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Judicial Watch • 08 Marriage Amicus

08 Marriage Amicus

08 Marriage Amicus

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APPEAL NO. S147999 THE SUPREME COURT CALIFORNIA MARRIAGE CASES 
Judicial Council Coordination Proceeding No. 4365 
After Decision the Court peal 
First pellate District, Division Three 
Nos. 10449, 10450, 10451, 10463, 10651, 10652 
San Francisco perior Court Nos. JCCP4365, 429539, 429548, 504038 
Los Angeles perior Court No. BC088506 
Honorable Richard Kramer, Judge 

BRIEF AMICUS CURIAE JUDICIAL WATCH, INC. SUPPORT THE STATE CALIFORNIA 
AND GOVERNOR ARNOLD SCHWARZENEGGER 

Sterling Norris (SBN 040993) 
JUDICIAL WATCH, INC. 
2540 Huntington Drive, Suite 
San Marino, 91108-2601 
Tel: (626) 287-4540 
Fax: (626) 237-2003 

Counsel for Amicus Curiae Judicial Watch, Inc. 

TABLE CONTENTS 
TABLE CONTENTS ............................................ 

TABLE AUTHORITIES ......................................... 111 

STATEMENT THE INTEREST AMICUS CURIAE ... ............. 
DISCUSSION ..................................................... 	Introduction 
II. 	The Separation Powers Doctrine Guards Against the Concentration Power Single Branch Government and Protects One Branch Against the Overreaching the Others ................................. 
III. 	People Will Remain Free Only When Each Branch, Including the Judiciary, Keeps Within Its Own Power ........... 
IV. 	The California Constitution Vests Each Branch Government with Certain Core Essential Functions That May Not Usurped Another Branch ................. 
Judicial Review the Gravest and Most Delicate Duty 
That Court Can Perform, Extreme Care and Great
Judicial Restraint Must Exercised .... .............. 

VI. Order Effectuate the Separation Powers Doctrine, Several Well-Settled and Fundamental Principles Constitutional Adjudication Must Applied Every Case Comi Must Not Unnecessarily Pronounce Upon the Constitutionality Any Duly Enacted Statute, Especially When Statute Raises Novel ......................

Constitutional Issues ... Court Must Assume That the Legislature Legislates Light Constitutional Limitations, and Such Focused Legislative Judgment Any Question Enjoys Significant Weight and Deference the Courts 	Statutes Are Presumed Constitutional and Must Not Annulled Unless the Constitutional Conflict Clear, Positive, and Unquestionable ......... .11 	The Burden Establishing Unconstitutionality Those Who Assail Statute 	Facial Challenges Are Disfavored and Those Who Bring Them Bear Heavy Burden 
Courts Are Reluctant Expand the Concepts Substantive Due Process and Equal Protection 
VII. 	The Court Appeals Correctly Applied the Aforementioned Principles the Case Bar 
CONCLUSION ................................................... 

CERTIFICATE COMPLIANCE PURSUANT RULE 8.520(c) 
PROOF SERVICE 
TABLE AUTHORITIES 
Cases Page 
Anti-Fascist Committee McGrath, 341U.S.123 (1951) .................. 
Ashwander Tennessee Valley Authority, 297 U.S. 288 (1936) .......... 12, 
Ben-Shalom Marsh, 881F.2d454 (7th Cir. 1989) ....................... 
Broadrick Oklahoma, 413 U.S. 601 (1973) ........................... 
Brown Superior Court, Cal. 509 (Cal. 1971) ...................... 
Buckley Valeo, 424 U.S. (1976) .................................... 
Bush Vera, 517 U.S. 952 (1995) .................................... 
Circuit City Stores Adams, 532 U.S. 105 (2001) ........................ 
City Council Taxpayers for Vincent, 466 U.S. 789 (1984) ................ 
City Cleburne Cleburne Living Center, 473 U.S. 432 (1985) ........ 17, 
Collins City ofHarkerHeights, Texas,503U.S. ll5(l992) ...... 15, 17,23 
D'Amico Board Medical Examiners, Cal. (Cal. 1974) .................................... 21, 
Dawn Superior Court, Cal. 4th 932 (Cal. 1998) ............. 20, 22, 
Dennis United States, 341 U.S. 494 (1951) ......................... 
Department Mental Hygiene Kirchner, Cal. 586 (Cal. 1965) ..................................... 

Equal. 
Found. Greater Cincinnati. Inc. City Cincinnati, 
128 F.3d 289 (6th Cir. 1997) .................................... 

Elisa Superior Court, Cal. 4th 108 (2005) ......................... 

Estate Johnson, 139 Cal. 532 (Cal. 1903) ............................. 

Evans 
Abney, 396 U.S. 435 (1970) ................................. 

Fowler 
Lindsey, U.S. 411 (1799) ................................... 

FW/PBS, Inc. Dallas, 493 U.S. 215 (1990) ............................ 

Ginsberg 
New York, 390 U.S. 629 (1968) ............................. 

Goldin 
Public Utilities Com., Cal. 638 (Cal. 1979) ................ 

Griswold 
Connecticut, 381 U.S. 479 (1965) ....................... 

Hardy 
Stumpf, Cal. (Cal. 1978) .............................. 

High Tech Gays Defense Indus. Sec. Clearance Office, 

895 F.2d 563 (9th Cir. 1990) .................................... 

Holmes 
Cal. Army Nat'/ Guard, 124 F.3d 1126 (9th Cir. 1997) ............ Marriage Cases, 143 Cal. App. 4th 873 

(Cal. 
Ct. App. 2006) 20, 21, 22, .................................. 

Jersey Maid Milk Products Co. Brock, Cal. 620 (Cal. 1939) ...... 11, 

Kasler 
Lockyer, Cal. 4th 472 (Cal. 2000) .......................... 

