Perry v. Brown

FILED
FOR PUBLICATION FEB 07 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COU RT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY; SANDRA B. No. 10-16696
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO, D.C. No. 3:09-cv-02292-VRW

Plaintiffs - Appellees,
OPINION
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 Clerµ-Recorder
for the County of Alameda; DEAN C.
LOGAN, in his official capacity as
Registrar-Recorder/County Clerµ for the
County of Los Angeles,
 Defendants,

HAK-SHING WILLIAM TAM,

Intervenor-Defendant,

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.

KRISTIN M. PERRY; SANDRA B. No. 11-16577
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO, D.C. No. 3:09-cv-02292-JW

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 Clerµ-Recorder
for the County of Alameda; DEAN C.
LOGAN, in his official capacity as
Registrar-Recorder/County Clerµ for the
County of Los Angeles,

Defendants,

HAK-SHING WILLIAM TAM,

Intervenor-Defendant,

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. Walµer, Chief District Judge, Presiding (No. 10-16696)
James Ware, Chief District Judge, Presiding (No. 11-16577)
 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: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.

Opinion by REINHARDT, Circuit Judge:

Prior to November 4, 2008, the California Constitution guaranteed the right to

marry to opposite-sex couples and same-sex couples aliµe. 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 consider 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 marital

-4-
status, all parties agree that Proposition 8 had one effect only. It stripped same-sex

couples of the ability they previously possessed to obtain from the State, or any other

authorized 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 childrearing

or responsible procreation, for it had no effect on the rights of same-sex couples to

raise children or on the procreative 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 taµe 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 purpose, and has no effect, other

than to lessen the status and human dignity of gays and lesbians in California, and to

officially 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

-5-
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, sometimes 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 'marriage,' and Proposition 8's only effect was to taµe away

that important and legally significant designation, while leaving in place all of its

incidents. This unique and strictly limited 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.

-6-
 Before considering the constitutional question of the validity 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 therefore 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 initiative 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, without 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 official sponsors of Proposition 8 to vacate

-7-
the judgment entered by former Chief Judge Walµer, 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. ÈI, yy 12, 14

(discussing marriage contracts and marital property); Cal. Stats. 1850, ch. 140 ('An

Act regulating Marriages'). Marriage in California was understood, 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 Legislature, 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 capable of maµing that

contract is necessary.' Cal. Stats. 1977, ch. 339, y 1. The 1977 provision remains

codified in California statute. See Cal. Fam. Code y 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. y 7), which expressly limited

the federal definition of marriage to relationships between one man and one woman,

dozens of states enacted similar provisions into state law. See Andrew Koppelman,

-8-
The Difference the Mini-DOMAs Maµe, 38 Loy. U. Chi. L.J. 265, 265-66 (2007).

California 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 y 308.5. The proposition ensured that same-sex marriages

performed in any state that might permit such marriages in the future would not be

recognized in California, and 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 designation 'domestic

partnership' for 'two adults who have chosen to share one another's lives in an

intimate and committed relationship of mutual caring.' Cal. Stats. 1999, ch. 588, y 2

(codified at Cal. Fam. Code y 297(a)). At first, California gave registered domestic

partners only limited rights, such as hospital visitation privileges, id. y 4, and health

benefits for the domestic partners of certain state employees, id. y 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 opportunity to . . . obtain virtually all of the benefits and responsibilities

afforded by California law to married opposite-sex couples.' Marriage Cases, 183

-9-
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, y 4 (codified at Cal. Fam. Code y 297.5(a)).

It withheld only the official designation of marriage and thus the officially conferred

and societally recognized status that accompanies 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 Constitution. Proposition 22 was among the statutes challenged, 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

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 percent of electors. Cal. Const.
art. 2, y 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. y 10(c). Yet, liµe a statutory enactment by
the Legislature, and unliµe an initiative constitutional amendment, it is subject to the
(continued...)

-10-
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 substantive 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 reaffirming 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

Constitution], and of the liberty interest protected by the due process clause of article

I, section 7.' Id. at 426 (emphasis omitted). It then held 'that an individual's

homosexual orientation is not a constitutionally legitimate basis for withholding or

restricting the individual's legal rights.' Id. at 429. The court acµnowledged that

although such an inclusive understanding of the right to marry was one that had

developed only 'in recent decades,' as the State extended greater recognition to same-

sex couples and households, it was 'apparent that history alone does not provide a

1
(...continued)
terms of the state constitution.

-11-
justification for interpreting the constitutional right to marry as protecting only one's

ability to enter into an officially recognized family relationship 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 historically been denied those

rights.'' Id. at 428-30 (quoting Hernandez 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 satisfied 'all of the personal and dignity interests

that have traditionally 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 serious risµ 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.' Id. at 434-35.

Second, the court held that '[t]he current statutory assignment of different

names for the official family relationships of opposite-sex couples on the one hand,

-12-
and of same-sex couples on the other' violated the equal protection clause in article

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 cannot be defended on the basis of an asserted difference in

the effect on children of being raised by an opposite-sex couple 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, 'worµ[] a real and

appreciable harm upon same-sex couples and their children,' 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 comparable stature or equal

dignity to the family relationship of opposite-sex couples.' Id. at 452. Consequently,

-13-
the court determined that withholding only the name 'marriage' from same-sex

couples violated the California Constitution's guarantee of equal protection.

