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Prop 8 JW AEF Amicus Brief

Prop 8 JW AEF Amicus Brief

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Date Created:January 28, 2013

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No. 12-144 THE 

Supreme Court the United States 
DENNIS HOLLINGSWORTH, AL., 
Petitioners, 
KRISTEN PERRY, AL., 
Respondents. Writ Certiorari the United States 
Court Appeals for the Ninth Circuit  

BRIEF AMICI CURIAE JUDICIAL
 WATCH, INC. AND ALLIED EDUCATIONAL 
FOUNDATION SUPPORT PETITIONERS
 
Paul Orfanedes 
Counsel Record 
Chris Fedeli Julie Axelrod JUDICIAL WATCH, INC. 425 Third Street S.W., Ste. 800 Washington, D.C. 20024 
(202) 646-5172 porfanedes@judicialwatch.org
    Counsel for Amici Curiae 
Dated: January 29, 2013 
TABLE CONTENTS 

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

TABLE AUTHORITIES ..................................... iii 

INTEREST THE AMICI CURIAE .......................1 

SUMMARY ARGUMENT ....................................2 

ARGUMENT ...............................................................3	 
THE COURT SHOULD RE-ESTABLISH 
RATIONAL BASIS REVIEW ......................3 
The Ninth Circuit Redefines 
Proposition Order Mask the 
Laws Rational Relationship
Procreation .........................................4 
The Ninth Circuit Improperly
Claimed the Right Judge California
Voters Hearts and Minds ................11 

II.	 
DEMOCRATIC DECISION-MAKING 
SHOULD PROTECTED FROM THE 
OVERBEARING JUDICIAL POWER 
RESPONDENTS PREFER ........................15 

III. PETITIONERS NOT HAVE 
STANDING, DEMOCRATIC SELFGOVERNANCE ACROSS THE NATION
 WILL THREATENED .........................21 

CONCLUSION..........................................................25 

TABLE AUTHORITIES 
CASES 
City Cleburne Cleburne Living Center, 
473 U.S. 432 (1985) .............................................
 
Citizens Against Rent Control/Coalition for 
Fair Housing Berkeley, 
454 U.S. 290 (1981) .............................................
 
Crawford Board Education, 
458 U.S. 527 (1982) ............................................. 

Dandridge Williams, 
397 U.S. 471 (1970) ............................................. 

FCC Beach Communications, Inc., 
508 U.S. 307 (1993) ................................. 10, 12,   

Heller Doe, 
509 U.S. 312 (1993) ........................... 10, 13, 14-15 

Johnson Robison, 
415 U.S. 361 (1974) ............................................. 

Kadderly Portland, Ore. 118 (1903) ...............................................
 
Karcher May, 
 484 U.S. (1987) ..............................................
 
Lawrence Texas, 
539 U.S. 558 (2003) .............................................
 
Murphy Ramsey, 
114 U.S. (1885) ............................................... 

Perry Brown, 671 F.3d 1052 (9th Cir. 2012) .................... passim 
Perry Brown, Cal. 4th 1116 (2011) ................................ 23,
 
Richardson Ramirez, 
418 U.S. (1974) ...............................................
 
Romer Evans, 
517 U.S. 620 (1996) ........................... 11, 16, 17, 

Strauss Horton, Cal. 4th 364 (2009) .................................. 23, 

United States Carolene Products, 
  304 U.S. 144 (1938) ..................................... 19,
 
Va. Office for Protection Advocacy Stewart,
131 Ct. 1632 (2011) ................................... 16, 

OTHER AUTHORITIES 
William Blackstone, Commentaries the Laws
 England (1765-1769), available at:
http://www.lonang.com/exlibris/blackstone/bla116.htm ........................................................................   

