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Defenders of marriage, initiative process in Calif. file opening brief on appeal

9th Circuit will review decision of San Francisco federal judge that declared state marriage amendment unconstitutional

SAN FRANCISCO — Attorneys defending marriage in California filed their opening brief Friday with the U.S. Court of Appeals for the 9th Circuit in defense of the state’s voter-approved constitutional amendment that protects marriage as the union of one man and one woman. A federal judge declared the amendment unconstitutional under the U.S. Constitution on Aug. 4, meaning the decision has the potential to affect state marriage amendments across the nation if ultimately upheld after all appeals. Oral argument will be held in the 9th Circuit the week of Dec. 6.

Alliance Defense Fund attorneys appealed to the 9th Circuit in Perry v. Schwarzenegger together with lead counsel Charles J. Cooper and Andrew Pugno, one of nearly 1,900 attorneys in the ADF alliance and general counsel for, the official proponents and campaign committee of California’s Proposition 8.

“The district court decision conflicts with every other appellate court ruling on the federal constitutionality of marriage, including the U.S. Supreme Court,” said ADF Senior Counsel Brian Raum. “The decision is an attack on the many judges and lawmakers and millions of Americans who rightly and reasonably understand that marriage is the unique union of a man and a woman. The Hollywood-funded opposition wants to impose--through a San Francisco court--an agenda that America has repeatedly rejected.  In America, we should respect and uphold the right of the people to make policy choices through the democratic process--especially ones that do nothing more than uphold the definition of marriage that has existed since the foundation of the country and beyond.”

The district judge’s opinion made many unprecedented findings and legal conclusions, including one that calls marriage between a husband and wife “an artifact of a time when the genders were seen as having distinct roles in society and in marriage” and another that concludes that “parents’ genders are irrelevant to children’s developmental outcomes.”

Absent from the district judge’s opinion is any mention of Baker v. Nelson, the controlling U.S. Supreme Court precedent for the legal issues in the Perry case. The legal team’s opening brief contends that the judge’s holding conflicts with binding Supreme Court and 9th Circuit precedent as well as the consistent judgment of courts across the country.

“And it defames as anti-gay bigots not only seven million California voters, but everyone else in this Country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve the legitimate interests of society--from the current President of the United States, to a large majority of legislators throughout the Nation, both in statehouses and in the United States Congress, and even to most of the scores of state and federal judges who have addressed the issue,” the brief explains.

Pugno framed the larger picture: “What’s at stake is bigger than California and bigger than even marriage itself. The battle to protect marriage is the battle for America’s democratic system of government, religious liberty, and freedom of conscience in our age.” 

  • Pronunciation guide: Pugno (Poon-yo); Raum (Rahm)


ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.