Kavanau 
Santa Monica Rent Control Bd., Cal. 4th 761 (Cal. 1997) ..................................... 

Kopp Fair Political Practices Comm., Cal. 4th 607 (Cal. 1995) .......... 
Lawrence Texas, 539 U.S. 558 (2003) ............................... 
Leroy Great United Corp., 443 U.S. 173 (1979) ...................... 
Lofton Sec'y the Dep Children Family Servs., 

358 F.3d 804 (11th Cir. 2004) ................................... 
Luther Borden al., U.S. (1849) ................................ 
Marin Water Power Co. Railroad Com. California, 

171 Cal. 706 (Cal. 1916) ........................................ 

Matrixx Initiatives, Inc. John Doe, 
138 Cal. App. 4th 872 (Cal. Ct. App. 2006) ................... 10, 
Methodist Hosp. Sacramento Saylor, Cal. 685 (Cal. 1971) ..... 
Metropolitan Casualty Ins. Co. New York Brownell, 

294 U.S. 580 (1935) .......................................... 
Minor Happersett, U.S. 162 (1875) .............................. 
Montalvo Madera Unified Sch. Dist. Bd. Education, Cal. App. 323 (Cal. Ct. App. 1971) ......................... 
Moore City East Cleveland, Ohio, 431U.S.494 (1977) ..... passim 
National Endowment for the Arts Finley, 524 U.S. 569 (1998) ............ 
National Mut. Ins. Co. Tidewater Transfer Co., 

337 U.S. 582 (1949) .......................................... 
Nougues Douglass, Cal. (Cal. 1857) .............................. 

Pacific Legal Foundation Brown, Cal. 168 (Cal. 
1981) ......... passim 

Palermo 
Stockton Theatres, Inc., Ca2d (Ca1948) ...............l.
l.9 

People 
Bunn, Ca4th (Ca2002)l............................
l.7 

People 
Carter, CaApp. 4th 128 (CaCt. App. 1997) ..............
l.27 

Perez 
Sharp, Ca2d 711 (Ca1948) .......................... 20,l.
l.21 

Planned Parenthood Southeastern Pa. Casey, 
505 U.S. 833 (1992)
.......................................... 

Regents Univ. Mich. Ewing, 474 U.S. 214 (1985) .................. 

Reno 
Flores, 507 U.S. 292 (1993) ................................ 20, 

Rich 
Secretary Army, 735 F.2d 1220 (10th Cir.1984) ................. 

Richenberg 
Perry, F.3d 256 (7th Cir. 1996) ........................ 

Rust 
Sullivan, 500 U.S. 173 (1991) .............................. 

Sail'er Inn, Inc. Kirby, Ca3d (Ca1971) .........................l.
l.25 

San Francisco Industrial Accident Comm., 183 Ca273 (Ca1920) .... 11,l.
l.12 

Serrano 
Priest, Ca3d 728 (Ca1976)............................l.
l.21 
Sharon Superior Court, Cal. 
4th 417 (Cal. 
2003), 

cert. denied, 540 U.S. 1220 (2004) ............................. 

Snyder 
Massachusetts, 291 U.S. (1934) ............................ 

Steffan 
Perry, F.3d 677 (D.C. Cir. 1994) ........................... 

Superior Court County Mendocino, Cal. 4th (Cal. 1996) ....... 
Supervisors Galbraith, U.S. 214 (1879) ............................ 
Tennessee Publishing Co. American Nat'l Bank, 

299 U.S. (1936) ........................................ 10, 
The People Navarro, Cal. 4th 668 (Cal. 2007) ....................... 
Thomasson Perry, F.3d 915 (4th Cir. 1996) ................... 17, 24, 
United States 200-ft Reels Super 8MM Film, 

413 U.S. 123 (1973) 
United States Salerno, 481 U.S. 739 (1987) ........................ 14, 
West Superior Court, Cal. App. 4th 302 (Cal. Ct. App. 1997) ....... 5,6, 
Warden State Bar California, Cal. 4th 628 (Cal. 1999) .............. 
Washington Glucksberg, 521 U.S. 702 (1997) ..................... passim 
Williams Ala., 378 F.3d 1232 (11th Cir. 2004) ................. 16, 
Wisconsin Yoder, 406 U.S. 205 (1972) ............................... 
Woodward United States, 871 F.2d 1068 (Fed. Cir. 1989) ................ 
Zablocki Redhail, 434 U.S. 374 (1978) ............................... 

Constitutional Provisions Page 
Cal. Const., art.  subd. (a) ....................................... 
Cal. Const., art. III,  
Cal. Const., art. IV,  .............................................. 
Cal. Const., art. IV,  subd. (b) 

........ ................... ...... .......... 

............. ........................ 

Cal. Const., art. 

............................................... 

Cal. Const., art. VI,  .............................................. 

Other Authorities 
James Madison, Federalist No. (G. Putnam's Sons ed., 1908)

........... 

STATEMENT THE INTEREST AMICUS CURIAE 
Judicial Watch, Inc. ("Judicial Watch") public interest organization headquartered Washington, D.C. Founded 1994, Judicial Watch seeks promote accountability, transparency and integrity government and fidelity the rule oflaw. furtherance these goals, Judicial Watch regularly monitors on-going litigation, files amicus curiae briefs, and prosecutes lawsuits matters that believes are public importance. 

