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Answer to Petitions for Review ______ Case No. S 147999 IN THE SUPREME COURT OF CALIFORNIA _______________________________________________________ In re MARRIAGE CASES Judicial Council Coordination Proceeding No. 4365 _______________________________________________________ After a Decision of the Court of Appeal First Appellate District, Division Three Of Consolidated Cases A110449, A110450, A110451, A110463, A110651 and A110652 San Francisco Superior Court Case Nos. 504038, JCCP 4365 Honorable Richard A. Kramer, Judge _____________________________________________________________ ANSWER TO PETITIONS FOR REVIEW _______________________________________________________ MARY E. MCALISTER (SBN 148570) MATHEW D. STAVER Liberty Counsel FL Bar No. 0701092* PO Box 11108 Liberty Counsel 100 Mountain View Rd Suite 2775 Second Floor Lynchburg, VA 24506 1055 Maitland Center Commons [email protected] Maitland, FL 32751 (434) 592-7000 - Telephone [email protected] (434) 592-7700- Facsimile (800) 671-1776 - Telephone (407) 875-0770 - Facsimile * Application to Appear Pro Hac Vice Submitted Simultaneously Attorneys for Campaign for California Families, Plaintiff- Petitioner in Case No. A110652 TABLE OF CONTENTS TABLE OF CONTENTS. ..................................... i TABLE OF AUTHORITIES. ................................. iii INTRODUCTION............................................1 LEGAL ARGUMENT.........................................3 I. THIS COURT SHOULD DENY REVIEW OF THE COURT OF APPEAL’S SUBSTANTIVE RULING THAT THE MARRIAGE STATUTES ARE CONSTITUTIONAL. .................................................3 A. The Court of Appeal Correctly Concluded That Marriage Is A Creature Of Statute That the Court Is Not Free To Redefine. ..........................................5 B. The Court of Appeal Correctly Concluded That California’s Marriage Statutes Do Not Violate The Equal Protection Clause.. 8 1. The Court of Appeal Properly Defined the Existing Fundamental Right to Marry and Differentiated It from Petitioners’ Desired Fundamental Right to Same-Sex Marriage.. 9 2. The Court of Appeal Correctly Found That the Marriage Laws Do Not Impermissibly Discriminate on the Basis of Sex.. 1 4 3. The Court of Appeal Correctly Found That any Disparate Impact that the Marriage Laws might have on Homosexuals Would Not Trigger Strict Scrutiny... 1 7 C. The Court of Appeal Correctly Held That The Marriage Statutes Do Not Violate The Right To i Privacy.. ..................................2 0 D. The Court of Appeal Correctly Held That The Marriage Statutes Do Not Violate The Right Of Free Expression ...............................2 3 E. The Court Of Appeal Correctly Concluded That The Marriage Statutes Are Rationally Related To Legitimate State Interests.. 2 4 II. IF THIS COURT GRANTS REVIEW, THEN IT SHOULD REVIEW THE COURT OF APPEAL’S RULING THAT THE CAMPAIGN LACKED STANDING TO PROCEED AS A PARTY. ................................................2 6 A. This Court Should Grant Review Because The Court 0f Appeal’s Standing Analysis Is Fatally Flawed.. 27 B. This Court Should Grant Review Of The Court Of Appeal’s Ruling On Justiciability Because The Court Of Appeal Significantly Departed From This Court’s Precedents Regarding Code Of Civil Procedure Section 526a................................3 0 C. This Court Should Grant Review Of The Court Of Appeal’s Ruling On Justiciability Because The Court Of Appeal Failed To Follow This Court’s Precedents Regarding Actions Under Code Of Civil Procedure Section 1060................................3 2 CONCLUSION. ............................................3 4 CERTIFICATE OF COMPLIANCE. ..........................3 5 PROOF OF SERVICE. ......................................3 6 ii TABLE OF AUTHORITIES FEDERAL CASES Able v. United States, (2d Cir.1998) 155 F.3d 628...................15 Citizens for Equal Protection v. Bruning, (8th Cir. 2006) 455 F.3d 859.. 15 Craig v. Boren, (1976) 429 U.S.190..............................13 Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, (6th Cir.1997) 128 F.3d 289. ...................................15 High Tech Gays v. Defense Indus. Sec. Clearance Office, (9th Cir.1990) 895 F.2d 563. ...................................15 Lawrence v. Texas, (2003) 539 U.S. 558.....................11, 15, 18 Lofton v. Sec'y of Dep't. of Children and Family Servs., (11th Cir. 2004) 358 F.3d 804. ...............................................15 Loving v. Virginia, (1967) 388 U.S. 1.............................11 Mississippi Univ. For Women v. Hogan, (1982) 458 U.S. 718. ...............................................15 Rich v. Sec'y of the Army, (10th Cir.1984) 735 F.2d 1220. ............15 Richenberg v. Perry, (8th Cir.1996) 97 F.3d 256. ...................15 