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1 COOPER AND KIRK, PLLC

Charles J. Cooper (DC Bar No. 248070)*
2 [email protected]
David H. Thompson (DC Bar No. 450503)*
3 [email protected]
Howard C. Nielson, Jr. (DC Bar No. 473018)*
4 [email protected]
Peter A. Patterson (OH Bar No. 0080840)*
5 [email protected]
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
6 Telephone: (202) 220-9600, Facsimile: (202) 220-9601

7 LAW OFFICES OF ANDREW P. PUGNO

Andrew P. Pugno (CA Bar No. 206587)
8 [email protected]
101 Parkshore Drive, Suite 100, Folsom, California 95630
9 Telephone: (916) 608-3065, Facsimile: (916) 608-3066

10 ALLIANCE DEFENSE FUND

Brian W. Raum (NY Bar No. 2856102)*
11 [email protected]
James A. Campbell (OH Bar No. 0081501)*
12 [email protected]
15100 North 90th Street, Scottsdale, Arizona 85260
13 Telephone: (480) 444-0020, Facsimile: (480) 444-0028

14 ATTORNEYS FOR DEFENDANTS-INTERVENORS DENNIS HOLLINGSWORTH,

GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
15 MARK A. JANSSON, and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
16
* Admitted pro hac vice
17
UNITED STATES DISTRICT COURT
18 NORTHERN DISTRICT OF CALIFORNIA

19 KRISTIN M. PERRY, SANDRA B. STIER, PAUL

T. KATAMI, and JEFFREY J. ZARRILLO,
20 CASE NO. 09-CV-2292 VRW
Plaintiffs, ANSWER OF DEFENDANTS-
21
INTERVENORS PROPOSITION 8
22 CITY AND COUNTY OF SAN FRANCISCO, PROPONENTS AND
PROTECTMARRIAGE.COM TO
23 Plaintiff-Intervenor, COMPLAINT OF PLAINTIFF-
INTERVENOR CITY AND COUNTY
24 v. OF SAN FRANCISCO

25 Date: None
ARNOLD SCHWARZENEGGER, in his official Time: None
26 capacity as Governor of California; EDMUND G. Location: None
BROWN, JR., in his official capacity as Attorney Judge: Chief Judge Vaughn R. Walker
27 General of California; MARK B. HORTON, in his Trial Date: January 11, 2010
official capacity as Director of the California
28 Department of Public Health and State Registrar of

ANSWER OF DEFENDANTS-INTERVENORS TO COMPLAINT OF CITY AND COUNTY OF SAN FRANCISCO –

CASE NO. 09-CV-2292 VRW
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1 Vital Statistics; LINETTE SCOTT, in her official

capacity as Deputy Director of Health Information
2 & Strategic Planning for the California Department
of Public Health; PATRICK O’CONNELL, in his
3
official capacity as Clerk-Recorder for the County
4 of Alameda; and DEAN C. LOGAN, in his official
capacity as Registrar-Recorder/County Clerk for
5 the County of Los Angeles,
6 Defendants,
7 and
8 PROPOSITION 8 OFFICIAL PROPONENTS
DENNIS HOLLINGSWORTH, GAIL J.
9 KNIGHT, MARTIN F. GUTIERREZ, HAK-
SHING WILLIAM TAM, and MARK A.
10 JANSSON; and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
11 RENEWAL,
12 Defendants-Intervenors.
13

14 Additional Counsel for Defendants-Intervenors

15
ALLIANCE DEFENSE FUND
16 Timothy Chandler (CA Bar No. 234325)
[email protected]
17 101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: (916) 932-2850, Facsimile: (916) 932-2851
18
Jordan W. Lorence (DC Bar No. 385022)*
19 [email protected]
Austin R. Nimocks (TX Bar No. 24002695)*
20 [email protected]
801 G Street NW, Suite 509, Washington, D.C. 20001
21 Telephone: (202) 637-4610, Facsimile: (202) 347-3622
22 * Admitted pro hac vice
23

