KRISTIN PERRY v. EDMUND G. BROWN, Jr. ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN M. PERRY; SANDRA B. 
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO,
Plaintiffs-Appellees,
CITY AND COUNTY OF SAN
FRANCISCO,
Intervenor-Plaintiff-Appellee,
v.
EDMUND G. BROWN, JR., in his
official capacity as Governor of
California; KAMALA D. HARRIS, in
her official capacity as Attorney
General of California; MARK B.
HORTON, in his official capacity as
Director of the California 
Department of Public Health &
State Registrar of Vital Statistics;
LINETTE SCOTT, in her official
capacity as Deputy Director of
Health Information & Strategic
Planning for the California
Department of Public Health;
PATRICK O’CONNELL, in his official
capacity as Clerk-Recorder for the
County of Alameda; DEAN C.
LOGAN, in his official capacity as
Registrar-Recorder/County Clerk
for the County of Los Angeles,
Defendants,

1569
1570 PERRY v. BROWN
HAK-SHING WILLIAM TAM, 
Intervenor-Defendant,
and
DENNIS HOLLINGSWORTH; GAIL J. No. 10-16696
KNIGHT; MARTIN F. GUTIERREZ;
MARK A. JANSSON;  D.C. No.
3:09-cv-02292-
PROTECTMARRIAGE.COM-YES ON 8, VRW
A PROJECT OF CALIFORNIA
RENEWAL, as official proponents of
Proposition 8,
Intervenor-Defendants-Appellants.

KRISTIN M. PERRY; SANDRA B. 
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO,
Plaintiffs-Appellees,
CITY AND COUNTY OF SAN
FRANCISCO,
Intervenor-Plaintiff-Appellee,
v.
EDMUND G. BROWN, JR., in his 
official capacity as Governor of
California; KAMALA D. HARRIS, in
her official capacity as Attorney
General of California; MARK B.
HORTON, in his official capacity as
Director of the California
Department of Public Health &
State Registrar of Vital Statistics;

PERRY v. BROWN 1571
LINETTE SCOTT, in her official 
capacity as Deputy Director of
Health Information & Strategic
Planning for the California
Department of Public Health;
PATRICK O’CONNELL, in his official
capacity as Clerk-Recorder for the
County of Alameda; DEAN C.
LOGAN, in his official capacity as
Registrar-Recorder/County Clerk
for the County of Los Angeles, No. 11-16577
HAK-SHING WILLIAM TAM,
Defendants,
 D.C. No.
3:09-cv-02292-JW
Intervenor-Defendant, OPINION
and
DENNIS HOLLINGSWORTH; GAIL J.
KNIGHT; MARTIN F. GUTIERREZ;
MARK A. JANSSON;
PROTECTMARRIAGE.COM-YES ON 8,
A PROJECT OF CALIFORNIA
RENEWAL, as official proponents of
Proposition 8,
Intervenor-Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, Chief District Judge, Presiding
(No. 10-16696)
James Ware, Chief District Judge, Presiding
(No. 11-16577)
1572 PERRY v. BROWN
No. 10-16696:
Argued and Submitted December 6, 2010
San Francisco, California
Submission Withdrawn January 4, 2011
Resubmitted February 7, 2012
No. 11-16577:
Argued and Submitted December 8, 2011
San Francisco, California
Filed February 7, 2012
Before: Stephen Reinhardt, Michael Daly Hawkins, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Reinhardt;
Partial Concurrence and Partial Dissent by
Judge N.R. Smith
1576 PERRY v. BROWN
COUNSEL
No. 10-16696:
Theodore J. Boutrous, Jr., Christopher D. Dusseault, Theane
Evangelis Kapur, Sarah E. Piepmeier, Enrique A. Monagas,
and Joshua S. Lipshutz, Gibson, Dunn & Crutcher LLP, Los
Angeles, California; Theodore B. Olson (argued), Matthew D.
McGill, and Amir C. Tayrani, Gibson, Dunn & Crutcher LLP,
Washington, D.C.; David Boies (argued), Jeremy M. Gold-
man, and Theodore H. Uno, Boies, Schiller & Flexner LLP,
PERRY v. BROWN 1577
Armonk, New York; for plaintiffs-appellees Kristin M. Perry,
Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo.
Dennis J. Herrera, City Attorney; Therese M. Stewart
(argued), Chief Deputy City Attorney; Christine Van Aken
and Mollie M. Lee, Deputy City Attorneys; San Francisco,
California; for intervenor-plaintiff-appellee City and County
of San Francisco.
Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom,
California; Charles J. Cooper (argued), David H. Thompson,
Howard C. Nielson, Jr., and Peter A. Patterson, Cooper and
Kirk, PLLC, Washington, D.C.; Brian W. Raum and James A.
Campbell, Alliance Defense Fund, Scottsdale, Arizona; for
intervenor-defendants-appellants Dennis Hollingsworth, Gail
J. Knight, Martin F. Gutierrez, Mark A. Jansson, and Protect-
Marriage.com.
James Joseph Lynch, Jr., Sacramento, California; for amicus
curiae Margie Reilly.
Paul Benjamin Linton, Thomas More Society, Northbrook,
Illinois; Christopher M. Gacek, Family Research Council,
Washington, D.C.; Thomas Brejcha, Thomas More Society,
Chicago, Illinois; for amicus curiae The Family Research
Council.
Kelly J. Shackelford, Jeffrey C. Mateer, Hiriam S. Sasser, III,
and Justin E. Butterfield, Liberty Institute, Plano, Texas; for
amici curiae Liberty Institute, Association of Maryland Fami-
lies, California Family Council, Center for Arizona Policy,
Citizens for Community Values, Cornerstone Action, Corner-
stone Family Council, Delaware Family Policy Council, Fam-
ily Action Council of Tennessee, The Family Foundation, The
Family Policy Council of West Virginia, Family Policy Insti-
tute of Washington, Florida Family Policy Council, Georgia
Family Council, Illinois Family Institute, Independence Law
Center, Iowa Family Policy Center, Louisiana Family Forum
1578 PERRY v. BROWN
Action, Massachusetts Family Institute, Michigan Family
Forum, Minnesota Family Council, Missouri Family Policy
Council, Montana Family Foundation, New Jersey Family
First, New Jersey Family Policy Council, North Carolina
Family Policy Council, Oklahoma Family Policy Council,
Oregon Family Council, Palmetto Family Council, Pennsyl-
vania Family Institute, Wisconsin Family Action, and
Wywatch Family Action.
Lynn D. Wardle, Marriage Law Project, J. Reuben Clark Law
School, Provo, Utah; Stephen Kent Ehat, Lindon, Utah; Lin-
coln C. Oliphant, Columbus School of Law, The Catholic
University of America, Washington, D.C.; for amici curiae
High Impact Leadership Coalition, The Center for Urban
Renewal and Education, and The Frederick Douglass Founda-
tion, Inc.
Dean R. Broyles and James M. Griffiths, The Western Center
for Law & Policy, Escondido, California; for amici curiae
Parents and Friends of Ex-Gays and Desert Stream Ministries.
M. Edward Whelan III, Ethics and Public Policy Center,
Washington, D.C.; for amicus curiae The Ethics and Public
Policy Center.
Mary E. McAlister, Stephen M. Crampton, and Rena M.
Lindevaldsen, Liberty Counsel, Lynchburg, Virginia; Mat-
thew D. Staver and Anita L. Staver, Liberty Counsel,
Orlando, Florida; for amici curiae Liberty Counsel, Campaign
for Children and Families, and JONAH Inc.
Jay Alan Sekulow, Stuart J. Roth, and Walter M. Weber,
American Center for Law & Justice, Washington, D.C.; for
amicus curiae The American Center for Law and Justice.
Donald W. MacPherson, The MacPherson Group, Phoenix,
Arizona; for amicus curiae The Hausvater Project.
PERRY v. BROWN 1579
Matthew B. McReynolds and Kevin T. Snider, Pacific Justice
Institute, Sacramento, California; for amicus curiae Pacific
Justice Institute.
Von G. Keetch, Alexander Dushku, and R. Shawn Gunnar-
son, Kirton & McConkie, Salt Lake City, Utah; Anthony R.
Picarello, Jr., Jeffrey Hunter Moon, and Michael F. Moses,
U.S. Conference of Catholic Bishops, Washington, D.C.; Carl
H. Esbeck, National Association of Evangelicals, Washing-
ton, D.C.; James F. Sweeney, Sweeney & Greene LLP, Elk
Grove, California; for amici curiae United States Conference
of Catholic Bishops, California Catholic Conference, National
Association of Evangelicals, The Church of Jesus Christ of
Latter-day Saints, The Ethics & Religious Liberty Commis-
sion, Lutheran Church–Missouri Synod, Calvary Chapel Fel-
lowship of Ministries of California, The Christian and
Missionary Alliance, Coral Ridge Ministries, The Council of
Korean Churches in Southern California, Southern California
Korean Ministers Association, and Holy Movement for Amer-
ica.
Kristen K. Waggoner and Steven T. O’Ban, Ellis, Li & McK-
instry PLLC, Seattle, Washington; for amici curiae Robert P.
George, Sherif Girgis, and Ryan T. Anderson.
Gary G. Kreep, United States Justice Foundation, Ramona,
California; for amicus curiae National Association for
Research & Therapy of Homosexuality (NARTH).
Abram J. Pafford, Pafford, Lawrence & Ross, PLLC, Wash-
ington, D.C.; for amicus curiae American College of Pediatri-
cians.
John C. Eastman, Anthony T. Caso, and Karen J. Lugo, Cen-
ter for Constitutional Jurisprudence, Orange, California; for
amicus curiae Center for Constitutional Jurisprudence.
1580 PERRY v. BROWN
Kevin J. Hasson and Lori H. Windham, The Becket Fund for
Religious Liberty, Washington, D.C.; for amicus curiae The
Becket Fund for Religious Liberty.
Steven W. Fitschen, The National Legal Foundation, Virginia
Beach, Virginia; for amicus curiae National Legal Founda-
tion.
Lawrence J. Joseph, Washington, D.C.; for amicus curiae
Eagle Forum Education & Legal Defense Fund.
Holly L. Carmichael, Los Gatos, California; for amicus curiae
Concerned Women of America.
William C. Duncan, Marriage Law Foundation, Lehi, Utah;
Joshua K. Baker, National Organization for Marriage, Wash-
ington, D.C.; for amici curiae National Organization for Mar-
riage, National Organization for Marriage Rhode Island, and
Family Leader.
Herbert G. Grey, Beaverton, Oregon; for amicus curiae Paul
McHugh.
Eugene Dong, Palo Alto, California; for amicus curiae
Eugene Dong.
Gregory F. Zoeller, Attorney General; Thomas M. Fischer,
Solicitor General; and Ellen H. Meilaender, Deputy Attorney
General, State of Indiana; Kenneth T. Cuccinelli, II, Attorney
General; E. Duncan Getchell, Solicitor General; and Stephen
McCullough, Deputy Solicitor General, State of Virginia;
Michael A. Cox, Attorney General and Eric Restuccia, Solici-
tor General, State of Michigan; James D. Caldwell, Attorney
General and Kyle Duncan, Appellate Chief, State of Louisi-
ana; Troy King, Attorney General, State of Alabama; Daniel
S. Sullivan, Attorney General, State of Alaska; Bill McCol-
lum, Attorney General, State of Florida; Lawrence G. Was-
den, Attorney General, State of Idaho; Jon Bruning, Attorney
PERRY v. BROWN 1581
General, State of Nebraska; Thomas W. Corbett, Jr., Attorney
General, Commonwealth of Pennsylvania; Henry McMaster,
Attorney General, State of South Carolina; Mark L. Shurtleff,
Attorney General, State of Utah; Bruce A. Salzburg, Attorney
General, State of Wyoming; for amici curiae States of Indi-
ana, Virginia, Louisiana, Michigan, Alabama, Alaska, Flor-
ida, Idaho, Nebraska, Pennsylvania, South Carolina, Utah,
and Wyoming.
Kenneth A. Klukowski, American Civil Rights Union, Alex-
andria, Virginia; for amicus curiae American Civil Rights
Union.
Richard G. Katerndahl, San Rafael, California; for amicus
curiae Catholics for the Common Good.
Jerome C. Roth, Michelle Friedland, Mark R. Conrad, and
Miriam L. Seifter, Munger, Tolles & Olson LLP, San Fran-
cisco, California; for amici curiae Bay Area Lawyers for Indi-
vidual Freedom, Alameda County Bar Association, Bar
Association of San Francisco, Los Angeles County Bar Asso-
ciation, Marin County Bar Association, Santa Clara County
Bar Association, AIDS Legal Referral Panel, API Equality–
LA, Asian American Bar Association of the Greater Bay
Area, Asian Pacific American Bar Association of Los Ange-
les County, Asian Pacific Bar Association of Silicon Valley,
Asian Pacific Islander Legal Outreach, Bay Area Association
of Muslim Lawyers, California Employment Lawyers Associ-
ation, California Women’s Law Center, East Bay La Raza
Lawyers Association, Equal Justice Society, Family Equality
Council, Filipino Bar Association of Northern California,
Freedom to Marry, Impact Fund, Japanese American Bar
Association of Greater Los Angeles, Korean American Bar
Association of Northern California, Latina and Latino Critical
Legal Theory, Inc., Law Foundation of Silicon Valley, Law-
yers’ Committee for Civil Rights of the San Francisco Bay
Area, Legal Aid Society-Employment Law Center, Lesbian
and Gay Lawyers Association of Los Angeles, Marriage
1582 PERRY v. BROWN
Equality USA, Mexican American Bar Association, National
Asian Pacific American Bar Association, National Lawyers
Guild San Francisco Bay Area Chapter, People for the Ameri-
can Way Foundation, Queen’s Bench Bar Association, San
Francisco Chamber of Commerce, San Francisco La Raza
Lawyers Association, San Francisco Trial Lawyers Associa-
tion, Santa Clara County Black Lawyers Association, Society
of American Law Teachers, South Asian Bar Association of
Northern California, Transgender Law Center, and Women
Lawyers of Alameda County.
Elizabeth B. Wydra, David H. Gans, Douglas T. Kendall, and
Judith E. Schaeffer, Constitutional Accountability Center,
Washington, D.C.; for amicus curiae Constitutional Account-
ability Center.
Daniel H. Squire, Wilmer Cutler Pickering Hale and Dorr
LLP, Washington, D.C.; Alan E. Schoenfeld, David Sapir
Lesser, and Erin G.H. Sloane, Wilmer Cutler Pickering Hale
and Dorr LLP, New York, New York; for amici curiae Legis-
lators from United States Jurisdictions That Have Legalized
Same-Sex Marriage.
Nathalie F.P. Gilfoyle, American Psychological Association,
Washington, D.C.; Paul M. Smith, William M. Hohengarten,
and Julia K. Martinez, Jenner & Block LLP, Washington,
D.C.; for amici curiae American Psychological Association,
The California Psychological Association, The American Psy-
chiatric Association, and The American Association for Mar-
riage and Family Therapy.
Laura W. Brill, Nicholas F. Daum, and Richard M. Simon,
Kendall Brill & Klieger LLP, Los Angeles, California; for
amicus curiae Jon B. Eisenberg.
Herma Hill Kay, University of California—Berkeley School
of Law, Berkeley, California; Michael S. Wald, Stanford Law
PERRY v. BROWN 1583
School, Stanford, California; for amici curiae California Pro-
fessors of Family Law.
Aderson François, Howard University School of Law Civil
Rights Clinic, Washington, D.C.; Ayesha N. Khan, Ameri-
cans United for Separation of Church and State, Washington
D.C.; Brad W. Seiling, Kathryn A.B. Bartow, and Benjamin
G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, Cali-
fornia; Jon B. Streeter, Susan J. Harriman, and Jo W. Golub,
Keker & Van Nest, LLP, San Francisco, California; for amici
curiae Howard University School of Law Civil Rights Clinic
and Americans United for Separation of Church and State.
Justin Ford, O’Melveny & Myers LLP, Los Angeles, Califor-
nia; Walter Dellinger, Jonathan D. Hacker, Sarah Goldfrank,
and Anton Metlitsky, O’Melveny & Myers LLP, Washington,
D.C.; for amicus curiae National LGBT Bar Association.
Martha Coakley, Attorney General; Maura T. Healey, Jona-
than B. Miller, and Christopher K. Barry-Smith, Assistant
Attorneys General, Boston, Massachusetts; for amicus curiae
The Commonwealth of Massachusetts.
Christopher L. Lebsock and Arthur N. Bailey, Jr., Hausfeld
LLP, San Francisco, California; for amicus curiae The Cali-
fornia Teachers Association.
Steven M. Freeman, Steven C. Sheinberg, Deborah Besinger,
and Michelle Deutchman, Anti-Defamation League, New
York, New York; Victoria F. Maroulis, Anna T. Neill, and
Brett J. Arnold, Quinn Emanuel Urquhart & Sullivan, LLP,
Redwood Shores, California; for amicus curiae Anti-
Defamation League.
John Payton, Debo P. Adegbile, and Dale E. Ho, NAACP
Legal Defense & Educational Fund, Inc., New York, New
York; for amicus curiae NAACP Legal Defense & Educa-
tional Fund, Inc.
1584 PERRY v. BROWN
Kathleen M. O’Sullivan and Abha Khanna, Perkins Coie
LLP, Seattle, Washington; for amici curiae Professors Wil-
liam N. Eskridge, Jr., Bruce A. Ackerman, Rebecca L.
Brown, Daniel A. Farber, Kenneth L. Karst, and Andrew
Koppelman.
Sonya D. Winner, Bruce R. Deming, David M. Jolley, and
John D. Freed, Covington & Burling LLP, San Francisco,
California; for amici curiae American Anthropological Asso-
ciation, American Psychoanalytic Association, National Asso-
ciation of Social Workers, National Association of Social
Workers, California Chapter, American Sociological Associa-
tion, and American Academy of Pediatrics, California.
Jon W. Davidson, Jennifer C. Pizer, and Tara L. Borelli,
Lambda Legal Defense and Education Fund, Inc., Los Ange-
les, California; Alan L. Schlosser and Elizabeth O. Gill,
ACLU Foundation of Northern California, San Francisco,
California; Shannon P. Minter, Christopher F. Stoll, and Ilona
M. Turner, National Center for Lesbian Rights, San Fran-
cisco, California; for amici curiae ACLU Foundation of
Northern California, Gay and Lesbian Advocates and Defend-
ers, Lambda Legal Defense and Education Fund, Inc., and
National Center for Lesbian Rights.
Eric Alan Isaacson, San Diego, California; Stacey M. Kaplan,
San Francisco, California; for amici curiae California Faith
for Equality, California Council of Churches, General Synod
of the United Church of Christ, Universal Fellowship of Met-
ropolitan Community Churches, The Episcopal Bishops of
California and Los Angeles, Progressive Jewish Alliance,
Pacific Association of Reform Rabbis, Unitarian Universalist
Association, and Unitarian Universalist Legislative Ministry
California.
David C. Codell, Linda M. Burrow, Albert Giang, and Benja-
min A. Au, Caldwell Leslie & Proctor, PC, Los Angeles, Cal-
ifornia; for amicus curiae Equality California.
PERRY v. BROWN 1585
Diana E. Richmond and Louis P. Feuchtbaum, Sideman &
Bancroft LLP, San Francisco, California; Richard B. Rosen-
thal, The Law Offices of Richard B. Rosenthal, P.A., San
Rafael, California; for amici curiae Donald B. King, Justice
(Ret.) and The American Academy of Matrimonial Lawyers
(Northern California Chapter).
Elizabeth J. Cabraser, Kelly M. Dermody, Brendan P.
Glackin, Anne Shaver, and Alison Stocking, Lieff, Cabraser,
Heimann & Bernstein, LLP, San Francisco, California;
Rachel Geman, Lieff, Cabraser, Heimann & Bernstein, LLP,
New York, New York; for amici curiae Professors Bryan
Adamson, Janet Cooper Alexander, Barbara A. Atwood, Bar-
bara Babcock, Erwin Chemerinsky, Joshua P. Davis, David L.
Faigman, Pamela S. Karlan, Toni M. Massaro, Arthur Miller,
David Oppenheimer, Judith Resnik, Fred Smith, and Larry
Yackle.
Scott Wm. Davenport, Jason J. Molnar, Darin L. Wessel, and
Peter C. Catalanotti, Manning & Marder, Kass, Ellrod,
Ramirez LLP, Irvine, California; for amicus curiae The
Southern Poverty Law Center.
Peter Obstler, Jee Young You, Suneeta D. Fernandes, and
Doug Karpa, Bingham McCutchen LLP, San Francisco, Cali-
fornia; for amici curiae Asian American Justice Center, Asian
Law Caucus, Asian American Institute, Asian Pacific Ameri-
can Legal Center, Asian Pacific American Women Lawyers
Alliance, Asian Pacific Islander Legal Outreach, API Equal-
ity, California Conference of the NAACP, Chinese for Affir-
mative Action, Coalition for Humane Immigrant Rights of
Los Angeles, Korematsu Center at Seattle University, Mexi-
can American Legal Defense and Education Fund, and Zuna
Institute.
Susan M. Popik and Merri A. Baldwin, Chapman, Popik &
White LLP, San Francisco, California; Suzanne B. Goldberg,
Clinical Professor of Law and Director, Sexuality & Gender
1586 PERRY v. BROWN
Law Clinic, Columbia Law School, New York, New York;
for amici curiae National Gay and Lesbian Task Force Foun-
dation, Human Rights Campaign, American Humanist Asso-
ciation, and Courage Campaign Institute.
No. 11-16577:
David Boies (argued), Jeremy M. Goldman, and Theodore H.
Uno, Boies, Schiller & Flexner LLP, Armonk, New York;
Theodore B. Olson, Matthew D. McGill, and Amir C. Tay-
rani, Gibson, Dunn & Crutcher LLP, Washington, D.C.; The-
odore J. Boutrous, Jr., Christopher D. Dusseault, Theane
Evangelis Kapur, Enrique A. Monagas, and Joshua S. Lip-
shutz, Gibson, Dunn & Crutcher LLP, Los Angeles, Califor-
nia; for plaintiffs-appellees Kristin M. Perry, Sandra B. Stier,
Paul T. Katami, and Jeffrey J. Zarrillo.
Dennis J. Herrera, Therese M. Stewart (argued), and Christine
Van Aken, City and County of San Francisco, San Francisco,
California; for intervenor-plaintiff-appellee City and County
of San Francisco.
Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom,
California; Charles J. Cooper (argued), David H. Thompson,
Howard C. Nielson, Jr., and Peter A. Patterson, Cooper and
Kirk, PLLC, Washington, D.C.; Brian W. Raum and James A.
Campbell, Alliance Defense Fund, Scottsdale, Arizona; for
intervenor-defendants-appellants Dennis Hollingsworth, Gail
J. Knight, Martin F. Gutierrez, Mark A. Jansson, and Protect-
Marriage.com.
Jon W. Davidson, Tara L. Borelli, and Peter C. Renn, Lambda
Legal Defense and Education Fund, Los Angeles, California;
Shannon P. Minter, Christopher F. Stoll, and Ilona M. Turner,
National Center for Lesbian Rights, San Francisco, Califor-
nia; Alan L. Schlosser and Elizabeth O. Gill, ACLU Founda-
tion of Northern California, San Francisco, California; for
amici curiae Lambda Legal Defense and Education Fund,
PERRY v. BROWN 1587
National Center for Lesbian Rights, ACLU Foundation of
Northern California, and Equality California.
David M. Balabanian, Frank Busch, Elizabeth Benson, and
Kathryn Conrad, Bingham McCutchen LLP, San Francisco,
California; for amicus curiae The Bar Association of San
Francisco.
OPINION
REINHARDT, Circuit Judge:
Prior to November 4, 2008, the California Constitution
guaranteed the right to marry to opposite-sex couples and
same-sex couples alike. On that day, the People of California
adopted Proposition 8, which amended the state constitution
to eliminate the right of same-sex couples to marry. We con-
sider whether that amendment violates the Fourteenth
Amendment to the United States Constitution. We conclude
that it does.
Although the Constitution permits communities to enact
most laws they believe to be desirable, it requires that there
be at least a legitimate reason for the passage of a law that
treats different classes of people differently. There was no
such reason that Proposition 8 could have been enacted.
Because under California statutory law, same-sex couples had
all the rights of opposite-sex couples, regardless of their mari-
tal status, all parties agree that Proposition 8 had one effect
only. It stripped same-sex couples of the ability they previ-
ously possessed to obtain from the State, or any other autho-
rized party, an important right—the right to obtain and use the
designation of ‘marriage’ to describe their relationships.
Nothing more, nothing less. Proposition 8 therefore could not
have been enacted to advance California’s interests in child-
rearing or responsible procreation, for it had no effect on the
1588 PERRY v. BROWN
rights of same-sex couples to raise children or on the procre-
ative practices of other couples. Nor did Proposition 8 have
any effect on religious freedom or on parents’ rights to control
their children’s education; it could not have been enacted to
safeguard these liberties.
All that Proposition 8 accomplished was to take away from
same-sex couples the right to be granted marriage licenses
and thus legally to use the designation of ‘marriage,’ which
symbolizes state legitimization and societal recognition of
their committed relationships. Proposition 8 serves no pur-
pose, and has no effect, other than to lessen the status and
human dignity of gays and lesbians in California, and to offi-
cially reclassify their relationships and families as inferior to
those of opposite-sex couples. The Constitution simply does
not allow for “laws of this sort.” Romer v. Evans, 517 U.S.
620, 633 (1996).
“Broader issues have been urged for our consideration, but
we adhere to the principle of deciding constitutional questions
only in the context of the particular case before the Court.”
Sweatt v. Painter, 339 U.S. 629, 631 (1950). Whether under
the Constitution same-sex couples may ever be denied the
right to marry, a right that has long been enjoyed by opposite-
sex couples, is an important and highly controversial question.
It is currently a matter of great debate in our nation, and an
issue over which people of good will may disagree, some-
times strongly. Of course, when questions of constitutional
law are necessary to the resolution of a case, courts may not
and should not abstain from deciding them simply because
they are controversial. We need not and do not answer the
broader question in this case, however, because California had
already extended to committed same-sex couples both the
incidents of marriage and the official designation of ‘mar-
riage,’ and Proposition 8’s only effect was to take away that
important and legally significant designation, while leaving in
place all of its incidents. This unique and strictly limited
PERRY v. BROWN 1589
effect of Proposition 8 allows us to address the amendment’s
constitutionality on narrow grounds.
Thus, as a result of our “traditional reluctance to extend
constitutional interpretations to situations or facts which are
not before the Court, much of the excellent research and
detailed argument presented in th[is] case[ ] is unnecessary to
[its] disposition.” Id. Were we unable, however, to resolve the
matter on the basis we do, we would not hesitate to proceed
to the broader question—the constitutionality of denying
same-sex couples the right to marry.
Before considering the constitutional question of the valid-
ity of Proposition 8’s elimination of the rights of same-sex
couples to marry, we first decide that the official sponsors of
Proposition 8 are entitled to appeal the decision below, which
declared the measure unconstitutional and enjoined its
enforcement. The California Constitution and Elections Code
endow the official sponsors of an initiative measure with the
authority to represent the State’s interest in establishing the
validity of a measure enacted by the voters, when the State’s
elected leaders refuse to do so. See Perry v. Brown, 134 Cal.
Rptr. 3d 499 (2011). It is for the State of California to decide
who may assert its interests in litigation, and we respect its
decision by holding that Proposition 8’s proponents have
standing to bring this appeal on behalf of the State. We there-
fore conclude that, through the proponents of ballot measures,
the People of California must be allowed to defend in federal
courts, including on appeal, the validity of their use of the ini-
tiative power. Here, however, their defense fails on the merits.
The People may not employ the initiative power to single out
a disfavored group for unequal treatment and strip them, with-
out a legitimate justification, of a right as important as the
right to marry. Accordingly, we affirm the judgment of the
district court.
We also affirm—for substantially the reasons set forth in
the district court’s opinion—the denial of the motion by the
1590 PERRY v. BROWN
official sponsors of Proposition 8 to vacate the judgment
entered by former Chief Judge Walker, on the basis of his
purported interest in being allowed to marry his same-sex
partner.
I
A
Upon its founding, the State of California recognized the
legal institution of civil marriage for its residents. See, e.g.,
Cal. Const. of 1849, art. XI, §§ 12, 14 (discussing marriage
contracts and marital property); Cal. Stats. 1850, ch. 140 (“An
Act regulating Marriages”). Marriage in California was under-
stood, at the time and well into the twentieth century, to be
limited to relationships between a man and a woman. See In
re Marriage Cases, 183 P.3d 384, 407-09 (Cal. 2008). In
1977, that much was made explicit by the California Legisla-
ture, which amended the marriage statute to read, “Marriage
is a personal relation arising out of a civil contract between
a man and a woman, to which the consent of the parties capa-
ble of making that contract is necessary.” Cal. Stats. 1977, ch.
339, § 1. The 1977 provision remains codified in California
statute. See Cal. Fam. Code § 300(a).
Following the enactment of the Defense of Marriage Act of
1996, Pub. L. 104-199, 110 Stat. 2419 (codified in relevant
part at 1 U.S.C. § 7), which expressly limited the federal defi-
nition of marriage to relationships between one man and one
woman, dozens of states enacted similar provisions into state
law. See Andrew Koppelman, The Difference the Mini-
DOMAs Make, 38 Loy. U. Chi. L.J. 265, 265-66 (2007). Cali-
fornia did so in 2000 by adopting Proposition 22, an initiative
statute, which provided, “Only marriage between a man and
a woman is valid or recognized in California.” Cal. Fam.
Code § 308.5. The proposition ensured that same-sex mar-
riages performed in any state that might permit such mar-
riages in the future would not be recognized in California, and
PERRY v. BROWN 1591
it guaranteed that any legislative repeal of the 1977 statute
would not allow same-sex couples to marry within the State,
because the Legislature may not amend or repeal an initiative
statute enacted by the People. See Marriage Cases, 183 P.3d
at 409-10.
Meanwhile, however, California had created the designa-
tion “domestic partnership” for “two adults who have chosen
to share one another’s lives in an intimate and committed rela-
tionship of mutual caring.” Cal. Stats. 1999, ch. 588, § 2 (cod-
ified at Cal. Fam. Code § 297(a)). At first, California gave
registered domestic partners only limited rights, such as hos-
pital visitation privileges, id. § 4, and health benefits for the
domestic partners of certain state employees, id. § 3. Over the
next several years, however, the State substantially expanded
the rights of domestic partners. By 2008, “California statutory
provisions generally afford[ed] same-sex couples the opportu-
nity to . . . obtain virtually all of the benefits and responsibili-
ties afforded by California law to married opposite-sex
couples.” Marriage Cases, 183 P.3d at 417-18. The 2003
Domestic Partner Act provided broadly: “Registered domestic
partners shall have the same rights, protections, and benefits,
and shall be subject to the same responsibilities, obligations,
and duties under law, whether they derive from statutes,
administrative regulations, court rules, government policies,
common law, or any other provisions or sources of law, as are
granted to and imposed upon spouses.” Cal. Stats. 2003, ch.
421, § 4 (codified at Cal. Fam. Code § 297.5(a)). It withheld
only the official designation of marriage and thus the offi-
cially conferred and societally recognized status that accom-
panies that designation.
B
In 2004, same-sex couples and the City and County of San
Francisco filed actions in California state courts alleging that
the State’s marriage statutes violated the California Constitu-
tion. Proposition 22 was among the statutes challenged,
1592 PERRY v. BROWN
because as an initiative statutory enactment, it was equal in
dignity to an enactment by the Legislature and thus subject to
the restrictions of the state constitution.1 The consolidated
cases were eventually decided by the California Supreme
Court, which held the statutes to be unconstitutional, for two
independent reasons.
First, the court held that the fundamental right to marry
provided by the California Constitution could not be denied
to same-sex couples, who are guaranteed “the same substan-
tive constitutional rights as opposite-sex couples to choose
one’s life partner and enter with that person into a committed,
officially recognized, and protected family relationship that
enjoys all of the constitutionally based incidents of marriage.”
Marriage Cases, 183 P.3d at 433-34. The court began by reaf-
firming that “the right to marry is an integral component of
an individual’s interest in personal autonomy protected by the
privacy provision of article I, section 1 [of the California Con-
stitution], and of the liberty interest protected by the due pro-
cess clause of article I, section 7.” Id. at 426 (emphasis
omitted). It then held “that an individual’s homosexual orien-
tation is not a constitutionally legitimate basis for withholding
or restricting the individual’s legal rights.” Id. at 429. The
court acknowledged that although such an inclusive under-
standing of the right to marry was one that had developed
only “in recent decades,” as the State extended greater recog-
nition to same-sex couples and households, it was “apparent
that history alone does not provide a justification for interpret-
1
The California Constitution differentiates between initiative statutes,
which require petitions signed by five percent of electors, and initiative
constitutional amendments, which require petitions signed by eight per-
cent of electors. Cal. Const. art. 2, § 8(b). An initiative statutory enactment
has somewhat greater status than a statute adopted by the Legislature, in
that the Legislature may not amend or repeal the initiative statute without
submitting the change to approval by the electors (unless the initiative
statute provides otherwise). Id. § 10(c). Yet, like a statutory enactment by
the Legislature, and unlike an initiative constitutional amendment, it is
subject to the terms of the state constitution.
PERRY v. BROWN 1593
ing the constitutional right to marry as protecting only one’s
ability to enter into an officially recognized family relation-
ship with a person of the opposite sex,” because
“ ‘[f]undamental rights, once recognized, cannot be denied to
particular groups on the ground that these groups have histori-
cally been denied those rights.’ ” Id. at 428-30 (quoting Her-
nandez v. Robles, 7 N.Y.3d 338, 381 (2006) (Kaye, C.J.,
dissenting)).
The court concluded its due process analysis by rejecting
the argument that the availability of domestic partnerships sat-
isfied “all of the personal and dignity interests that have tradi-
tionally informed the right to marry,” because “[t]he current
statutes—by drawing a distinction between the name assigned
to the family relationship available to opposite-sex couples
and the name assigned to the family relationship available to
same-sex couples, and by reserving the historic and highly
respected designation of ‘marriage’ exclusively to opposite-
sex couples while offering same-sex couples only the new and
unfamiliar designation of domestic partnership—pose a seri-
ous risk of denying the official family relationship of same-
sex couples the equal dignity and respect that is a core ele-
ment of the constitutional right to marry.” Id. at 434-35.
Second, the court held that “[t]he current statutory assign-
ment of different names for the official family relationships of
opposite-sex couples on the one hand, and of same-sex cou-
ples on the other” violated the equal protection clause in arti-
cle I, section 7 of the California Constitution. Id. at 435, 452-
53. The court determined that the State had no interest in
reserving the name ‘marriage’ for opposite-sex couples; “the
historic and well-established nature of this limitation” could
not itself justify the differential treatment, and the court found
no reason that restricting the designation of ‘marriage’ to
opposite-sex couples was necessary to preserve the benefits of
marriage enjoyed by opposite-sex couples or their children.
Id. at 450-52. The court noted specifically that “the distinction
in nomenclature between marriage and domestic partnership
1594 PERRY v. BROWN
cannot be defended on the basis of an asserted difference in
the effect on children of being raised by an opposite-sex cou-
ple instead of by a same-sex couple,” because “the governing
California statutes permit same-sex couples to adopt and raise
children and additionally draw no distinction between married
couples and domestic partners with regard to the legal rights
and responsibilities relating to children raised within each of
these family relationships.” Id. at 452 n.72. Restricting access
to the designation of ‘marriage’ did, however, “work[ ] a real
and appreciable harm upon same-sex couples and their chil-
dren,” because “providing only a novel, alternative institution
for same-sex couples” constituted “an official statement that
the family relationship of same-sex couples is not of compara-
ble stature or equal dignity to the family relationship of
opposite-sex couples.” Id. at 452. Consequently, the court
determined that withholding only the name ‘marriage’ from
same-sex couples violated the California Constitution’s guar-
antee of equal protection.
The court remedied these constitutional violations by strik-
ing the language from the marriage statutes “limiting the des-
ignation of marriage to a union ‘between a man and a
woman,’ ” invalidating Proposition 22, and ordering that the
designation of ‘marriage’ be made available to both opposite-
sex and same-sex couples. Id. at 453. Following the court’s
decision, California counties issued more than 18,000 mar-
riage licenses to same-sex couples.
C
Five California residents—defendants-intervenors-
appellants Dennis Hollingsworth, Gail J. Knight, Martin F.
Gutierrez, Hak-Shing William Tam, and Mark A. Jansson
(collectively, “Proponents”)—collected voter signatures and
filed petitions with the state government to place an initiative
on the November 4, 2008, ballot. Unlike Proposition 22, this
was an initiative constitutional amendment, which would be
equal in effect to any other provision of the California Consti-
PERRY v. BROWN 1595
tution, rather than subordinate to it. The Proponents’ measure,
designated Proposition 8, proposed to add a new provision to
the California Constitution’s Declaration of Rights, immedi-
ately following the Constitution’s due process and equal pro-
tection clauses. The provision states, “Only marriage between
a man and a woman is valid or recognized in California.”
According to the official voter information guide, Proposition
8 “[c]hanges the California Constitution to eliminate the right
of same-sex couples to marry in California.” Official Voter
Information Guide, California General Election (Nov. 4,
2008), at 54. Following a contentious campaign, a slim major-
ity of California voters (52.3 percent) approved Proposition 8.
Pursuant to the state constitution, Proposition 8 took effect the
next day, as article I, section 7.5 of the California Constitu-
tion.
Opponents of Proposition 8 then brought an original action
for a writ of mandate in the California Supreme Court. They
contended that Proposition 8 exceeded the scope of the Peo-
ple’s initiative power because it revised, rather than amended,
the California Constitution. The opponents did not raise any
federal constitutional challenge to Proposition 8 in the state
court. The state officials named as respondents refused to
defend the measure’s validity, but Proponents were permitted
to intervene and do so. Following argument, the court upheld
Proposition 8 as a valid initiative but construed the measure
as not nullifying the 18,000-plus marriages of same-sex cou-
ples that had already been performed in the State. Strauss v.
Horton, 207 P.3d 48, 98-110, 119-22 (Cal. 2009).
The court also explained Proposition 8’s precise effect on
California law: “[T]he measure carves out a narrow and lim-
ited exception to the[ ] state constitutional rights [articulated
in the Marriage Cases], reserving the official designation of
the term ‘marriage’ for the union of opposite-sex couples as
a matter of state constitutional law, but leaving undisturbed all
of the other extremely significant substantive aspects of a
same-sex couple’s state constitutional right to establish an
1596 PERRY v. BROWN
officially recognized and protected family relationship and the
guarantee of equal protection of the laws.” Id. at 61; see also
id. at 75. In other words, after Proposition 8, “[s]ame-sex cou-
ples retain all of the fundamental substantive components
encompassed within the constitutional rights of privacy and
due process, with the sole (albeit significant) exception of the
right to equal access to the designation ‘marriage.’ ” Id. at
116. Proposition 8 accomplished this result not by “declar-
[ing] the state of the law as it existed when the Marriage
Cases decision was rendered, but instead [by] establish[ing]
a new substantive state constitutional rule that became effec-
tive once Proposition 8 was approved by the voters.” Id. at
115; see also id. at 63.
II
A
Two same-sex couples—plaintiffs Kristin Perry and Sandra
Stier, and Paul Katami and Jeffrey Zarrillo—filed this action
under 42 U.S.C. § 1983 in May 2009, after being denied mar-
riage licenses by the County Clerks of Alameda County and
Los Angeles County, respectively. Alleging that Proposition
8 violates the Fourteenth Amendment to the United States
Constitution, they sought a declaration of its unconstitutional-
ity and an injunction barring its enforcement. The City and
County of San Francisco (“San Francisco”) was later permit-
ted to intervene as a plaintiff to present evidence of the
amendment’s effects on its governmental interests. The
defendants—the two county clerks and four state officers,
including the Governor and Attorney General—filed answers
to the complaint but once again refused to argue in favor of
Proposition 8’s constitutionality. As a result, the district court
granted Proponents’ motion to intervene as of right under
Federal Rule of Civil Procedure 24(a) to defend the validity
of the proposition they had sponsored.2
2
The district court subsequently denied the motion to intervene brought
by the Campaign for California Families, a public interest organization
PERRY v. BROWN 1597
The district court held a twelve-day bench trial, during
which it heard testimony from nineteen witnesses and, after
giving the parties a full and fair opportunity to present evi-
dence and argument, built an extensive evidentiary record.3 In
a thorough opinion in August 2010, the court made eighty
findings of fact and adopted the relevant conclusions of law.
Perry v. Schwarzenegger (Perry IV), 704 F. Supp. 2d 921(N.D. Cal. 2010).4 The court held Proposition 8 unconstitu-
that supported Proposition 8 but was not the measure’s official sponsor.
We affirmed that decision in Perry v. Proposition 8 Official Proponents
(Perry I), 587 F.3d 947 (9th Cir. 2009). The district court also denied
leave to intervene to a coalition of civil rights advocacy organizations. Id.at 950 n.1.
3
A number of ancillary matters, none of which we need revisit here,
were presented to this court immediately prior to and during the trial. First,
we granted Proponents’ petition for a writ of mandamus to protect their
First Amendment interests in campaign communications against intrusion
by Plaintiffs’ discovery requests. Perry v. Schwarzenegger (Perry II), 591
F.3d 1147 (9th Cir. 2010), amending and denying reh’g en banc of 591
F.3d 1126 (9th Cir. 2009). Second, we denied a similar mandamus petition
brought by three non-party organizations that had campaigned against
Proposition 8. Perry v. Schwarzenegger (Perry III), 602 F.3d 976 (9th Cir.
2010). Finally, a motions panel of this court denied Proponents’ emer-
gency petition for a writ of mandamus, filed on the eve of trial, to prohibit
the district court from broadcasting the trial via streaming video and audio
to a few federal courthouses around the country. The Supreme Court then
granted Proponents’ application for a temporary and eventually permanent
stay of the broadcast. Hollingsworth v. Perry, 130 S. Ct. 1132 (2010)
(mem.); Hollingsworth v. Perry, 130 S. Ct. 705 (2010).
4
The court found, among other things, that (1) marriage benefits society
by organizing individuals into cohesive family units, developing a realm
of liberty for intimacy and free decision making, creating stable house-
holds, legitimating children, assigning individuals to care for one another,
and facilitating property ownership, id. at 961; (2) marriage benefits
spouses and their children physically, psychologically, and economically,
id. at 962-63, whether the spouses are of the same or opposite sexes, id.
at 969-70; (3) domestic partnerships lack the social meaning associated
with marriage, id. at 970, 973-75; (4) permitting same-sex couples to
marry would not affect the number or stability of opposite-sex marriages,
id. at 972-73; (5) the children of same-sex couples benefit when their par-
1598 PERRY v. BROWN
tional under the Due Process Clause because no compelling
state interest justifies denying same-sex couples the funda-
mental right to marry. Id. at 991-95. The court also deter-
mined that Proposition 8 violated the Equal Protection Clause,
because there is no rational basis for limiting the designation
of ‘marriage’ to opposite-sex couples. Id. at 997-1003. The
court therefore entered the following injunction: “Defendants
in their official capacities, and all persons under the control
or supervision of defendants, are permanently enjoined from
applying or enforcing Article I, § 7.5 of the California Constitu-
tion.”5 Doc. 728 (Permanent Injunction), Perry v. Schwar-
zenegger, No. 09-cv-02292 (N.D. Cal. Aug. 12, 2010).6
B
Proponents appealed immediately, and a motions panel of
this court stayed the district court’s injunction pending appeal.
ents marry, and they fare just as well as children raised by opposite-sex
parents, id. at 973, 980-81; (6) Proposition 8 stigmatizes same-sex couples
as having relationships inferior to those of opposite-sex couples, id. at
973-74, 979-80; (7) Proposition 8 eliminated same-sex couples’ right to
marry but did not affect any other substantive right they enjoyed, id. at
977; and (8) the campaign in favor of Proposition 8 relied upon stereo-
types and unfounded fears about gays and lesbians, id. at 988-91.
5
Without explanation, the district court failed to enter a separate declar-
atory judgment as Plaintiffs had requested. The court’s opinion made clear
its holding “that Proposition 8 is unconstitutional.” 704 F. Supp. 2d at
1003. But the clerk apparently never issued this declaratory judgment as
a separate document, as Fed. R. Civ. P. 58 requires.
6
Concurrently with its decision on the merits of Plaintiffs’ claim, the
district court denied a motion to intervene as a defendant brought by Impe-
rial County, its board of supervisors, and one of its Deputy County Clerks.