Steffan v. Perry, (D.C. Cir.1994) 41 F.3d 677.......................15 Thomasson v. Perry, (4th Cir.1996) 80 F.3d 915. ...................15 Town of Ball v. Rapides Parish Police Jury, (5th Cir.1984) 746 F.2d 1049 ...............................................15 Turner v. Safley, (1987) 482 U.S. 78 . ............................11 iii United States v. Virginia, (1996) 518 U.S. 515......................13 Washington v. Glucksberg (1997) 521 U.S. 702.....................10 Woodward v. United States, (Fed. Cir.1989) 871 F.2d 1068............15 Zablocki v. Redhail, (1978) 434 U.S. 374..........................11 STATE CASES American Acad. of Pediatrics v. Lungren, (1997) 16 Cal.4th 301........18 Andersen v. King County, (Wash. 2006) 138 P.3d 963.....6, 10, 11, 13, 14 Arp v. Workers’ Comp. Appeals Bd., (1977) 19 Cal.3d 395............12 Baker v. State, (1999) 170 Vt. 194.............................14, 16 Blair v. Pitchess, (1971) 5 Cal.3d 258.......................25, 27, 28 Crowe v. Boyle (1920) 184 Cal. 117...........................26, 27 D’Amico v. Board of Medical Examiners, (1974) 11 Cal.3d 1..........21 Goodridge v. Department of Public Health, (Mass. 2003) 798 N.E.2d 941. ...........................................3, 16 Hernandez v. Robles, (2006) 7 N.Y.3d 338....................6, 10, 11 Hill v. NCAA, (1994) 7 Cal.4th 1..............................18, 19 Hi-Voltage Wire Works, Inc. v. City of San Jose, (2000) 24 Cal.4th 537..12 In re Marriage Cases (2006) 143 Cal.App.4th 873......................1-4, 6-16, 18-22, 25, 27, 28 Knight v. Superior Court, (2005) 128 Cal. App.4th 14.................9 Koire v. Metro Car Wash, (1985) 40 Cal.3d 24......................12 iv Lockyer v. City and County of San Francisco, (2004) 33 Cal.4th 1055.......................................4, 5, 23, 24 Lundberg v. Alameda County, (1956) 46 Cal.2d 644. ................27 McClure v. Donovan, (1949) 33 Cal.2d 717.........................5 People v. Carter (1997) 58 Cal.App.4th 128.........................1 Perez v. Sharp, (1948) 32 Cal.2d 711.........................5, 8, 11 Sail’er Inn, Inc. v. Kirby, (1971) 5 Cal.3d 1. ..............12, 15, 16, 26 Warden v. State Bar, (1999) 21 Cal.4th 628.....................21, 22 STATE STATUTES Cal. Const. art I. .............................................18 Code of Civil Procedure § 526a.........................23, 25, 26, 28 Code of Civil Procedure § 1060. ................................32 Family Code § 300...........................................8, 9 Family Code § 308.5...........................................9 v INTRODUCTION In a well-reasoned opinion on the merits of this case, the Court of Appeal properly declined the Plaintiffs’ request to recognize a new fundamental right of “same-sex marriage.” In re Marriage Cases (2006) 143 Cal.App.4th 873, 889. “Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage.” Id. “The role of the judiciary is not to rewrite legislation to satisfy the court’s rather than the Legislature’s sense of balance and order.” Id. “Judges are not ‘knight[s]-errant, roaming at will in pursuit of [their] own ideal of beauty or of goodness.’” Id. at 889-890 (citing People v. Carter (1997) 58 Cal.App.4th 128, 134). “In other words, judges are not free to rewrite statutes to say what they would like, or what they believe to be better social policy.” In re Marriage Cases, 143 Cal.App.4th at 890. The Court of Appeal properly defined its role as deciding legal issues based upon precedent and the appellate record rather than as establishing new social policy. Id. As the court said, the six consolidated cases, when distilled, rested on the single question of “who gets to define marriage in our democratic society.” Id. The majority properly answered that the power “rests in the people and their elected representatives, and courts may not appropriate to themselves the power to change the definition of such a basic social 1 institution.” Id. Utilizing that restrained and reasoned analytical framework, the Court of Appeal properly concluded that “California’s historical definition of marriage does not deprive individuals of a vested fundamental right or discriminate against a suspect class,” and, utilizing the rational basis test, correctly concluded that the marriage statutes are constitutional. Id. Obviously disappointed by the Court of Appeal’s rejection of their efforts to redefine marriage, the Plaintiffs are now asking this Court to assume the role of social engineer and to override the expressed will of the people of California that marriage is to continue to be defined as the union of one man and one woman. This Court should decline that invitation and permit the Court of Appeal’s opinion to stand. Alternatively, if
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