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IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY, et al.,

Plaintiffs-Appellees,

CITY AND COUNTY OF SANFRANCISCO,

Plaintiff-Intervenor-Appellee,

vs.

ARNOLD SCHWARZENEGGER, et al.,

Defendants,

DENNIS HOLLINGSWORTH, et al.

Defendants-Intervenors-Appellants.

No. 10-16696

Argued December 6, 2010

U.S. District Court

Case No. 09-cv-02292 VRW

PLAINTIFF-INTERVENOR-APPELLEECITY AND COUNTY OF SAN FRANCISCO'S REPLYTO OPPOSITION TO MOTION TO VACATE STAY

PENDING APPEAL

On Appeal from the United States District Courtfor the Northern District of California

The Honorable Vaughn R. Walker

DENNIS J. HERRERA, State Bar #139669City AttorneyTHERESE M. STEWART, State Bar#104930Chief Deputy City AttorneyVINCE CHHABRIA, State Bar#208557CHRISTINE VAN AKEN, State Bar#241755Deputy City AttorneysCity Hall, Room 234One Dr. Carlton B. Goodlett PlaceSan Francisco, California 94102-4682Telephone: (415) 554-4708

Attorneys for Plaintiff-Intervenor-AppelleeCITY AND COUNTY OF SAN FRANCISCO

Case: 10-16696 03/14/2011 Page: 1 of 5 ID: 7678933 DktEntry: 321-1

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As explained in the City's opening brief, the Court may not impose a stay

where its jurisdiction is uncertain. One would have expected Proponents to

respond by citing a case in which an appellate court issued a stay even when

standing was concededly uncertain. Instead, Proponents focus their attention on

the fact that many of the cases cited by the City involved attempts by third parties

to establish next-friend status to seek relief from death sentences on behalf of death

row inmates. See, e.g., Demosthenes v. Baal, 495 U.S. 731, 737 (1990) ("before

granting a stay [of execution], . . . federal courts must make certain that an

adequate basis exists for the exercise of federal power.")As a preliminary matter, the rule articulated in Demosthenes stems from first

principles; it did not originate with the next-friend cases. See, e.g., Steel Co. v.

Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998) ("The requirement

that jurisdiction be established as a threshold matter 'spring[s] from the nature and

limits of the judicial power of the United States' and is 'inflexible without

exception.'") (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382

(1884)).

In any event, far from rendering the next-friend cases irrelevant, the fact that

they involve the execution of human beings underscores why a stay is not

appropriate here. Indeed, the Demosthenes Court's statement about how even an

impending execution does not allow a federal appellate court to bend its

jurisdictional rules is worth quoting in full:

We realize that last minute petitions from parents of death rowinmates may often be viewed sympathetically. But federalcourts are authorized by the federal habeas statutes to interferewith the course of state proceedings only in specifiedcircumstances. Before granting a stay, therefore, federal courtsmust make certain that an adequate basis exists for the exerciseof federal power. In this case, that basis was plainly lacking.The State is entitled to proceed [with the execution] withoutfederal intervention. Accordingly, we grant the State's motionto vacate the stay entered by the Court of Appeals.


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495 U.S. at 737 (emphasis added). If jurisdictional uncertainty divests federal

appellate courts of authority to stop a person from being put to death, surely it

divests those courts of the ability to prevent loving same-sex couples from getting

married, merely to prevent some amorphous injury Proponents allege they and the

State of California would suffer. This is particularly so when 19,000 same-sex

couples are already married in California, with no harm having been caused to

anyone.

Proponents are equally wrong to say that courts only refuse to issue stays

after "definitively determin[ing] that standing was lacking." Opposition at 8. InDemosthenes itself, the Supreme Court did not conclude that the death-row inmate

was competent to waive federal habeas proceedings; indeed the district court in

that case had declined to hold an evidentiary hearing on the question. 495 U.S. at

737. Rather, the district court concluded that "petitioners had failed to establish

that the court had jurisdiction." Id. at 733 (emphasis added). Here too, as

evidenced by this Court's decision to certify the question to the California Supreme

Court, Proponents have thus far "failed to establish" jurisdiction, which requires

that the stay be lifted.