The laws this nation rely the proper functioning the courts, including proper balance powers and the judiciary' ability demonstrate restraint. The case bar raises issues regarding the proper balance powers between the people, including their elected representatives, and the judiciary. Judicial Watch has undertaken extensive research these issues and respectfully wishes share the results its considerable research with the Court filing this amicus curiae brief. 
DISCUSSION 
Introduction. the case bar, this Court has been called upon Petitioners perform "the gravest and most delicate duty" that court can called perform, that is, review, and possibly annul, the exercise power another, coordinate branch government. Rust Sullivan, 500 U.S. 173 
190-91 (1991) (citation omitted). 
"It small matter for one branch the government annul the formal 
exercise another and coordinate branch power committed the latter .... 
Methodist Hosp. Sacramento Saylor, Cal. 685, 692 (Cal. 1971). 
result 

various principles judicial restraint have evolved guide courts through this "grave and most delicate task. These principles are discussed below and then applied the facts this case. 
II. 	The Separation Powers Doctrine Guards Against the Concentration Power Single Branch Government and Protects One Branch Against the Overreaching the Others. 
"The California Constitution establishes system state government which power divided among three coequal branches (Cal. Const., 
art. IV, 
 [legislative power]; Cal. Const., 
art. 
 [executive power]; Cal. Const., 
art. VI,  [judicial power]) 
and further states that those charged with the exercise one power may not exercise any other (Cal. Const., 
art. III, 
 3)." People Bunn, Cal. 4th (Cal. 2002). This interdict one branch government exercising the power another commonly known the separation powers doctrine. "The separation powers doctrine protects each branch's core constitutional functions from lateral attack another branch." Id. 16. This doctrine "not only guards against the concentration power single branch government; also protects one branch against the overreaching the others." Kasler 
Lockyer, Cal. 4th 472, 495 (Cal. 2000) (citations omitted). 
III. 	People Will Remain Free Only When Each Branch, Including the Judiciary, Keeps Within Its Own Power. 
The rationale for separate and distinct divisions power obvious: when 
power, which can have conupting influence, vested one body person, 
liberty peril. Said another way, the separation powers doctrine vital 
check against tyranny." Buckley Valeo, 424 U.S. 121 (1976).1 Federalist 
No. 47, James Madison approvingly quoted Montesquieu's eloquent defense the 
need for separate and distinct divisions power: 
'When the legislative and executive powers are united the same person body,' says he, 'there can liberty, because apprehensions may arise lest the same monarch senate should enact tyrannical laws execute them tyrannical manner.' Again: 'Were the power judging joined with the legislative, the life and liberty the subject would exposed arbitrary control, for the judge would then the legislator. Were joined the executive power, the judge might behave with all the violence oppressor.' 
James Madison, The Federalist No. 47, 299, 302-303 (G. Putnam's Sons ed., 
1908) (quoted Buckley, 424 U.S. 120-121). Hence, our American freedoms 
are preserved and maintained the "wise appreciation" the separation 
This Court considers the decisions the United States Supreme Court and lower federal courts regarding the doctrine separation powers persuasive. See Kasler, Cal. 4th 491. 
powers doctrine. Griswold Connecticut, 381 U.S. 479, 501 (1965) (Harlan, J., 
concurring). 
IV. 	The California Constitution Vests Each Branch Government with Certain Core Essential Functions That May Not Usurped Another Branch. 
The California Constitution "vest[s] each branch with certain 'core' 'essential 
functions that may not usurped another branch." Bunn, Cal. 4th (internal citations omitted). Particularly relevant this case are the core essential functions the legislature and judiciary. "The Legislature charged, among other things, with 'mak[ing] law ... statute.' 
Cal. Const., art. IV, subd. (b)." Id. The legislative power the "creative element government. Nougues Douglass, Cal.65, (Cal.1857). "This essential function embraces the far-reaching power weigh competing interests and determine social policy." Bunn, Cal. 4th 14-15. 
"Quite distinct from the broad power pass laws the essential power the judiciary resolve specific controversies between parties." Id. (citation and internal quotation marks omitted); see also Marin Water Power Co. Railroad Com. California, 171 Cal. 706, 711-712 (Cal. 1916) ("The judicial function declare the law and define the rights the parties under it.") (citation and internal quotation marks omitted). not the function the 
judiciary "to declare what [the law] should be," Minor Happersett, U.S. 162, 178 (1875), otherwise make the law. See Kopp Fair Political Practices 
Comm., Cal. 4th 607, 673 (Cal. 1995) (Mosk, J., concurring) (Judiciary's 
"province" "to expound the law, not make it.") (quoting Luther Borden 
al., U.S. (1849)); see also Fowler Lindsey, U.S. 411, 414 (1799) 
("But the duty judges declare, and not make the law."); and Supervisors Galbraith, U.S. 214, 219 (1879) ("Our duty execute the law, not make it."). "Their authority only negative -never affirmative force. cannot create, cannot initiate, cannot put into action any governmental policy any kind .... Kopp, Cal. 4th 673 (Mosk, J., concurring) (citation and internal quotation marks omitted). 
Accordingly, the judiciary should not innovate social policy. See Sharon Superior Court, Cal. 4th 417, 443 (Cal. 2003), cert. denied, 540 U.S. 1220 (2004) (approving aforementioned principle stated West Superior Court, Cal. App. 4th 302, 306 (Cal. Ct. App. 1997), overruled part other grounds Elisa Superior Court, Cal. 4th 108 (2005)). Instead, the "locus social policy development" the legislature, "especially with respect the structure and dynamics the family." West Superior Court, Cal. App. 4th 306; see also Circuit City Stores Adams, 532 U.S. 105, 120 (2001) (It the province 
legislature, not the courts, "to consult political forces and then decide how best resolve conflicts the course writing the objective embodiments law know statutes."). When "complex practical, social and constitutional ramifications" exist, the legislature "better equipped consider expansion the current California law should choose so." West Superior Court, Cal. App. 4th 306. Legislatures are uniquely suited for this task, possessing "flexible mechanisms for fact finding" and the "power experiment." 
Washington Glucksberg, 521 U.S. 702, 788 (1997) (Souter, J., concurring). 
Furthermore, the "role the judiciary not rewrite legislation satisfy the court's, rather than the Legislature's, sense balance and order. Judges are not knight[s]-errant, roaming will pursuit [their] own ideal beauty goodness." People Carter, Cal. App. 4th 128, 134 (Cal. Ct. App. 1997) (citation and internal quotation marks omitted). "The judiciary, reviewing statutes enacted the Legislature, may not undertake evaluate the wisdom the policies embodied such legislation; absent constitutional prohibition, the choice among competing policy considerations enacting laws legislative function." Superior Court County Mendocino, Cal. 4th 45, (Cal. 1996). "The responsibility" the judiciary "is construe and enforce the Constitution 
and laws the land they are and not legislate social policy the basis our own personal inclinations." Evans Abney, 396 U.S. 435, 447 (1970). 
"Courts are not representative bodies. They are not designed good reflex democratic society .... Their essential quality detachment, founded independence. History teaches that the independence the judiciary jeopardized when courts become embroiled the passions the day and assume primary responsibility choosing between competing political, economic and social pressures." Dennis United States, 341 U.S. 494, 525 (1951) (Frankfurter, J., concurring); see also Collins City Harker Heights, Texas, 503 U.S. 115, 129 1992) (locally elected legislative bodies are better suited make policy choices). 	Judicial Review the Gravest and Most Delicate Duty That Court Can Perform, Extreme Care and Great Judicial Restraint Must Exercised. 
The "sensitive balance underlying the tripartite system government," however, "assumes certain degree mutual oversight and influence." Bunn, Cal. 4th (citations and internal quotation marks omitted). For example, "the judiciary passes upon the constitutional validity legislative and executive actions, the Legislature enacts statutes that govern the procedures and evidentiary rnles applicable judicial and executive proceedings, and the Governor appoints 
judges and participates the legislative process through the veto power." County Mendocino, Cal. 4th 53. 
This oversight, however, must exercised with extreme care and great restraint, "is small matter for one branch the government annul the formal exercise another and coordinate branch power committed the latter .... Methodist Hosp. Sacramento, Cal. 692. Consequently, the instance judicial review legislation, the United States Supreme Court has described the task "the gravest and most delicate duty" that court can called perform. Rust, 500 U.S. 190-191 (citation omitted). Clearly, "[j]udicial 'self-restraint' indispensable ingredient sound constitutional adjudication." Griswold, 381 U.S. 501 (Harlan, J., concurring) (citing and quoting majority opinion). 
VI. Order Effectuate the Separation Powers Doctrine, Several Well-Settled and Fundamental Principles Constitutional Adjudication Must Applied Every Case. order effectuate the separation powers doctrine, the judiciary has created several well-settled and fundamental principles constitutional adjudication that must applied every case. These principles are observed California courts. They are discussed turn below. Court Must Not Unnecessarily Pronounce Upon the Constitutionality Any Duly Enacted Statute, Especially When Statute Raises Novel Constitutional Issues. 
"It has heretofore been considered against the policy this [C]ourt (and courts last resort generally) reach out and unnecessarily pronounce upon the constitutionality any duly enacted statute." Palermo Stockton Theatres, Inc., Cal. 53, 65-66 (Cal. 1948). Said another way, "court will not decide constitutional question unless such construction absolutely necessary." Estate Johnson, 139 Cal. 532, 534 (Cal. 1903). Justice Frankfurter elucidated the reason for this constitutional avoidance principle his concurring opinion 
Anti-Fascist Committee McGrath: 
[T]his practice reflects the tradition that courts, having final power, can exercise most wisely restricting themselves situations which decision necessary. part, founded the practical wisdom not coming prematurely needlessly conflict with the executive legislature. 
341 U.S. 123, 154-155 (1951) (Frankfurter, J., concurring). 
This principle especially applicable when novel constitutional issues are raised. "As prudential matter," courts should "avoid the unnecessary decision novel constitutional questions." Leroy Great United Corp., 443 U.S. 173, 181 (1979); see also Matrixx Initiatives, Inc. John Doe, Cal. App. 4th 872, 881 (Cal. Ct. App. 2006) ("In emerging area the law, well tread 

