G. Matsusaka, For the Many or the Few 4 (Benjamin
I. Page ed., paperback ed. 2008). At present, 24 states and 80 percent of
cities with populations over 100,000 provide some form of the initiative
process. Id. at 1 and 8. Currently, an estimated seventy percent of the
population of the United States has some access to the initiative pro-
cess. Id. at 1. Citizens used the initiative process regularly throughout
the twentieth century, but a small fraction of times compared with the
number of bills passed through the traditional legislative process. For
example, “[i]n 1999 and 2000, only 35 measures were adopted by initia-
tive compared to more than 10,000 new laws enacted by legislatures.”
Id. at 30. Despite the relatively few initiatives employed by the citizenry,
the existence of the initiative in a state causes the state’s policies to more
closely abide by the will of the people.
Dr. Matsusaka2 spent ten years analyzing the economic policies
of each state in the United States and used regression analysis to isolate
2 “John Matsusaka is the Charles F. Sexton Chair in Ameri-

can Enterprise in the Marshall School of Business, Gould School of
Law, and Department of Political Science at the University of Southern
5
the effects caused by the existence of the initiative in a given state. Dr.
Matsusaka found that, in the early part of the twentieth century, states
with the initiative process had slightly more liberal economic policies
than non-initiative states, while in the latter part of the twentieth cen-
tury, states with the initiative had slightly more conservative economic
policies than non-initiative states. See id. at 73–74. Dr. Matsusaka’s re-
search found that in recent years, in states with the initiative process,
total government spending lessened, spending shifted from the state
government to the local government, and the sources of governmental
income shifted from taxes to user fees and charges for services. Id. at 52.
The ultimate question, however, is whether these policies are in further-
ance of the will of the people or in contravention to the people’s will. Dr.
Matsusaka compared the results of his economic analysis of state policies
California, and President of the Initiative and Referendum Institute at

USC. He currently serves as Vice Dean for Faculty and Academic Af-
fairs in the Marshall School. Matsusaka received his Ph.D. in economics
from the University of Chicago, and has held visiting appointments
at the Hoover Institution at Stanford University, UCLA, Caltech, and
the University of Chicago. His research focuses on the financing, gov-
ernance, and organization of corporations and governments. He has
published numerous scholarly articles, serves as a consultant for the
White House Council of Economic Advisors, and is the author of For
the Many or the Few: The Initiative, Public Policy, and American Democracy
(University of Chicago Press, 2004).” John G. Matsusaka, Home Page
of John Matsusaka, http://www-bcf.usc.edu/~matsusak/ (last visited
Sept. 21, 2010).
6
with the results of studies by the Advisory Commission on Intergov-
ernmental Relations, the American National Election Studies, and the
Los Angeles Times/ABC News polls. Id. at 56–57. Dr. Matsusaka found
that the economic policies of states with the initiative better followed
the will of the people than did those of states without the initiative. See
id. at 57–71. As Dr. Matsusaka observed,
Not a single piece of evidence links the initiative to non-

majority policies [as the hypothesis that special interests
control the outcomes of initiatives] would predict. … [T]he
fact that a comprehensive examination of fiscal policies from
the beginning to the end of the twentieth century reveals
not a shred of evidence for the special interest subversion
view makes as compelling a rejection of a hypothesis as we
ever get in empirical research. This is the main message of
the [research]: based on the facts, the initiative serves the
many and not the few.
Id. at 114.
When the Oregon Supreme Court upheld Oregon’s initiative pro-
cess in 1910, they acknowledged the principle found by Dr. Matsusaka
by quoting Thomas Jefferson:
On this view of the import of the term ‘republic,’ instead

of saying, as has been said, that it may mean anything or
nothing, we may say with truth and meaning that govern-
ments are more or less republican, as they have more or
less of the element of popular election and control in their
composition; and believing as I do, that the mass of citizens
is the safest depository of their own rights and especially,
7
that the evils flowing from the duperies of the people, are
less injurious than those from the egoism of their agents, I
am a friend to that composition of government which has
in it the most of this ingredient.
Kiernan v. Portland, 112 P. 402, 405 (Ore. 1910) (quoting 15 Writings of
Thomas Jefferson 23).
In other words, Dr. Matsusaka found empirically what Thomas
Jefferson believed ideologically. The people know what they are doing.
They are less likely to harm themselves than the “egoism of their agents”
is to bring about harm upon them.
II. Self-government is foundational to California’s sovereignty

