Perry et al v. Schwarzenegger et al, No. 3:2009cv02292 - Document 76 (N.D. Cal. 2009)
Court Description: ORDER granting 8 Motion to Intervene, continuing hearing on preliminary injunction in favor of a case management conference on 7/2/2009 at 10AM. (vrwlc1, COURT STAFF) (Filed on 6/30/2009)
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Perry et al v. Schwarzenegger et al Doc. 76 Case3:09-cv-02292-VRW Document76 Filed06/30/09 Page1 of 9 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 8 KRISTIN M PERRY, SANDRA B STIER, PAUL T KATAMI and JEFFREY J ZARRILLO 9 Plaintiffs, 7 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 No C 09-2292 VRW ORDER v ARNORLD SCHWARZENEGGER, in his official capacity as governor of California; EDMUND G BROWN JR, in his official capacity as attorney general of California; MARK B HORTON, in his official capacity as director of the California Department of Public Health and state registrar of vital statistics; LINETTE SCOTT, in her official capacity as deputy director of health information & strategic planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as clerkrecorder of the County of Alameda; and DEAN C LOGAN, in his official capacity as registrarrecorder/county clerk for the County of Los Angeles, Defendants / DENNIS HOLLINGSWORTH, GAIL J KNIGHT, MARTIN F GUTIERREZ, HAKSHING WILLIAM TAM and MARK A JANSSON, as official proponents of Proposition 8, 26 Defendant-Intervenors 27 / 28 Dockets.Justia.com Case3:09-cv-02292-VRW Document76 United States District Court For the Northern District of California 1 Filed06/30/09 Page2 of 9 Plaintiffs Kristin Perry, Sandra Stier, Paul Katami and 2 Jeffrey Zarrillo are California residents in same-sex relationships 3 who applied for marriage licenses in California in May 2009. 4 #1 at ¶32-33. 5 California constitution provides that “only marriage between a man 6 and a woman is valid or recognized in California.” 7 § 7.5. 8 section 7.5, recently enacted in California by ballot initiative as 9 Proposition 8 (“Prop 8”), violates the Fourteenth Amendment of the Doc Plaintiffs’ applications were denied because the Cal Const art I Plaintiffs seek equitable and declaratory relief that 10 United States Constitution. 11 moved for a preliminary injunction to halt enforcement of Prop 8. 12 Doc #7. Doc #1. On May 27, 2009, plaintiffs 13 Plaintiffs’ motion for a preliminary injunction and the 14 official proponents of Prop 8's motion to intervene are currently 15 set for hearing on July 2, 2009. 16 the absence of persuasive reasons to the contrary presented by the 17 parties at the July 2 hearing, the court will CONTINUE the hearing 18 on the preliminary injunction in favor of a case management 19 conference, but will GRANT the proponents’ motion to intervene. For the following reasons and in 20 21 I 22 The court turns first to the motion to intervene filed by 23 the official proponents of Prop 8. 24 opposes intervention, the court will decide the matter on the 25 papers. 26 Doc #8. Because no party See Docs ##28, 31, 32, 35, 37. To seek intervention as of right under FRCP 24(a), 27 applicants must make a four-part showing: (1) their motion is 28 timely; (2) they have a significant protectible interest relating 2 Case3:09-cv-02292-VRW Document76 1 to the transaction that is the subject of the action; (3) they are 2 so situated that the disposition of the action may practically 3 impair or impede their ability to protect their interest; and (4) 4 their interest is not adequately represented by the parties to the 5 action. 6 Generally, the court should be “guided primarily by practical and 7 equitable considerations” and should “interpret the requirements 8 broadly in favor of intervention.” Donnelly v Glickman, 159 F3d 405, 409 (9th Cir 1998). 9 United States District Court For the Northern District of California Filed06/30/09 Page3 of 9 Id at 409 (citation omitted). The proponents of Prop 8 meet all four of FRCP 24(a)’s 10 criteria: 11 after plaintiffs filed the complaint; (2) as official proponents, 12 they have a significant protectible interest in defending Prop 8's 13 constitutionality; (3) their interest in upholding Prop 8 is 14 directly affected by this lawsuit; and (4) their interest is not 15 represented by another party, as no defendant has argued that Prop 16 8 is constitutional. 17 with respect to the last factor, although the responsibilities of 18 the Attorney General of California contemplate that he shall 19 enforce the state’s laws in accordance with constitutional 20 limitations, Cal Const art V § 13, see also Cal Govt Code §§ 12511, 21 12512, Attorney General Brown has informed the court that he 22 believes Prop 8 is unconstitutional. 23 (1) their motion to intervene is timely, filed just days See Docs ##27, 30, 39, 46. Significantly, Doc #39 at 2. Because the proponents have established their entitlement 24 to intervene as of right, the court GRANTS the proponents’ motion 25 to intervene as defendants. 26 // 27 // 28 3 Case3:09-cv-02292-VRW Document76 Filed06/30/09 Page4 of 9 1 II 2 The court turns now to plaintiffs’ motion for a 3 preliminary injunction. 