24

25

26

27

28

ANSWER OF DEFENDANTS-INTERVENORS TO COMPLAINT OF CITY AND COUNTY OF SAN FRANCISCO –

CASE NO. 09-CV-2292 VRW
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1 Defendants-Intervenors Proposition 8 Proponents Dennis Hollingsworth, Gail J. Knight,

2 Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson (collectively referred to as

3 “Proponents”), and Proposition 8 Campaign Committee ProtectMarriage.com – Yes on 8, a Project

4 of California Renewal (the “Committee”), by and through counsel, answer Plaintiff-Intervenor City

5 and County of San Francisco’s Complaint in Intervention for Declaratory, Injunctive, or Other

6 Relief as follows:

7 1. Defendants-Intervenors deny the allegations in Paragraph 1 of Plaintiff-Intervenor’s

8 Complaint except to admit that before the enactment of Proposition 8, the California Supreme Court

9 in In re Marriage Cases, 183 P.3d 384 (Cal. 2008), interpreted the California Constitution to

10 require the state government to issue marriage licenses to same-sex couples, and to admit that in

11 November 2008, the people of California approved Proposition 8, which amended the California

12 Constitution to state that “[o]nly a marriage between a man and a woman is valid or recognized in

13 California.” Cal. Const. art. I, § 7.5.

14 2. Paragraph 2 of Plaintiff-Intervenor’s Complaint is a request for relief that does not

15 require a response. To the extent that a response is required, Defendants-Intervenors deny that

16 Plaintiff-Intervenor is entitled to the relief requested.

17 3. Paragraph 3 of Plaintiff-Intervenor’s Complaint incorporates Paragraphs 3 and 4 of

18 Plaintiffs’ Complaint; thus, Defendants-Intervenors likewise incorporate their responses to

19 Paragraphs 3 and 4 of Plaintiffs’ Complaint.

20 4. Defendants-Intervenors acknowledge, as indicated in Paragraph 4 of Plaintiff-

21 Intervenor’s Complaint, that Plaintiff-Intervenor asserts claims for declaratory relief under the

22 Fourteenth Amendment to the United States Constitution, but deny that Plaintiff-Intervenor is

23 entitled to such relief.

24 5. Defendants-Intervenors acknowledge, as indicated in Paragraph 5 of Plaintiff-

25 Intervenor’s Complaint, that Plaintiff-Intervenor asserts claims against Proposition 8 for declaratory

26 and injunctive relief under the Fourteenth Amendment to the United States Constitution, but deny

27 that Plaintiff-Intervenor is entitled to such relief.

28 6. Defendants-Intervenors acknowledge, as indicated in Paragraph 6 of Plaintiff-

1
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1 Intervenor’s Complaint, that Plaintiff-Intervenor asserts claims against California Family Code

2 Sections 300, 301, 308.5 for declaratory and injunctive relief under the Fourteenth Amendment to

3 the United States Constitution, but deny that Plaintiff-Intervenor is entitled to such relief.

4 7. Defendants-Intervenors deny the allegations in Paragraph 7 of Plaintiff-Intervenor’s

5 Complaint except to admit that Plaintiff-Intervenor is a unit of local government with the

6 responsibility to issue civil marriage licenses.

7 8. Defendants-Intervenors acknowledge, as indicated in Paragraph 8 of Plaintiff-

8 Intervenor’s Complaint, that Plaintiff-Intervenor asserts claims against Proposition 8 for declaratory

9 and injunctive relief under the United States Constitution, but deny that Plaintiff-Intervenor is

10 entitled to such relief. Defendants-Intervenors also acknowledge that Plaintiff-Intervenor requests

11 attorneys’ fees, costs, and expenses, but deny that Plaintiff-Intervenor is entitled to such relief.

