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VIA CM/ECF FILING


Molly C. Dwyer, Clerk of Court
Office of the Clerk
U.S. Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939

May 9, 2014

Re: Sevcik v. Sandoval, Case No. 12-17668
Response to Defendant-Intervenors Notice of Authority Pursuant to Fed. R. App.
P. 28(j) and Circuit Rule 28-6

Dear Ms. Dwyer:

Pursuant to Federal Rule of Appellate Procedure 28(j) and Ninth Circuit Rule 28-
6, Plaintiffs-Appellants (Plaintiff Couples) respond to a letter citing supplemental
authority filed on May 6, 2014 by Defendant-Intervenor-Appellee Coalition for the
Protection of Marriage (Intervenor). ECF No. 201. Intervenors letter discusses the
Supreme Courts recent decision in Town of Greece v. Galloway, No. 12-696, 2014 U.S.
LEXIS 3110 (U.S. May 5, 2014).

Intervenor asserts that Town of Greece, an Establishment Clause case, holds that
practices existing at the time of the Fourteenth Amendments adoption cannot be
unconstitutional. The U.S. Supreme Court has made clear, however, that a long tradition
of discrimination does not make it permissible. See Plaintiff Couples Opening Br. ECF
No. 20-3 at 66-68. [T]he Equal Protection Clause is not shackled to the political theory
of a particular era. In determining what lines are unconstitutionally discriminatory, we
have never been confined to historic notions of equality. Harper v. Va. State Bd. of
Elections, 383 U.S. 663, 669 (1966). The longstanding exclusion of same-sex couples
from marriage certainly did not preclude the Courts decision in Windsor invalidating the
so-called Defense of Marriage Act.

The contrary understanding of the Fourteenth Amendment urged by Intervenor
would call into question landmark civil rights decisions. At the time of the Fourteenth
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May 9, 2014
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Amendments adoption in 1868, many public schools were racially segregated, and
Congress had authorized racially segregated schools in the District of Columbia.
Intervenors argument would thus undermine the Supreme Courts holding in Brown v.
Board of Education, 347 U.S. 483 (1954), that segregation in public schools is
unconstitutional. The same is true with respect to the Supreme Courts invalidation of
anti-miscegenation laws. Compare Pace v. Alabama, 106 U.S. 583 (1883) (upholding
Alabamas anti-miscegenation law) with Loving v. Virginia, 388 U.S. 1 (1967)
(invalidating Virginias anti-miscegenation law). The U.S. Supreme Court has not
interpreted the Fourteenth Amendment so narrowly.

Intervenor also argues that Town of Greece found no purpose or effect to exclude.
However, that was because anyone could have given the invocation. Here, there is no
question that same-sex couples are intentionally excluded from marriage.


Respectfully submitted,

/s Tara L. Borelli

Tara L. Borelli
Counsel for Plaintiffs-Appellants
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Molly C. Dwyer, Clerk of Court
May 9, 2014
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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 May 9, 2014.
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/ Tara L. Borelli

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