carefully and exercise judicial restraint, deciding novel issues only when the circumstances require.") (citation omitted). 
One maxim that springs from the aforementioned general principle constitutional avoidance that "court will not anticipate the decision constitutional question upon record which does not appropriately present it." 
Tennessee Publishing Co. American Nat Bank, 299 U.S. 18, (1936) 
(citation omitted). Sometimes the "facts necessary resolve the controversy are not readily ascertainable through the judicial process; but are more readily subject discovery through legislative factfinding and experimentation." Washington, 521 U.S. 787 (Souter, J., concurring). such cases, appellate review constitutional issue may prove difficult and premature, and constitutional avoidance the better course action. Id. 787-88; Tennessee Publishing Co., 299 U.S. 22. Court Must Assume That the Legislature Legislates Light Constitutional Limitations, and Such Focused Legislative Judgment Any Question Enjoys Significant Weight and Deference the Courts. 
Out respect for coordinate branch government, court must "assume [that the legislature] legislates the light constitutional limitations." Rust, 500 
U.S. 190-191. And "when the Legislature has enacted statute with the 
relevant constitutional prescriptions clearly mind ... the statute represents considered legislative judgment the appropriate reach the constitutional provision." Pacific Legal Foundation Brown, Cal. 168, 180 (Cal. 1981) (citations omitted). Such "focused legislative judgment the question enjoys significant weight and deference the courts." Id. "If there any doubt the Legislature's power act any given case, the doubt should resolved favor the Legislature's action. Such restrictions and limitations imposed the 
Constitution are construed strictly, and are not extended include matters not covered the language used." Id. (emphasis original) (citation and internal quotation marks omitted). 
Statutes Are Presumed Constitutional and Must Not Annulled Unless the Constitutional Conflict Clear, Positive, and Unquestionable. 
"[A]ll presumptions and intendments are favor the constitutionality statute enacted the legislature." Jersey Maid Milk Products Co. Brock, Cal. 620, 636 (Cal. 1939); see also San Francisco Industrial Accident Comm., 183 Cal. 273, 280 (Cal. 1920) (The "acts ofa state legislature are presumed constitutional until the contrary shown."); and Bush Vera, 517 U.S. 952, 992 1995) ("Statutes are presumed constitutional."). "In case doubt, every presumption, not clearly inconsistent with the language subject matter, made favor the constitutionality the act." Industrial Accident Com., 