4 may raise novel concerns that could be avoided through a prompt 5 decision on the merits, the court’s tentative plan is instead to 6 proceed expeditiously to trial, a decision on the merits and final 7 judgment. Because entering a preliminary injunction United States District Court For the Northern District of California 8 9 A 10 Defendants’ positions regarding the preliminary 11 injunction vary. 12 Logan and Alameda County clerk-recorder Patrick O’Connell take no 13 position on the motion. 14 Schwarzenegger, along with Public Health Director Mark B Horton and 15 Deputy Director Linette Scott, argue against a preliminary 16 injunction because of prudential considerations – specifically, 17 that same-sex marriages performed after the injunction but before a 18 decision on the merits may not be recognized under state law. 19 #33 at 8-10. 20 injunction because of uncertainty surrounding the validity of post- 21 injunction same-sex marriages. 22 with plaintiffs that Prop 8 violates the federal Constitution. 23 #39 at 2. 24 Los Angeles County registrar-recorder Dean C Docs ##27, 30. California Governor Arnold Doc Attorney General Brown opposes the preliminary Doc #34. As noted, Brown agrees Doc To obtain a preliminary injunction, plaintiffs must show 25 they have raised a serious question on the merits and that the 26 balance of hardships tips sharply in their favor. 27 Parks and Recreation v Bazaar Del Mundo, Inc, 448 F3d 1118, 1123 28 (9th Cir 2006). Department of Brown’s stance that Prop 8 violates the 4 Case3:09-cv-02292-VRW Document76 1 Constitution may well suffice to establish a serious question on 2 the merits. 3 alleged a violation of their constitutional rights, which alone can 4 demonstrate irreparable harm. 5 Court, 739 F2d 466, 472 (9th Cir 1984). 6 United States District Court For the Northern District of California Filed06/30/09 Page5 of 9 See Doc #39 at 2. Furthermore, plaintiffs have Goldie's Bookstore, Inc v Superior Governor Schwarzenegger has pointed out that “California 7 and its citizens have already confronted the uncertainty that 8 results when marriage licenses are issued in a gender-neutral 9 manner prior to the issuance of a final, judicial determination of 10 legal and constitutional issues.” 11 avers that in early 2004, shortly before the California Supreme 12 Court’s decision in Lockyer v City and County of San Francisco, 33 13 Cal 4th 1055 (2004), some 4,000 same-sex marriages were performed 14 in California. 15 Court’s decision in In re Marriage Cases, 43 Cal 4th 757 (2008) and 16 the passage of Prop 8, numerous other same-sex marriages were 17 performed. 18 the California Supreme Court issued its decision in Strauss v 19 Horton, 46 Cal 4th 364 (2009). 20 Doc #33 at 2. The governor In the period between the California Supreme The validity of those marriages remained unclear until Given that serious questions are raised in these 21 proceedings, issuance of preliminary injunctive relief on an 22 incomplete record may inject still further uncertainty in an 23 important area of concern and interest to the state and its 24 citizens. 25 surrounding a preliminary injunction, the court is inclined to 26 proceed directly and expeditiously to the merits of plaintiffs’ 27 claims and to determine, on a complete record, whether injunctive 28 relief may be appropriate. To avoid the procedural and practical problems 5 Case3:09-cv-02292-VRW Document76 1 B 2 To reach a decision on the merits, it appears that the 3 court will need to resolve certain underlying factual disputes 4 raised by the parties. 5 from the parties’ submissions to be resolved at trial. 6 issues identified by the parties and discussed below are by no 7 means exhaustive of the issues in this case, the breadth of factual 8 disputes raised by the parties supports the court’s plan to proceed 9 directly to trial. 10 United States District Court For the Northern District of California Filed06/30/09 Page6 of 9 The court has identified several questions While the The parties disagree regarding the standard of review the 11 court should apply to plaintiffs’ equal protection and due process 12 claims. 13 Process Clause, Prop 8 is subject to strict scrutiny) and 18 14 (arguing that gays and lesbians are a suspect class for equal 15 protection purposes) with Doc #36 at 17 (arguing that Prop 8 does 16 not affect a fundamental right under the Due Process Clause and 17 must therefore only survive rational basis review) and 30 (arguing 18 that gays and lesbians are not a suspect class). Compare Doc #7 at 11 (suggesting that under the Due 19 The facts necessary to establish the appropriate level of 20 scrutiny under the Equal Protection Clause have been adverted to in 21 the parties’ submissions but have not been adequately briefed, nor 22 have these facts been established on an adequate evidentiary 23 record. 24 formulation in United States v Carolene Products Co, 304 US 144, 25 153 n4 (1938). 26 2009) (synthesizing federal precedent and listing the factors used 27 to determine whether a classification should receive heightened 28 scrutiny). The factors, of course, derive from the Supreme Court’s See also Varnum v Brien, 763 NW2d 862, 887 (Iowa In the context of the present case, the relevant 6 United States District Court For the Northern District of California Case3:09-cv-02292-VRW Document76 Filed06/30/09 Page7 of 9 1 factors appear to include: 2 and lesbians have faced; (2) whether the characteristics defining 3 gays and lesbians as a class might in any way affect their ability 4 to contribute to society; (3) whether sexual orientation can be 5 changed, and if so, whether gays and lesbians should be encouraged 6 to change it; and (4) the relative political power of gays and 7 lesbians, including successes of both pro-gay and anti-gay 8 legislation. 