We affirmed the district court’s denial of the motion, on alternative
grounds, in Perry v. Schwarzenegger (Perry VI), 630 F.3d 898 (9th Cir.
2011). The newly elected County Clerk of Imperial County subsequently
moved to intervene in this court in the companion appeal, No. 10-16751.
In light of the fact that Proponents have standing to appeal, we deny the
motion as untimely but have considered the Clerk’s filings as briefs amici
curiae.
PERRY v. BROWN 1599
The motions panel asked the parties to discuss in their briefs,
as a preliminary matter, whether the Proponents had standing
to seek review of the district court order. After considering
the parties’ arguments, we concluded that Proponents’ stand-
ing to appeal depended on the precise rights and interests
given to official sponsors of an initiative under California law,
which had never been clearly defined by the State’s highest
court. We therefore certified the following question to the
California Supreme Court:
Whether under Article II, Section 8 of the California
Constitution, or otherwise under California law, the
official proponents of an initiative measure possess
either a particularized interest in the initiative’s
validity or the authority to assert the State’s interest
in the initiative’s validity, which would enable them
to defend the constitutionality of the initiative upon
its adoption or appeal a judgment invalidating the
initiative, when the public officials charged with that
duty refuse to do so.
Perry v. Schwarzenegger (Perry V), 628 F.3d 1191, 1193 (9th
Cir. 2011). The state court granted our request for certifica-
tion in February 2011, and in November 2011 rendered its
decision. See Perry v. Brown (Perry VII), 134 Cal. Rptr. 3d
499( 2011). We now resume consideration of this appeal.7
III
We begin, as we must, with the issue that has prolonged
our consideration of this case: whether we have jurisdiction
over an appeal brought by the defendant-intervenor Propo-
nents, rather than the defendant state and local officers who
were directly enjoined by the district court order.8 In view of
7
We vacated submission of this case upon ordering that our question be
certified to the California Supreme Court. Perry V, 628 F.3d at 1200. The
case is now ordered resubmitted.
8
Although we regret the delay that our need to resolve this issue has
caused, we note that this delay was not of our own making. See Perry V,
1600 PERRY v. BROWN
Proponents’ authority under California law, we conclude that
they do have standing to appeal.
For purposes of Article III standing, we start with the prem-
ise that “a State has standing to defend the constitutionality of
its [laws].” Diamond v. Charles, 476 U.S. 54, 62 (1986).
When a state law is ruled unconstitutional, either the state or
a state officer charged with the law’s enforcement may appeal
that determination. Typically, the named defendant in an
action challenging the constitutionality of a state law is a state
officer, because sovereign immunity protects the state from
being sued directly. See Ex parte Young, 209 U.S. 123, 157-
58 (1908); L.A. County Bar Ass’n v. Eu, 979 F.2d 697, 704
(9th Cir. 1992). In such cases, if a court invalidates the state
law and enjoins its enforcement, there is no question that the
state officer is entitled to appeal that determination. See, e.g.,
Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353 (2009) (Idaho
Secretary of State and Attorney General appealed decision
striking down an Idaho law on First Amendment grounds);
Stenberg v. Carhart, 530 U.S. 914 (2000) (Nebraska Attorney
General appealed decision holding unconstitutional a
Nebraska abortion law). Moreover, there is no reason that a
state itself may not also choose to intervene as a defendant,
and indeed a state must be permitted to intervene if a state
officer is not already party to an action in which the constitu-
tionality of a state law is challenged. See 28 U.S.C. § 2403(b);
Fed. R. Civ. P. 5.1; cf. Fed. R. App. P. 44(b). When a state
does elect to become a defendant itself, the state may appeal
an adverse decision about the constitutionality of one of its
laws, just as a state officer may. See, e.g., Caruso v. Yamhill
County ex rel. County Comm’r, 422 F.3d 848, 852-53 & n.2
(9th Cir. 2005) (sole appellant was the State of Oregon, which
had intervened as a defendant in the district court). In other
628 F.3d at 1200-02 (Reinhardt, J., concurring). We are grateful to the
California Supreme Court for the thoughtful and full consideration it gave
our question.
PERRY v. BROWN 1601
words, in a suit for an injunction against enforcement of an
allegedly unconstitutional state law, it makes no practical dif-
ference whether the formal party before the court is the state
itself or a state officer in his official capacity. Cf. Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 114 n.25
(1984) (discussing the “fiction” of Ex parte Young); see also
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269-70
(1997) (same).
Whether the defendant is the state or a state officer, the
decision to assert the state’s own interest in the constitutional-
ity of its laws is most commonly made by the state’s execu-
tive branch—the part of state government that is usually
charged with enforcing and defending state law. See, e.g.,
Ysursa, 555 U.S. at 354 (Idaho state officers represented by
state Attorney General); Caruso, 422 F.3d at 851 (State of
Oregon represented by Oregon Department of Justice). Some
sovereigns vest the authority to assert their interest in litiga-
tion exclusively in certain executive officers. See, e.g., 28
U.S.C. §§ 516-19; 28 C.F.R. § 0.20.
The states need not follow that approach, however. It is
their prerogative, as independent sovereigns, to decide for
themselves who may assert their interests and under what cir-
cumstances, and to bestow that authority accordingly. In Kar-
cher v. May, 484 U.S. 72 (1987), for example, the Supreme
Court held that the State of New Jersey was properly repre-
sented in litigation by the Speaker of the General Assembly
and the President of the Senate, appearing on behalf of the
Legislature, because “the New Jersey Legislature had author-
ity under state law to represent the State’s interests.” Id. at 82
(citing In re Forsythe, 450 A.2d 499, 500 (N.J. 1982)).9 Prin-
9
See also Richardson v. Ramirez, 418 U.S. 24 (1974), in which a county
clerk was not barred from appealing a judgment invalidating California’s
felon disenfranchisement law, even though the only state officer who had
been sued, then-California Secretary of State Edmund G. Brown, Jr.,
refused to pursue the appeal. Id. at 26 n.1, 36-38.
1602 PERRY v. BROWN
ciples of federalism require that federal courts respect such
decisions by the states as to who may speak for them: “there
are limits on the Federal Government’s power to affect the
internal operations of a State.” Va. Office for Protection &
Advocacy v. Stewart, 131 S. Ct. 1632, 1641 (2011). It is not
for a federal court to tell a state who may appear on its behalf
any more than it is for Congress to direct state law-
enforcement officers to administer a federal regulatory
scheme, see Printz v. United States, 521 U.S. 898 (1997), to
command a state to take ownership of waste generated within
its borders, see New York v. United States, 505 U.S. 144(1992), or to dictate where a state shall locate its capital, see
Coyle v. Smith, 221 U.S. 559 (1911). Who may speak for the
state is, necessarily, a question of state law. All a federal court
need determine is that the state has suffered a harm sufficient
to confer standing and that the party seeking to invoke the
jurisdiction of the court is authorized by the state to represent
its interest in remedying that harm.
Proponents claim to assert the interest of the People of Cal-
ifornia in the constitutionality of Proposition 8, which the
People themselves enacted. When faced with a case arising in
a similar posture, in which an Arizona initiative constitutional
amendment was defended only by its sponsors, the Supreme
Court expressed “grave doubts” about the sponsors’ standing
given that the Court was “aware of no Arizona law appointing
initiative sponsors as agents of the people of Arizona to
defend, in lieu of public officials, the constitutionality of ini-
tiatives made law of the State.” Arizonans for Official English
v. Arizona (Arizonans), 520 U.S. 43, 65-66 (1997). Absent
some conferral of authority by state law, akin to the authority
that the New Jersey legislators in Karcher had as “elected rep-
resentatives,” the Court suggested that proponents of a ballot
measure would not be able to appeal a decision striking down
the initiative they sponsored. Id. at 65.
[1] Here, unlike in Arizonans, we do know that California
law confers on “initiative sponsors” the authority “to defend,
PERRY v. BROWN 1603
in lieu of public officials, the constitutionality of initiatives
made law of the State.” The California Supreme Court has
told us, in a published opinion containing an exhaustive
review of the California Constitution and statutes, that it does.
In answering our certified question, the court held
that when the public officials who ordinarily defend
a challenged state law or appeal a judgment invali-
dating the law decline to do so, under article II, sec-
tion 8 of the California Constitution and the relevant
provisions of the Elections Code, the official propo-
nents of a voter-approved initiative measure are
authorized to assert the state’s interest in the initia-
tive’s validity, enabling the proponents to defend the
constitutionality of the initiative and to appeal a
judgment invalidating the initiative.
Perry VII, 134 Cal. Rptr. 3d at 536-37. “[T]he role played by
the proponents in such litigation,” the court explained, “is
comparable to the role ordinarily played by the Attorney Gen-
eral or other public officials in vigorously defending a duly
enacted state law and raising all arguable legal theories upon
which a challenged provision may be sustained.” Id. at 525.
The State’s highest court thus held that California law pro-
vides precisely what the Arizonans Court found lacking in
Arizona law: it confers on the official proponents of an initia-
tive the authority to assert the State’s interests in defending
the constitutionality of that initiative, where the state officials
who would ordinarily assume that responsibility choose not to
do so.
We are bound to accept the California court’s determina-
tion. Although other states may act differently, California’s
conferral upon proponents of the authority to represent the
People’s interest in the initiative measure they sponsored is
consistent with that state’s unparalleled commitment to the
authority of the electorate: “No other state in the nation car-
ries the concept of initiatives as ‘written in stone’ to such
1604 PERRY v. BROWN
lengths as” does California. People v. Kelly, 222 P.3d 186,
200 (Cal. 2010) (internal quotation marks omitted). Indeed,
California defines the initiative power as “one of the most
precious rights of our democratic process,” and considers “the
sovereign people’s initiative power” to be a “fundamental
right” under the state constitution. Assoc. Home Builders v.
City of Livermore, 557 P.2d 473, 477 (Cal. 1976); Brosnahan
v. Brown, 651 P.2d 274, 277 (Cal. 1982); Costa v. Super. Ct.,
128 P.3d 675, 686 (Cal. 2006). As the California Supreme
Court explained in answering our certified question, “[t]he
initiative power would be significantly impaired if there were
no one to assert the state’s interest in the validity of the mea-
sure when elected officials decline to defend it in court or to
appeal a judgment invalidating the measure.” Perry VII, 134
Cal. Rptr. 3d at 523. The authority of official proponents to
“assert[ ] the state’s interest in the validity of an initiative
measure” thus “serves to safeguard the unique elements and
integrity of the initiative process.” Id. at 533.
It matters not whether federal courts think it wise or desir-
able for California to afford proponents this authority to speak
for the State, just as it makes no difference whether federal
courts think it a good idea that California allows its constitu-
tion to be amended by a majority vote through a ballot mea-
sure in the first place. Cf. Pac. States Tel. & Tel. Co. v.
Oregon, 223 U.S. 118 (1912) (holding nonjusticiable a Guar-
anty Clause challenge to Oregon’s initiative system). The
People of California are largely free to structure their system
of governance as they choose, and we respect their choice. All
that matters, for federal standing purposes, is that the People
have an interest in the validity of Proposition 8 and that, under
California law, Proponents are authorized to represent the
People’s interest. That is the case here.
In their supplemental brief on the issue of standing, Plain-
tiffs argue for the first time that Proponents must satisfy the
requirements of third-party standing in order to assert the
interests of the State of California in this litigation. Litigants
PERRY v. BROWN 1605
who wish “to bring actions on behalf of third parties” must
satisfy three requirements. Powers v. Ohio, 499 U.S. 400,
410-11 (1991). First, they “must have suffered an ‘injury in
fact,’ thus giving [them] a ‘sufficiently concrete interest’ in
the outcome of the issue in dispute.” Id. at 411. Second, they
“must have a close relation to the third party.” Id. Third,
“there must exist some hindrance to the third party’s ability
to protect his or her own interests.” Id. Plaintiffs contend that
Proponents cannot satisfy these requirements with respect to
the State of California as a third party.
The requirements of third-party standing, however, are
beside the point: the State of California is no more a “third
party” relative to Proponents than it is to the executive offi-
cers of the State who ordinarily assert the State’s interest in
litigation. As the California Supreme Court has explained,
“the role played by the proponents” in litigation “regarding
the validity or proper interpretation of a voter-approved initia-
tive measure . . . is comparable to the role ordinarily played
by the Attorney General or other public officials in vigorously
defending a duly enacted state law.” Perry VII, 134 Cal. Rptr.
3d at 525. When the Attorney General of California appears
in federal court to defend the validity of a state statute, she
obviously need not satisfy the requirements of third-party
standing; she stands in the shoes of the State to assert its inter-
ests in litigation. For the purposes of the litigation, she speaks
to the court as the State, not as a third party. The same is true
of Proponents here, just as it was true of the presiding legisla-
tive officers in Karcher, 484 U.S. at 82. The requirements of
third-party standing are therefore not relevant.
[2] Nor is it relevant whether Proponents have suffered a
personal injury, in their capacities as private individuals.
Although we asked the California Supreme Court whether
“the official proponents of an initiative measure possess either
a particularized interest in the initiative’s validity or the
authority to assert the State’s interest in the initiative’s validi-
ty,” Perry V, 628 F.3d at 1193 (emphasis added), the Court
1606 PERRY v. BROWN
chose to address only the latter type of interest. Perry VII, 134
Cal. Rptr. 3d at 515 (“Because [our] conclusion [that propo-
nents are authorized to assert the State’s interest] is sufficient
to support an affirmative response to the question posed by
the Ninth Circuit, we need not decide whether, under Califor-
nia law, the official proponents also possess a particularized
interest in a voter-approved initiative’s validity.”). The exclu-
sive basis of our holding that Proponents possess Article III
standing is their authority to assert the interests of the State
of California, rather than any authority that they might have
to assert particularized interests of their own. Just as the
Attorney General of California need not satisfy the require-
ments of third-party standing when she appears in federal
court to defend the validity of a state statute, she obviously
need not show that she would suffer any personal injury as a
result of the statute’s invalidity. The injury of which she com-
plains is the State’s, not her own. The same is true here.
Because “a State has standing to defend the constitutionality
of its [laws],” Diamond, 476 U.S. at 62, Proponents need not
show that they would suffer any personal injury from the
invalidation of Proposition 8. That the State would suffer an
injury, id., is enough for Proponents to have Article III stand-
ing when state law authorizes them to assert the State’s inter-
ests.
To be clear, we do not suggest that state law has any
“power directly to enlarge or contract federal jurisdiction.”
Duchek v. Jacobi, 646 F.2d 415, 419 (9th Cir. 1981). “Stand-
ing to sue in any Article III court is, of course, a federal ques-
tion which does not depend on the party’s . . . standing in state
court.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804
(1985). State courts may afford litigants standing to appear
where federal courts would not,10 but whether they do so has
no bearing on the parties’ Article III standing in federal court.
10
Cf. City of Los Angeles v. Lyons, 461 U.S. 95, 113 (1983) (“[T]he
state courts need not impose the same standing or remedial requirements
that govern federal-court proceedings. The individual States may permit
their courts to use injunctions to oversee the conduct of law enforcement
authorities on a continuing basis. But this is not the role of a federal court
. . . .”).
PERRY v. BROWN 1607
[3] State law does have the power, however, to answer
questions antecedent to determining federal standing, such as
the one here: who is authorized to assert the People’s interest
in the constitutionality of an initiative measure? Because the
State of California has Article III standing to defend the con-
stitutionality of Proposition 8, and because both the California
Constitution and California law authorize “the official propo-
nents of [an] initiative . . . to appear and assert the state’s
interest in the initiative’s validity and to appeal a judgment
invalidating the measure when the public officials who ordi-
narily defend the measure or appeal such a judgment decline
to do so,” Perry VII, 134 Cal. Rptr. 3d at 505, we conclude
that Proponents are proper appellants here. They possess Arti-
cle III standing to prosecute this appeal from the district
court’s judgment invalidating Proposition 8.
IV
We review the district court’s decision to grant a permanent
injunction for abuse of discretion, but we review the determi-
nations underlying that decision by the standard that applies
to each determination. Accordingly, we review the court’s
conclusions of law de novo and its findings of fact for clear
error. See Ting v. AT&T, 319 F.3d 1126, 1134-35 (9th Cir.
2003); Fed. R. Civ. P. 52(a).
Plaintiffs and Proponents dispute whether the district
court’s findings of fact concern the types of “facts”—so-
called “adjudicative facts”—that are capable of being “found”
by a court through the clash of proofs presented in adjudica-
tion, as opposed to “legislative facts,” which are generally not
capable of being found in that fashion. “Adjudicative facts are
facts about the parties and their activities . . . , usually answer-
ing the questions of who did what, where, when, how, why,
with what motive or intent”—the types of “facts that go to a
jury in a jury case,” or to the factfinder in a bench trial. Mar-
shall v. Sawyer, 365 F.2d 105, 111 (9th Cir. 1966) (quoting
Kenneth Culp Davis, The Requirement of a Trial-Type Hear-
1608 PERRY v. BROWN
ing, 70 Harv. L. Rev. 193, 199 (1956)) (internal quotation
marks omitted). “Legislative facts,” by contrast, “do not usu-
ally concern [only] the immediate parties but are general facts
which help the tribunal decide questions of law, policy, and
discretion.” Id.It is debatable whether some of the district court’s findings
of fact concerning matters of history or social science are
more appropriately characterized as “legislative facts” or as
“adjudicative facts.” We need not resolve what standard of
review should apply to any such findings, however, because
the only findings to which we give any deferential weight—
those concerning the messages in support of Proposition 8
that Proponents communicated to the voters to encourage
their approval of the measure, Perry IV, 704 F. Supp. 2d at990-91—are clearly “adjudicative facts” concerning the par-
ties and “ ‘who did what, where, when, how, why, with what
motive or intent.’ ” Marshall, 365 F.2d at 111. Aside from
these findings, the only fact found by the district court that
matters to our analysis is that “[d]omestic partnerships lack
the social meaning associated with marriage”—that the differ-
ence between the designation of ‘marriage’ and the designa-
tion of ‘domestic partnership’ is meaningful. Perry IV, 704 F.
Supp. 2d at 970. This fact was conceded by Proponents during
discovery. Defendant-Intervenors’ Response to Plaintiffs’
First Set of Requests for Admission, Exhibit No. PX 0707, at
2 (“Proponents admit that the word ‘marriage’ has a unique
meaning.”); id. at 11 (Proponents “[a]dmit that there is a sig-
nificant symbolic disparity between domestic partnership and
marriage”). Our analysis therefore does not hinge on what
standard we use to review the district court’s findings of fact.
Cf. Lockhart v. McCree, 476 U.S. 162, 168 n.3 (1986)
(“Because we do not ultimately base our decision today on the
[validity or] invalidity of the lower courts’ ‘factual’ findings,
we need not decide the ‘standard of review’ issue”—whether
“the ‘clearly erroneous’ standard of Rule 52(a) applies to the
kind of ‘legislative’ facts at issue here.”).
PERRY v. BROWN 1609
V
We now turn to the merits of Proposition 8’s constitutional-
ity.
A
The district court held Proposition 8 unconstitutional for
two reasons: first, it deprives same-sex couples of the funda-
mental right to marry, which is guaranteed by the Due Process
Clause, see Perry IV, 704 F. Supp. 2d at 991-95; and second,
it excludes same-sex couples from state-sponsored marriage
while allowing opposite-sex couples access to that honored
status, in violation of the Equal Protection Clause, see id. at
997-1003. Plaintiffs elaborate upon those arguments on
appeal.
Plaintiffs and Plaintiff-Intervenor San Francisco also offer
a third argument: Proposition 8 singles out same-sex couples
for unequal treatment by taking away from them alone the
right to marry, and this action amounts to a distinct constitu-
tional violation because the Equal Protection Clause protects
minority groups from being targeted for the deprivation of an
existing right without a legitimate reason. Romer, 517 U.S. at
634-35. Because this third argument applies to the specific
history of same-sex marriage in California, it is the narrowest
ground for adjudicating the constitutional questions before us,
while the first two theories, if correct, would apply on a
broader basis. Because courts generally decide constitutional
questions on the narrowest ground available, we consider the
third argument first. See Plaut v. Spendthrift Farm, Inc., 514
U.S. 211, 217 (1995) (citing Ashwander v. Tenn. Valley Auth.,
297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).
B
[4] Proposition 8 worked a singular and limited change to
the California Constitution: it stripped same-sex couples of
1610 PERRY v. BROWN
the right to have their committed relationships recognized by
the State with the designation of ‘marriage,’ which the state
constitution had previously guaranteed them, while leaving in
place all of their other rights and responsibilities as partners—
rights and responsibilities that are identical to those of mar-
ried spouses and form an integral part of the marriage rela-
tionship. In determining that the law had this effect, “[w]e
rely not upon our own interpretation of the amendment but
upon the authoritative construction of [California’s] Supreme
Court.” Romer, 517 U.S. at 626. The state high court held in
Strauss that “Proposition 8 reasonably must be interpreted in
a limited fashion as eliminating only the right of same-sex
couples to equal access to the designation of marriage, and as
not otherwise affecting the constitutional right of those cou-
ples to establish an officially recognized family relationship,”
which California calls a ‘domestic partnership.’ 207 P.3d at
76. Proposition 8 “leaves intact all of the other very signifi-
cant constitutional protections afforded same-sex couples,”
including “the constitutional right to enter into an officially
recognized and protected family relationship with the person
of one’s choice and to raise children in that family if the cou-
ple so chooses.” Id. at 102. Thus, the extent of the amend-
ment’s effect was to “establish[ ] a new substantive state
constitutional rule,” id. at 63, which “carves out a narrow and
limited exception to these state constitutional rights,” by “re-
serving the official designation of the term ‘marriage’ for the
union of opposite-sex couples as a matter of state constitu-
tional law,” id. at 61.11
11
In rejecting the argument that Proposition 8 had impermissibly
revised, rather than amended, the state constitution, Strauss explained that
it “drastically overstates the effect of Proposition 8 on the fundamental
state constitutional rights of same-sex couples” to suggest that the proposi-
tion “ ‘eliminat[ed]’ or ‘stripp[ed]’ same-sex couples of a fundamental
constitutional right,” because the substantive protections of the state equal
protection clause and due process and privacy provisions remained intact
—with the “sole, albeit significant, exception” of the right to use the des-
ignation of ‘marriage,’ which was eliminated for same-sex couples. 207
P.3d at 102.