and should not be lightly overruled.
Twice now the people of California have expressed their will that
marriage in the state of California follow the traditional definition of
being between one man and one woman. In March of 2000, Californians
used the initiative process to define marriage as between one man and
one woman. When the California Supreme Court struck down this
definition as violating California’s constitution, the people of California
again used the initiative process in 2008 to pass Proposition 8, a state
constitutional amendment defining marriage as between one man and
one woman. In accordance with Dr. Matsusaka’s findings that initiatives
8
truly express the will of the people and not the will of the best-funded
special interest, the people of California passed Proposition 8 despite
the opposition to Proposition 8’s having raised over three million more
dollars than the supporting campaign. Michelle Minkoff et al., Proposi-
tion 8 Campaign Contributions, L.A. Times, http://projects.latimes.com/
prop8/ (last visited September 21, 2010).
Through the initiative process, the people of California have made
their will known. In their state, they want marriage to remain as it has
for thousands of years. They spoke twice in eight years, and their will
should not be subverted by one judge of one branch of the federal
government’s redefining core institutions like marriage to follow the
whims of the elite.
History demonstrates that an overzealous judiciary acting to pro-
tect the people from their own ideas has not been good for the United
States. In 1857, the Supreme Court overturned the Missouri Compro-
mise in Dred Scott v. Sandford, 60 U.S. 393 (1857) (“[S]ix of us declare that
[the Missouri Compromise law] was unconstitutional.”). It has been
suggested that at least some members of the Supreme Court inserted
themselves in place of the legislative process in Dred Scott to promote
9
slavery in a less controversial manner than were the legislature in-
volved—they were trying to save the country from itself. See, e.g., Mark
A. Graber, Dred Scott and the Problem of Constitutional Evil 41–42
(2006). Again, in the Civil Rights Cases, 109 U.S. 3 (1883), the Supreme
Court ruled that the Civil Rights Act of 1875, prohibiting discrimination
by public accommodations, was unconstitutional, striking down the
will of the people expressed through their representatives and setting
civil rights back by eighty years. Had the Supreme Court engaged in
judicial restraint and allowed the civil rights laws passed by Congress
to stand, perhaps some or many of the thousands of lives lost to lynch-
ings in the South might have been saved. It is true that the courts did
return to these issues generations later and remedy the errors that they
implemented, but the Court’s actions prove that the elite few do not
know better than the majority.
Judicial activism to impose the views of the “enlightened” judi-
ciary on the masses has another danger, expounded in Justice Black’s
famous dissent:
It can be, and has been, argued that when this Court strikes
down a legislative act because it offends the idea of “fun-
damental fairness,” it furthers the basic thrust of our Bill of
Rights by protecting individual freedom. But that argument
10
ignores the effect of such decisions on perhaps the most fun-

damental individual liberty of our people—the right of each man
to participate in the self-government of his society. Our Fed-
eral Government was set up as one of limited powers, but
it was also given broad power to do all that was “necessary
and proper” to carry out its basic purpose of governing the
Nation, so long as those powers were not exercised contrary
to the limitations set forth in the Constitution. And the States,
to the extent they are not restrained by the provisions in that
document, were to be left free to govern themselves in ac-
cordance with their own views of fairness and decency. Any
legislature presumably passes a law because it thinks the
end result will help more than hinder and will thus further
the liberty of the society as a whole. The people … may of
course be wrong in making those determinations, but the
right of self-government that our Constitution preserves is
just as important as any of the specific individual freedoms
preserved in the Bill of Rights. The liberty of government by
the people, in my opinion, should never be denied by this
Court except when the decisions of the people … conflict
with the express or necessarily implied commands of our
Constitution.
In re Winship, 397 U.S. 358, 384–85 (1970) (Black, J., dissenting) (emphasis
added).
The people may be wrong, as they often are. The courts, too, may
be wrong, as they often are. But this we know: twice in eight years the
people of California declared they want to keep marriage as it has been
for time immemorial. Courts should not violate the people’s self-gover-
nance—the “most fundamental individual liberty of our people”—and
impose instead their own views upon the people of California. The Tenth
11
Amendment of the Bill of Rights, which promises that “[t]he powers not
delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the people,”
should be preserved against a judge’s own sense of morality that he
believes trumps the morality held by the people of California and most
Americans for over two hundred years.3 This nation was built upon
principles of self-government that the District Court’s ruling brushes
aside so that a new morality may be forced instead.
In the latter half of the eighteenth century, King George III, out-
side of the authority granted to him by the colonial charters, “refused
his Assent to Laws” passed by the colonists; “dissolved Representative
Houses repeatedly, for opposing with manly firmness his invasions
on the rights of the people;” “combined with others to subject [the
colonists] to a jurisdiction foreign to [the colonists’] constitution, and
unacknowledged by [the colonists’] laws, giving his Assent to their Acts
3 The district court found that “Proposition 8 finds support