Chelsea Carter and Allison Brennan, Maryland, Maine, Washington approve same-sex marriage; states legalize pot, CNN, Nov. 2012, available http://www.cnn.com/2012/11/01/politics/ballotinitiatives/index.html ................................................ 
Citizens Charge Foundation, State Voting Rights, http://www.citizensincharge.org/states (visitedJanuary 18, 2012) ..................................................... 
Thomas Cronin, Direct Democracy: The Politics Initiative, Referendum, and Recall, (HarvardUniversity Press 1999) .............................................. 
Marta Mossburg, OMalleys thuggish side: Governor wants the world see kind and inclusive Maryland  but don't you dare disagree with him, Baltimore Sun, Jan. 2013, available http://www.baltimoresun.com/news/opinion/oped/bs-ed-mossburg-omalley-20130102, 0,2173154.column ..................................................... 
The Russian Effort Abolish Marriage, The Atlantic (July 1926), available athttp://www.theatlantic.com/magazine/archive/1926/07/the-russian-effort-to-abolish-marriage/306295/ .... 
Lynn Wardle, The Withering Away Marriage: Some Lessons from the Bolshevik Family Law Reforms Russia, 1917-1926, Geo. Pub. Policy 469 (Summer 2004) ........................................ 

INTEREST THE AMICI CURIAE 
Judicial Watch, Inc. non-partisaneducational foundation that seeks promote transparency, integrity, and accountability government and fidelity the rule law.  Judicial Watch regularly files amicus curiae briefs means advance its public interest mission and has appeared amicus curiae this Court many occasions. Judicial Watch and its attorneys alsopreviously filed amicus curiae briefs with the California Supreme Court this case concerning Proposition 2011, and the predecessorCalifornia marriage initiative proceeding(Proposition 22) 2007. 
The Allied Educational Foundation (AEF) nonprofit charitable and educational foundation based Englewood, New Jersey. Founded 1964, AEF dedicated promoting education diverseareas study. AEF regularly files amicus curiae briefs means advance its purpose and hasappeared amicus curiae this Court many occasions. 
Amici believe that the decision the U.S. Courtof Appeals for the Ninth Circuit (hereinafter, Ninth  Pursuant Supreme Court Rule 37.6, amici curiae state that counsel for party authored this brief whole part; and that person entity, other than amici curiae and their counsel, made monetary contribution intended fund the preparation and submission this brief.  All parties haveconsented the filing this brief; letters reflecting thisblanket consent have been filed with the Clerk.  
Circuit lower court) unlawfully limits the right the people make laws, and are concerned about the effect that decision the rule law. Amongthe harms caused the Ninth Circuits decision are: unlawful expansion power the federal judiciary; drastic revision the concept rational basis Equal Protection analysis; and dangerous erosion democratic self-governance. For these and other reasons, Amici urge the Court reverse the Ninth Circuits decision.   

SUMMARY ARGUMENT order find that rational policy reasoncould support Proposition the Ninth Circuitredefines the purpose marriage such way that would eliminate any rational basis for limitingmarriage opposite sex marriage. The Ninth Circuits sleight-of-hand decision therefore constitutes dangerous erosion the principle rational basis review, namely that any legitimate interest put forth support legislation sufficient uphold the law. Furthermore, the Ninth Circuit decision expands the reaches the EqualProtection clause such way eclipse the peoples sovereign authority make laws for their own governance, whether directly through their elected representatives.  However, neither Equal Protection nor Substantive Due Process jurisprudence supports the outcome reached below. The ruling, therefore, proclaims that the Constitution prevents states from withdrawingrights from groups without legitimate reasons, and that Californians could not have had legitimate reasons pass Proposition This unjustifiedconclusion that imputes the worst possible motivesto voters, despite the lower courts protestations tothe contrary. Finally, this Court should find that petitioners have standing bring this appeal, acontrary ruling would undermine the peoples rightsto initiative and referendum twenty-six states.   