183 Cal. 280; see also Jersey Maid Milk Products Co., Cal. 636 ("[A]ll doubts are resolved favor and not against the validity statute."). Indeed, even the "case fair and reasonable doubt its constitutionality, the statute should upheld and the doubt resolved favor the expressed wishes the people given the statute." Jersey Maid Milk Products Co., Cal. 636. 
"[B]efore act coordinate branch the government can declared invalid the judiciary for the reason that conflict with the Constitution, such conflict must clear, positive, and unquestionable .... Id. "[C]ourts should not and must not annul, contrary the constitution, statute passed the Legislature, unless can said the statute that positively and certainly opposed the constitution" Methodist Hosp. Sacramento, Cal. 692; see also National Mut. Ins. Co. Tidewater Transfer Co., 337 U.S. 582, 604 (1949) (Statute must not annulled unless "clear showing that transgresses constitutional limitations."). Ashwander Tennessee Valley Authority, Justice Brandeis surveyed prior court decisions elucidating this presumption validity: 
Mr. Justice Washington said, Ogden Saunders, Wheat.213, 
270: "But could rest opinion favor the constitutionality the law which the question arises, other ground than this doubt felt and acknowledged, that alone would, estimation, satisfactory vindication it. but decent respect due the wisdom, the integrity, and the patriotism the legislative body, which any law passed, presume favor its validity, until its violation the constitution proved beyond all reasonable doubt. This has always been the language this Court, when that subject has called for its decision; and know that expresses the honest sentiments each and every member this bench." 
Mr. Chief Justice Waite said the Sinking-Fund Cases, U.S.700, 
718: "This declaration [that act Congress unconstitutional] should never made except clear case. Every possible presumption favor the validity statute, and this continues until the contrary shown beyond rational doubt. One branch the government cannot encroach the domain another without danger. The safety our institutions depends small degree strict observance this salutary rule." 
297 U.S.288, 355 (1936) (Brandeis, J., concuning) (cited approvingly The 
People Navarro, Cal.4th 668, 675 (Cal.2007)). 
The Burden Establishing Unconstitutionality Those Who Assail Statute. 
"It salutary principle judicial decision, long emphasized and followed this Court, that 'the burden establishing the unconstitutionality statute 
rests him who assails ...."' Metropolitan Casualty Ins. Co. New York 
Brownell, 294 U.S.580, 584 (1935) (as quoted Brown Superior Court, Cal. 509, 520 (Cal.1971)). This burden never shifts. 	Facial Challenges Are Disfavored and Those Who Bring Them Bear Heavy Burden. 
The United States Supreme Court has stated that "[f]acial invalidation 'is, manifestly, strong medicine' that 'has been employed the Court sparingly and only last resort. National Endowment for the Arts Finley, 524 U.S. 569, 580 (1998) (quoting Broadrick v.Oklahoma, 413 U.S. 601, 613 (1973) and citing FW/PBS, Inc. Dallas, 493 U.S. 215, 223 (1990) (noting that "facial challenges legislation are generally disfavored")); see also Goldin Public Utilities Com., Cal. 638, 660 (Cal. 1979) (quoting Broadrick, 413 U.S. 613). Consequently, any persons advancing facial challenge statute confronts "heavy burden" advancing their claims. Id. 
"To support determination facial unconstitutionality, voiding the statute whole, petitioners cannot prevail suggesting that some future hypothetical situation constitutional problems may possibly arise the particular application the statute ...." Pacific Legal Foundation, Cal. 
180-181 (emphasis original); see also United States Salerno, 481 U.S. 739, 1987) ("the fact that statute] might operate unconstitutionally under some 
conceivable set circumstances insufficient render wholly invalid ...."). 
"Rather, petitioners must demonstrate that the act's provisions inevitably pose 
present total and fatal conflict with applicable constitutional prohibitions. Pacific Legal Foundation, Cal. 180-181; see also Salerno, 481 U.S. 745 (statute not facially unconstitutional unless every reasonable interpretation would unconstitutional); and City Council Taxpayers for Vincent, 466 U.S. 789, 796-97 (1984) (same)). 	Courts Are Reluctant Expand the Concepts 
Substantive Due Process and Equal Protection. 

