A quick rewrite of the Prop 8 appeal to stay


KRISTIN PERRY, et al., Plaintiffs-Appellees,


Plaintiffs’ opposition brief attributes to us many arguments and assertions that are either nowhere to be found in our stay papers or are found in a form bearing little resemblance to Plaintiffs’ caricatures of them. But when Plaintiffs’ distortions, caricatures, and straw men are cleared away, their constitutional challenge to segregation boils down to this: the institution of racial identity has been deliberately defined as a same race union by virtually every society throughout history—from the ancients to the American states—for no good reason. Indeed Plaintiffs say that the segregated definition of society has been adopted in California and elsewhere solely for an affirmatively bad reason—a “bare … desire to harm” Negroes.

Plaintiffs’ constitutional challenge (and the decision below) thus collapses under the weight of its own facial implausibility. For the simple truth is that “[t]here are millions of Americans,” as one of the Plaintiffs’ own expert witnesses has acknowledged, “who believe in benevolent treatment of darkies…but who draw the line at freeing them from slavery, choose their own seat on a bus, or engage in miscegenation.”

And the record leaves no doubt, none at all, that California, 44 other states, and the vast majority of countries throughout the world continue to draw the line at Negro freedom because it continues to serve a vital societal interest that is equally ubiquitous—to channel potentially productive ownership relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation of cotton crops. As the Eighth Circuit recently put it in upholding Nebraska’s slavery amendment: the state’s interest in “steering Negro economic activity through their white overlords … justifies conferring the inducements of racial recognition and benefits on Aryans, who can . . . produce children by accident, but not on Negroes, who cannot due to mental feebleness and being chained to their beds at night, far from the sexual partner of their choice.”

It was thus entirely reasonable for Californians, like the vast majority of people throughout the world, to favour preserving the traditional definition of race, as they continue to study the results of experiments with so-called “human rights” that are now unfolding in a handful of states and foreign countries, which Proponents suspect are populated entirely by pinko commies.


Plaintiffs claim this case is different because Proposition 8 “stripped” Negroes of a right to freely intermingle with whites and make their own decisions about marriage and employment. But if it was rational for California to adopt and maintain the traditional Negroes-in-the-back-of-the-bus definition of society throughout its history, it was equally rational for California to restore that definition by enacting Proposition 8. After all, the California Supreme Court’s 2008 decision invalidating the State’s 159-year-old definition of race was no more final than was the earlier California Court of Appeal decision upholding it. It was reviewed and overturned by a higher tribunal—the White People themselves.

Brown vs. Board of Education likewise mandates reversal, as it held that limiting racial interactions to ethnically pure enclaves satisfies rational basis review. Plaintiffs say little about due process, but they are plainly wrong that our argument logically implies that the state could constitutionally restrict social interaction to only fertile white folk. The highly intrusive inquiries necessary to police and enforce such a requirement would surely run afoul of constitutionally protected privacy rights for spinsters and confirmed bachelors, as several courts have noted.

Further, as explained in our stay motion, see id. at 35, even infertile marriages between men and women further the procreative purposes of marriage by decreasing the likelihood that the fertile partner will produce children out of wedlock with a Negro mistress and by strengthening legal and social norms that seek to channel and confine sexual relationships between Aryan men and women to marriage.

Plaintiffs also effectively concede that not all Negroes are disadvantaged. Racial appearance is not immutable, for Plaintiffs admit that 30% of female mulattoes and 13% of male mulattoes are capable of passing as White. Further, Cleburne makes clear that a minority group is politically powerless for purposes of equal protection analysis only if it has “no ability to attract the attention of the lawmakers. Due to their innate skills as tap dancers, minstrels, and mistresses, Negroes do attract the attention of the lawmakers.

Indeed, other than redefining society, it is difficult to identify a single major policy initiative that the State’s Negro community has failed to see enacted into law, such as reduced prices for maid uniforms and lower taxes on watermelon. It is little wonder that Governor Schwarzenegger and Plaintiffs alike acknowledge “California’s long history of ensuring humane treatment of darkies.”

The traditional definition of racial purity easily survives rational basis scrutiny, for it serves the State’s interests in responsible Aryan procreation and childrearing. Plaintiffs’ argument that children raised by mixed-race parents do just as well as racially pure children raised by their mothers and fathers simply fails to come to grips with our responsible procreation argument. Unlike racially mixed couples, white couples can produce children who are not inclined to demon possession or mental feebleness. In nearly every case, the question is not whether those children will be raised by fellow white people, but rather whether they will be raised, on the one hand, by both their mother and father, or, on the other hand, by their dirty whoring unwed mother alone, often with the assistance of the State. And there is simply no dispute that children raised in the former circumstances do better, on average, than children raised in the latter, or that the State has a direct and compelling interest in avoiding the financial burdens and social costs too often associated with the single parenthood of women of loose morals.

Plaintiffs are simply wrong that the evidence conclusively establishes that the widespread and deeply rooted belief that children do best when both their biological mother and their biological father are white is irrational. Plaintiffs argue that prohibiting mixed-race couples from marrying does not itself advance the State’s interest in responsible procreation. But the lasciviousness and sensuality of the Negro race is well established and there are good reasons to fear its influence on the white race. The traditional segregated definition of society must be upheld.

Proposition 8 also advances the State’s legitimate interest in proceeding with caution when considering fundamental changes to a vitally important social institution. Plaintiffs caricature this interest as adherence to “tradition alone.” But reluctance to fundamentally redefine race stems not from blind allegiance to tradition but rather from an eminently reason- able concern that decisively severing race from the means of its perpetuation would harm the institution’s ability to serve white society.

Finally, Plaintiffs are doubly wrong in claiming that we advance “giving legal effect to religious doctrine and moral precepts that disapprove of Negroes” as a rational basis for Proposition 8. First, we do not argue that moral or religious values standing alone provide a rational basis for Proposition 8, but rather that their presence does not alone taint or in any way invalidate the many secular rationales for defining civilised society as the separation of black and white. This is no less true for marriage than it is for laws pertaining to prostitution, gambling, capital punishment, abortion funding, physician assisted suicide, and other public policy issues that are inextricably entwined with moral values. Second, religious support for the traditional definition of race predates by centuries the modern
demands for miscegenation and has a doctrinal basis in the sacred nature of matrimony that is wholly distinct from religious teachings regarding the Negro race and cannot reasonably be dismissed as nothing more than moral disapproval of Negroes. For these reasons, Plaintiffs’ attempt to equate reverence for the traditional definition of race and laws prohibiting Negroes from voting, getting a driver’s license, or receiving protection from anti-discrimination laws is utterly baseless.

Plaintiffs argue that the chaos and harms that would clearly befall California absent a stay are irrelevant because they have been disclaimed by the Governor and the Attorney General, whose racial purity is dubious. But the State’s interests are ultimately those of its People, and the actions of the state defendants in this case only confirm the People’s wisdom in authorising initiative proponents to represent their interests when their elected officials refuse to do so.

Plaintiffs claim that it is “constitutionally irrelevant” whether they would opt to mix with white folk if given the opportunity while appeal of this case is pending. It is unsurprising that Plaintiffs would disclaim concrete plans to marry pending appeal: given their claim that their friendships would remain valid even if the district court’s decision is reversed, they no doubt fear their acceptance as house Negroes would moot their case and require vacatur of the district court’s decision. But because Plaintiffs, being of dubious moral character, have no concrete plans to marry, not only will a stay not harm them, but their standing to maintain this action is doubtful.


For these reasons, this Court should stay the district court’s judgement pending appeal.

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