Proponents also cite Vargas v. Lambert, 159 F.3d 1161 (9th Cir. 1998), for

the proposition that a federal appellate court may issue a stay even if its

jurisdiction is uncertain. But Proponents neglect to mention that, the day after the

Ninth Circuit issued its order staying the execution in Vargas, the Supreme Court

vacated the stay in a one-sentence order. Lambert v. Vargas, 525 U.S. 925 (1998).

Furthermore, although the passage ofVargas quoted by Proponents might be read

to suggest the majority believed it had the power to issue a stay absent a clear

determination of jurisdiction, other portions of the majority's opinion suggest it

believed it could not issue a stay unless the party seeking it had actually


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establishedstanding, which Proponents here have not done. See Vargas, 159 F.3d

at 1167 (explaining that the applicant "has established her standing . . .").

Finally, Proponents' suggestion that a decision to lift the stay would only

benefit the four individuals who are parties to the case is preposterous. The district

court enjoined the State from enforcing Proposition 8, which will cause the State to

do exactly what it did in response to the California Supreme Court's decision in In

Re Marriage Cases direct county clerks statewide to stop denying marriage

licenses to same-sex couples. Thus, maintenance of the stay harms tens of

thousands of Californians, including people like Derence Kernek and Ed Watson,who have been together for 40 years and will likely never be able to marry if the

stay remains in place while this winds its way through the state and federal court

system, because Mr. Watson has been diagnosed with Alzheimer's Disease, and his

illness is progressing rapidly.1

At the end of the day, Proponents effectively ask the Court to create a

"same-sex marriage" exception to the established rule that federal appellate courts

may not issue or maintain a stay when jurisdiction is uncertain. There is nothing

about the issue of marriage equality that requires such an extraordinary departure

from the rules. To the contrary, this is the most important civil rights issue of our

time, and the Court should put an immediate end to the harm this state-sponsored

/ / /

/ / /

/ / /

1See http://www.youtube.com/watch?v=H8nTy0e8mj4.


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discrimination is inflicting upon same-sex couples, their children and their

families.

Dated: March 14, 2011 Respectfully submitted,

DENNIS J. HERRERACity AttorneyTHERESE M. STEWART,Chief Deputy City AttorneyVINCE CHHABRIACHRISTINE VAN AKENDeputy City Attorneys

By: s/Therese M. StewartTHERESE M. STEWARTChief Deputy City Attorney

Attorneys for Plaintiff-Intervenor-AppelleeCITY AND COUNTY OF SAN FRANCISCO


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9th Circuit Case Number 10-16696

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing PLAINTIFF-INTERVENORAPPELLEE CITY AND COUNTY OF SAN FRANCISCO'S REPLY TO

OPPOSITION TO MOTION TO VACATE STAY PENDING APPEAL with the Clerk ofthe Court for the United States Court of Appeals for the Ninth Circuit by using the appellateCM/ECF system on March 14, 2011.

Participants in the case who are registered CM/ECF users will be served by the appellateCM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users.I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched itto a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

Bailey, Arthur, Jr.

HAUSFELD LLP44 Montgomery Street, Suite 3400

San Francisco, CA 94104

Brejcha, Thomas

Thomas More Society29 S. La Salle Street, Suite 440

Chicago, IL 60603

Mateer, Jeffrey

Liberty Institute

2001 W Plano Parkway, Suite 1600Plano, TX 75075

Moses, Michael F.

United States Catholic Conference

3211 Fourth Street, NortheastWashington, DC 02991-0194

Oliphant, Lincoln C.

Columbus School of LawThe Catholic University of America

Washington, DC 20064

Picarello, Anthony R., Jr., Attorney

United States Catholic Conference3211 Fourth Street, Northeast

Washington, DC 02991-0194

Roth, Stuart J., Attorney

AMERICAN CENTER FOR LAW AND

JUSTICE201 Maryland Avenue, N.E.

Washington, DC 20002

Staver, Mathew D., Attorney

LIBERTY COUNSEL

1055 Maitland Center Commons, 2nd FloorMaitland, FL 32751

Staver, Anita L.Liberty Counsel

P.O. Box 540774Orlando, FL 32854

I declare under penalty of perjury pursuant to the laws of the State of California that theforegoing is true and correct. Executed March 14, 2011, at San Francisco, California.

s/Pamela CheeseboroughPamela Cheeseborough


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