Courts have "always been reluctant expand the concept substantive due process Collins, 503 U.S. 125 (citing Regents Univ. Mich. Ewing, 474 U.S. 214, 225-226 (1985)).2 The "doctrine judicial self-restraint requires court] exercise the utmost care whenever asked break new ground this field." Id. similar judicial restraint marks court's] approach the questions whether asserted substantive right entitled heightened This Court considers the decisions the United States Supreme Court and lower federal courts persuasive regarding due process and equal protection the provisions the California Constitution guaranteeing equal protection and due process are substantially the equivalent the equal protection and due process clauses the Fomieenth Amendment. See Department Mental Hygiene Kirchner, Cal. 586, 588 (Cal. 1965); Kavanau Santa Monica Rent Control Ed., Cal. 4th 761, 771(Cal.1997); and Montalvo Madera Unified Sch. Dist. Ed. Education, Cal. App. 323, 333 n.3 (Cal. Ct. App. 1971 
solicitude under the Equal Protection Clause .... Moore City East 

Cleveland, Ohio, 431 U.S. 494, 503 n.10 (1977). 
Judicial restraint critical these areas for several reasons. First, "extending constitutional protection asserted right liberty interest," court effectively places "the matter outside the arena public debate and legislative action." Washington, 521 U.S. 720. Such actions are democratically suspect. Indeed, "[s]uch excursions, embarked upon recklessly, endanger the very ecosystem which such liberties thrive -our republican democracy. Once elevated constitutional status, right effectively removed from the hands the people and placed into the guardianship unelected judges." Williams Ala., 378 F.3d 1232, 1250 (11th Cir. 2004) (citing Glucksberg, 521 U.S. 720). And these constitutional rulings statutes cannot reversed ordinary legislative means. 
"Courts are not representative bodies. They are not designed good reflex democratic society Their essential quality detachment, founded independence. History teaches that the independence the judiciary jeopardized when courts become embroiled the passions the day and assume primary responsibility choosing between competing political, economic and social pressures." Dennis, 341 U.S. 525 (Frankfmier, J., concurring). 
This same rationale applies with equal force courts extending suspect and quasi-suspect protection new classes people. Once court extends suspect quasi-suspect protection new class people, effectively places "the matter outside the arena public debate and legislative action." Washington, 521 U.S. 
720. Consequently, the democratic process thwarted and the popular will potentially frustrated. Courts unnecessarily risk illegitimacy such actions. wonder then that "the Supreme Court has made clear that 'respect for the separation powers' should make courts reluctant establish new suspect classes." Thomasson Perry, F.3d 915, 928 (41h Cir. 1996) (quoting City Cleburne Cleburne Living Center, 473 U.S. 432, 441 (1985)). 
Second, judicial restraint should exercised "because guideposts for responsible decisionmaking this unchartered area are scarce and open-ended." Collins, 503 U.S. 125. "There are risks when the judicial branch gives enhanced protection certain substantive liberties without the guidance the more specific provisions the Bill Rights. the history the Lochner era demonstrates, there reason for concern lest the only limits such judicial intervention become the predilections those who happen the time Members [the] Court. That history counsels caution and restraint." Moore, 431 
U.S. 502 (emphasis original). 
Justice White prudently described the harm that results when courts fail 

exercise judicial restraint this field: 
The Judiciary, including this Court, the most vulnerable and comes 
nearest illegitimacy when deals with judge-made constitutional 
law having little cognizable roots the language even the 
design the Constitution. Realizing that the present construction 
the Due Process Clause represents major judicial gloss its terms, well the anticipation the Framers, and that much the 
underpinning for the broad, substantive application the Clause 
disappeared the conflict between the Executive and the Judiciary 
the 1930's and 940's, the Court should extremely reluctant breathe still further substantive content into the Due Process Clause strike down legislation adopted State city promote 
its welfare. Whenever the Judiciary does so, unavoidably pre
empts for itself another part the governance the country without 
express constitutional authority. 
Moore, 431 U.S. 502 (White, J., dissenting). 
"An unenumerated right should not therefore recognized, with the effect displacing the legislative ordering things, without the assurance that its 
recognition would prove durable the recognition those other rights 
differently derived. recognize right oflesser promise would simply create 
constitutional regime too uncertain bring with the expectation finality that one [a] Court's central obligations making constitutional decisions." 
Glucksberg, 521 U.S. 788-789 (Souter, J., concurring) (citing Planned 
Parenthood Southeastern Pa. Casey, 505 U.S. 833, 864-869 (1992)). 
Lastly, judicial restraint should exercised because, once court 
recognizes new fundamental right, there tendency the "principle expand 
itself the limit its logic," thus creating slippery slope. Glucksberg, 521 U.S. 733 n.23 (citation omitted). The resulting harm obvious: "Each step, when taken, appears reasonable step relation that which preceded it," but "the aggregate end result one that would never have been seriously considered the first instance." United States 200-ft Reels Super 8MM Film, 413 U.S. 123, 127 (1973). Courts should "particularly mindful this fact the delicate area morals legislation. One the virtues the democratic process that, unlike the judicial process, need not take matters their logical conclusion. the people []in time decide that prohibition [in such area morals legislation] misguided, ineffective, just plain silly, they can repeal the law and finished with the matter. the other hand, [courts] craft new 
fundamental right which invalidate the law, [they] would bound give 
that right full force and effect all future cases Williams, 378 F.3d 1250. 
VII. 	The Court Appeals Correctly Applied the Aforementioned Principles the Case Bar. 
Petitioners claimed below, inter alia, that Family Code provisions limiting marriage unions between man and woman "violate their fundamental right 