9 history of marriage and whether and why its confines may have (1) the history of discrimination gays The parties have also averted to facts, such as the 10 evolved over time, that may be necessary to determine whether the 11 right asserted by plaintiffs is “deeply rooted in this Nation’s 12 history and tradition” and thus subject to strict scrutiny under 13 the Due Process Clause. 14 (1997) (citations omitted). Washington v Glucksberg, 521 US 702, 721 15 In support of their argument that Prop 8 is 16 constitutional, the intervenors have raised state interests that 17 appear to require evidentiary support. 18 state interests asserted in In re Marriage Cases, 43 Cal 4th at 784 19 and Hernandez v Robles, 7 NY3d 338 (2006)). 20 the asserted state interests can survive plaintiffs’ constitutional 21 challenge, the record may need to establish: 22 definition of marriage in California; (2) whether the exclusion of 23 same-sex couples from marriage leads to increased stability in 24 opposite-sex marriage or alternatively whether permitting same-sex 25 couples to marry destabilizes opposite-sex marriage; (3) whether a 26 married mother and father provide the optimal child-rearing 27 environment and whether excluding same-sex couples from marriage 28 promotes this environment; and (4) whether and how California has 7 Doc #8 at 17-18 (citing To determine whether (1) the longstanding Case3:09-cv-02292-VRW Document76 1 acted to promote these interests in other family law contexts. 2 United States District Court For the Northern District of California Filed06/30/09 Page8 of 9 The parties’ submissions raise the question whether or 3 not Prop 8 discriminates based on sexual orientation or gender or 4 both. 5 Cal 4th at 840, to argue it is “sophist to suggest” that Prop 8 6 does not discriminate against gays and lesbians) with Doc #36 at 7 29, 32 (citing Cuyahoga Falls, Ohio v Buckeye Comm Found, 538 US 8 194 (2003), for the proposition that Prop 8 has a disparate impact 9 on gays and lesbians but does not discriminate against them as a Compare Doc #7 at 20, 21 (citing In re Marriage Cases, 43 10 class); see also Doc #52 at 17 (asserting that plaintiffs have 11 suffered psychological harm because Prop 8 directs state-sanctioned 12 discrimination at them based their sexual orientation). 13 addition to the particular facts pertaining to the parties at bar, 14 resolution of this dispute may depend on: (1) the history and 15 development of California’s ban on same-sex marriage; (2) whether 16 the availability of opposite-sex marriage is a meaningful option 17 for gays and lesbians; (3) whether the ban on same-sex marriage 18 meaningfully restricts options available to heterosexuals; and (4) 19 whether requiring one man and one woman in marriage promotes 20 stereotypical gender roles. 21 In Finally, the parties have raised a question whether Prop 22 8 was passed with a discriminatory intent. 23 that the sole motivation for Prop 8 was moral disapproval of gays 24 and lesbians) with Doc #8 at 17-18 (arguing various state interests 25 in preventing 26 discriminatory intent may inform the court’s equal protection 27 analysis. 28 Arlington Heights v Metro Housing Dev, 429 US 252, 266-67 (1977). Doc #7 at 18 (arguing same-sex couples from marrying). The question of Romer v Evans, 517 US 620, 631-32 (1996); Vil of 8 United States District Court For the Northern District of California Case3:09-cv-02292-VRW Document76 Filed06/30/09 Page9 of 9 1 To resolve the question, the court may have to consider the 2 “immediate objective” and “ultimate effect” of Prop 8, along with 3 its “historical context and the conditions existing prior to its 4 enactment,” Reitman v Mulkey, 387 US 369, 373 (1967), which in this 5 case may require the record to establish: (1) the voters’ 6 motivation or motivations for supporting Prop 8, including 7 advertisements and ballot literature considered by California 8 voters; and (2) the differences in actual practice of registered 9 domestic partnerships, civil unions and marriage, including whether 10 married couples are treated differently from domestic partners in 11 governmental and non-governmental contexts. 12 The just, speedy and inexpensive determination of these 13 issues would appear to call for proceeding promptly to trial. 14 Although the court will entertain any party’s objection to 15 proceeding promptly to trial without deciding plaintiff’s request 16 for preliminary injunctive relief, the court believes that a case 17 management conference would likely be a more productive endeavor at 18 the hearing scheduled for July 2, 2009 at 10 AM. 19 court will solicit the parties’ views on the matters described in 20 FRCP 16(c)(2), as well as scheduling necessary to complete pretrial 21 preparation and the speedy disposition of these proceedings on the 22 merits. At that time, the 23 24 IT IS SO ORDERED. 25 26 27 28 VAUGHN R WALKER United States District Chief Judge 9
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