ARGUMENT	 THE COURT SHOULD RE-ESTABLISH RATIONAL BASIS REVIEW. 
The Ninth Circuit committed errors constitutional law that undermine rational basis review. Rational basis review itself bulwark that protects democratic self-governance from intrusion the less accountable and more insulatedactions the judicial branches. The lower courts decision therefore dangerous both the principlesand practice self-governance.   
The Ninth Circuit erred two ways.  First, the law that Proposition enacted bears rationalrelationship the legitimate state goal increasingthe chances that both parents will raise children they unintentionally conceive.  Second, the Ninth Circuit should never have tried divine the motives voters this case. Well-established precedent guards against precisely this kind second-guessing democratically made decisions. The Ninth Circuit Redefines Proposition Order Mask the Laws Rational Relationship Procreation.  
Proposition rationally related the goal ensuring that greater number children grow upwith the involvement both parents instead one those situations where least likely occur.The Ninth Circuit found that preserving the opposite-sex requirement marriage cannot facilitate more two-parent households any waythat could not also achieved including same sex couples the legal definition marriage.However, the Ninth Circuit was only able reach this conclusion subtly changing the meaning ofthe word marriage embodied Proposition 8and traditionally understood.  The lower court accomplishes this redefining the purpose ofmarriage one the people California have never considered nor approved. This semantic trick should not countenanced. 
The state action question  preserving theopposite-sex requirement marriage  rational way facilitate the goal maximizing two parent households. The relationship between the two iseasy explain. Placing social pressure adults tocommit each other after they conceive childrenunintentionally makes more likely that they will so. Having institution marriage which isunderstood expectation commit anotherperson for the benefit children achieves this social pressure. the contrary, institution marriage which understood societal recognition for the sake the happiness and socialacceptance already-committed adult partners fails achieve this pressure, and may fact alleviate the pressure marry.  Because only opposite-sexrelationships can result unintentionally conceivedchildren, institution marriage which includesonly opposite-sex couples rational.   
The Ninth Circuit, the other hand, writes that societal recognition for committed adult couples the true purpose marriage, and therefore there isno rational justification exclude same-sex couplesfrom marriage other than prejudice.  Perry Brown,671 F.3d 1052, 1064 (9th Cir. 2012). The Ninth Circuit achieves this act redefinition allowingitself focus the similarities between same-sex and opposite-sex relationships while ignoring the categorical differences. Perhaps the most consequential difference between same-sex and opposite-sex relationships that one can result unplanned children and the other cannot.  The Ninth Circuit states that the underlying drama for same-sex couples different from that opposite-sexcouples. Perry 1078. However, that statement not entirely accurate.  The underlying drama what known figuratively shotgun marriage something same-sex couple has ever experienced. 
The Ninth Circuits decision also ignores thedrama already married opposite-sex couples who conceive children they had not planned for. Such unplanned pregnancies can happen while couples are using birth control, and can occur couples who were planning have children later who have already had many children they wish. The drama such incidences can create even within happy marriages significant and can seriously test marriage, especially when both partners notinitially react the unplanned pregnancy the same way. Laws that encourage unintentionally-conceiving couples stay together for their children,and not necessarily for the sake their own happiness, therefore serve the interest child who might otherwise grow without the involvement both parents. Based this rational policypreference, wholly irrelevant whether same-sexcouples are equally skilled opposite-sex couples the tasks raising children.  Rather, the intended area impact the most vulnerable ofcouples who unintentionally conceive children. the heart opposite-sex relationships abiological asymmetry: women are more vulnerable tobeing left raise children alone.  The legal andsocial obligatory aspects the traditional institutionof marriage bind father his children and their mother.2 ignoring this key element opposite-sex relationships, the Ninth Circuit able devisea new purpose for marriage that applies equally same-sex couples. the Ninth Circuits view,  William Blackstone, Commentaries the Laws England (1765-1769), available at: http://www.lonang.com/exlibris/blackstone/bla-116.htm (the establishment marriage all civilized states built thisnatural obligation the father provide for his children; forthat ascertains and makes known the person who bound tofulfill this obligation; whereas, promiscuous and illicit conjunctions, the father unknown.). 