only in such [moral disapprobation]. As such, Proposition 8 is beyond
the constitutional reach of the voters or their representatives,” “no
matter how large the majority that shares that view.” ER59 (emphasis
added). While it is dubious whether the district court can ascertain the
moral views and reason for supporting Proposition 8 of more than seven
million California voters, this does not negate that the district court is
placing its own morality in place of that of the citizens of California.
12
of pretended Legislation;” “abolish[ed the colonists’] most valuable
Laws and alter[ed] fundamentally the Forms of [the colonists’] Govern-
ments;” and “suspend[ed the colonists’] Legislatures, and declar[ed]
themselves invested with power to legislate for the [colonists] in all
cases whatsoever.” The Declaration of Independence paras. 3, 7, 15, 23,
and 24 (U.S. 1776). In significant part because of the Crown’s removal
of the legislative power from the people and vesting of it in persons
unconstitutionally qualified to legislate, and because true governments
“deriv[e] their just powers from the consent of the governed,” the colo-
nists considered that “it is their right, it is their duty, to throw off such
Government, and to provide new Guards for their future security.” Id.
para. 2. If the district court’s decision to abolish the citizens of Califor-
nia’s laws and to invest itself with the power to legislate for the people
of California is upheld, the “new Guard” is but following the old and
we have come full circle.
13
Conclusion
For the foregoing reasons, the judgment of the District Court for
the Northern District of California must be reversed.
September 23, 2010
Respectfully submitted,

Counsel of Record
Jeffrey C. Mateer
Liberty Institute
Plano, Texas 75075
Telephone: (972) 941–4444
Fax: (972) 941–4457
[email protected]
Attorneys for the Amici Curiae
14
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 2,909 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 Adobe InDesign with 14 point Palatino.
Counsel of Record
Jeffrey C. Mateer
Liberty Institute
Plano, Texas 75075
Telephone: (972) 941–4444
Fax: (972) 941–4457
[email protected]
September 23, 2010
15
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 September 23, 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.
Counsel of Record
Jeffrey C. Mateer
Liberty Institute
Plano, Texas 75075
Telephone: (972) 941–4444
Fax: (972) 941–4457
[email protected]
September 23, 2010
16

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Case: 10-16696 09/23/2010 Page: 1 of 20 ID: 7484702 DktEntry: 32

Circuit Rule 26.1 Disclosure Statement

Circuit Rule 26.1 Disclosure Statement.......................................................i

Table of Authorities..................................................................................... iii

Interest of Amici Curiae................................................................................. 1

I. Initiatives promote the will of the people

II. Self-government is foundational to California’s

Certificate of Compliance with Fed. R. App. P. Rule 32(a)....................15

Civil Rights Cases,

Dred Scott v. Sandford,

U.S. Const. amend. X.................................................................................. 12

Declaration of Independence (U.S. 1776)..........................................12, 13

Mark A. Graber, Dred Scott and the Problem of

John G. Matsusaka, For the Many of the Few

Michelle Minkoff et al., Proposition 8 Campaign

2 Records of the Federal Convention of 1787

Interest of the Amici Curiae1

Liberty Institute is a non-profit law firm dedicated to the preser-

vation of civil rights and the promotion of individual liberty. Liberty

trampled by those in authority. One of the most important civil rights

for individual liberty is the right to self-government. The district court

of many of Liberty Institute’s clients across the country. If the district

for will be weakened.

The remaining thirty-one amici are Family Policy Councils—state-

level organizations formed to invest in the future of America’s families.

These Family Policy Councils conduct policy analysis, promote respon-

the Family Policy Councils’ advocacy and work is promoting legisla-

change. Advocating for legislative change requires that the people be

1 This brief is filed with the consent of all the parties.

Councils and all who would advocate for legislative change.

In brushing aside the will of the people of California—declared

in two separate initiatives—for the novel idea that marriage may be

sacrificed “the most fundamental individual liberty of our people”: the

right to self-government. Empirical study demonstrates that the initia-

District Court’s ruling to stand effectively imposes an arbitrary form

of government upon California never chosen by or consented to by the

Summary of the Argument

The United States’ government consists of checks and balances

designed to limit the power of the various parts of the government,

ensuring it follows the will of the people. As an additional check, many

state and local governments provide for an initiative process by which

professor Dr. John G. Matsusaka spent ten years performing empirical

research to determine whether the initiative process accurately repre-

processes. Dr. Matsusaka’s research led him to the following conclusion:

“Not a single piece of evidence links the initiative to nonmajority policies

as the special interest subversion hypothesis would predict. … [B]ased

ditional definition of marriage should be used in that state. As the initia-

tive process correctly serves as a check and balance against governmental

appropriation of power, the District Court’s abrogation of California’s

Proposition 8 is anti-majoritarian. At times throughout our nation’s his-

desires, often with disastrous results. Doing so is anti-democratic and

ignores that self-governance is an important and essential part of liberty.

When the Framers drafted the Constitution, they sought to se-

cure liberty by implementing two systems of checks and balances: one

horizontal—the tripartite division of the Federal government into the

legislative, executive, and judicial branches—and one vertical—the es-

tablishment of a federal republic in which power was divided among

fighting ensued within these divisions of power with each branch of