PERRY v. BROWN 1611
Both before and after Proposition 8, same-sex partners
could enter into an official, state-recognized relationship that
affords them “the same rights, protections, and benefits” as an
opposite-sex union and subjects them “to the same responsi-
bilities, obligations, and duties under law, whether they derive
from statutes, administrative regulations, court rules, govern-
ment policies, common law, or any other provisions or
sources of law, as are granted to and imposed upon spouses.”
Cal. Fam. Code § 297.5(a). Now as before, same-sex partners
may:
• Raise children together, and have the same rights
and obligations as to their children as spouses
have, see Cal. Fam. Code § 297.5(d);
• Enjoy the presumption of parentage as to a child
born to either partner, see Elisa B. v. Super. Ct.,
117 P.3d 660, 670 (Cal. 2005); Kristine M. v.
David P., 135 Cal. App. 4th 783 (2006); or
adopted by one partner and raised jointly by both,
S.Y. v. S.B., 201 Cal. App. 4th 1023 (2011);
• Adopt each other’s children, see Cal. Fam. Code
§ 9000(g);
• Become foster parents, see Cal. Welf. & Inst.
Code § 16013(a);
• Share community property, see Cal. Fam. Code
§ 297.5(k);
• File state taxes jointly, see Cal. Rev. & Tax.
Code § 18521(d);
• Participate in a partner’s group health insurance
policy on the same terms as a spouse, see Cal.
Ins. Code § 10121.7;
1612 PERRY v. BROWN
• Enjoy hospital visitation privileges, see Cal.
Health & Safety Code § 1261;
• Make medical decisions on behalf of an incapaci-
tated partner, see Cal. Prob. Code § 4716;
• Be treated in a manner equal to that of a widow
or widower with respect to a deceased partner,
see Cal. Fam. Code § 297.5(c);
• Serve as the conservator of a partner’s estate, see
Cal. Prob. Code §§ 1811-1813.1; and
• Sue for the wrongful death of a partner, see Cal.
Civ. Proc. Code § 377.60—among many other
things.
Proposition 8 did not affect these rights or any of the other
“ ‘constitutionally based incidents of marriage’ ” guaranteed
to same-sex couples and their families. Strauss, 207 P.3d at
61 (quoting Marriage Cases, 183 P.3d at 434). In adopting
the amendment, the People simply took the designation of
‘marriage’ away from lifelong same-sex partnerships, and
with it the State’s authorization of that official status and the
societal approval that comes with it.
By emphasizing Proposition 8’s limited effect, we do not
mean to minimize the harm that this change in the law caused
to same-sex couples and their families. To the contrary, we
emphasize the extraordinary significance of the official desig-
nation of ‘marriage.’ That designation is important because
‘marriage’ is the name that society gives to the relationship
that matters most between two adults. A rose by any other
name may smell as sweet, but to the couple desiring to enter
into a committed lifelong relationship, a marriage by the name
of ‘registered domestic partnership’ does not. The word ‘mar-
riage’ is singular in connoting “a harmony in living,” “a bilat-
eral loyalty,” and “a coming together for better or for worse,
PERRY v. BROWN 1613
hopefully enduring, and intimate to the degree of being
sacred.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
As Proponents have admitted, “the word ‘marriage’ has a
unique meaning,” and “there is a significant symbolic dispar-
ity between domestic partnership and marriage.” It is the des-
ignation of ‘marriage’ itself that expresses validation, by the
state and the community, and that serves as a symbol, like a
wedding ceremony or a wedding ring, of something pro-
foundly important. See id. at 971.
We need consider only the many ways in which we
encounter the word ‘marriage’ in our daily lives and under-
stand it, consciously or not, to convey a sense of significance.
We are regularly given forms to complete that ask us whether
we are “single” or “married.” Newspapers run announcements
of births, deaths, and marriages. We are excited to see some-
one ask, “Will you marry me?”, whether on bended knee in
a restaurant or in text splashed across a stadium Jumbotron.
Certainly it would not have the same effect to see “Will you
enter into a registered domestic partnership with me?”.
Groucho Marx’s one-liner, “Marriage is a wonderful institu-
tion . . . but who wants to live in an institution?” would lack
its punch if the word ‘marriage’ were replaced with the alter-
native phrase. So too with Shakespeare’s “A young man mar-
ried is a man that’s marr’d,” Lincoln’s “Marriage is neither
heaven nor hell, it is simply purgatory,” and Sinatra’s “A man
doesn’t know what happiness is until he’s married. By then
it’s too late.” We see tropes like “marrying for love” versus
“marrying for money” played out again and again in our films
and literature because of the recognized importance and per-
manence of the marriage relationship. Had Marilyn Monroe’s
film been called How to Register a Domestic Partnership with
a Millionaire, it would not have conveyed the same meaning
as did her famous movie, even though the underlying drama
for same-sex couples is no different. The name ‘marriage’ sig-
nifies the unique recognition that society gives to harmonious,
loyal, enduring, and intimate relationships. See Knight v.
Super. Ct., 128 Cal. App. 4th 14, 31 (2005) (“[M]arriage is
1614 PERRY v. BROWN
considered a more substantial relationship and is accorded a
greater stature than a domestic partnership.”); cf. Griswold,
381 U.S. at 486.
The official, cherished status of ‘marriage’ is distinct from
the incidents of marriage, such as those listed in the California
Family Code. The incidents are both elements of the institu-
tion and manifestations of the recognition that the State
affords to those who are in stable and committed lifelong rela-
tionships. We allow spouses but not siblings or roommates to
file taxes jointly, for example, because we acknowledge the
financial interdependence of those who have entered into an
“enduring” relationship. The incidents of marriage, standing
alone, do not, however, convey the same governmental and
societal recognition as does the designation of ‘marriage’
itself. We do not celebrate when two people merge their bank
accounts; we celebrate when a couple marries. The designa-
tion of ‘marriage’ is the status that we recognize. It is the
principal manner in which the State attaches respect and dig-
nity to the highest form of a committed relationship and to the
individuals who have entered into it.12
[5] We set this forth because we must evaluate Proposition
8’s constitutionality in light of its actual and specific effects
on committed same-sex couples desiring to enter into an offi-
cially recognized lifelong relationship. Before Proposition 8,
California guaranteed gays and lesbians both the incidents and
the status and dignity of marriage. Proposition 8 left the inci-
dents but took away the status and the dignity. It did so by
12
Cf. Marriage Cases, 183 P.3d at 434-35 (“[D]rawing a distinction
between the name assigned to the family relationship available to
opposite-sex couples and the name assigned to the family relationship
available to same-sex couples, and . . . reserving the historic and highly
respected designation of marriage exclusively to opposite-sex couples
while offering same-sex couples only the new and unfamiliar designation
of domestic partnership[,] pose[s] a serious risk of denying the official
family relationship of same-sex couples the equal dignity and respect that
is a core element of the constitutional right to marry.”).
PERRY v. BROWN 1615
superseding the Marriage Cases and thus endorsing the “offi-
cial statement that the family relationship of same-sex couples
is not of comparable stature or equal dignity to the family
relationship of opposite-sex couples.” Marriage Cases, 183
P.3d at 452. The question we therefore consider is this: did
the People of California have legitimate reasons for enacting
a constitutional amendment that serves only to take away
from same-sex couples the right to have their lifelong rela-
tionships dignified by the official status of ‘marriage,’ and to
compel the State and its officials and all others authorized to
perform marriage ceremonies to substitute the label of
‘domestic partnership’ for their relationships?
Proponents resist this framing of the question. They deem
it irrelevant to our inquiry that the California Constitution, as
interpreted by the Marriage Cases, had previously guaranteed
same-sex couples the right to use the designation of ‘mar-
riage,’ because In re Marriage Cases was a “short-lived deci-
sion,” and same-sex couples were allowed to marry only
during a “143-day hiatus” between the effective date of the
Marriage Cases decision and the enactment of Proposition 8.
Proponents’ Reply Br. 75, 79-80. According to Proponents, a
decision to “restore” the “traditional definition of marriage”
is indistinguishable from a decision to “adhere” to that defini-
tion in the first place. Id. at 79-80. We are bound, however,
by the California Supreme Court’s authoritative interpretation
of Proposition 8’s effect on California law, see Romer, 517
U.S. at 626: Proposition 8 “eliminat[ed] . . . the right of same-
sex couples to equal access to the designation of marriage” by
“carv[ing] out a narrow and limited exception to these state
constitutional rights” that had previously guaranteed the des-
ignation of ‘marriage’ to all couples, opposite-sex and same-
sex alike. Strauss, 207 P.3d at 61, 76.
Even were we not bound by the state court’s explanation,
we would be obligated to consider Proposition 8 in light of its
actual effect, which was, as the voters were told, to “eliminate
the right of same-sex couples to marry in California.” Voter
1616 PERRY v. BROWN
Information Guide at 54. The context matters. Withdrawing
from a disfavored group the right to obtain a designation with
significant societal consequences is different from declining
to extend that designation in the first place, regardless of
whether the right was withdrawn after a week, a year, or a
decade. The action of changing something suggests a more
deliberate purpose than does the inaction of leaving it as it is.
As the California Supreme Court held, “Proposition 8 [did]
not ‘readjudicate’ the issue that was litigated and resolved in
the Marriage Cases.” Strauss, 207 P.3d at 63. Rather than
“declar[ing] the state of the law as it existed under the Cali-
fornia Constitution at the time of the Marriage Cases,” Propo-
sition 8 “establishe[d] a new substantive state constitutional
rule that took effect upon” its adoption by the electorate. Id.
(emphasis added). Whether or not it is a historical accident,
as Proponents argue, that Proposition 8 postdated the Mar-
riage Cases rather than predating and thus preempting that
decision, the relative timing of the two events is a fact, and
we must decide this case on its facts.
C
1
This is not the first time the voters of a state have enacted
an initiative constitutional amendment that reduces the rights
of gays and lesbians under state law. In 1992, Colorado
adopted Amendment 2 to its state constitution, which prohib-
ited the state and its political subdivisions from providing any
protection against discrimination on the basis of sexual orien-
tation. See Colo. Const. art. II, § 30b. Amendment 2 was pro-
posed in response to a number of local ordinances that had
banned sexual-orientation discrimination in such areas as
housing, employment, education, public accommodations,
and health and welfare services. The effect of Amendment 2
was “to repeal” those local laws and “to prohibit any govern-
mental entity from adopting similar, or more protective stat-
utes, regulations, ordinances, or policies in the future.” Evans
PERRY v. BROWN 1617
v. Romer, 854 P.2d 1270, 1284-85 (Colo. 1993). The law thus
“withdr[ew] from homosexuals, but no others, specific legal
protection . . . , and it forb[ade] reinstatement of these laws
and policies.” Romer, 517 U.S. at 627.
[6] The Supreme Court held that Amendment 2 violated
the Equal Protection Clause because “[i]t is not within our
constitutional tradition to enact laws of this sort”—laws that
“singl[e] out a certain class of citizens for disfavored legal
status,” which “raise the inevitable inference that the disad-
vantage imposed is born of animosity toward the class of per-
sons affected.” Id. at 633-34. The Court considered possible
justifications for Amendment 2 that might have overcome the
“inference” of animus, but it found them all lacking. It there-
fore concluded that the law “classifie[d] homosexuals not to
further a proper legislative end but to make them unequal to
everyone else.” Id. at 635.13
[7] Proposition 8 is remarkably similar to Amendment 2.
Like Amendment 2, Proposition 8 “single[s] out a certain
class of citizens for disfavored legal status . . . .” Id. at 633.
Like Amendment 2, Proposition 8 has the “peculiar property,”
id. at 632, of “withdraw[ing] from homosexuals, but no oth-
ers,” an existing legal right—here, access to the official desig-
nation of ‘marriage’—that had been broadly available,
notwithstanding the fact that the Constitution did not compel
the state to confer it in the first place. Id. at 627. Like Amend-
13
Romer did not apply heightened scrutiny to Amendment 2, even
though the amendment targeted gays and lesbians. Instead, Romer found
that Amendment 2 “fail[ed], indeed defie[d], even [the] conventional
inquiry” for non-suspect classes, concerning whether a “legislative classi-
fication . . . bears a rational relation to some legitimate end.” Romer, 517
U.S. at 631-32. Amendment 2 amounted to “a classification of persons
undertaken for its own sake, something the Equal Protection Clause does
not permit.” Id. at 635. We follow this approach and reach the same con-
clusion as to Proposition 8. See also High Tech Gays v. Defense Indus.
Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990) (declining to
apply heightened scrutiny).
1618 PERRY v. BROWN
ment 2, Proposition 8 denies “equal protection of the laws in
the most literal sense,” id. at 633, because it “carves out” an
“exception” to California’s equal protection clause, by remov-
ing equal access to marriage, which gays and lesbians had
previously enjoyed, from the scope of that constitutional guar-
antee. Strauss, 207 P.3d at 61. Like Amendment 2, Proposi-
tion 8 “by state decree . . . put[s] [homosexuals] in a solitary
class with respect to” an important aspect of human relations,
and accordingly “imposes a special disability upon [homosex-
uals] alone.” Romer, 517 U.S. at 627, 631. And like Amend-
ment 2, Proposition 8 constitutionalizes that disability,
meaning that gays and lesbians may overcome it “only by
enlisting the citizenry of [the state] to amend the State Consti-
tution” for a second time. Id. at 631. As we explain below,
Romer compels that we affirm the judgment of the district
court.
To be sure, there are some differences between Amend-
ment 2 and Proposition 8. Amendment 2 “impos[ed] a broad
and undifferentiated disability on a single named group” by
“identif[ying] persons by a single trait and then den[ying]
them protection across the board.” Romer, 517 U.S. at 632-33.
Proposition 8, by contrast, excises with surgical precision one
specific right: the right to use the designation of ‘marriage’ to
describe a couple’s officially recognized relationship. Propo-
nents argue that Proposition 8 thus merely “restor[es] the tra-
ditional definition of marriage while otherwise leaving
undisturbed the manifold rights and protections California law
provides gays and lesbians,” making it unlike Amendment 2,
which eliminated various substantive rights. Proponents’
Reply Br. 77.
These differences, however, do not render Romer less
applicable. It is no doubt true that the “special disability” that
Proposition 8 “imposes upon” gays and lesbians has a less
sweeping effect on their public and private transactions than
did Amendment 2. Nevertheless, Proposition 8 works a mean-
ingful harm to gays and lesbians, by denying to their commit-
PERRY v. BROWN 1619
ted lifelong relationships the societal status conveyed by the
designation of ‘marriage,’ and this harm must be justified by
some legitimate state interest. Romer, 517 U.S. at 631. Propo-
sition 8 is no less problematic than Amendment 2 merely
because its effect is narrower; to the contrary, the surgical
precision with which it excises a right belonging to gay and
lesbian couples makes it even more suspect. A law that has no
practical effect except to strip one group of the right to use a
state-authorized and socially meaningful designation is all the
more “unprecedented” and “unusual” than a law that imposes
broader changes, and raises an even stronger “inference that
the disadvantage imposed is born of animosity toward the
class of persons affected,” id. at 633-34. In short, Romer gov-
erns our analysis notwithstanding the differences between
Amendment 2 and Proposition 8.
[8] There is one further important similarity between this
case and Romer. Neither case requires that the voters have
stripped the state’s gay and lesbian citizens of any federal
constitutional right. In Romer, Amendment 2 deprived gays
and lesbians of statutory protections against discrimination;
here, Proposition 8 deprived same-sex partners of the right to
use the designation of ‘marriage.’ There is no necessity in
either case that the privilege, benefit, or protection at issue be
a constitutional right. We therefore need not and do not con-
sider whether same-sex couples have a fundamental right to
marry, or whether states that fail to afford the right to marry
to gays and lesbians must do so. Further, we express no view
on those questions.14
14
Because we do not address the question of the constitutionality of a
state’s ban on same-sex marriage, the Supreme Court’s summary dismissal
of Baker v. Nelson, 409 U.S. 810 (1972) (mem.), is not pertinent here.
In Baker, the Court “dismissed for want of a substantial federal ques-
tion” an appeal from the Minnesota Supreme Court’s decision to uphold
a state statute that did not permit marriage between two people of the same
sex. Id. Such dismissals “prevent lower courts from coming to opposite
conclusions on the precise issues presented and necessarily decided by”
1620 PERRY v. BROWN
Ordinarily, “if a law neither burdens a fundamental right
nor targets a suspect class, we will uphold the legislative clas-
sification so long as it bears a rational relation to some legiti-
mate end.” Romer, 517 U.S. at 631. Such was the case in
Romer, and it is the case here as well. The end must be one
that is legitimate for the government to pursue, not just one
that would be legitimate for a private actor. See id. at 632,
635. The question here, then, is whether California had any
more legitimate justification for withdrawing from gays and
lesbians its constitutional protection with respect to the offi-
cial designation of ‘marriage’ than Colorado did for with-
drawing from that group all protection against discrimination
generally.
Proposition 8, like Amendment 2, enacts a
“ ‘[d]iscrimination[ ] of an unusual character,’ ” which
requires “ ‘careful consideration to determine whether [it] [is]
obnoxious to the’ ” Constitution. Id. at 633 (quoting Louis-
ville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).
As in Romer, therefore, we must consider whether any legiti-
them, Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam), “ ‘except
when doctrinal developments indicate otherwise,’ ” Hicks v. Miranda, 422
U.S. 332, 344 (1975) (quoting Port Authority Bondholders Protective
Committee v. Port of New York Authority, 387 F.2d 259, 263 n.3 (2d Cir.
1967)). “[N]o more may be read into” them, however, “than was essential
to sustain th[e] judgment. Questions which ‘merely lurk in the record’ are
not resolved, and no resolution of them may be inferred.” Ill. State Bd. of
Elections v. Socialist Workers Party, 440 U.S. 173, 183 (1979) (citations
omitted).
Whether or not the constitutionality of any ban on same-sex marriage
was “presented and necessarily decided” in Baker, and whether or not
Baker would govern that question in light of subsequent “doctrinal devel-
opments,” we address no such question here. We address a wholly differ-
ent question: whether the people of a state may by plebiscite strip a group
of a right or benefit, constitutional or otherwise, that they had previously
enjoyed on terms of equality with all others in the state. That question was
not present in Baker and is squarely controlled by Romer, which postdates
Baker by more than two decades.
PERRY v. BROWN 1621
mate state interest constitutes a rational basis for Proposition
8; otherwise, we must infer that it was enacted with only the
constitutionally illegitimate basis of “animus toward the class
it affects.” Romer, 517 U.S. at 632.
2
Before doing so, we briefly consider one other objection
that Proponents raise to this analysis: the argument that
because the Constitution “is not simply a one-way ratchet that
forever binds a State to laws and policies that go beyond what
the Fourteenth Amendment would otherwise require,” the
State of California—“ ‘having gone beyond the requirements
of the Federal Constitution’ ” in extending the right to marry
to same-sex couples—“ ‘was free to return . . . to the standard
prevailing generally throughout the United States.’ ” Propo-
nents’ Reply Br. 76 (quoting Crawford v. Bd. of Educ., 458
U.S. 527, 542 (1982)). Proponents appear to suggest that
unless the Fourteenth Amendment actually requires that the
designation of ‘marriage’ be given to same-sex couples in the
first place, there can be no constitutional infirmity in taking
the designation away from that group of citizens, whatever the
People’s reason for doing so.
[9] Romer forecloses this argument. The rights that were
repealed by Amendment 2 included protections against dis-
crimination on the basis of sexual orientation in the private
sphere. Those protections, like any protections against private
discrimination, were not compelled by the Fourteenth Amend-
ment.15 Rather, “[s]tates ha[d] chosen to counter discrimina-
15
Indeed, as the Court observed, not only does the Fourteenth Amend-
ment not prohibit private discrimination; it does not even “give Congress
a general power to prohibit discrimination in public accommodations” by
statute. Romer, 517 U.S. at 628 (emphasis added) (citing Civil Rights
Cases, 109 U.S. 3, 25 (1883)). Congress has passed antidiscrimination
laws regulating private conduct only under its Article I powers. See, e.g.,
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)
(upholding the Civil Rights Act of 1964 under the Commerce Clause).
1622 PERRY v. BROWN
tion by enacting detailed statutory schemes” prohibiting
discrimination in employment and public accommodations,
among other contexts, and certain Colorado jurisdictions had
chosen to extend those protections to gays and lesbians.
Romer, 517 U.S. at 628 (emphasis added). It was these elec-
tive protections that Amendment 2 withdrew and forbade.16
The relevant inquiry in Romer was not whether the state of
the law after Amendment 2 was constitutional; there was no
doubt that the Fourteenth Amendment did not require
antidiscrimination protections to be afforded to gays and les-
bians. The question, instead, was whether the change in the
law that Amendment 2 effected could be justified by some
legitimate purpose.
The Supreme Court’s answer was “no”—there was no
legitimate reason to take away broad legal protections from
gays and lesbians alone, and to inscribe that deprivation of
equality into the state constitution, once those protections had
already been provided. We therefore need not decide whether
a state may decline to provide the right to marry to same-sex
couples. To determine the validity of Proposition 8, we must
consider only whether the change in the law that it effected—
eliminating by constitutional amendment the right of same-
sex couples to have the official designation and status of
‘marriage’ bestowed upon their relationships, while maintain-
ing that right for opposite-sex couples—was justified by a
legitimate reason.
[10] This does not mean that the Constitution is a “one-
way ratchet,” as Proponents suggest. It means only that the
Equal Protection Clause requires the state to have a legitimate
reason for withdrawing a right or benefit from one group but
16
The protections at issue in Romer were not of substantially more dis-
tant provenance than the protection at issue here. While Aspen and Boul-
der had enacted their ordinances somewhat earlier, Denver’s ordinance—
which covered a far greater population—had taken effect only the year
before Colorado voters adopted Amendment 2. Evans, 854 P.2d at 1284.
PERRY v. BROWN 1623
not others, whether or not it was required to confer that right
or benefit in the first place. Thus, when Congress, having cho-
sen to provide food stamps to the poor in the Food Stamp Act
of 1964, amended the Act to exclude households of unrelated
individuals, such as “hippies” living in “hippie communes,”
the Supreme Court held the amendment unconstitutional
because “a bare congressional desire to harm a politically
unpopular group cannot constitute a legitimate governmental
interest.” U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534
(1973). In both Romer and Moreno, the constitutional viola-
tion that the Supreme Court identified was not the failure to
confer a right or benefit in the first place; Congress was no
more obligated to provide food stamps than Colorado was to
enact antidiscrimination laws. Rather, what the Supreme
Court forbade in each case was the targeted exclusion of a
group of citizens from a right or benefit that they had enjoyed
on equal terms with all other citizens. The constitutional
injury that Romer and Moreno identified—and that serves as
a basis of our decision to strike down Proposition 8—has little
to do with the substance of the right or benefit from which a
group is excluded, and much to do with the act of exclusion
itself. Proponents’ reliance on Crawford v. Board of Educa-
tion, 458 U.S. 527 (1982), is therefore misplaced. In Craw-
ford, the Court affirmed Proposition 1, a California initiative
constitutional amendment that barred state courts from order-
ing school busing or pupil-assignment plans except when nec-
essary to remedy a federal constitutional violation. Id. at 531-
32. Like Proposition 8, Proposition 1 was adopted in response
to a decision of the California Supreme Court under the state
constitution, which had held that state schools were obligated
to take “reasonably feasible steps,” including busing and
pupil-assignment plans, “to alleviate school segregation.”