marriage longer necessary tool pressure uncommitted adults who conceive children marry.Rather, the Ninth Circuit believes that marriage isabout bestowing laurels committed couples.  The lower court has therefore changed the purpose ofmarriage one conferring benefit marryingcouples, rather than imposing social expectation couples conceiving children, the ultimate beneficiaries which are unintentionally conceivedchildren. 
With this new judicially imposed purpose, theNinth Circuit reconceives marriage the recognition that the State affords those who are instable and committed lifelong relationships and theprincipal manner which the State attaches respectand dignity the highest form committed relationship and the individuals who have enteredinto it. Perry 1079.  The Ninth Circuit therefore justified its flawed conclusion that there legitimate reason that marriage cannot stretched include the union same-sex couples dictating new purpose for the institution marriage California according its own policy preferences.   
This new definition the purpose marriagedeparts widely from the traditional understanding why societies use the concept marriage begin with, and opens many new problems. Indeed, unclear why the Ninth Circuits purpose for marriage would not also apply unmarried adultsiblings who live together with the intention ofalways doing so, lifelong committed platonic roommates. marriage redefined legal relationship where the sex the participants isirrelevant, difficult imagine why the lawshould proclaim that the highest form committed relationship one where the participants intend engage physicallyintimate relationship. Such bias could considered irrationally prejudiced against those who are not interested sex, those who are unable find committed partners.   
The traditional view marriage, the otherhand, avoids these outcomes putting the focus onthe parenting needs children rather than the emotional needs grown adults. Proposition 8views marriage designed influence the behaviorof targeted group males who prefer not topartner with females child-raising efforts afterconceiving children  not institution thatfunctions award state recognition for adultswho achieve stable and committed relationships. When reserved for opposite-sex couples, marriagetherefore increases the chances that couplesunintentionally conceiving will enter into stable andcommitted sexual relationships when they mightprefer otherwise. 
Completing its circular argument, the Ninth Circuit goes state that [t]here rationalreason think that taking away the designation ofmarriage from same-sex couples would advance thegoal encouraging Californias opposite-sex couplesto procreate more responsibly, and adds that isimpossible believe that the people California could have conceived such argument true. 
Perry 1088, 1089. However, the Ninth Circuits new revisions the historical purpose marriageare the only thing that makes this untrue. Basic logic therefore shows the plausibility what the Ninth Circuit could not imagine possible.   
This plausibility established the mere fact that there difference between expectation and reward. the state-imposed purpose marriage that arrangement designed ensure biological parents commit collaborating raise their offspring, the institution imposes social pressure opposite-sex couples enter into matrimony. If, the other hand, the state-imposed purpose marriage the one that the NinthCircuit prefers  that the legal title marriage reward for entering into committed lifelongrelationship  reasonable project that moreopposite-sex couples will forgo it. The social disapproval costs borne not doing something oneis supposed even when doing not mandatory (such recycling plastics, marrying after conceiving), are different kind from those borne failing achieve some social distinction ofmerit. The former something expected everyonein certain situation, for which failure complyconstitutes violating social norm. The latter denotes special achievement social maturity, for which failure achieve can attributed variety causes: bad luck, divergent opinions about the merit monogamous relationships, merelack interest laurels. reasonable minds may disagree over which marriage model will have thedesired impact unintentionally conceived children, the choice therefore one that must left the people California. FCC Beach Communications, Inc., 508 U.S. 307, 313 (1993). 