12 9. Defendants-Intervenors admit the allegations in Paragraph 9 of Plaintiff-Intervenor’s

13 Complaint except that Defendants-Intervenors lack sufficient knowledge or information concerning

14 whether Governor Arnold Schwarzenegger maintains an office in San Francisco.

15 10. Defendants-Intervenors admit the allegations in Paragraph 10 of Plaintiff-

16 Intervenor’s Complaint except that Defendants-Intervenors lack sufficient knowledge or

17 information concerning whether Attorney General Edmund G. Brown maintains offices in Oakland

18 and San Francisco.

19 11. Defendants-Intervenors admit the allegations in Paragraph 11 of Plaintiff-

20 Intervenor’s Complaint except that Defendants-Intervenors lack sufficient knowledge or

21 information concerning Public Health Director Mark B. Horton’s job responsibilities.

22 12. Defendants-Intervenors admit the allegations in Paragraph 12 of Plaintiff-

23 Intervenor’s Complaint except that Defendants-Intervenors lack sufficient knowledge or

24 information concerning Deputy Director Linette Scott’s job responsibilities.

25 13. Defendants-Intervenors admit the allegations in Paragraph 13 of Plaintiff-

26 Intervenor’s Complaint.

27 14. Defendants-Intervenors admit the allegations in Paragraph 14 of Plaintiff-

28 Intervenor’s Complaint.
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1 15. Paragraph 15 of Plaintiff-Intervenor’s Complaint purports to incorporate Paragraphs

2 20-36 of Plaintiffs’ Complaint. Defendants-Intervenors object to the extent that Plaintiff-

3 Intervenors’ purport to incorporate allegations beyond the scope of the limited intervention

4 permitted by the Court. In the alternative, Defendants-Intervenors likewise incorporate their

5 responses to Paragraphs 20-36 of Plaintiffs’ Complaint.

6 16. Defendants-Intervenors deny the allegations in Paragraph 16 of Plaintiff-Intervenor’s

7 Complaint except to admit that city and county officials may not decline to enforce Proposition 8.

8 See Lockyer v. City and County of San Francisco, 95 P.3d 459, 473 (Cal. 2004).

9 17. Defendants-Intervenors deny the allegations in Paragraph 17 of Plaintiff-Intervenor’s

10 Complaint.

11 18. Defendants-Intervenors deny, as alleged in Paragraph 18 of Plaintiff-Intervenor’s

12 Complaint, that discrimination based on sexual-orientation results in an increased use of the

13 services identified in Paragraph 18. Defendants-Intervenors lack sufficient knowledge or

14 information to respond to the remaining allegations in that Paragraph; thus those allegations are

15 deemed denied.

16 19. Defendants-Intervenors lack sufficient knowledge or information to respond to the

17 allegations in the first sentence of Paragraph 19 of Plaintiff-Intervenor’s Complaint; accordingly

18 those allegations are deemed denied. Defendants-Intervenors deny the remaining allegations in

19 Paragraph 19 of Plaintiff-Intervenor’s Complaint.

20 20. Defendants-Intervenors deny the allegations in Paragraph 20 of Plaintiff-Intervenor’s

21 Complaint.

22 21. Defendants-Intervenors deny the allegations in Paragraph 21 of Plaintiff-Intervenor’s

23 Complaint.

24 22. Defendants-Intervenors lack sufficient knowledge or information to respond to the

25 allegations in Paragraph 22 of Plaintiff-Intervenor’s Complaint; thus those allegations are deemed

26 denied.

27 23. Defendants-Intervenors lack sufficient knowledge or information to respond to the

28 allegations in Paragraph 23 of Plaintiff-Intervenor’s Complaint; thus those allegations are deemed

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1 denied.

2 24. Defendants-Intervenors lack sufficient knowledge or information to respond to the

3 allegations in Paragraph 24 of Plaintiff-Intervenor’s Complaint; thus those allegations are deemed

4 denied.

5 25. Defendants-Intervenors object to the allegations in Paragraph 25 of Plaintiff-

6 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

7 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations.