Crawford v. Bd. of Educ., 551 P.2d 28, 45 (Cal. 1976). The
Supreme Court “reject[ed] the contention that once a State
chooses to do ‘more’ than the Fourteenth Amendment
requires, it may never recede.”17 Crawford, 458 U.S. at 535.
17
Additionally, the Court stated that it “would not interpret the Four-
teenth Amendment to require the people of a State to adhere to a judicial
1624 PERRY v. BROWN
That conclusion was consistent with the principle that states
should be free “to experiment” with social policy, without
fear of being locked in to “legislation that has proved unwork-
able or harmful when the State was under no obligation to
adopt the legislation in the first place.” Id. at 535, 539-40.
Critically, however, the Court noted that Proposition 1 did
not itself draw any classification; “[i]t simply forb[ade] state
courts” from ordering specific remedies under state law “in
the absence of a Fourteenth Amendment violation,” while
maintaining the state constitution’s more robust “right to
desegregation than exists under the Federal Constitution.” Id.
at 537, 542 (emphasis added); see also id. at 544 (noting that
other remedies remained available). Most important, the prop-
osition’s purported benefit, “neighborhood schooling,” was
“made available regardless of race.” Id. There was no evi-
dence that the “purpose of [the] repealing legislation [was] to
construction of their State Constitution when that Constitution itself vests
final authority in the people.” Crawford, 458 U.S. at 540. In enacting
Proposition 8, the People did not “declare the state of the law as it existed
when the Marriage Cases decision was rendered, but instead establishe[d]
a new substantive state constitutional rule” that amended the charter’s text
to supersede the previous California Declaration of Rights. Strauss, 207
P.3d at 115. The People thus acted as Congress does when it disapproves
of a statutory interpretation by a federal court and enacts a new statute to
produce its preferred result. See, e.g., Religious Freedom Restoration Act
of 1993, Pub. L. No. 103-141 (enacted in response to the Supreme Court’s
decision in Employment Division v. Smith, 494 U.S. 872 (1990)). Of
course, Crawford did not suggest that it ends the inquiry to note that the
Fourteenth Amendment generally allows the People to exercise their state
constitutional right to supersede a decision of the state supreme court by
an initiative constitutional amendment. A federal court must still deter-
mine whether the constitutional amendment enacted by the People is oth-
erwise valid under the Federal Constitution; sometimes laws passed
because of disagreement with judicial decisions are not. Cf. City of Boerne
v. Flores, 521 U.S. 507 (1997) (holding the Religious Freedom Restora-
tion Act unconstitutional in part). Proposition 1 was valid because, in
superseding a decision of the California Supreme Court, it did not draw
an improper classification among groups. Proposition 8 is invalid because
it does.
PERRY v. BROWN 1625
disadvantage a racial minority,” which would have made the
proposition unconstitutional. Id. at 539 n.21, 543-45 (citing
Reitman v. Mulkey, 387 U.S. 369 (1967)). Because Proposi-
tion 1 did not establish any classification, and because it was
supported by permissible policy preferences against specific
court remedies, the Supreme Court held that it was valid. On
the same day, by contrast, the Court struck down a similar
Washington initiative, because it had been “drawn for racial
purposes” in a manner that “impose[d] substantial and unique
burdens on racial minorities” and accordingly violated the
Fourteenth Amendment. Washington v. Seattle Sch. Dist. No.
1, 458 U.S. 457, 470-71 (1982).
Romer, not Crawford, controls where a privilege or protec-
tion is withdrawn without a legitimate reason from a class of
disfavored individuals, even if that right may not have been
required by the Constitution in the first place. Although Colo-
rado presented before the Supreme Court an argument regard-
ing Crawford identical to the one that Proponents present
here, that argument did not persuade the Court.18 Neither
Proposition 8 nor Amendment 2 was a law of general applica-
bility that merely curtailed state courts’ remedial powers, as
opposed to a single group’s rights. Rather, both Proposition 8
and Amendment 2 “carve[d] out” rights from gays and lesbi-
ans alone. Unlike the measure in Crawford, Proposition 8 is
a “discrimination of an unusual character” that requires “care-
ful consideration” of its purposes and effects, whether or not
the Fourteenth Amendment required the right to be provided
18
See Petitioners’ Br. 32-33, 48, Romer v. Evans, 517 U.S. 620 (1996)
(No. 94-1039) (“Crawford controls this case. Through Amendment 2, Col-
orado has simply defined the package of civil rights available to homosex-
uals and bisexuals under the Colorado Constitution as no larger than that
provided by the Constitution and laws of the United States. . . . While a
state or local government can grant more protection than that required by
the United States Constitution, a state or local government can also rescind
that additional protection—and prohibit its subsequent reextension—
without committing a federal constitutional violation. [Crawford, 458 U.S.
at 538-39.] Amendment 2 does nothing more.”).
1626 PERRY v. BROWN
ab initio. Following Romer, we must therefore decide whether
a legitimate interest exists that justifies the People of Califor-
nia’s action in taking away from same-sex couples the right
to use the official designation and enjoy the status of
‘marriage’—a legitimate interest that suffices to overcome the
“inevitable inference” of animus to which Proposition 8’s dis-
criminatory effects otherwise give rise.
D
We first consider four possible reasons offered by Propo-
nents or amici to explain why Proposition 8 might have been
enacted: (1) furthering California’s interest in childrearing
and responsible procreation, (2) proceeding with caution
before making significant changes to marriage, (3) protecting
religious freedom, and (4) preventing children from being
taught about same-sex marriage in schools. To be credited,
these rationales “must find some footing in the realities of the
subject addressed by the legislation.” Heller v. Doe, 509 U.S.
312, 321 (1993). They are, conversely, not to be credited if
they “could not reasonably be conceived to be true by the
governmental decisionmaker.” Vance v. Bradley, 440 U.S. 93,
111 (1979).19 Because Proposition 8 did not further any of
these interests, we conclude that they cannot have been ratio-
nal bases for this measure, whether or not they are legitimate
state interests.
1
The primary rationale Proponents offer for Proposition 8 is
that it advances California’s interest in responsible procre-
ation and childrearing. Proponents’ Br. 77-93. This rationale
appears to comprise two distinct elements. The first is that
children are better off when raised by two biological parents
19
As we have noted, we need not consider whether any form of height-
ened scrutiny is necessary or appropriate in order to reach the result we
do. See supra note 13.
PERRY v. BROWN 1627
and that society can increase the likelihood of that family
structure by allowing only potential biological parents—one
man and one woman—to marry. The second is that marriage
reduces the threat of “irresponsible procreation”—that is,
unintended pregnancies out of wedlock—by providing an
incentive for couples engaged in potentially procreative sex-
ual activity to form stable family units. Because same-sex
couples are not at risk of “irresponsible procreation” as a mat-
ter of biology, Proponents argue, there is simply no need to
offer such couples the same incentives. Proposition 8 is not
rationally related, however, to either of these purported inter-
ests, whether or not the interests would be legitimate under
other circumstances.
[11] We need not decide whether there is any merit to the
sociological premise of Proponents’ first argument—that fam-
ilies headed by two biological parents are the best environ-
ments in which to raise children—because even if Proponents
are correct, Proposition 8 had absolutely no effect on the abil-
ity of same-sex couples to become parents or the manner in
which children are raised in California. As we have explained,
Proposition 8 in no way modified the state’s laws governing
parentage, which are distinct from its laws governing mar-
riage. See Strauss, 207 P.3d at 61. Both before and after Prop-
osition 8, committed opposite-sex couples (“spouses”) and
same-sex couples (“domestic partners”) had identical rights
with regard to forming families and raising children. See Cal.
Fam. Code § 297.5(d) (“The rights and obligations of regis-
tered domestic partners with respect to a child of either of
them shall be the same as those of spouses.”). Similarly, Prop-
osition 8 did not alter the California adoption or presumed-
parentage laws, which continue to apply equally to same-sex
couples. Cf. Elisa B., 117 P.3d at 667-71 (applying the pre-
sumed parentage statutes to a lesbian couple); Sharon S. v.
Super. Ct., 73 P.3d 554, 570 (Cal. 2003) (applying the adop-
tion laws to a lesbian couple). In order to be rationally related
to the purpose of funneling more childrearing into families led
1628 PERRY v. BROWN
by two biological parents, Proposition 8 would have had to
modify these laws in some way. It did not do so.20
Moreover, California’s “current policies and conduct . . .
recognize that gay individuals are fully capable of . . . respon-
sibly caring for and raising children.” Marriage Cases, 183
P.3d at 428. And California law actually prefers a non-
biological parent who has a parental relationship with a child
to a biological parent who does not; in California, the parent-
age statutes place a premium on the “social relationship,” not
the “biological relationship,” between a parent and a child.
See, e.g., Susan H. v. Jack S., 30 Cal. App. 4th 1435, 1442-43
(1994). California thus has demonstrated through its laws that
Proponents’ first rationale cannot “reasonably be conceived to
be true by the governmental decisionmaker,” Vance, 440 U.S.
at 111. We will not credit a justification for Proposition 8 that
is totally inconsistent with the measure’s actual effect and
with the operation of California’s family laws both before and
after its enactment.
Proponents’ second argument is that there is no need to
hold out the designation of ‘marriage’ as an encouragement
for same-sex couples to engage in responsible procreation,
20
For the reasons explained above, Citizens for Equal Protection v. Bru-
ning, 455 F.3d 859 (8th Cir. 2006), is not applicable here. As our dissent-
ing colleague states, the fact that Proposition 8 left intact California’s laws
concerning family formation and childrearing by same-sex couples distin-
guishes this case from Citizens. See Dissent at 1669 (“Unlike the Nebraska
constitutional amendment, which prohibited the recognition of both mar-
riages by same-sex couples and other same-sex relationships, Proposition
8 left California’s existing domestic partnership laws intact. . . . Thus, it
cannot be said that Proposition 8 ‘confer[s] the inducements of marital . . .
benefits on opposite-sex couples . . . , but not on same-sex couples . . . .
’ ” (all but first alteration in original)).
We also note that the Nebraska constitutional amendment at issue in
Citizens did not withdraw an existing right from same-sex couples as did
Proposition 8. Cf. Dissent at 1660 n.2. (“[W]hile the withdrawal of a right
may not be analytically significant for rational basis review, it may still
be factually significant.”).
PERRY v. BROWN 1629
because unlike opposite-sex couples, same-sex couples pose
no risk of procreating accidentally. Proponents contend that
California need not extend marriage to same-sex couples
when the State’s interest in responsible procreation would not
be advanced by doing so, even if the interest would not be
harmed, either. See Johnson v. Robison, 415 U.S. 361, 383
(1974) (“When . . . the inclusion of one group promotes a
legitimate governmental purpose, and the addition of other
groups would not, we cannot say that the statute’s classifica-
tion of beneficiaries and nonbeneficiaries is invidiously dis-
criminatory.”). But Plaintiffs do not ask that marriage be
extended to anyone. As we have by now made clear, the ques-
tion is whether there is a legitimate governmental interest in
withdrawing access to marriage from same-sex couples. We
therefore need not decide whether, under Johnson, California
would be justified in not extending the designation of ‘mar-
riage’ to same-sex couples; that is not what Proposition 8 did.
Johnson concerns decisions not to add to a legislative scheme
a group that is unnecessary to the purposes of that scheme, but
Proposition 8 subtracted a disfavored group from a scheme of
which it already was a part.21
Under Romer, it is no justification for taking something
away to say that there was no need to provide it in the first
place; instead, there must be some legitimate reason for the
act of taking it away, a reason that overcomes the “inevitable
inference that the disadvantage imposed is born of animosity
toward the class of persons affected.” Romer, 517 U.S. at 634.
In order to explain how rescinding access to the designation
of ‘marriage’ is rationally related to the State’s interest in
responsible procreation, Proponents would have had to argue
that opposite-sex couples were more likely to procreate acci-
dentally or irresponsibly when same-sex couples were
21
Moreover, Johnson did not involve a dignitary benefit that was with-
drawn from one group, such as an official and meaningful state designa-
tion that established the societal status of the members of the group; it
concerned only a specific form of government assistance.
1630 PERRY v. BROWN
allowed access to the designation of ‘marriage.’ We are aware
of no basis on which this argument would be even conceiv-
ably plausible. There is no rational reason to think that taking
away the designation of ‘marriage’ from same-sex couples
would advance the goal of encouraging California’s opposite-
sex couples to procreate more responsibly. The Johnson argu-
ment, to put it mildly, does not help Proponents’ cause.
Given the realities of California law, and of human nature,
both parts of Proponents’ primary rationale simply “find [no]
footing in the realities of the subject addressed by the legisla-
tion,” and thus cannot be credited as rational. Heller, 509 U.S.
at 321. Whatever sense there may be in preferring biological
parents over other couples—and we need not decide whether
there is any—California law clearly does not recognize such
a preference, and Proposition 8 did nothing to change that cir-
cumstance. The same is true for Proponents’ argument that it
is unnecessary to extend the right to use the designation of
‘marriage’ to couples who cannot procreate, because the pur-
pose of the designation is to reward couples who procreate
responsibly or to encourage couples who wish to procreate to
marry first. Whatever merit this argument may have—and
again, we need not decide whether it has any—the argument
is addressed to a failure to afford the use of the designation
of ‘marriage’ to same-sex couples in the first place; it is irrel-
evant to a measure withdrawing from them, and only them,
use of that designation.
The same analysis applies to the arguments of some amici
curiae that Proposition 8 not only promotes responsible pro-
creation and childrearing as a general matter but promotes the
single best family structure for such activities. See, e.g., Br.
Amicus Curiae of High Impact Leadership Coalition, et al. 14
(“Society has a compelling interest in preserving the institu-
tion that best advances the social interests in responsible pro-
creation, and that connects procreation to responsible child-
rearing.”); Br. Amicus Curiae of Am. Coll. of Pediatricians 15
(“[T]he State has a legitimate interest in promoting the family
PERRY v. BROWN 1631
structure that has proven most likely to foster an optimal envi-
ronment for the rearing of children.”). As discussed above,
Proposition 8 in no way alters the state laws that govern child-
rearing and procreation. It makes no change with respect to
the laws regarding family structure. As before Proposition 8,
those laws apply in the same way to same-sex couples in
domestic partnerships and to married couples. Only the desig-
nation of ‘marriage’ is withdrawn and only from one group of
individuals.
[12] We in no way mean to suggest that Proposition 8
would be constitutional if only it had gone further—for exam-
ple, by also repealing same-sex couples’ equal parental rights
or their rights to share community property or enjoy hospital
visitation privileges. Only if Proposition 8 had actually had
any effect on childrearing or “responsible procreation” would
it be necessary or appropriate for us to consider the legitimacy
of Proponents’ primary rationale for the measure.22 Here,
given all other pertinent aspects of California law, Proposition
8 simply could not have the effect on procreation or child-
22
The difference between what Proposition 8 did take away—only the
name ‘marriage’—and what it might also have taken away—any of the
substantive “incidents of marriage” that same-sex couples still enjoy—
influenced the underlying politics of Proposition 8 and shapes the basic
issues in this case. The official argument in favor of Proposition 8, pub-
lished in the Voter Information Guide, emphasized this distinction: “Prop-
osition 8 doesn’t take away any rights or benefits of gay or lesbian
domestic partnerships. Under California law, ‘domestic partners shall have
the same rights, protections, and benefits’ as married spouses. (Family
Code § 297.5.) There are NO exceptions. Proposition 8 WILL NOT
change this.” Voter Information Guide at 56. Moreover, Strauss observed
“that an alternative, much more sweeping initiative measure—proposing
the addition of a new constitutional section that would have provided not
only that ‘[o]nly marriage between one man and one woman is valid or
recognized in California,’ but also that ‘[n]either the Legislature nor any
court, government institution, government agency, initiative statute, local
government, or government official shall . . . bestow statutory rights, inci-
dents, or employee benefits of marriage on unmarried individuals’—was
circulated for signature at the same time as Proposition 8, but did not
obtain sufficient signatures to qualify for the ballot.” 207 P.3d at 76 n.8.
1632 PERRY v. BROWN
bearing that Proponents claim it might have been intended to
have. Accordingly, an interest in responsible procreation and
childbearing cannot provide a rational basis for the measure.
We add one final note. To the extent that it has been argued
that withdrawing from same-sex couples access to the desig-
nation of ‘marriage’—without in any way altering the sub-
stantive laws concerning their rights regarding childrearing or
family formation—will encourage heterosexual couples to
enter into matrimony, or will strengthen their matrimonial
bonds, we believe that the People of California “could not
reasonably” have “conceived” such an argument “to be true.”
Vance, 440 U.S. at 111. It is implausible to think that denying
two men or two women the right to call themselves married
could somehow bolster the stability of families headed by one
man and one woman. While deferential, the rational-basis
standard “is not a toothless one.” Mathews v. Lucas, 427 U.S.
495, 510 (1976). “[E]ven the standard of rationality . . . must
find some footing in the realities of the subject addressed by
the legislation.” Heller, 509 U.S. at 321. Here, the argument
that withdrawing the designation of ‘marriage’ from same-sex
couples could on its own promote the strength or stability of
opposite-sex marital relationships lacks any such footing in
reality.
2
[13] Proponents offer an alternative justification for Propo-
sition 8: that it advances California’s interest in “proceed[ing]
with caution” when considering changes to the definition of
marriage. Proponents’ Br. 93. But this rationale, too, bears no
connection to the reality of Proposition 8. The amendment
was enacted after the State had provided same-sex couples the
right to marry and after more than 18,000 couples had mar-
ried (and remain married even after Proposition 8, Strauss,
207 P.3d at 122).23
23
The over 18,000 couples that did marry represented more than one-
third of all couples that had entered into registered domestic partnerships
PERRY v. BROWN 1633
Perhaps what Proponents mean is that California had an
interest in pausing at 18,000 married same-sex couples to
evaluate whether same-sex couples should continue to be
allowed to marry, or whether the same-sex marriages that had
already occurred were having any adverse impact on society.
Even if that were so, there could be no rational connection
between the asserted purpose of “proceeding with caution”
and the enactment of an absolute ban, unlimited in time, on
same-sex marriage in the state constitution.24 To enact a con-
stitutional prohibition is to adopt a fundamental barrier: it
means that the legislative process, by which incremental poli-
cymaking would normally proceed, is completely foreclosed.
Cf. Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483,
489 (1955) (observing that legislatures may rationally reform
policy “one step at a time”). Once Proposition 8 was enacted,
any future steps forward, however cautious, would require
“enlisting the citizenry of [California] to amend the State
Constitution” once again. Romer, 517 U.S. at 631.
Had Proposition 8 imposed not a total ban but a time-
specific moratorium on same-sex marriages, during which the
Legislature would have been authorized to consider the ques-
tion in detail or at the end of which the People would have
had to vote again to renew the ban, the amendment might
plausibly have been designed to “proceed with caution.” In
that case, we would have had to consider whether the objec-
tive of “proceed[ing] with caution” was a legitimate one. But
that is not what Proposition 8 did. The amendment superseded
the Marriage Cases and then went further, by prohibiting the
in California at the time. See Gary J. Gates et al., The Williams Institute,
Marriage, Registration and Dissolution by Same-Sex Couples in the U.S.
5 (July 2008) (noting that there were 48,157 registered domestic partner-
ships in California as of Spring 2008).
24
When the Eighteenth Amendment was ratified, the Nation was simi-
larly not interested in “proceeding with caution” in reallocating grain from
wartime rations to alcohol production. It meant, instead, to effect a perma-
nent ban on alcohol.
1634 PERRY v. BROWN
Legislature or even the People (except by constitutional
amendment) from choosing to make the designation of ‘mar-
riage’ available to same-sex couples in the future. Such a per-
manent ban cannot be rationally related to an interest in
proceeding with caution.
[14] In any event, in light of the express purpose of Propo-
sition 8 and the campaign to enact it, it is not credible to sug-
gest that “proceed[ing] with caution” was the reason the
voters adopted the measure. The purpose and effect of Propo-
sition 8 was “to eliminate the right of same-sex couples to
marry in California”—not to “suspend” or “study” that right.
Voter Information Guide at 54 (Proposition 8, Official Title
and Summary) (emphasis added).25 The voters were told that
Proposition 8 would “overturn[ ]” the Marriage Cases “to
RESTORE the meaning of marriage.” Id. at 56 (Argument in
Favor of Proposition 8). The avowed purpose of Proposition
8 was to return with haste to a time when same-sex couples
were barred from using the official designation of ‘marriage,’
not to study the matter further before deciding whether to
make the designation more equally available.
3
[15] We briefly consider two other potential rationales for
Proposition 8, not raised by Proponents but offered by amici
curiae. First is the argument that Proposition 8 advanced the
State’s interest in protecting religious liberty. See, e.g., Br.
Amicus Curiae of the Becket Fund for Religious Liberty
(Becket Br.) 2. There is no dispute that even before Proposi-
tion 8, “no religion [was] required to change its religious poli-
cies or practices with regard to same-sex couples, and no
religious officiant [was] required to solemnize a marriage in
25
In California, “[b]allot summaries . . . in the ‘Voter Information
Guide’ are recognized sources for determining the voters’ intent.” People
v. Garrett, 92 Cal. App. 4th 1417, 1426 (2001) (citing Hodges v. Super.
Ct., 980 P.2d 433, 438-39 (Cal. 1999)).