Same-sex marriage advocates might point outthat most opposite-sex couples marry without anunplanned pregnancy, that some opposite-sexcouples marry without any intention raisingchildren the first place.  However, the fact that marriage only sometimes the result inadvertent conceptions does not undermine the basis for rational distinction between the same-sex and opposite-sex couples.  A classification does not fail rational-basis review because not made with mathematical nicety because practice resultsin some inequality. Heller Doe, 509 U.S. 312, 321 (1993) (internal citation omitted). The inclusion opposite-sex relationships the institution marriage promotes the governmental purpose encouraging the two natural parents childrenwhose conception was unplanned enter into astable relationship that would best for thosechildrens upbringing. The inclusion same-sex relationships would not promote such purpose.Conversely, because the same-sex inclusive justification for marriage one reward rather than uniform expectation, couples may less inclined endure it, which would therefore undermine the purpose ensuring unintendedpregnancies more often lead marriage. When, asin this case, the inclusion one group promotes alegitimate governmental purpose, and the additionof other groups would not, cannot say that the statutes classification beneficiaries and nonbeneficiaries invidiously discriminatory. Johnson Robison, 415 U.S. 361, 383 (1974). sum, only severing the meaning marriage from procreation can the Ninth Circuitdeny that Proposition rationally related toresponsible procreation. The Ninth Circuits reasoning should not allowed stand. courts can overturn laws reimagining their purpose, the judiciarys power over the legislative process will enormous. The Ninth Circuit Unlawfully Claimed the Right Judge California Voters Hearts and Minds. 
The Ninth Circuit unlawfully judged seven million California voters motivated eitherdisapproval ignorance about same-sex couples. Perry 1093. explained Section I.A. supra, the lower court justified this conclusion primarily twisting the meaning marriage itself into one that could only denied same-sex couples because ill motives. The decision therefore rests the false rejection the policy goal maximizing adultresources devoted child rearing order arriveat its conclusion that Proposition was based onnothing more than malice disapproval towardshomosexual couples. Perry 1086. further justification, the Ninth Circuit arguesthat merely following Romer Evans, 517 U.S. 620 (1996) striking down the law, holding that Romer means Proposition was inexplicable for any reason other than animus towards the affected group. Perry, 671 F.3d 1092-1095. This argumentfrom precedent, however, fares better than theNinth Circuits semantic argument.   
The Ninth Circuit claims that, because Proposition continues allow civil unions option for same-sex couples, Proposition thereforecould not have been enacted advance Californias interest childrearing responsible procreation. Id. 1063. While the Ninth Circuit may not believe that special designation for opposite-sex couplescould possibly advance the cause responsibleprocreation, the court has overstepped its authority refusing credit supporters Proposition withsuch reasonable belief. 
For law survive rational basis review, not necessary that there other, better legislative method achieve legitimate state goal.If the Ninth Circuits decision stands, this canon review would jeopardized.  This turn would severely undermine the purpose this lessened-scrutiny standard judicial review and reduce thecircumstances under which Americans may governthemselves. [E]qual protection not license for courts judge the wisdom, fairness, logic legislative choices. FCC, 508 U.S. 313. The Constitution presumes that, absent some reason infer antipathy, even improvident decisions willeventually rectified the democratic process and that judicial intervention unwarranted matterhow unwisely may think political branch hasacted. Id. 314. 
The Ninth Circuit claims that Proposition isunconstitutional because it once too narrow and too broad for changes the law far too little have any the effects purportedly was intendedto yield Perry 1095. However, laws reviewed under the rational basis test not have meet such standard.  [T]he legislature must allowed leeway approach perceived problem incrementally. FCC 316; see also Heller, 509 U.S. 321. 
Detractors Californias Proposition mightargue that the purpose responsible procreationcould better achieved strengthening childsupport obligations for fathers who conceive withoutmarrying, restricting the availability divorce. While both propositions may true, they are also irrelevant Proposition 8s Constitutionality. The people California have theright decide for themselves the ways which theywant either restrict liberalize their marriage laws  not. Moreover, virtually incontestable that almost any significant liberalization themarriage laws will have least some effect the broader social structure.3 Accordingly, would See e.g. Lynn Wardle, The Withering Away Marriage: Some Lessons from the Bolshevik Family Law Reforms Russia, 1917-1926, Geo. Pub. Policy 469, 470,479, and 489 (Summer 2004) (The Bolsheviks believed, along ideological Marxist lines, that marriage existed Westernsociety would eventually wither away, but that the new state should help that process along since bourgeois, monogamous traditional marriage perpetuated oppressive, unjust socioeconomic order.  The dissolution marriage would legallyfacilitate the advent true communist state.  Bolshevik 