marry, under the due process and equal protection clauses the California Constitution, and discriminate against them the basis gender and sexual orientation, violation the equal protection clause. (Cal. Const., art.  subd. (a) ['A person may not deprived life, liberty, property without due process law denied equal protection the laws ... '].)." Marriage Cases, 143 Cal. App. 4th 873, 904 (Cal. Ct. App. 2006) (emphasis original). The issue thus presented the Court Appeals was "whether the statutory definition marriage the union man and woman ... unconstitutional because does not permit gays and lesbians marry persons their choice." Id. 889. 
The Court Appeals correctly identified the applicable law. The due process clause includes substantive component that "forbids the government from infringing certain fundamental liberty interests unless the infringement narrowly tailored serve compelling state interest." Id. 905 (citing Reno Flores, 507 U.S. 292, 301-302 (1993); and Dawn Superior Court, Cal. 4th 932, 939-940 (Cal. 1998)). "Impairment fundamental right liberty interest similarly prohibited under equal protection principles." Id. 906 (citing Zablocki Redhail, 434 U.S. 374, 381-382 (1978); and Perez Sharp, Cal. 711, 714, 731-732 (Cal. 1948)). Likewise, law burdens suspect class, 
reviewed under the strict scrutiny test, which requires the state advance compelling interest for the regulation and only use means that are necessary further its purpose. Id. 904, 927-928 (citing D'Amico Board Medical Examiners, Cal. (Cal. 1974); and Serrano Priest, Cal. 728, 761(Cal.1976)). the right not fundamental the classification suspect, then "rational relationship" test employed. Id. 904, 927 (citing Warden State Bar California, Cal.4th 628, 644 (Cal. 1999); and Hardy Stumpf, Cal. 
(Cal. 1978)). This test "extremely deferential" the Legislature. Id. 927. "It manifests restraint the judiciary relation the discretionary act co-equal branch government; doing invests legislation involving such differentiated treatment with presumption constitutionality and 'requir[ merely that distinctions drawn challenged statute bear some rational relationship conceivable legitimate state purpose.' [Citation.]" Id. 927-928 
(quoting D'Amico, Cal. 16). Under this standard review, court must uphold challenged law "if there any reasonably conceivable state facts that could provide rational basis" for it. Id. 928 (quoting Warden, Cal. 4th 644). Where there are "plausible reasons" for the law, court's "inquiry 
end." Id. addition, the statute presumed constitutional and the burden 
the party assailing prove otherwise. Id. (citing D'Amico, Cal. 17). 
The Court Appeals began its substantive due process and equal protection analysis with careful description the asserted right. Id. 908-909; see Reno, 507 U.S. 302 (Equal protection and substantive due process analysis "must begin with careful description the asserted right."); Glucksberg, 521 
U.S. 722 (The High Court has tradition carefully formulating the interest stake substantive-due-process cases."); and Dawn Cal. 4th 940 (This "careful description" must "concrete and particularized, rather than abstract and general."). Rightly so, the Court Appeals precisely described the asserted right issue the right same-sex marriage, opposed the general right marriage. 

The Court Appeals then examined the asserted right light our Nation's history, legal traditions, and practices determine the asserted right fundamental right. Marriage Cases, 143 Cal. App. 4th 907, 910-915; see Moore, 431 U.S. 503 (Fundamental rights are only those rights that are "deeply rooted this Nation's history and tradition."); and Dawn D., Cal. 4th 940 (Fundamental right must find "support our history, our traditions, and the 
conscience our people.").3 The Court Appeals correctly found that there historical tradition same-sex marriage this country. Marriage 
Cases, 143 Cal. App. 4th 907, 910-915. Indeed, the Court found, citing host 
cases, legislation, and other authorities, that, rather than being "deeply rooted" 
right, the asserted right has "never existed before" and novel idea. Id. 911. 
The Court rightly held that this novelty "precludes its recognition 
constitutionally protected fundamental right." Id.; see Flores, 507 U.S. 303 
("The mere novelty" claimed right weighed against being ranked 
fundamental.). Consequently, the Court correctly rejected Petitioners' 
fundamental right argument. Marriage Cases, 143 Cal. App. 4th 911. See also Glucksberg, 521 U.S. 721 (Fundamental rights are those rights "implicit the concept ordered liberty, such that neither liberty nor justice would exist they were sacrificed.") (citation and internal quotation marks omitted); Snyder Massachusetts, 291 U.S. 97, 105 (1934) ("so rooted the traditions and conscience our people ranked fundamental"); Wisconsin Yoder, 406 U.S. 205, 232 (1972) (Right fundamental when reflects "strong tradition" founded "the history and culture Western civilization," and "established beyond debate enduring American tradition."); Ginsberg New York, 390 U.S. 629, 639 (1968) (Right fundamental when "basic the structure our society."); Griswold, 381 U.S. 485-86 (Fundamental right was "older than the Bill Rights"); id. 496 (Fundamental right was "as old and fundamental our entire civilization.") (Goldberg, J., joined WaiTen, C.J., and Brennan, J., concurring); and Collins, 503 U.S. 126 (Right not fundamental because "[n ]either the text nor history the Due Process Clause" supported such finding)). 
Regarding Petitioners' discrimination claim under the equal protection clauses, the Court Appeals correctly found that the overwhelming weight authority holds that homosexuality not suspect class. Marriage Cases, 143 Cal. App. 4th 919-922. Indeed, controlling case holds that homosexuality constitutes suspect class for equal protection purposes. Similarly, the United States Supreme Court and lower federal courts hold that laws which burden homosexuality not require strict scrutiny. See Lawrence Texas, 539 
U.S. 558, 578 (2003) (Court refused apply strict scrutiny test Texas antisodomy law, but instead found law furthered "no legitimate state interest."); High Tech Gays Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573-574 (9th Cir. 1990) (homosexuality not suspect class); Thomasson Perry, F.3d 915, 928 (4th Cir. 1996) (same); Equal. Found. Greater Cincinnati. Inc. City Cincinnati, 128 F.3d 289 (6th Cir. 1997) (same); Richenberg Perry, F.3d 256 (7th Cir. 1996) (same); Ben-Shalom Marsh, 881F.2d 454 (7th Cir. 1989) (same); Holmes Cal. Army Nat'! Guard, 124 F.3d 1126 (9th Cir. 1997) (same); Rich Secretary Army, 735 F.2d 1220 (10th Cir.1984) (same); Lofton Sec'y the Dep Children Family Servs., 358 F.3d 804 (11th Cir. 2004) (same); Steffan Perry, 41F.3d 677 (D.C. Cir. 1994) (same); and Woodward United States, 871F.2d 1068 (Fed. Cir. 1989) (same). addition, the Court Appeals prudently refused create new suspect class for homosexuals who seek marry. "For statutory classification considered 'suspect' for equal protection purposes, generally three requirements must met. The defining characteristic must based upon 'an immutable trait'; (2) 'bear[] relation person's] ability perform contribute society'; and (3) associated with 'stigma inferiority and second class citizenship,' manifested the group's history legal and social disabilities." Marriage Cases, 143 Cal. App. 4th 922 (citing Sail'er Inn, Inc. Kirby, Cal. 18-19 (Cal. 1971)). the instant matter, the Court Appeals correctly observed that there considerable and widespread debate about whether homosexuality "an immutable trait." Id. 922. Seeing that the "facts necessary resolve the controversy are not readily ascertainable through the judicial process; but are more readily subject discovery through legislative factfinding and experimentation," Washington, 521 U.S. 787 (Souter, J., concurring), the Court was wise not inject itself into the debate unnecessarily this time. See Tennessee Publishing Co., 299 U.S. "court will not anticipate the decision constitutional question upon record which does not appropriately present it."). 
What more, the Court Appeals correctly held that establishing 