PERRY v. BROWN 1635
contravention of his or her religious beliefs.” Marriage Cases,
183 P.3d at 451-52; see Becket Br. 4-5 (acknowledging this
point). Rather, the religious-liberty interest that Proposition 8
supposedly promoted was to decrease the likelihood that reli-
gious organizations would be penalized, under California’s
antidiscrimination laws and other government policies con-
cerning sexual orientation, for refusing to provide services to
families headed by same-sex spouses. But Proposition 8 did
nothing to affect those laws. To the extent that California’s
antidiscrimination laws apply to various activities of religious
organizations, their protections apply in the same way as
before. Amicus’s argument is thus more properly read as an
appeal to the Legislature, seeking reform of the State’s
antidiscrimination laws to include greater accommodations
for religious organizations. See, e.g., Becket Br. 8 n.6
(“Unlike many other states, California has no religious
exemptions to its statutory bans on gender, marital status, and
sexual orientation discrimination in public accommoda-
tions.”). This argument is in no way addressed by Proposition
8 and could not have been the reason for Proposition 8.
[16] Second is the argument, prominent during the cam-
paign to pass Proposition 8, that it would “protect[ ] our chil-
dren from being taught in public schools that ‘same-sex
marriage’ is the same as traditional marriage.” Perry IV, 704
F. Supp. 2d at 930, 989-90 (quoting the Voter Information
Guide at 56) (emphasis omitted); see Br. Amicus Curiae for
the Hausvater Project 13-15. Yet again, California law belies
the premise of this justification. Both before and after Propo-
sition 8, schools have not been required to teach anything
about same-sex marriage. They “may . . . elect[ ] to offer
comprehensive sexual health education”; only then might they
be required to “teach respect for marriage and committed rela-
tionships.” Cal. Educ. Code § 51933(a)-(b), (b)(7). Both
before and after Proposition 8, schools have retained control
over the content of such lessons. And both before and after
Proposition 8, schools and individual teachers have been pro-
hibited from giving any instruction that discriminates on the
1636 PERRY v. BROWN
basis of sexual orientation; now as before, students could not
be taught the superiority or inferiority of either same- or
opposite-sex marriage or other “committed relationships.”
Cal. Educ. Code §§ 51500, 51933(b)(4). The Marriage Cases
therefore did not weaken, and Proposition 8 did not
strengthen, the rights of schools to control their curricula and
of parents to control their children’s education.
There is a limited sense in which the extension of the desig-
nation ‘marriage’ to same-sex partnerships might alter the
content of the lessons that schools choose to teach. Schools
teach about the world as it is; when the world changes, les-
sons change. A shift in the State’s marriage law may therefore
affect the content of classroom instruction just as would the
election of a new governor, the discovery of a new chemical
element, or the adoption of a new law permitting no-fault
divorce: students learn about these as empirical facts of the
world around them. But to protest the teaching of these facts
is little different from protesting their very existence; it is like
opposing the election of a particular governor on the ground
that students would learn about his holding office, or oppos-
ing the legitimation of no-fault divorce because a teacher
might allude to that fact if a course in societal structure were
taught to graduating seniors. The prospect of children learning
about the laws of the State and society’s assessment of the
legal rights of its members does not provide an independent
reason for stripping members of a disfavored group of those
rights they presently enjoy.
4
Proposition 8’s only effect, we have explained, was to
withdraw from gays and lesbians the right to employ the des-
ignation of ‘marriage’ to describe their committed relation-
ships and thus to deprive them of a societal status that affords
dignity to those relationships. Proposition 8 could not have
reasonably been enacted to promote childrearing by biological
parents, to encourage responsible procreation, to proceed with
PERRY v. BROWN 1637
caution in social change, to protect religious liberty, or to con-
trol the education of schoolchildren. Simply taking away the
designation of ‘marriage,’ while leaving in place all the sub-
stantive rights and responsibilities of same-sex partners, did
not do any of the things its Proponents now suggest were its
purposes. Proposition 8 “is so far removed from these particu-
lar justifications that we find it impossible to credit them.”
Romer, 517 U.S. at 635. We therefore need not, and do not,
decide whether any of these purported rationales for the law
would be “legitimate,” id. at 632, or would suffice to justify
Proposition 8 if the amendment actually served to further
them.
E
1
We are left to consider why else the People of California
might have enacted a constitutional amendment that takes
away from gays and lesbians the right to use the designation
of ‘marriage.’ One explanation is the desire to revert to the
way things were prior to the Marriage Cases, when ‘mar-
riage’ was available only to opposite-sex couples, as had been
the case since the founding of the State and in other jurisdic-
tions long before that. This purpose is one that Proposition 8
actually did accomplish: it “restore[d] the traditional defini-
tion of marriage as referring to a union between a man and a
woman.” Strauss, 207 P.3d at 76. But tradition alone is not a
justification for taking away a right that had already been
granted, even though that grant was in derogation of tradition.
In Romer, it did not matter that at common law, gays and les-
bians were afforded no protection from discrimination in the
private sphere; Amendment 2 could not be justified on the
basis that it simply repealed positive law and restored the “tra-
ditional” state of affairs. 517 U.S. at 627-29. Precisely the
same is true here.
Laws may be repealed and new rights taken away if they
have had unintended consequences or if there is some con-
1638 PERRY v. BROWN
ceivable affirmative good that revocation would produce, cf.
Crawford, 458 U.S. at 539-40, but new rights may not be
stripped away solely because they are new. Tradition is a
legitimate consideration in policymaking, of course, but it
cannot be an end unto itself. Cf. Williams v. Illinois, 399 U.S.
235, 239-40 (1970). “[T]he fact that the governing majority in
a State has traditionally viewed a particular practice as
immoral is not a sufficient reason for upholding a law prohib-
iting the practice; neither history nor tradition could save a
law prohibiting miscegenation from constitutional attack.”
Lawrence v. Texas, 539 U.S. 558, 577-78 (2003); see Loving
v. Virginia, 388 U.S. 1 (1967) (noting the historical pedigree
of bans on interracial marriage but not even considering tradi-
tion as a possible justification for Virginia’s law). If tradition
alone is insufficient to justify maintaining a prohibition with
a discriminatory effect, then it is necessarily insufficient to
justify changing the law to revert to a previous state. A prefer-
ence for the way things were before same-sex couples were
allowed to marry, without any identifiable good that a return
to the past would produce, amounts to an impermissible pref-
erence against same-sex couples themselves, as well as their
families.
[17] Absent any legitimate purpose for Proposition 8, we
are left with “the inevitable inference that the disadvantage
imposed is born of animosity toward,” or, as is more likely
with respect to Californians who voted for the Proposition,
mere disapproval of, “the class of persons affected.” Romer,
517 U.S. at 634. We do not mean to suggest that Proposition
8 is the result of ill will on the part of the voters of California.
“Prejudice, we are beginning to understand, rises not from
malice or hostile animus alone.” Bd. of Trustees of Univ. of
Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., con-
curring). Disapproval may also be the product of longstand-
ing, sincerely held private beliefs. Still, while “[p]rivate
biases may be outside the reach of the law, . . . the law cannot,
directly or indirectly, give them effect.” Palmore v. Sidoti,
466 U.S. 429, 433 (1984). Ultimately, the “inevitable infer-
PERRY v. BROWN 1639
ence” we must draw in this circumstance is not one of ill will,
but rather one of disapproval of gays and lesbians as a class.
“[L]aws singling out a certain class of citizens for disfavored
legal status or general hardships are rare.” Romer, 517 U.S. at
633. Under Romer, we must infer from Proposition 8’s effect
on California law that the People took away from gays and
lesbians the right to use the official designation of ‘marriage’
—and the societal status that accompanies it—because they
disapproved of these individuals as a class and did not wish
them to receive the same official recognition and societal
approval of their committed relationships that the State makes
available to opposite-sex couples.
[18] It will not do to say that Proposition 8 was intended
only to disapprove of same-sex marriage, rather than to pass
judgment on same-sex couples as people. Just as the criminal-
ization of “homosexual conduct . . . is an invitation to subject
homosexual persons to discrimination both in the public and
in the private spheres,” Lawrence, 539 U.S. at 575, so too
does the elimination of the right to use the official designation
of ‘marriage’ for the relationships of committed same-sex
couples send a message that gays and lesbians are of lesser
worth as a class—that they enjoy a lesser societal status.
Indeed, because laws affecting gays and lesbians’ rights often
regulate individual conduct—what sexual activity people may
undertake in the privacy of their own homes, or who is per-
mitted to marry whom—as much as they regulate status, the
Supreme Court has “declined to distinguish between status
and conduct in [the] context” of sexual orientation. Christian
Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2990 (2010). By
withdrawing the availability of the recognized designation of
‘marriage,’ Proposition 8 enacts nothing more or less than a
judgment about the worth and dignity of gays and lesbians as
a class.
[19] Just as a “desire to harm . . . cannot constitute a legiti-
mate governmental interest,” Moreno, 413 U.S. at 534, nei-
ther can a more basic disapproval of a class of people. Romer,
1640 PERRY v. BROWN
517 U.S. at 633-35. “The issue is whether the majority may
use the power of the State to enforce these views on the whole
society” through a law that abridges minority individuals’
rights. Lawrence, 539 U.S. at 571. It may not. Without more,
“[m]oral disapproval of [a] group, like a bare desire to harm
the group, is an interest that is insufficient to satisfy rational
basis review under the Equal Protection Clause.” Id. at 582(O’Connor, J., concurring). Society does sometimes draw
classifications that likely are rooted partially in disapproval,
such as a law that grants educational benefits to veterans but
denies them to conscientious objectors who engaged in alter-
native civilian service. See Johnson, 415 U.S. at 362-64.
Those classifications will not be invalidated so long as they
can be justified by reference to some independent purpose
they serve; in Johnson, they could provide an incentive for
military service and direct assistance to those who needed the
most help in readjusting to post-war life, see id. at 376-83.
Enacting a rule into law based solely on the disapproval of a
group, however, “is a classification of persons undertaken for
its own sake, something the Equal Protection Clause does not
permit.” Romer, 517 U.S. at 635. Like Amendment 2, Propo-
sition 8 is a classification of gays and lesbians undertaken for
its own sake.
2
The “inference” that Proposition 8 was born of disapproval
of gays and lesbians is heightened by evidence of the context
in which the measure was passed.26 The district court found
that “[t]he campaign to pass Proposition 8 relied on stereo-
26
A contextual evaluation is both useful and appropriate as part of the
“careful consideration” in which courts must engage when faced with
“[d]iscriminations of an unusual character.” Romer, 517 U.S. at 633 (inter-
nal quotation marks omitted); see Moreno, 413 U.S. at 533-38. When a
law is enacted by ballot initiative, we look to objective indicators of the
voters’ motivations, such as campaign materials, to shed light on the “his-
torical context.” S. Alameda Spanish Speaking Org. v. Union City, 424
F.2d 291, 295 (9th Cir. 1970); see, e.g., Washington, 458 U.S. at 463.
PERRY v. BROWN 1641
types to show that same-sex relationships are inferior to
opposite-sex relationships.” Perry IV, 704 F. Supp. 2d at 990.
Television and print advertisements “focused on . . . the con-
cern that people of faith and religious groups would somehow
be harmed by the recognition of gay marriage” and “conveyed
a message that gay people and relationships are inferior, that
homosexuality is undesirable and that children need to be pro-
tected from exposure to gay people and their relationships.”
Id. These messages were not crafted accidentally. The strate-
gists responsible for the campaign in favor of Proposition 8
later explained their approach: “ ‘[T]here were limits to the
degree of tolerance Californians would afford the gay com-
munity. They would entertain allowing gay marriage, but not
if doing so had significant implications for the rest of soci-
ety,’ ” such as what children would be taught in school. Id. at
988 (quoting Frank Schubert & Jeff Flint, Passing Prop 8,
Politics, Feb. 2009, at 45-47). Nor were these messages new;
for decades, ballot measures regarding homosexuality have
been presented to voters in terms designed to appeal to stereo-
types of gays and lesbians as predators, threats to children,
and practitioners of a deviant “lifestyle.” See Br. Amicus
Curiae of Constitutional Law Professors at 2-8. The messages
presented here mimic those presented to Colorado voters in
support of Amendment 2, such as, “Homosexual indoctrina-
tion in the schools? IT’S HAPPENING IN COLORADO!”
Colorado for Family Values, Equal Rights—Not Special
Rights, at 2 (1992), reprinted in Robert Nagel, Playing
Defense, 6 Wm. & Mary Bill Rts. J. 167, 193 (1997).
[20] When directly enacted legislation “singl[es] out a cer-
tain class of citizens for disfavored legal status,” we must “in-
sist on knowing the relation between the classification
adopted and the object to be attained,” so that we may ensure
that the law exists “to further a proper legislative end” rather
than “to make the[ ] [class] unequal to everyone else.” Romer,
517 U.S. at 632-33, 635. Proposition 8 fails this test. Its sole
purpose and effect is “to eliminate the right of same-sex cou-
ples to marry in California”—to dishonor a disfavored group
1642 PERRY v. BROWN
by taking away the official designation of approval of their
committed relationships and the accompanying societal status,
and nothing more. Voter Information Guide at 54. “It is at
once too narrow and too broad,” for it changes the law far too
little to have any of the effects it purportedly was intended to
yield, yet it dramatically reduces the societal standing of gays
and lesbians and diminishes their dignity. Romer, 517 U.S. at
633. Proposition 8 did not result from a legitimate “Kultur-
kampf” concerning the structure of families in California,
because it had no effect on family structure, but in order to
strike it down, we need not go so far as to find that it was
enacted in “a fit of spite.” Id. at 636 (Scalia, J., dissenting).
It is enough to say that Proposition 8 operates with no appar-
ent purpose but to impose on gays and lesbians, through the
public law, a majority’s private disapproval of them and their
relationships, by taking away from them the official designa-
tion of ‘marriage,’ with its societally recognized status. Prop-
osition 8 therefore violates the Equal Protection Clause.
VI
Finally, we address Proponents’ motion to vacate the dis-
trict court’s judgment. On April 6, 2011, after resigning from
the bench, former Chief Judge Walker disclosed that he was
gay and that he had for the past ten years been in a relation-
ship with another man. Proponents moved shortly thereafter
to vacate the judgment on the basis that 28 U.S.C. § 455(b)(4)
obligated Chief Judge Walker to recuse himself, because he
had an “interest that could be substantially affected by the
outcome of the proceeding,” and that 28 U.S.C. § 455(a) obli-
gated him either to recuse himself or to disclose his potential
conflict, because “his impartiality might reasonably be ques-
tioned.” Chief Judge Ware, to whom this case was assigned
after Chief Judge Walker’s retirement, denied the motion after
receiving briefs and hearing argument.
The district court properly held that it had jurisdiction to
hear and deny the motion under Fed. R. Civ. P. 62.1(a), that
PERRY v. BROWN 1643
the motion was timely, and that Chief Judge Walker had no
obligation to recuse himself under either § 455(b)(4) or
§ 455(a) or to disclose any potential conflict. As Chief Judge
Ware explained, the fact that a judge “could be affected by the
outcome of a proceeding[,] in the same way that other mem-
bers of the general public would be affected, is not a basis for
either recusal or disqualification under Section 455(b)(4).”
Perry v. Schwarzenegger, 790 F. Supp. 2d 1119, 1122 (N.D.
Cal. 2011); see In re City of Houston, 745 F.2d 925, 929-30
(5th Cir. 1984) (“We recognize that ‘an interest which a judge
has in common with many others in a public matter is not suf-
ficient to disqualify him.’ ”). Nor could it possibly be “reason-
able to presume,” for the purposes of § 455(a), “that a judge
is incapable of making an impartial decision about the consti-
tutionality of a law, solely because, as a citizen, the judge
could be affected by the proceeding.” 790 F. Supp. 2d at
1122; see United States v. Alabama, 828 F.2d 1532, 1541-42
(11th Cir. 1987). To hold otherwise would demonstrate a lack
of respect for the integrity of our federal courts.
[21] The denial of the motion to vacate was premised on
Chief Judge Ware’s finding that Chief Judge Walker was not
obligated to recuse himself. “We review the district court’s
denial of a motion to vacate the judgment for an abuse of dis-
cretion.” Jeff D. v. Kempthorne, 365 F.3d 844, 850 (9th Cir.
2004). Our standard for abuse of discretion requires us to (1)
“look to whether the trial court identified and applied the cor-
rect legal rule to the relief requested”; and, if the trial court
applied the correct legal rule, to (2) “look to whether the trial
court’s resolution . . . resulted from a factual finding that was
illogical, implausible, or without support in inferences that
may be drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).
Here, Chief Judge Ware did not incorrectly apply the law. He
identified and applied § 455(b)(4) and § 455(a), the correct
legal rules, as well as the relevant precedents. His application
of the law, determining whether Chief Judge Walker was obli-
gated to recuse himself, was discretionary. See United States
1644 PERRY v. BROWN
v. Johnson, 610 F.3d 1138, 1147-48 (9th Cir. 2010). His reso-
lution of the issue on the basis of the facts was not illogical,
implausible, or without support in inferences that may be
drawn from the facts in the record. Thus, we affirm Chief
Judge Ware’s decision not to grant the motion to vacate.
VII
By using their initiative power to target a minority group
and withdraw a right that it possessed, without a legitimate
reason for doing so, the People of California violated the
Equal Protection Clause. We hold Proposition 8 to be uncon-
stitutional on this ground. We do not doubt the importance of
the more general questions presented to us concerning the
rights of same-sex couples to marry, nor do we doubt that
these questions will likely be resolved in other states, and for
the nation as a whole, by other courts. For now, it suffices to
conclude that the People of California may not, consistent
with the Federal Constitution, add to their state constitution a
provision that has no more practical effect than to strip gays
and lesbians of their right to use the official designation that
the State and society give to committed relationships, thereby
adversely affecting the status and dignity of the members of
a disfavored class. The judgment of the district court is
AFFIRMED.27
27
The stay pending appeal issued by this court on August 16, 2010
remains in effect pending issuance of the mandate.
PERRY v. BROWN 1645
N.R. SMITH, Circuit Judge, concurring in part and dissenting
in part:
I agree with the majority’s analysis and decisions in parts
III and VI of its opinion, determining that (1) the Proponents
have standing to bring this appeal; and (2) the Motion to
Vacate the Judgment should be denied. Because I do not
agree with the majority’s analysis of other topics regarding
the constitutionality of Proposition 8, I have chosen to write
separately. Ultimately, I am not convinced that Proposition 8
is not rationally related to a legitimate governmental interest.
I must therefore respectfully dissent.
Before addressing the issues now presented before our
panel, I want to emphasize a distinguishing point in my analy-
sis from what may be anticipated by the reader. Similar to the
California Supreme Court in its prior opinion concerning
Proposition 8, our panel was not tasked with determining
whether this constitutional amendment “is wise or sound as a
matter of policy or whether we, as individuals, believe it
should be a part of the California Constitution.” Strauss v.
Horton, 207 P.3d 48, 59 (Cal. 2009). Our personal views
regarding the political and sociological debate on marriage
equality are irrelevant to our task. Instead, we are only asked
to consider the constitutional validity of Proposition 8 under
the federal Constitution. The California Supreme Court has
already interpreted and applied “the principles and rules
embodied in the California Constitution” to Proposition 8 and
found it valid. Strauss, 207 P.3d 48.
I.
Proponents and their supporting amici (hereinafter Propo-
nents) argue that the United States Supreme Court’s summary
dismissal in Baker v. Nelson, 409 U.S. 810 (1972) (mem.),
“mandates reversal of the district court’s ruling.” According
to Proponents, the claims raised here are the same as those
rejected in Baker, and the claims are therefore foreclosed by
1646 PERRY v. BROWN
that decision. The majority dispenses with Baker in a foot-
note. However, other federal courts have indicated that Baker,
if it is not controlling, at least stands for exercising “restraint”
when it comes to addressing due process and equal protection
challenges against laws prohibiting marriage by same-sex
couples. Citizens for Equal Protection v. Bruning, 455 F.3d
859, 870 (8th Cir. 2006); see also Wilson v. Ake, 354 F. Supp.
2d 1298, 1305 (M.D. Fla. 2005) (“Baker v. Nelson is binding
precedent upon this Court . . . .”). But see In re Kandu, 315
B.R. 123, 138 (Bankr. W.D. Wash. 2004) (concluding that
“Baker is not binding precedent on the issues presented”
because the case centered on federal Defense of Marriage Act
and because “doctrinal developments” indicated Baker was no
longer binding). Because Baker is binding United States
Supreme Court precedent and may foreclose Plaintiffs’
claims, one must follow it or distinguish it.
A.
In Baker v. Nelson, two men were denied a marriage
license by a Minnesota county clerk. 191 N.W.2d 185, 185
(Minn. 1971). Because they were denied the license, the two
men filed suit asking that the court force the clerk to grant the
license. Id. In Minnesota Statutes c. 517, the Minnesota state
legislature had codified that the state “d[id] not authorize mar-
riage between persons of the same sex. . . .” Id. at 186. On
appeal, the Minnesota Supreme Court addressed several
issues, including whether the Minnesota statutes prohibiting
marriage by same-sex couples denied the petitioners “the
equal protection of the laws” as guaranteed by the Fourteenth
Amendment. Id. The Minnesota Supreme Court held that
“[t]he equal protection clause of the Fourteenth Amendment
. . . is not offended by the state’s classification of persons
authorized to marry.” Id. at 187. On appeal to the United
States Supreme Court, the Court summarily dismissed the
appeal “for want of a substantial federal question.” Baker v.
Nelson, 409 U.S. 810.
PERRY v. BROWN 1647
Though not stated in the summary dismissal in Baker, the
Supreme Court decision has long standing precedent support-
ing it. Throughout our nation’s history, the States have had
“the absolute right to prescribe the conditions upon which the
marriage relation between its own citizens shall be credited
. . . .” Pennoyer v. Neff, 95 U.S. 714, 734-35 (1878), reaf-
firmed in Sosna v. Iowa, 419 U.S. 393, 404 (1975).
Marriage, as creating the most important relation in
life, as having more to do with the morals and civili-
zation of a people than any other institution, has
always been subject to the control of the legislature.
That body prescribes the age at which parties may
contract to marry, the procedure or form essential to
constitute marriage, the duties and obligations it
creates, its effects upon the property rights of both,
present and prospective, and the acts which may
constitute grounds for its dissolution.
Maynard v. Hill, 125 U.S. 190, 205 (1888).
As Justice Stewart opined in his concurrence in Zablocki v.
Redhail, a State
may in many circumstances absolutely prohibit
[marriage]. Surely, for example, a State may legiti-
mately say that no one can marry his or her sibling,
that no one can marry who is not at least 14 years
old, that no one can marry without first passing an
examination for venereal disease, or that no one can
marry who has a living husband or wife.