the rare marriage law change that would not rationally related some legitimate state purpose.As this Court has stated: 
[N]o legislation can supposed more wholesome and necessary the founding ofa free, self-governing commonwealth thanthat which seeks establish the basis the idea the family, consisting andspringing from the union for life one man and one woman the holy estate matrimony. 
Murphy Ramsey, 114 U.S. 15, (1885). 
Accordingly, the people California may make adistinction between sets couples based their relative risks unplanned conception order increase the chances responsible procreation even that goal could achieved other ways. Theproblems government are practical ones and mayjustify, they not require, rough accommodations 
 illogical, may be, and unscientific. Heller, 509 
family law sought transfer the responsibility child rearing from parents the state, since the family, together with allproperty relations, was considered the root all socialills.).  The consequences early Bolshevik family engineering were documented as: epidemic divorces; economic hardship women and children, particularly among the peasantry; increase shelterless (bezprizorni) children;and ultimately diminished social status for women despite the feminist Bolshevik rhetoric. See The Russian Effort Abolish Marriage, The Atlantic, July 1926, available http://www.theatlantic.com/magazine/archive/1926/07/therussian-effort-to-abolish-marriage/306295/ 
U.S. 321 (internal citation omitted). The Ninth Circuits arguments attacking the logic Proposition 8s supporters could made against virtually any law set laws that gives benefits some but not others (such provisions the tax code, for instance). this Court has explained: 
But the Equal Protection Clause does notrequire that State must choose between attacking every aspect problem notattacking the problem all. enoughthat the States action rationally basedand free from invidious discrimination Conflicting claims morality and intelligence are raised opponents andproponents almost every measure. 
Dandridge Williams, 397 U.S. 471, 486-487 (1970)(internal citation omitted).  
II. DEMOCRATIC DECISION-MAKING SHOULD PROTECTED FROM THE OVERBEARING JUDICIAL POWER RESPONDENTS PREFER. 
The Ninth Circuits decision relies the creative argument that Proposition unlawfulbecause functioned take away previouslygranted right. Perry 1085, 1088, 1092, 1095. That holding judicial overreach odds withprecedent and must reversed. allowed stand, the Ninth Circuits ruling would create new oneway ratchet rule allowing state judiciaries grant new rights which are instantly irrevocable thecitizens that state. This Court has held that there are limits the Federal Governments power affect the internal operations State. Va. Office for Protection Advocacy Stewart, 131 Ct. 1632, 1641 (2011). there are such limits, then the Ninth Circuits unilateral decision create new law its nine-state jurisdiction awarding expanded powers the state judiciaries over theirlegislatures and citizens appears have crossedthem. 
Neither Equal Protection nor Substantive DueProcess analysis supports the outcome reached below. The Ninth Circuit incorrectly reads Romer Evans holding that states violate the EqualProtection Clause one branch state government grants same-sex marriages, but then overruled higher state authority. federal precedent requires that rights not required the Constitutioninitially become mandatory once granted. particular, the Ninth Circuits ruling conflicts withthis Courts precedent Crawford Board Education, 458 U.S. 527 (1982). Crawford, the Supreme Court rejected the notion that once state chooses more than the Fourteenth Amendment requires, may never recede. Crawford 535. The Ninth Circuits decision and interpretation Romer Evans cannot reconciled with Crawford, and its attempts are unpersuasive. Perry 1084-1085. 
Romer Evans does not support the idea thatthe Equal Protection Clause codifies one-way ratchet which benefits extended stateauthority can never removed. Rather, Romer more properly viewed decision protecting citizen freedoms  especially the freedom petition thegovernment for redress grievances.  Romer struck down state law not only because singledout homosexuals for different treatment, but because infringed upon protected rights everyone who might choose advocate their behalf.  The law struck down Romer  Colorado Amendment  was understood both the Colorado Supreme Courtand the U.S. Supreme Court infringe upon broad array basic rights.  Amendment explicit terms prohibits all legislative, executive judicial action any level state local government designed protect the named class, class shall refer homosexual persons gaysand lesbians. Romer 624. Homosexuals are forbidden the safeguards that others enjoy mayseek without constraint.  Id. 634. Amendment removed protections against exclusion from almost limitless number transactions and endeavors that constitute ordinary civic life free society. Id. 631. A law declaring that generalit shall more difficult for one group citizens than for all others seek aid from the government itself denial equal protection the laws the most literal sense.  Id. 633. was this far-reaching aspect Colorado Amendment  the peculiar property imposing abroad and undifferentiated disability single named group and the laws exceptional nature which caused the Supreme Court strike downupon rational basis review. Id. 632. extend Romers reasoning strike down very unexceptional definition marriage between aman and woman would open the door thenullification many legal classifications with whichthe courts disagree. 