homosexuality suspect class the sparse record this case would not make for solid decision. noted the Court, the "trial court did not conduct evidentiary hearing, and factual record was developed addressing the three suspect classification factors." Marriage Cases, 143 Cal. App. 4th 922
923. This Court and any court should "reluctant establish new suspect classes," (Thomasson, F.3d 928 (quoting City Cleburne, 473 U.S. 441)), and this Court and all courts should "do well tread carefully and exercise judicial restraint" when considering the establishment any new suspect class. Matrixx Initiatives, Inc., 138 Cal. App. 4th 881. The Court should not innovate social policy creating new suspect class for homosexuals who seek marry, (Sharon Cal. 4th 443 but should defer the focused judgment the Legislature, especially with respect matters bearing the structure and dynamics the family. West Superior Court, Cal. App. 4th 306; Pacific Legal Foundation, Cal. 180. The Court Appeals correctly rejected Petitioners' suspect class argument. Marriage Cases, 143 Cal. App. 4th 
923. 
CONCLUSION rejecting Petitioners' fundamental right and suspect class arguments, the Court Appeals prudently exercised judicial restraint and refused usurp the power the legislative redefining otherwise expanding judicial fiat the concept marriage include the idea same-sex marriage which has been rejected directly the people California and through their elected representatives the Family Code provisions. Applying the judicial restraint principles mentioned throughout this brief, the Court perceptively stated: 
Courts simply not have the authority create new rights, especially when doing involves changing the definition fundamental institution marriage. '"The role the judiciary not rewrite legislation satisfy the court's, rather than the Legislature's, sense balance and order. Judges are not' 'knight[s]errant, roaming will pursuit [their] own ideal beauty goodness.' [citation]" (People Carter (1997) Cal. App. 4th 128, 134 Cal. Rptr. 845].) other words, judges are not free rewrite statutes say what they would like, what they believe better social policy. 
Id. 889-890. The Court rightly concluded that the power change the definition marriage rests with the people and their elected representatives and that its role here was simply decide the legal issues based precedent and the appellate record, which did. This prudent conclusion should not overturned. 

Dated: June 19, 2007 Respectfully submitted, 

JUDICIAL WATCH, INC. 2540 Huntington Drive, Suite 201 San Marino, 91108-2601 Tel: 626) 287-4540 Fax: (626) 237-2003 
Paul Orfanedes (Not member the California Bar) Dale Wilcox (Not member the California Bar) JUDICIAL WATCH, INC. Suite 500 501 School Street, Washington, 20024 Tel: (202) 646-5172 Fax: (202) 646-5199 
Counsel for Amicus Curiae 

CERTIFICATE COMPLIANCE PURSUANT RULE certify that pursuant Rule 8.520( the attached brief proportionally spaced, has typeface points more and contains 7644 words. 
June 19, 2007 l'l {TI Sterling Norris 
PROOF SERVICE David Rothstein, declare that over the age eighteen and not party this action. business address 501 School Street, S.W. Suite 500, Washington, D.C. 20024. June 19, 2007, served Brief Amicus Curiae Judicial Watch, Inc. Support the State California and Governor Arnold Schwarzenegger the interested parties this action the manner indicated below: Mail: readily familiar with the business practice for collection and processing correspondence for mailing with the United States Postal Service. know that the correspondence was deposited with the United States Postal Service the same day this declaration was executed the ordinary course business. know that the envelopes were sealed, and with postage thereon fully prepaid, placed for collection and mailing this date, following ordinary business practices, the United States mail Washington, D.C. (as indicated the Service List). declare under penalty perjury under the laws the United States 
America and the State California that the foregoing true and correct and that this declaration was executed June 19, 2007, Washington, D.C. 

David Rothstein 
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Attorneys for Plaintiff and Respondent  Attorneys for Plaintiff and Respondent  
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Stephen Bomse  Vanessa Helene Eisemann  
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LLP  National Center for Lesbian Rights  
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Ross Heckmann Attorney Law 1214 Valencia Way Arcadia, 91006 
Attorneys for Defendant and Appellant Campaign for California Families 
Mary Elizabeth Mcalister Mathew Staver Rena Lindevaldsen Liberty Counsel Liberty Counsel 1055 Maitland Center Commons, 2nd 100 Mountain View Road, Suite 2775 Floor Lynchburg, 24506 Maitland, 32751 
Attorneys for Defendant and Appellant  Attorneys for Defendant and Appellant  
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al.  al.  
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