Case: 10-16696 09/17/2010 Page: 1 of 5 ID: 7479040 DktEntry: 20-1

NO. 10-16696
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN PERRY, et al.,
Plaintiffs-Appellees,
v.
ARNOLD SCHWARZENEGGER, et al.
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendant-Intervenors-Appellants.

Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 VRW (Honorable Vaughn R. Walker)

DEFENDANT-INTERVENORS-APPELLANTS’
MOTION FOR LEAVE TO EXCEED TYPE-VOLUME LIMITATIONS

Andrew P. Pugno Charles J. Cooper

LAW OFFICES OF ANDREW P. PUGNO David H. Thompson
101 Parkshore Drive, Suite 100 Howard C. Nielson, Jr.
Folsom, California 95630 Peter A. Patterson
(916) 608-3065; (916) 608-3066 Fax COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Brian W. Raum Washington, D.C. 20036
James A. Campbell (202) 220-9600; (202) 220-9601 Fax
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
(480) 444-0020; (480) 444-0028 Fax
Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com
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Pursuant to Ninth Circuit Rule 32-2, Appellants respectfully seek the Court’s

leave to file an opening brief in excess of the applicable type-volume limitations.

See FED. R. APP. P. 32(a)(7)(B). Specifically, Appellants respectfully request leave

to file a brief containing no more than 31,000 words.

The importance of this case beggars description, not only for the people of

California, but for the American people as a whole. As this Court has recognized,

“it cannot be gainsaid that in our social and legal traditions the institution of

marriage has been considered to be an integral part of the foundation of a well-

ordered and viable society, the sinew that strengthens society, the glue that holds

society together.” Smelt v. County of Orange, 447 F.3d 673, 679 (9th Cir. 2006).

This appeal presents the Court with the question whether the United States

Constitution requires California to redefine this bedrock social institution.

Specifically, it raises the questions whether the Due Process Clause secures to

individuals in same-sex relationships a fundamental right to marry that is infringed

by the traditional definition of marriage as the union of a man and a woman,

whether gays and lesbians are a suspect or quasi-suspect class for purposes of the

Equal Protection Clause, and whether the traditional definition of marriage as

reflected in Proposition 8 bears a reasonable relationship to any legitimate

government interest. Full presentation of the arguments relevant to any one of

these momentous legal issues might alone consume an entire appellate brief, for to

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answer them, this Court may be required to examine not only the history, legal

tradition, and practice of marriage in this Nation, but also matters related to human

sexuality, the growing political power of gays and lesbians, developmental

psychology, and the societal consequences of family breakdown.

A brief of the size Appellants request is thus necessary to give the wide

array of issues presented the careful consideration they deserve. Indeed, the

district court’s ruling invalidating Proposition 8 spans nearly 140 pages and

contains nearly 40,000 words. See Doc. No. 708. And despite its size, the district

court’s ruling simply fails to engage—or even to acknowledge—a wealth of

information potentially bearing on Proposition 8’s constitutionality, from legal

authorities past and present, to scholarship in fields such as sociology,

anthropology, and history, an error by the court below that Appellants have sought

to correct in their brief to this Court so that it may decide the momentous issues

presented by this appeal in full view of the relevant materials necessary to evaluate

them with the care that they deserve. This Court has also asked for briefing on

Appellants’ standing to appeal, a distinct and unsettled issue, the resolution of

which could have profound consequences not only in this case, but also for the

defense of future California initiative measures in federal court.

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In sum, a brief of 31,000 words is amply justified in light of the nature of

this case and the issues presented, and Appellants therefore respectfully request

leave to file a brief of no more than 31,000 words.

Dated: September 17, 2010 Respectfully submitted,

s/ Charles J. Cooper
Charles J. Cooper
Attorney for Appellants

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of

the Court for the United States Court of Appeals for the Ninth Circuit by using

the appellate CM/ECF system on September 17, 2010.

I certify that all participants in the case are registered CM/ECF users

and that service will be accomplished by the CM/ECF system.

s/ Charles J. Cooper
Charles J. Cooper
 Case: 10-16696 09/17/2010 Page: 1 of 4 ID: 7479040 DktEntry: 20-2

NO. 10-16696
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN PERRY, et al.,
Plaintiffs-Appellees,
v.
ARNOLD SCHWARZENEGGER, et al.
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendant-Intervenors-Appellants.

Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 VRW (Honorable Vaughn R. Walker)

DECLARATION OF PETER A. PATTERSON

Andrew P. Pugno Charles J. Cooper

LAW OFFICES OF ANDREW P. PUGNO David H. Thompson
101 Parkshore Drive, Suite 100 Howard C. Nielson, Jr.
Folsom, California 95630 Peter A. Patterson
(916) 608-3065; (916) 608-3066 Fax COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Brian W. Raum Washington, D.C. 20036
James A. Campbell (202) 220-9600; (202) 220-9601 Fax
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
(480) 444-0020; (480) 444-0028 Fax
Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com
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I, Peter A. Patterson, declare as follows:

1. I am an attorney at the law firm of Cooper & Kirk, PLLC, and I am one

of the attorneys for Appellants Dennis Hollingsworth, Gail J. Knight, Martin F.

Gutierrez, Mark A. Jansson, and ProtectMarriage.com. I make this declaration in

support of Appellants’ Motion for Leave to Exceed Type-Volume Limitations for

their Opening Brief. I have personal knowledge of the facts set forth herein.

2. This appeal presents the Court with the question whether the United

States Constitution requires California to redefine the bedrock social institution of

marriage. Specifically, it raises the questions whether the Due Process Clause

secures to individuals in same-sex relationships a fundamental right to marry that

is infringed by the traditional definition of marriage as the union of a man and a

woman, whether gays and lesbians are a suspect or quasi-suspect class for purposes

of the Equal Protection Clause, and whether the traditional definition of marriage

as reflected in Proposition 8 bears a reasonable relationship to any legitimate

government interest. Full presentation of the arguments relevant to any one of

these momentous legal issues might alone consume an entire appellate brief, for to

answer them, this Court may be required to examine not only the history, legal

tradition, and practice of marriage in this Nation, but also matters related to human

sexuality, the growing political power of gays and lesbians, developmental

psychology, and the societal consequences of family breakdown.

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3. A brief of the size Appellants request is thus necessary to give the wide

array of issues presented the careful consideration they deserve. Indeed, the

district court’s ruling invalidating Proposition 8 spans nearly 140 pages and

contains nearly 40,000 words. See Doc. No. 708. And despite its size, the district

court’s ruling simply fails to engage—or even to acknowledge—a wealth of

information potentially bearing on Proposition 8’s constitutionality, from legal

authorities past and present, to scholarship in fields such as sociology,

anthropology, and history, an error by the court below that Appellants have sought

to correct in their brief to this Court so that it may decide the momentous issues

presented by this appeal in full view of the relevant materials necessary to evaluate

them with the care that they deserve. This Court has also asked for briefing on

Appellants’ standing to appeal, a distinct and unsettled issue, the resolution of

which could have profound consequences not only in this case, but also for the

defense of future California initiative measures in federal court.

4. Appellants therefore respectfully request leave to file a brief of no more

than 31,000 words.

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I declare, under penalty of perjury under the laws of the United States, that

these facts are true and correct and that this Declaration is executed this 17th day

of September 2010 in Cincinnati, Ohio.

6e{
Peter A. Patterson

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