8 26. Defendants-Intervenors object to the allegations in Paragraph 26 of Plaintiff-

9 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

10 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations.

11 27. Defendants-Intervenors object to the allegations in Paragraph 27 of Plaintiff-

12 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

13 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations.

14 28. Defendants-Intervenors object to the allegations in Paragraph 28 of Plaintiff-

15 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

16 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations except to

17 admit that in 1999, the California Legislature passed domestic-partnership legislation, that in

18 subsequent years the California Legislature expanded the rights and responsibilities of domestic

19 partners, that in 2000, Californian voters enacted the statutory initiative known as Proposition 22,

20 see Cal. Fam. Code § 308.5, that in May 2008, the California Supreme Court found Proposition 22

21 to be invalid under the California Constitution, see In re Marriage Cases, 183 P.3d 384 (Cal. 2008),

22 and that in November 2008, Californian voters enacted Proposition 8 and thereby amended the

23 California Constitution.

24 29. Defendants-Intervenors object to the allegations in Paragraph 29 of Plaintiff-

25 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

26 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations.

27 30. Defendants-Intervenors object to the allegations in Paragraph 30 of Plaintiff-

28 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention
4
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1 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations.

3 31. Defendants-Intervenors object to the allegations in Paragraph 31 of Plaintiff-

4 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

5 permitted by the Court. In the alternative, Defendants-Intervenors lack sufficient knowledge or

6 information to respond to these allegations; thus they are deemed denied.

7 32. Defendants-Intervenors object to the allegations in Paragraph 32 of Plaintiff-

8 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

9 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations.

10 33. Defendants-Intervenors object to the allegations in Paragraph 33 of Plaintiff-

11 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

12 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations except to

13 admit that in 1999, the California Legislature enacted a law creating domestic partnerships, that

14 California law defines “domestic partners” as “two adults who have chosen to share one another’s

15 lives in an intimate and committed relationship of mutual caring,” see Cal. Fam. Code § 297(a), that

16 in subsequent years the California Legislature expanded the rights and responsibilities of domestic

17 partners, and that California law permits a “domestic partner” to adopt a child of his or her domestic

18 partner, see Cal. Fam. Code § 9000(b).

19 34. Defendants-Intervenors object to the allegations in Paragraph 34 of Plaintiff-

20 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

21 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations.

22

23 35. Defendants-Intervenors object to the allegations in Paragraph 35 of Plaintiff-

24 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

25 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations.

26 36. Defendants-Intervenors object to the allegations in Paragraph 36 of Plaintiff-

27 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

28 permitted by the Court. In the alternative, Defendants-Intervenors lack sufficient knowledge or

5
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1 information to respond to these allegations; thus they are deemed denied.

2 37. Defendants-Intervenors object to the allegations in Paragraph 37 of Plaintiff-

3 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

4 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations.

6 38. Defendants-Intervenors object to the allegations in Paragraph 38 of Plaintiff-

7 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

8 permitted by the Court. In the alternative, Defendants-Intervenors lack sufficient knowledge or

9 information to respond to these allegations; thus they are deemed denied.

10 39. Defendants-Intervenors object to the allegations in Paragraph 39 of Plaintiff-

11 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

12 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations except to

13 admit that same-sex couples in California employ assisted reproduction, adoption, and foster

14 parenting to bring children into their lives.

15 40. Defendants-Intervenors object to the allegations in Paragraph 40 of Plaintiff-

16 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

17 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations.

18 41. Defendants-Intervenors object to the allegations in Paragraph 41 of Plaintiff-

19 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

20 permitted by the Court. In the alternative, Defendants-Intervenors deny these allegations except to

21 admit that marriage is a valued social institution and that California law treats married couples

22 differently than unmarried couples in some respects.