434 U.S. 374, 392 (1978) (Stewart, J., concurring).
The summary dismissal of an appeal for want of a substan-
tial federal question is a decision on the merits. Hicks v.
Miranda, 422 U.S. 332, 344 (1975). “[U]nless and until the
Supreme Court should instruct otherwise, inferior federal
1648 PERRY v. BROWN
courts had best adhere to the view that if the Court has
branded a question as unsubstantial, it remains so except
when doctrinal developments indicate otherwise . . . .” Id.(internal quotation marks omitted). “[L]ower courts are bound
by summary decisions by [the Supreme] Court until such time
as the Court informs (them) that (they) are not.” Id. at 344-45(internal quotation marks omitted). “Summary . . . dismissals
for want of a substantial federal question . . . reject the spe-
cific challenges presented in the statement of jurisdiction and
do leave undisturbed the judgment appealed from. They do
prevent lower courts from coming to opposite conclusions on
the precise issues presented and necessarily decided by those
actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per
curiam). Thus, “[a] summary disposition affirms only the
judgment of the court below, and no more may be read into
[the] action than was essential to sustain that judgment.” Ill.
State Bd. of Elections v. Socialist Workers Party, 440 U.S.
173, 182-83 (1979) (citation omitted). “Questions which
‘merely lurk in the record’ are not resolved, and no resolution
of them may be inferred.” Id. at 183 (citation omitted).
The jurisdictional statements presented to the United States
Supreme Court in Baker v. Nelson were as follows:
1. Whether appellee’s refusal to sanctify appel-
lants’ marriage deprives appellants of their liberty to
marry and of their property without due process of
law under the Fourteenth Amendment.
2. Whether appellee’s refusal, pursuant to Minne-
sota marriage statutes, to sanctify appellants’ mar-
riage because both are of the male sex violates their
rights under the equal protection clause of the Four-
teenth Amendment.
3. Whether appellee’s refusal to sanctify appel-
lants’ marriage deprives appellants of their right to
PERRY v. BROWN 1649
privacy under the Ninth and Fourteenth Amend-
ments.
See In re Kandu, 315 B.R. at 137.
B.
Here, we must address whether the question before us
involves “the precise issues presented and necessarily decided
by” Baker v. Nelson, such that the Supreme Court’s summary
dismissal would have precedential effect here. Alternatively,
the question before us could be one that “merely lurk[ed] in
the record” of Baker, and the present case would not be
resolved by the Supreme Court’s summary dismissal.
In this case, the following issues were presented for review:
1. Whether [Proponents] have standing to appeal
the district court’s judgment.
2. Whether Proposition 8 violates the Due Process
Clause of the Fourteenth Amendment to the United
States Constitution.
3. Whether Proposition 8 violates the Equal Pro-
tection Clause of the Fourteenth Amendment to the
United States Constitution.
Plaintiff-Intervenor City and County of San Francisco (here-
inafter San Francisco) presented the following additional
issue for review:
1. Whether Proposition 8, a constitutional amend-
ment adopted after a plebiscite campaign that played
on fears and prejudices about lesbians and gay men,
violates the Equal Protection Clause of the federal
Constitution where its effect is to remove the hon-
ored title “marriage” but not the incidents of mar-
1650 PERRY v. BROWN
riage from same-sex couples, and its purpose is to
remove the taint that its supporters believed the
inclusion of lesbian and gay couples worked on the
institution of marriage.
The equal protection question raised in this case seems to
be distinguishable from the precise issues presented and nec-
essarily decided in Baker, especially when the equal protec-
tion issue is framed as San Francisco advocates.1 The equal
protection issue decided in Baker rested on whether Minneso-
ta’s “refusal, pursuant to Minnesota marriage statutes, to sanc-
tify appellants’ marriage . . . violates their rights under the
equal protection clause . . . .” In re Kandu, 315 B.R. at 137.
Here, San Francisco presents the issue of whether Proposition
8’s effect of “remov[ing] the honored title ‘marriage’ but not
the incident of marriage from same-sex couples” violates
equal protection. This Proposition 8 issue may have “merely
lurk[ed] in the record” of Baker. Unlike Minnesota, California
granted same-sex couples rights to both the designation and
the incidents of marriage, before withdrawing the right of
access to the designation through Proposition 8. Therefore,
1
Whether prohibiting marriage by same-sex couples violates due pro-
cess was an issue presented and decided in Baker v. Nelson. In this case,
the district court determined that “plaintiffs seek to exercise their funda-
mental right to marry under the Due Process Clause,” Perry v. Schwar-
zenegger, 704 F. Supp. 2d 921, 993 (N.D. Cal. 2010), and that Proposition
8 violated the Due Process Clause, because it denied Plaintiffs this funda-
mental right and did not withstand strict scrutiny. Id. at 994-95. But in
Baker, the Minnesota Supreme Court determined that prohibiting marriage
by same-sex couples did not offend the Due Process Clause. 191 N.W.3d
at 186-87. Because the United States Supreme Court “branded [that] ques-
tion as unsubstantial” in its summary dismissal, the due process issue “re-
mains so except when doctrinal developments indicate otherwise.” Hicks
v. Miranda, 422 U.S. at 344 (internal quotation marks omitted). The
United States Supreme Court cases following Baker do not suggest any
such doctrinal developments have occurred. See, e.g., Lawrence v. Texas,
539 U.S. 558, 578 (2003) (“[This case] does not involve whether the gov-
ernment must give formal recognition to any relationship that homosexual
persons seek to enter.” (internal quotation marks omitted)).
PERRY v. BROWN 1651
the constitutionality of withdrawing from same-sex couples
the right of access to the designation of marriage does not
seem to be among the “specific challenges” raised in Baker.
If so, though the precedential effect of Baker v. Nelson is not
challenged by this decision, such precedent is distinguishable
from the decision of the district court here.
II.
In deciding this case, one should be mindful that generally
state governance over marriage is not challenged easily. How-
ever, while “marriage is a social relation subject to the State’s
police power,” this does not mean that the State’s “powers to
regulate marriage are unlimited notwithstanding the com-
mands of the Fourteenth Amendment.” Loving v. Virginia,
388 U.S. 1, 7 (1967). A marriage regulation “containing racial
classifications,” such as the one at issue in Loving, is subject
to “the very heavy burden of justification which the Four-
teenth Amendment has traditionally required of state statutes
drawn according to race.” Id. at 9. However, not “every state
regulation which relates in any way to the incidents of or pre-
requisites for marriage must be subjected to rigorous scruti-
ny.” Zablocki, 434 U.S. at 386 (majority opinion). Proposition
8 does not involve such a suspect classification and therefore
should not be analyzed under any heightened scrutiny, but we
must still ask “whether there is any rational foundation for the
discrimination[ ] . . . .” See Loving, 388 U.S. at 9.
A.
The Plaintiffs, San Francisco, and their supporting amici
(hereinafter Plaintiffs) challenge Proposition 8 under the
Equal Protection Clause of the Fourteenth Amendment. How-
ever, because Proposition 8 is “a classification neither involv-
ing fundamental rights nor proceeding along suspect lines,”
Heller v. Doe, 509 U.S. 312, 319 (1993), I do not address the
application of strict scrutiny review to Proposition 8. Under
strict scrutiny review, the government would need to establish
1652 PERRY v. BROWN
that the classification is necessary to achieve a compelling
governmental interest, and there must not be a less onerous
available alternative. The United States Supreme Court has
not recognized that the fundamental right to marry includes a
fundamental right to gay marriage. See Lawrence, 539 U.S. at
578. Gays and lesbians are not a suspect or quasi-suspect
class. High Tech Gays v. Def. Indus. Sec. Clearance Office,
895 F.2d 563, 573 (9th Cir. 1990).
I also do not address intermediate scrutiny because
Supreme Court precedent thus far has never held that sexual
orientation is a “quasi-suspect classification.” See City of Cle-
burne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).
Under that standard of review, generally applied in illegiti-
macy and gender cases, the government would need to estab-
lish that the classification is substantially related to an
important governmental interest. See id. at 441.
Thus, Proposition 8 is subject to rational basis review rather
than to any heightened scrutiny. See id. at 440-42.
B.
“The Fourteenth Amendment’s promise that no person
shall be denied the equal protection of the laws must coexist
with the practical necessity that most legislation classifies for
one purpose or another, with resulting disadvantage to various
groups or persons.” Romer v. Evans, 517 U.S. 620, 631
(1996). Thus, when assessing the constitutionality of most
government measures, we use rational basis review in an
attempt “to reconcile the principle with the reality.” Id. Under
rational basis review, “we will uphold the legislative classifi-
cation so long as it bears a rational relation to some legitimate
end.” Id.In equal protection analysis, rational basis review “is not a
license for courts to judge the wisdom, fairness, or logic of
legislative choices.” Heller, 509 U.S. at 319 (internal quota-
PERRY v. BROWN 1653
tion marks omitted). A classification “neither involving fun-
damental rights nor proceeding along suspect lines is
accorded a strong presumption of validity.” Id. “Such a classi-
fication cannot run afoul of the Equal Protection Clause if
there is a rational relationship between the disparity of treat-
ment and some legitimate governmental purpose.” Id. at 320.
The government is not required to “actually articulate at any
time the purpose or rationale supporting its classification”;
rather, a classification “must be upheld against equal protec-
tion challenge if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification.”
Id. (internal quotation marks omitted).
Additionally, the government “has no obligation to provide
evidence to sustain the rationality of a statutory classifica-
tion.” Id. The measure at issue “is not subject to courtroom
factfinding and may be based on rational speculation unsup-
ported by evidence or empirical data.” Id. (internal quotation
marks omitted). “[T]he burden is on the one attacking the leg-
islative arrangement to negative every conceivable basis
which might support it . . . .” Id. (internal quotation marks
omitted). Further, a legislature’s generalizations may pass
rational basis review “even when there is an imperfect fit
between means and ends.” Id. at 321. In sum, the measure
need only have “arguable” assumptions underlying its “plau-
sible rationales” to survive constitutional challenge. Id. at
333.
However, “even the standard of rationality . . . must find
some footing in the realities of the subject addressed by the
legislation.” Id. at 321. Also, some interests are not legitimate
governmental interests. E.g., Romer, 517 U.S. at 634 (stating
that “animosity toward the class of persons affected” is not a
legitimate governmental interest); Cleburne, 473 U.S. at 448(stating that “mere negative attitudes, or fear” are not legiti-
mate governmental interests); U.S. Dep’t of Agric. v. Moreno,
413 U.S. 528, 534 (1973) (stating that a “bare . . . desire to
1654 PERRY v. BROWN
harm a politically unpopular group” is not a legitimate gov-
ernmental interest).
As a general rule, states may use their police power to regu-
late the “morals” of their population. See, e.g., Berman v. Par-
ker, 348 U.S. 26, 32 (1954). In his dissent in Lawrence, 539
U.S. at 589-91 (Scalia, J., dissenting), Justice Scalia argued
that “[c]ountless judicial decisions and legislative enactments
have relied on the ancient proposition that a governing major-
ity’s belief that certain sexual behavior is ‘immoral and unac-
ceptable’ constitutes a rational basis for regulation.” Id. at
589. He then suggested that the Supreme Court has relied on
morality as the basis for its decision making and states,
“[s]tate laws against bigamy, same-sex marriage, adult incest,
prostitution, masturbation, adultery, fornication, bestiality,
and obscenity are likewise sustainable only in light of valida-
tion of laws based on moral choices.” Id. at 590.
However, Justice O’Connor articulated a different perspec-
tive in determining whether moral disapproval may serve as
a rational basis for equal protection. She outlined that moral
disapproval is not a legitimate state interest to justify, by
itself, a statute that bans homosexual conduct. She stated that
“[m]oral disapproval of this group, like a bare desire to harm
the group, is an interest that is insufficient to satisfy rational
basis review under the Equal Protection Clause.” Id. at 582(O’Connor, J., concurring). She continued: “Indeed, we have
never held that moral disapproval, without any other asserted
state interest, is a sufficient rationale under the Equal Protec-
tion Clause to justify a law that discriminates among groups
of persons.” Id. The Lawrence majority opinion seems to have
implicitly agreed with Justice O’Connor, when it stated that
a court’s “obligation is to define the liberty of all, not to man-
date its own moral code.” Id. at 559 (majority opinion) (inter-
nal quotation mark omitted).
Therefore, such interests (e.g., animus, negative attitudes,
fear, a bare desire to harm, and moral disapproval) alone will
PERRY v. BROWN 1655
not support the constitutionality of a measure, because the
Equal Protection Clause does not permit a “status-based
enactment divorced from any factual context from which [the
courts] could discern a relationship to legitimate state inter-
ests,” or a “classification of persons undertaken for its own
sake . . . .” Romer, 517 U.S. at 635.
III.
The majority concludes that “Romer governs our analysis
notwithstanding the differences between Amendment 2 and
Proposition 8,” because of the similarities between the mea-
sures at issue in Romer and in the present case. However, the
differences between Amendment 2 and Proposition 8 indicate
that Romer does not directly control our analysis of the consti-
tutionality of Proposition 8.
Before comparing Amendment 2 to Proposition 8, I want
to attempt to clarify the extent of the Plaintiffs’ interest
asserted here. One must understand the unique manner in
which California defines this interest. Because the California
Supreme Court defined and clarified that interest in its Strauss
v. Horton opinion, I quote liberally from it.
Proposition 8 “properly must be understood as having a
considerably narrower scope and more limited effect” than
what might be the case in other states. Strauss, 207 P.3d at 61.
“Proposition 8 does not entirely repeal or abrogate the aspect
of a same-sex couple’s state constitutional right to . . . choose
one’s life partner and enter with that person into a committed,
officially recognized, and protected family relationship that
enjoys all of the constitutionally based incidents of marriage.”
Id. (internal quotation marks omitted).
Nor does Proposition 8 fundamentally alter the
meaning and substance of state constitutional equal
protection principles . . . . Instead, the measure
carves out a narrow and limited exception to these
1656 PERRY v. BROWN
state constitutional rights, reserving the official des-
ignation of the term “marriage” for the union of
opposite-sex couples as a matter of state constitu-
tional law, but leaving undisturbed all of the other
extremely significant substantive aspects of a same-
sex couple’s state constitutional right to establish an
officially recognized and protected family relation-
ship and the guarantee of equal protection of the
laws.
Id.
Further, the California Supreme Court continued, “as a
qualitative matter, the act of limiting access to the designation
of marriage to opposite-sex couples [through Proposition 8]
does not have a substantial or, indeed, even a minimal effect
on the governmental plan or framework of California that
existed prior to the amendment.” Id. at 62.
However, the California Supreme Court was also quick to
point out that this differentiation did not diminish or minimize
“the significance of the official designation of ‘marriage,’ ”
which they characterized as “a vital factor” in their prior deci-
sion holding that failing to provide access to this designation
to same-sex couples “impinged upon the privacy and due pro-
cess rights of same-sex couples and violated those couples’
right to the equal protection of the laws guaranteed by the
California Constitution.” Id. at 59, 61.
Therefore, “Proposition 8 reasonably must be interpreted in
a limited fashion as eliminating only the right of same-sex
couples to equal access to the designation of marriage, and as
not otherwise affecting the constitutional right of those cou-
ples to establish an officially recognized family relationship.”
Id. at 76.
Accordingly, although Proposition 8 eliminates the
ability of same-sex couples to enter into an official
PERRY v. BROWN 1657
relationship designated “marriage,” in all other
respects those couples continue to possess, under the
state constitutional privacy and due process clauses,
“the core set of basic substantive legal rights and
attributes traditionally associated with marriage,”
including, “most fundamentally, the opportunity of
an individual to establish—with the person with
whom the individual has chose to share his or her
life—an officially recognized and protected family
possessing mutual rights and responsibilities and
entitled to the same respect and dignity accorded a
union traditionally designated as marriage.” Like
opposite-sex couples, same-sex couples enjoy this
protection not as a matter of legislative grace, but of
constitutional right.
Id. at 77 (citation omitted).
A.
In Romer, Colorado voters adopted Amendment 2 to the
State Constitution, which “prohibits all legislative, executive,
or judicial action at any level of state or local government
designed to protect . . . gays and lesbians.’ ” 517 U.S. at 624.
Amendment 2 was passed in response to municipal ordi-
nances enacted in various Colorado cities that protected “per-
sons discriminated against by reason of their sexual
orientation.” Id. The Supreme Court examined Amendment 2
under rational basis review, where “if a law neither burdens
a fundamental right nor targets a suspect class, we will uphold
the legislative classification so long as it bears a rational rela-
tion to some legitimate end.” Id. at 631. The Supreme Court
held that Amendment 2 failed rational basis review for two
reasons. Id. at 632. “First, the amendment has the peculiar
property of imposing a broad and undifferentiated disability
on a single named group, an exceptional and . . . invalid form
of legislation.” Id. “Second, its sheer breadth is so discontinu-
ous with the reasons offered for it that the amendment seems
1658 PERRY v. BROWN
inexplicable by anything but animus toward the class if
affects; it lacks a rational relationship to legitimate state inter-
ests.” Id.B.
There are several ways to distinguish Romer from the pres-
ent case. First, in Romer, the Supreme Court stated that “[t]he
change Amendment 2 works in the legal status of gays and
lesbians in the private sphere is far reaching, both on its own
terms and when considered in light of the structure and opera-
tion of modern anti-discrimination laws.” Id. at 627. Here,
“Proposition 8 reasonably must be interpreted in a limited
fashion as eliminating only the right of same-sex couples to
equal access to the designation of marriage, and as not other-
wise affecting the constitutional right of those couples to
establish an officially recognized family relationship.”
Strauss, 207 P.3d at 76. Thus, Romer is inapposite, because
Proposition 8 eliminates the right of access to the designation
of marriage from same-sex couples, rather than working a far
reaching change in their legal status.
Second, Amendment 2’s “sheer breadth is so discontinuous
with the reasons offered for it that the amendment seems inex-
plicable by anything but animus toward the class it affects.”
Romer, 517 U.S. at 632. Again, Proposition 8 “carves out a
narrow and limited exception to [the] state constitutional
rights” of privacy and due process. Strauss, 207 P.3d at 61.
Proposition 8 therefore lacks the “sheer breadth” that
prompted the Supreme Court to raise the inference of animus
in Romer.
The effect of animus is also unclear. In Romer, the
Supreme Court stated that “laws of the kind now before us
raise the inevitable inference that the disadvantage imposed is
born of animosity towards the class of persons affected.” 517
U.S. at 634. The Supreme Court indicated that Amendment 2
was constitutionally invalid, because its only purpose was ani-
PERRY v. BROWN 1659
mus; Amendment 2 was not “directed to any identifiable
legitimate purpose or discrete objective.” Id. at 635. In short,
Romer was a case where the only basis for the measure at
issue was animus. However, in a case where the measure at
issue was prompted both by animus and by some independent
legitimate purpose, the measure may still be constitutionally
valid. The Supreme Court has stated that while “negative atti-
tudes,” “fear” or other biases “may often accompany irratio-
nal (and therefore unconstitutional) discrimination, their
presence alone does not a constitutional violation make.” Bd.
of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 367
(2001) (discussing Cleburne, 473 U.S. at 448). If “animus” is
one such bias, its presence alone may not make Proposition
8 invalid if the measure also rationally relates to a legitimate
governmental interest.
Finally, gays and lesbians were burdened by Amendment 2,
because it “operate[d] to repeal and forbid all laws or policies
providing specific protection for gays or lesbians from dis-
crimination by every level of Colorado government.” Romer,
517 U.S. at 629. In contrast, “although Proposition 8 elimi-
nates the ability of same-sex couples to enter into an official
relationship designated ‘marriage,’ in all other respects those
couples continue to possess, under the state constitutional pri-
vacy and due process clauses, the core set of basic substantive
legal rights and attributes traditionally associated with mar-
riage . . . .” Strauss, 207 P.3d at 77 (internal quotation marks
omitted). Put otherwise, Proposition 8 does not burden gays
and lesbians to the same extent Amendment 2 burdened gays
and lesbians in Colorado.
C.
Proponents argue that the fact that Proposition 8 withdrew
from same-sex couples the existing right of access to the des-
ignation of marriage should be significant in our constitu-
tional analysis. However, Supreme Court equal protection
cases involving challenges to measures withdrawing an exist-
1660 PERRY v. BROWN
ing right do not indicate that the withdrawal should affect our
analysis. Instead, it seems that the court has upheld legislation
that withdraws, rather than reserves, some legal right. E.g.,
U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 176-77 (1980)
(applying “traditional” principles of rational basis review to
Congress’s determination “that some of those who in the past
received full windfall benefits would not continue to do so”);
City of New Orleans v. Dukes, 427 U.S. 297, 303-05 (1976)
(per curiam) (concluding that city’s elimination of rights of
some pushcart food vendors, but not others, was “not consti-
tutionally impermissible”). In fact, in its decision in Romer,
the Supreme Court does not base its decision on this conten-
tion. Rather, it mentioned withdrawing specific legal protec-
tions from gays and lesbians only in the context of referring
to the irrational targeting of that group when compared to the
sweeping change Amendment 2 created in the law.2 Romer,
517 U.S. at 627.
D.
The above differences between Amendment 2 and Proposi-
tion 8 indicate that Romer does not directly control here. In
Romer, the Supreme Court found that animus alone was the
purpose behind Amendment 2. Here, the majority backs into
its inference of animus, first determining that all other bases
2
However, while the withdrawal of a right may not be analytically sig-
nificant for rational basis review, it may still be factually significant. For
example, the fact that Proposition 8 involves the withdrawal of an existing
right and not the extension of a previously reserved right suggests that
Johnson v. Robison, 415 U.S. 361 (1974), is inapposite to the present case.
In Johnson, the Supreme Court declared that “[w]hen . . . the inclusion of
one group promotes a legitimate governmental purpose, and the addition
of other groups would not, we cannot say that the statute’s classification
of beneficiaries and nonbeneficiaries is invidiously discriminatory.” Id. at
383. As the majority argues, the rule from Johnson appears to be inappli-
cable here, because Proposition 8 involves the withdrawal from same-sex
couples of the existing right to access the designation of marriage, and not
the addition of same-sex couples to the group previously reserved the
right.
PERRY v. BROWN 1661
for Proposition 8 are constitutionally invalid. Assuming ani-
mus or moral disapproval were one of the purposes of Propo-
sition 8, the measure would still survive rational basis review
if there were also a valid rational basis behind Proposition 8.
Only if there were no other basis would Proposition 8 fail
rational basis review. Thus, our task is to determine whether
Proposition 8 rationally relates to any independent legitimate
governmental interest.