Similarly, this courts Due Process jurisprudencefails support the notion that the Constitutionrequires states award same-sex marriage licenses.Consider Lawrence Texas, 539 U.S. 558 (2003),which struck down state statute criminalizing certain sexual conduct between two people the same sex. The Lawrence court held that individuals had right engage private consensual sexualactivity free from the dictates state governments. the present case, Respondents ask the Court dictate the states codification voluntary adultrelationships. Accordingly Lawrence, like Romer, should properly viewed addressing libertyinterests, and similarly inapposite the case bar. addition, this Courts constitutional jurisprudence requires that Proposition subjectto rational basis review rather than heightened scrutiny. The Court has traditionally viewed sexualorientation non-suspect classification. review the history and purposes the heightenedscrutiny standard, along with consideration ofcurrent events, demonstrates that any case forchanging that classification has only grown weakerin recent years. The passage Proposition 8therefore does not constitute failure democratic processes which heightened scrutiny review wasdesigned protect against.  
The use heightened scrutiny evaluatewhether democratically-enacted laws violate the Constitutional rights minority groups was established United States Carolene Products, decision which instructed courts consider whether prejudice against discrete and insularminorities may special condition, which tendsseriously curtail the operation those politicalprocesses ordinarily relied upon protect minorities, and which may call for correspondinglymore searching judicial inquiry. 304 U.S. 144, 153 (1938). The Carolene Products Court determined this searching review was only appropriate wherethe democratic processes fail adequately protect the rights certain groups. While the heightenedreview standard was further elaborated over time, the Court has continually refused apply lawsaffecting those with minority sexual orientation.The Courts rationale for using heightened standards demonstrates why strict scrutiny remains inappropriate for sexual orientation: 
When social economic legislation atissue, the Equal Protection Clause allows the States wide latitude  and the Constitution presumes that even improvident decisionswill eventually rectified the democratic processes. The general rule gives way,however, when statute classifies race,alienage, national origin. These factorsare seldom relevant the achievement any legitimate state interest that laws grounded such considerations are deemed reflect prejudice and antipathy--a view that those the burdened class are not worthy deserving others. For these reasons and because such discrimination unlikely soon rectified legislative means, these laws are subjectedto strict scrutiny and will sustained only they are suitably tailored serve compelling state interest.   
City Cleburne Cleburne Living Center, 473 U.S. 432, 440 (1985) (emphasis added). 
The concept suspect classifications was not designed changed merely accommodatechanges social mores. the class suspectgroups were easily expanded, social policy wouldlargely made the courts. Carolene Products noted, the mere presence minority group does not trigger heightened scrutiny; the minority groupmust unable access the normal politicalprocesses for its own protection. The fact that same-sex marriage proponents won popular statewideinitiatives three states last November shows that rational basis review remains appropriate for these politically empowered same-sex marriage advocates.4 The strict scrutiny standard should only used insituations where minorities are consistently andforeseeably politically powerless and unable persuade the majority through political means.  Chelsea Carter and Allison Brennan, Maryland, Maine, Washington approve same-sex marriage; states legalize pot, CNN, Nov. 2012, available http://www.cnn.com/2012/11/01/politics/ballotinitiatives/index.html. 
can longer said that same-sex marriage advocates have realistic hope convincingmajorities honestly and fairly consider whether alter the institution marriage. California, Maryland, Maine, and Washington have all shown,democracy currently working intended andshould not shut down this Court. 