23 42. Defendants-Intervenors object to the allegations in Paragraph 42 of Plaintiff-

24 Intervenor’s Complaint on the ground that they go beyond the limited scope of intervention

25 permitted by the Court. In the alternative, Defendants-Intervenors admit that the qualifications for

26 entering into or dissolving a domestic partnership differ in certain respects from the qualifications

27 for entering into or dissolving a marriage, and that there are certain minor differences between the

28 rights and benefits associated with marriage and those associated with domestic partnership.
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1 43. Defendants-Intervenors admit, as alleged in Paragraph 43 of Plaintiff-Intervenor’s

2 Complaint, that Attorney General Edmund G. Brown, in his Answer to Plaintiffs’ Complaint,

3 expressed his opinion that “[t]aking from same-sex couples the right to civil marriage that they had

4 previously possessed under California’s Constitution cannot be squared with guarantees of the

5 Fourteenth Amendment.” (Doc. # 39 at p. 2.) Defendant-Intervenors also admit, as alleged in

6 Paragraph 43 of Plaintiff-Intervenor’s Complaint, that Governor Arnold Schwarzenegger, Director

7 of Public Health Mark B. Horton, and Deputy Director Linette Scott, in their Answer to Plaintiffs’

8 Complaint, expressed their opinion that this case “presents important constitutional questions that

9 require and warrant judicial determination.” (Doc. # 46 at p. 2.)

10 44. Defendants-Intervenors incorporate their responses to Paragraphs 1 through 43 of

11 Plaintiff-Intervenor’s Complaint as if fully set forth here.

12 45. Defendants-Intervenors deny the allegations in Paragraph 45 of Plaintiff-Intervenor’s

13 Complaint.

14 46. Defendants-Intervenors deny the allegations in Paragraph 46 of Plaintiff-Intervenor’s

15 Complaint.

16 47. Defendants-Intervenors deny the allegations in Paragraph 47 of Plaintiff-Intervenor’s

17 Complaint.

18 48. Defendants-Intervenors incorporate their responses to Paragraphs 1 through 47 of

19 Plaintiff-Intervenor’s Complaint as if fully set forth here.

20 49. Defendants-Intervenors deny the allegations in Paragraph 49 of Plaintiff-Intervenor’s

21 Complaint.

22 50. Defendants-Intervenors admit that there is a symbolic difference between the

23 designation “marriage,” which enjoys a long history and uniform recognition, and any other type of

24 designation for an intimate relationship. Defendants-Interveners deny the remaining allegations in

25 Paragraph 50 of Plaintiff-Intervenor’s Complaint.

26 51. Defendants-Intervenors deny the allegations in Paragraph 51 of Plaintiff-Intervenor’s

27 Complaint.

28 52. The remainder of Plaintiff-Intervenor’s Complaint is a Prayer for Relief that does not
7
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1 require a response. To the extent that a response is required, Defendants-Intervenors deny that

2 Plaintiff-Intervenor is entitled to the relief requested.

3 First Affirmative Defense

4 Plaintiff-Intervenor has failed to state a claim upon which relief can be granted.

5 Second Affirmative Defense

6 Plaintiff-Intervenor lacks standing to assert the claims in its Complaint.

7 WHEREFORE, Defendants-Intervenors respectfully request that this Court dismiss

8 Plaintiff-Intervenor’s claims with prejudice, deny Plaintiff-Intervenor’s Prayer for Relief, order

9 Plaintiff-Intervenor to pay Defendants-Intervenors’ costs and attorneys’ fees, and grant other relief

10 deemed just and proper.

11 Dated: August 28, 2009

COOPER AND KIRK, PLLC
12 ATTORNEYS FOR DEFENDANTS-INTERVENORS
13 DENNIS HOLLINGSWORTH, GAIL J. KNIGHT,
MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
14 MARK A. JANSSON, AND PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA RENEWAL
15
By: s/Charles J. Cooper
16 Charles J. Cooper
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ANSWER OF DEFENDANTS-INTERVENORS TO COMPLAINT OF CITY AND COUNTY OF SAN FRANCISCO –
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