IV.
In our case, Proponents argue that Proposition 8, defining
marriage as the union of one man and one woman, is ratio-
nally related to a legitimate governmental interest for several
reasons. Some of those reasons have already been discussed
in the majority opinion and need no further discussion here.
However, two of those reasons deserve more discussion,
because they have been credited by other courts: (1) a respon-
sible procreation theory, justifying the inducement of marital
recognition only for opposite-sex couples, because it “steers
procreation into marriage” because opposite-sex couples are
the only couples who can procreate children accidentally or
irresponsibly; and (2) an optimal parenting theory, justifying
the inducement of marital recognition only for opposite-sex
couples, because the family structure of two committed bio-
logical parents—one man and one woman—is the optimal
partnership for raising children. See, e.g., Citizens for Equal
Protection, 455 F.3d at 867-68.
A.
Proponents argue that Proposition 8, defining marriage as
the union of one man and one woman, preserves the funda-
mental and historical purposes of marriage. They argue that,
if the definition of marriage between a man and a woman is
changed, it would fundamentally redefine the term from its
original and historical procreative purpose. This shift in pur-
pose would weaken society’s perception of the importance of
1662 PERRY v. BROWN
entering into marriage to have children, which would increase
the likelihood that couples would choose to cohabitate rather
than to get married. They also argue that irresponsible procre-
ation, by accident or willfully in a cohabitation relationship,
will result in less stable circumstances for children and that
same-sex couples do not present this threat of irresponsible
procreation. They argue that, in the case of unintended preg-
nancies, the question is not whether the child will be raised by
two opposite-sex parents, but rather whether it will be raised,
on the one hand by two parents, or on the other hand by its
mother alone (often with the assistance of the state). “Proposi-
tion 8 seeks to channel potentially procreative conduct into
relationships where that conduct is likely to further, rather
than harm, society’s interest in responsible procreation and
childrearing.”
Proponents also argue the “optimal parenting” rationale
serves as a rational basis for Proposition 8. The optimal par-
enting rationale posits that Proposition 8 promotes the optimal
setting for the responsible raising and care of children—by
their biological parents in a stable marriage relationship. Pro-
ponents offer many judicial decisions and secondary authori-
ties supporting both rationales.
In sum, Proponents argue that Proposition 8 is rationally
related to legitimate governmental interests.
B.
The first requirement of rational basis review is that there
must be some conceivable legitimate governmental interest
for the measure at issue.3
3
This requirement is easily met, because “[v]irtually any goal that is not
forbidden by the Constitution will be deemed sufficient to meet the ratio-
nal basis test.” Erwin Chemerinsky, Constitutional Law: Principles and
Policies 698 (4th ed. 2011).
PERRY v. BROWN 1663
1.
The California Supreme Court indicated that responsible
procreation is a legitimate governmental interest:
Whether or not the state’s interest in encouraging
responsible procreation properly can be viewed as a
reasonably conceivable justification for the statutory
limitation of marriage to a man and a woman for
purposes of the rational basis equal protection stan-
dard, this interest clearly does not provide an appro-
priate basis for defining or limiting the scope of the
constitutional right to marry. . . . [A]lthough the state
undeniably has a legitimate interest in promoting
“responsible procreation,” that interest cannot be
viewed as a valid basis for defining or limiting the
class of persons who may claim the protection of the
fundamental constitutional right to marry.
In re Marriage Cases, 183 P.3d 384, 432 (Cal. 2008) (empha-
sis added), superseded by constitutional amendment as stated
in Strauss, 207 P.3d 48.
2.
With regard to the optimal parenting rationale, the Califor-
nia Supreme Court stated the following about “the state’s
interest in fostering a favorable environment for the procre-
ation and raising of children”:
[A]lthough promoting and facilitating a stable envi-
ronment for the procreation and raising of children
is unquestionably one of the vitally important pur-
poses underlying the institution of marriage and the
constitutional right to marry, past cases make clear
that this right is not confined to, or restrictively
defined by, that purpose alone. As noted above, our
past cases have recognized that the right to marry is
1664 PERRY v. BROWN
the right to enter into a relationship that is the center
of the personal affections that ennoble and enrich
human life—a relationship that is at once the most
socially productive and individually fulfilling rela-
tionship that one can enjoy in the course of a life-
time. The personal enrichment afforded by the right
to marry may be obtained by a couple whether or not
they choose to have children, and the right to marry
never has been limited to those who plan or desire to
have children. . . . [T]he state constitutional right to
marry . . . cannot properly be defined by or limited
to the state’s interest in fostering a favorable envi-
ronment for the procreation and raising of children.
Marriage Cases, 183 P.3d at 432 (citations and internal quo-
tation marks omitted). Thus, the California Supreme Court
discussed “the state’s interest in fostering a favorable environ-
ment for the protection and raising of children” without using
the “legitimate interest” and “for the purposes of the rational
basis equal protection standard” language used to discuss “re-
sponsible procreation.” See id.
a.
Plaintiffs argue that the optimal parenting rationale cannot
be a legitimate governmental interest because same-sex cou-
ples in domestic partnerships have all the substantive parent-
ing rights opposite-sex couples in marriages enjoy.
Additionally, California family law does not give any official
preferences to opposite-sex parents.4 Proposition 8 did not
4
For example, “[t]he rights and obligations of registered domestic part-
ners with respect to a child of either of them shall be the same as those
of spouses.” Cal. Fam. Code § 297.5(d). Also, “[i]t is the policy of this
state that all persons engaged in providing care and services to foster chil-
dren . . . shall not be subjected to discrimination or harassment on the
basis of their clients’ or their own actual or perceived . . . sexual orienta-
tion . . . .” Cal. Welf. & Inst. Code § 16013(a). Further, “[t]he parent and
PERRY v. BROWN 1665
change this factual situation, because it “leav[es] undisturbed
. . . a same-sex couple’s state constitutional right to establish
an officially recognized and protected family relationship and
the guarantee of equal protection of the laws.” Strauss, 207
P.3d at 61. “This state’s current policies and conduct regard-
ing homosexuality . . . recognize that gay individuals are fully
capable of entering into the kind of loving and enduring com-
mitted relationships that may serve as the foundation of a
family and of responsibly caring for and raising children.”
Marriage Cases, 183 P.3d at 428.
The parties argue about whether this analysis subjects Prop-
osition 8 to heightened scrutiny rather than rational basis
review. In my view, while Plaintiffs may give a correct
accounting of California law, it does not necessarily follow
that the optimal parenting rationale is an illegitimate govern-
mental interest, because it contradicts existing laws on parent-
ing and the family. For example, a posited reason offered by
one lawmaking body after being rejected by another lawmak-
ing body can “provide[ ] a conceivable basis” for a measure.
FCC v. Beach Comm’ns, Inc., 508 U.S. 307, 318 (1993). In
Beach Communications, the Supreme Court accepted a pos-
ited reason for a federal agency regulation, even though Con-
gress had previously rejected that purpose and the regulation
presented a conflict in the statutory scheme.5 Id. Thus, even
child relationship extends equally to every child and to every parent,
regardless of the marital status of the parents.” Cal. Fam. Code § 7602.
This legal structure is reinforced by the equal status of gays and lesbians
in other areas of California’s laws, such as in antidiscrimination protec-
tions regarding business establishments. E.g., Cal. Civ. Code § 51(b) (“All
persons within the jurisdiction of this state are free and equal, and no mat-
ter what their . . . sexual orientation are entitled to the full and equal
accommodations, advantages, facilities, privileges, or services in all busi-
ness establishments of every kind whatsoever.”).
5
See also City of Dallas v. Stanglin, 490 U.S. 19, 26-28 (1989) (stating
that a city could rationally impose an age and time restriction on dance
halls, even if it had not imposed similar restrictions on other premises
where teenagers and adults congregated together; arguments focusing on
the inconsistency between the classification and the “interests and objec-
tives” of the city “misapprehend[ed] the nature of rational-basis scrutiny”).
1666 PERRY v. BROWN
if California’s legislature previously rejected the optimal par-
enting rationale in its parenting laws (and Proposition 8 is
inconsistent with its statutory scheme), that does not prevent
the people of California from adopting Proposition 8 under
that rationale.
b.
In Heller, the Supreme Court stated that “legislative choice
is not subject to courtroom factfinding and may be based on
rational speculation unsupported by evidence or empirical
data.” 509 U.S. at 320 (citations omitted). However, the
Supreme Court went on to state that “even the standard of
rationality as we so often have defined it must find some foot-
ing in the realities of the subject addressed by the legislation.”
Id. at 321.
Under rational basis review, the challenger has the burden
to “negative every conceivable basis which might support”
the measure. Id. at 320. In light of this burden, Plaintiffs have
offered many secondary authorities to support their argument
that the optimal parenting rationale cannot be a legitimate
governmental interest. “Against [a] background of more than
100 peer-reviewed studies, the State of California could not
reasonably accept as a true—or even debatable—statement of
fact Proponents’ view that only opposite-sex couples can
create an ‘ideal’ childrearing environment.” Thus, “[i]t is not
an end that the State rationally could adopt as its own and
therefore cannot sustain Proposition 8.”
Although Proponents were not required to put on any evi-
dence under rational basis review, they also produced evi-
dence. They argue that their evidence shows that married
biological parents are the optimal parenting structure. Further,
they argue “Plaintiffs fail to cite to a single study comparing
outcomes for the children of married biological parents and
those of same-sex parents. Thus, Plaintiffs have failed to
undermine, let alone remove ‘from debate,’ the studies show-
PERRY v. BROWN 1667
ing that married biological parents provide the best structure
for raising children.”
After review, both sides offer evidence in support of their
views on whether the optimal parenting rationale is a legiti-
mate governmental interest. Both sides also offer evidence to
undermine the evidence presented by their opponents. How-
ever, the standard only requires that the optimal parenting
rationale be based on “rational speculation” about married
biological parents being the best for children. Heller, 509 U.S.
at 320. Considering “the question is at least debatable,” id. at
326 (internal quotation marks omitted), the optimal parenting
rationale could conceivably be a legitimate governmental inter-
est.6
C.
Having a conceivable legitimate governmental interest is,
alone, not sufficient for rational basis review. To survive
rational basis review, a measure must also have a rational
relationship to the posited legitimate governmental interest. In
determining whether there is a rational relationship, one
should bear in mind “the nature of rational-basis scrutiny,
which is the most relaxed and tolerant form of judicial scru-
6
In Lawrence v. Texas, 539 U.S. 558, Justice O’Connor relied on the
Fourteenth Amendment’s Equal Protection Clause to invalidate a state law
criminalizing homosexual sodomy. In her concurring opinion, she stated:
That this law as applied to private, consensual conduct is uncon-
stitutional under the Equal Protection Clause does not mean that
other laws distinguishing between heterosexuals and homosexu-
als would similarly fail under rational basis review. Texas cannot
assert any legitimate state interest here, such as national security
or preserving the traditional institution of marriage. Unlike the
moral disapproval of same-sex relations—the asserted state inter-
est in this case—other reasons exist to promote the institution of
marriage beyond mere moral disapproval of an excluded group.
Id. at 585 (O’Connor, J., concurring).
1668 PERRY v. BROWN
tiny under the Equal Protection Clause.”7 Dallas, 490 U.S. at
26.
1.
The Eighth Circuit credited the responsible procreation and
optimal parenting rationales in Citizens for Equal Protection,
where Nebraska had enacted a constitutional amendment pro-
hibiting recognition of marriages by same-sex couples and
other official same-sex relationships:
The State argues that the many laws defining mar-
riage as the union of one man and one woman and
extending a variety of benefits to married couples are
rationally related to the government interest in
“steering procreation into marriage.” By affording
legal recognition and a basket of rights and benefits
to married heterosexual couples, such laws “encour-
age procreation to take place within the socially rec-
ognized unit that is best situated for raising
children.” . . . The argument is based in part on the
traditional notion that two committed heterosexuals
are the optimal partnership for raising children,
which modern-day homosexual parents understand-
ably decry. But it is also based on a “responsible
procreation” theory that justifies conferring the
inducements of marital recognition and benefits on
opposite-sex couples, who can otherwise produce
children by accident, but not on same-sex couples,
who cannot. Whatever our personal views regarding
this political and sociological debate, we cannot con-
clude that the State’s justification “lacks a rational
relationship to legitimate state interests.”
7
As explained above, this requirement is not a high bar. Indeed, “the
classification at issue need not be correlated in fact, even in relation to an
assumed purpose for which there need not be any evidence.” Robert C.
Farrell, The Two Versions of Rational-Basis Review and Same-Sex Rela-
tionships, 86 Wash. L. Rev. 281, 290 (2011).
PERRY v. BROWN 1669
455 F.3d at 867-68 (citations omitted).
The factual context in California is distinguishable from the
one the Eighth Circuit faced in Nebraska. Unlike the
Nebraska constitutional amendment, which prohibited the rec-
ognition of both marriages by same-sex couples and other
same-sex relationships, Proposition 8 left California’s existing
domestic partnership laws intact. In California, same-sex cou-
ples in domestic partnerships still enjoy the same substantive
rights and benefits as opposite-sex couples in marriages.
Thus, it cannot be said that Proposition 8 “confer[s] the
inducements of marital . . . benefits on opposite-sex couples
. . . , but not on same-sex couples . . . .” See id. at 867. How-
ever, this distinction may not be dispositive, because the
Eighth Circuit was considering both the substantive legal ben-
efits as well as the designation of marriage.
2.
That leaves the question of whether withdrawing from
same-sex couples the right to access the designation of mar-
riage, alone, rationally relates to the responsible procreation
and optimal parenting rationales.
a.
Regarding the responsible procreation rationale, Plaintiffs
argue that Proponents suggest no reason to believe prohibiting
same-sex couples from entering relationships designated
“marriage” will make it more likely that opposite-sex couples
in California will marry. Put differently, Plaintiffs argue that,
because Proposition 8 does not bestow an honor on opposite-
sex couples but instead withdraws an honor from same-sex
couples, the responsible procreation rationale could be cred-
ited only if it is rational to believe that opposite-sex couples
will be less likely to raise children in a marital family if the
stature of marriage is also available to same-sex couples. Fur-
ther, Plaintiffs argue that Proponents’ failure to describe how
1670 PERRY v. BROWN
Proposition 8 rationally relates to the responsible procreation
rationale indicates that the rationale lacks the required “foot-
ing in the realities of the subject addressed by the legislation.”
Heller, 509 U.S. at 321.
In response, Proponents argue that, “[b]ecause only sexual
relationships between men and woman can produce children,
such relationships have the potential to further—or harm—
this interest in a way that other types of relationships do not.”
Thus, “it follows that the commonsense distinction that our
law has always drawn between opposite-sex couples, on the
one hand, and all other types of relationships—including
same-sex couples—on the other hand, plainly bears a rational
relationship to the government interest in steering procreation
into marriage.”
However, Proposition 8 is not a “distinction that [Califor-
nia] law has always drawn,” because it “establishes a new
substantive state constitutional rule that became effective
once Proposition 8 was approved by the voters.” Strauss, 207
P.3d at 115. Also,
[n]one of the past cases discussing the right to marry
—and identifying this right as one of the fundamen-
tal elements of personal autonomy and liberty pro-
tected by our Constitution—contains any suggestion
that the constitutional right to marry is possessed
only by individuals who are at risk of producing
children accidentally, or implies that this constitu-
tional right is not equally important for and guaran-
teed to responsible individuals who can be counted
upon to take appropriate precautions in planning for
parenthood.
Marriage Cases, 183 P.3d at 432. In this particular context,
the fact that Proposition 8 established a new rule, instead of
continuing a “distinction that [California] law has always
drawn,” weakens Proponents’ argument that Proposition 8
PERRY v. BROWN 1671
“plainly bears a rational relationship” to the responsible pro-
creation rationale.
b.
Regarding the optimal parenting rationale, Plaintiffs argue
that, because Proposition 8 does not change California’s sub-
stantive laws governing childraising, procreation, or the fam-
ily structure, Proposition 8 cannot be rationally related to the
optimal parenting rationale. To channel more childrearing into
families led by married biological parents, they argue that
Proposition 8 would have had to change those laws somehow.
Rather, Proposition 8 only singles out gays and lesbians, as a
group, as inferior.
Proponents contend that this argument subjects Proposition
8 to heightened scrutiny review, and that the standard for
rational basis review does not require the classification be
substantially related to an important governmental interest.
Instead, for rational basis review, the classification must only
(1) serve some conceivable governmental interest; (2) have a
plausible reason for the enactment; (3) remain debatable; and
(4) not be totally arbitrary. Their argument continues that, in
California’s unique context, Proposition 8 only deals with the
designation of the term “marriage” but leaves undisturbed all
of the other significant substantive aspects of recognized and
protected family relationships. Proponents’ theory only
increases the likelihood that children are born and raised in a
family structure of biological parents by encouraging such
parents to marry; the designation of marriage for only that
union would make it more likely that opposite-sex couples
will want to enter into marriage and then subsequently raise
their own biological offspring, rather than implying that any
other union could not be good parents. Proponents claim this
interest does not depend on any judgment about the relative
parenting capabilities of opposite-sex and same-sex couples;
it only confirms the instinctive, commonsense belief that mar-
ried biological parents provide the optimal environment for
1672 PERRY v. BROWN
raising children. Lastly, they argue there can be no require-
ment of narrow tailoring where there would be a perfect fit
with the governmental interest and the law. If the state denied
same-sex couples significant benefits under the law, the law
would be more likely to fail equal protection by denying
important government rights, thus increasing the burden of
the test.
3.
“[C]ourts are compelled under rational-basis review to
accept a legislature’s generalizations even when there is an
imperfect fit between means and ends.” Heller, 509 U.S. at
321. Here, the people of California might have believed that
withdrawing from same-sex couples the right to access the
designation of marriage would, arguably, further the interests
in promoting responsible procreation and optimal parenting.
“The assumptions underlying these rationales may be errone-
ous, but the very fact that they are ‘arguable’ is sufficient, on
rational-basis review, to ‘immuniz[e]’ the congressional
choice from constitutional challenge.” Beach Commc’ns, 508
U.S. at 320 (alteration in original).
Plaintiffs argue that Proposition 8 could only advance the
offered rationales through encouraging opposite-sex couples
to marry, who otherwise would not marry because they disap-
prove of same-sex couples having the right of access to the
designation of marriage and the stature that comes with the
designation. Therefore, Proposition 8 impermissibly gives
effect to those “private biases.” See Palmore v. Sidoti, 466
U.S. 429, 433 (1984). However, Supreme Court precedent
does not suggest that a measure is invalid under rational basis
review simply because the means by which its purpose is
accomplished rest on such biases.8 Rather, precedent indicates
8
In Palmore, the Supreme Court stated that “[p]rivate biases may be
outside the reach of the law, but the law cannot, directly or indirectly, give
them effect.” 466 U.S. at 433. Even if Palmore indicates that giving effect
PERRY v. BROWN 1673
that such biases invalidate a measure if they are the only con-
ceivable ends for the measure. See, e.g., Romer, 517 U.S. at
535. Again, in determining whether there is a rational rela-
tionship, one must bear in mind that rational basis review “is
the most relaxed and tolerant form of judicial scrutiny under
the Equal Protection Clause.” Dallas, 490 U.S. at 26. Thus, I
cannot conclude that Proposition 8 is “wholly irrelevant” to
any legitimate governmental interests. Heller, 509 U.S. at 324(internal quotation marks omitted).
V.
Given the presumption of validity accorded Proposition 8
for rational basis review, I am not convinced that Proposition
8 lacks a rational relationship to legitimate state interests. Pre-
cedent evidences extreme judicial restraint in applying ratio-
nal basis review to equal protection cases.
Only by faithful adherence to this guiding principle
of judicial review of legislation is it possible to pre-
serve to the legislative branch its rightful indepen-
dence and its ability to function. . . . [R]estraints on
judicial review have added force where the legisla-
ture must necessarily engage in a process of line-
drawing. Defining the class of persons subject . . .
inevitably requires that some persons who have an
to private biases through means is illegitimate, it is a case where “ac-
knowledged racial prejudice [was] invoked to justify [a] racial classifica-
tion[ ].” Id. Thus, the classification came under strict scrutiny. Id. at
432-33; see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 520
(1989) (Scalia, J., concurring in the judgment) (“The benign purpose of
compensating for social disadvantages . . . can no more be pursued by the
illegitimate means of racial discrimination than can other assertedly
benign purposes we have repeatedly rejected.”).
While the Supreme Court quoted Palmore in Cleburne, it did so in the
context of rejecting “mere negative attitudes” or “fear” as ends. 473 U.S.
at 448.
1674 PERRY v. BROWN
almost equally strong claim to favored treatment be
placed on different sides of the line, and the fact that
the line might have been drawn differently at some
points is a matter for legislative, rather than judicial,
consideration.
Beach Commc’ns, 508 U.S. at 315-16 (alteration, citations,
and internal quotation marks omitted). Thus, the judiciary
faces a conspicuous limit on our judicial role in applying
equal protection to legislative enactments, because
[t]he Court has held that the Fourteenth Amendment
permits States a wide scope of discretion in enacting
laws which affect some groups of citizens differently
than others. The constitutional safeguard is offended
only if classification rests on grounds wholly irrele-
vant to the achievement of the State’s objective.
State legislatures are presumed to have acted within
their constitutional power despite the fact that, in
practice, their laws result in some inequality. A stat-
utory discrimination will not be set aside if any state
of facts reasonably may be conceived to justify it.
McGowan v. Maryland, 366 U.S. 420, 425-26 (1961). A law
must be upheld unless the government’s judgment “is ‘clearly
wrong, a display of arbitrary power, [or] not an exercise of
judgment.’ ” Mathews v. DeCastro, 429 U.S. 181, 185 (1976).
Applying rational basis review in these circumstances also
requires such restraint. As the Eighth Circuit said, in Citizens
for Equal Protection, 455 F.3d at 870:
In the nearly one hundred and fifty years since the
Fourteenth Amendment was adopted, to our knowl-
edge no Justice of the Supreme Court has suggested
that a state statute or constitutional provision codify-
ing the traditional definition of marriage violates the
Equal Protection Clause or any other provision of the
PERRY v. BROWN 1675
United States Constitution. Indeed, in Baker v. Nel-
son, . . . when faced with a Fourteenth Amendment
challenge to a decision by the Supreme Court of
Minnesota denying a marriage license to a same-sex
couple, the United States Supreme Court dismissed
“for want of a substantial federal question.” There is
good reason for this restraint.