III. PETITIONERS NOT HAVE STANDING, DEMOCRATIC SELF-GOVERNANCE ACROSS THE NATION WILL THREATENED. citizens not have the right defend court the laws they pass popular initiative, the powers popular initiative and referendum granted twenty-six states5 would rendered meaningless. therefore critical importance Amici that this Court hold that Petitioners have standing. The political processes initiative andreferendum were introduced into the states give the people greater control over their governments.6 These direct democracy laws enable the people toreserve larger share legislative power forthemselves while still leaving some power their elected representatives.  Kadderly Portland, Ore. 118, 145 (1903). practice, this often means  See Citizens Charge Foundation, State Voting Rights, http://www.citizensincharge.org/states (visited January 18, 2012).  Thomas Cronin, Direct Democracy: The Politics Initiative, Referendum, and Recall, (Harvard University Press 1999) (initiative processes were designed reduce corruption the legislatures and make legislators more attentive public opinion).   
that direct democracy initiatives will implement laws that are unpopular with certain government officials  partly because government officials oftenprefer not instructed how their jobs.7 Because these same government officials can thenwithhold state legal defense these laws court, popular initiatives would frequently risk being overturned default federal court without citizens standing defend the laws they pass.Furthermore, both this Court and the Ninth Circuit have recognized, California has extended more popular initiative rights and greaterprotections its citizens defend initiatives court than perhaps any state the union.  Citizens Against Rent Control/Coalition for Fair Housing Berkeley, 454 U.S. 290, 310-311 (1981); Perry 1074-1075. ruling that Proposition 8s supporters did not have standing defend their law would therefore constitute devastating blow thepeoples rights direct democracy across the country.
This Courts past decisions support finding that Proposition 8s supporters have standing.Federal courts generally defer states determine See e.g. Marta Mossburg, OMalleys thuggish side: Governor wants the world see kind and inclusive Maryland 
 but don't you dare disagree with him, Baltimore Sun, Jan. 2013 (...Governor OMalley told WBAL that a little too easy petition law referendum Weve been best served our state over the 200 more years our history bya representative democracy, rather than plebiscites, said.How clever him use the language democracy undermine it.), available http://www.baltimoresun.com/news/opinion/oped/bs-edmossburg-omalley-20130102,0,2173154.column. 
who has the authority bring suit court, and the federal government also defers states decide who may assert the interests the state itself.  Va. Office for Protection Advocacy, 131 Ct. 1641. Karcher May, this Court held that the New Jersey Speaker the General Assembly and President the Senate were the proper parties represent the State because the New JerseyLegislature had authority under state law represent the States interests. 484 U.S. 72, (1987); See also Richardson Ramirez, 418 U.S. 24, 26, 36-38 (1974) county clerk was allowed appeal judgment invalidating Californias felondisenfranchisement law, even though the state officer who had been named the suit refused appeal). California state laws allow Proposition 8s supporters represent the interests the state,the federal courts should allow them so.   
The California Supreme Court has weighed onthis issue, stating: [t]he role played the proponents such litigation comparable the role ordinarily played the Attorney General other public officials vigorously defending dulyenacted state law and raising all arguable legaltheories upon which challenged provision may sustained. Perry Brown, Cal. 4th 1116, 1165 (2011). This consistent with the purpose theinitiative movement California, which was conceived specifically favor the peoples choices when elected officials were inclined ignore them. Strauss Horton, Cal. 4th 364, 420 (2009). The impetus for direct democracy generally comes fromthis belief that allowing elected officials carry out all legislative tasks insufficient for modern democratic self-governance. The initiative was viewed one means restoring the peoplesrightful control over their government, providing method that would permit the people proposeand adopt statutory provisions and constitutional amendments. Strauss, Cal. 4th 420. the California Supreme Court stated, theinitiative power would significantly impaired there were one assert the states interest the validity the measure when elected officials declineto defend court appeal judgmentinvalidating the measure. Perry, Cal. 4th 1151-1152. This Court should now affirm the peoples rights control their own governments byholding Petitioners have standing.    

CONCLUSION 
For the foregoing reasons, Amici respectfullyrequest that this Court reverse the decision theNinth Circuit. 
Respectfully submitted, 
Paul Orfanedes 
Counsel Record 
Chris Fedeli Julie Axelrod JUDICIAL WATCH, INC. 425 Third Street S.W., Ste. 800 Washington, D.C. 20024 
(202) 646-5172 porfanedes@judicialwatch.org 
Counsel for Amici Curiae 
January 29, 2013



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