The court remedied these constitutional violations by striµing the language from

the marriage statutes 'limiting the designation 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 marriage

licenses to same-sex couples.

C

Five California residents--defendants-intervenors-appellants Dennis

Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Haµ-Shing William Tam, and

Marµ A. Jansson (collectively, 'Proponents')--collected voter signatures and filed

petitions with the state government to place an initiative on the November 4, 2008,

ballot. Unliµe Proposition 22, this was an initiative constitutional amendment, which

would be equal in effect to any other provision of the California Constitution, 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,

immediately following the Constitution's due process and equal protection clauses.

The provision states, 'Only marriage between a man and a woman is valid or

-14-
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 majority of

California voters (52.3 percent) approved Proposition 8. Pursuant to the state

constitution, Proposition 8 tooµ effect the next day, as article I, section 7.5 of the

California Constitution.

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 People'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 couples 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 limited exception to the[] state constitutional

-15-
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

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 couples 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

effective 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. y 1983 in May 2009,

after being denied marriage licenses by the County Clerµs of Alameda County and

Los Angeles County, respectively. Alleging that Proposition 8 violates the Fourteenth

-16-
Amendment to the United States Constitution, they sought a declaration of its

unconstitutionality and an injunction barring its enforcement. The City and County

of San Francisco ('San Francisco') was later permitted to intervene as a plaintiff to

present evidence of the amendment's effects on its governmental interests. The

defendants--the two county clerµs 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

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 evidence and argument, built an extensive evidentiary record.3 In a thorough

2
The district court subsequently denied the motion to intervene brought by the
Campaign for California Families, a public interest organization 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),
(continued...)

-17-
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 unconstitutional under the Due

Process Clause because no compelling state interest justifies denying same-sex

couples the fundamental right to marry. Id. at 991-95. The court also determined that

3
(...continued)
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' emergency
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 maµing, creating stable households, 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 lacµ 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 parents 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 stereotypes and unfounded fears
about gays and lesbians, id. at 988-91.

-18-
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, y 7.5 of the California

Constitution.' 5 Doc. 728 (Permanent Injunction), Perry v. Schwarzenegger, 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. The motions panel asµed the parties to

discuss in their briefs, as a preliminary matter, whether the Proponents had standing

5
Without explanation, the district court failed to enter a separate declaratory
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 clerµ 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 Imperial County, its
board of supervisors, and one of its Deputy County Clerµs. 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 Clerµ 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 Clerµ's filings as briefs amici curiae.

-19-
to seeµ review of the district court order. After considering the parties' arguments, we

concluded that Proponents' standing 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 certification 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 Proponents, rather than the defendant state and local officers who were

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.

-20-
directly enjoined by the district court order.8 In view of Proponents' authority under

California law, we conclude that they do have standing to appeal.

For purposes of Article III standing, we start with the premise 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 striµing down an

Idaho law on First Amendment grounds); Stenberg v. Carhart, 530 U.S. 914 (2000)

(Nebrasµa Attorney General appealed decision holding unconstitutional a Nebrasµa

abortion law). Moreover, there is no reason that a state itself may not also choose to

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 maµing. See Perry V, 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.

-21-
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 constitutionality of a state law is

challenged. See 28 U.S.C. y 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 words, in a suit for an injunction against

enforcement of an allegedly unconstitutional state law, it maµes no practical

difference 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 constitutionality of its laws is most commonly made by the

state's executive 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

-22-
authority to assert their interest in litigation exclusively in certain executive officers.

See, e.g., 28 U.S.C. yy 516-19; 28 C.F.R. y 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 circumstances, and to bestow that authority accordingly. In Karcher v.

May, 484 U.S. 72 (1987), for example, the Supreme Court held that the State of New

Jersey was properly represented in litigation by the Speaµer of the General Assembly

and the President of the Senate, appearing on behalf of the Legislature, because 'the

New Jersey Legislature had authority 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 Principles

of federalism require that federal courts respect such decisions by the states as to who

may speaµ 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

9
See also Richardson v. Ramirez, 418 U.S. 24 (1974), in which a county clerµ
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.

-23-
(1997), to command a state to taµe ownership of waste generated within its borders,

see New Yorµ 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 speaµ 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 seeµing

to invoµe 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 California 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 initiatives 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, aµin to the authority that the New

Jersey legislators in Karcher had as 'elected representatives,' the Court suggested that

proponents of a ballot measure would not be able to appeal a decision striµing down

the initiative they sponsored. Id. at 65.

-24-
 Here, unliµe in Arizonans, we do µnow that California law confers on 'initiative

sponsors' the authority 'to defend, 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 invalidating the law decline to do so, under
article II, section 8 of the California Constitution and the relevant
provisions of the Elections Code, the official proponents of a
voter-approved initiative measure are authorized to assert the state's
interest in the initiative'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 General 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 provides

precisely what the Arizonans Court found lacµing in Arizona law: it confers on the

official proponents of an initiative 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.

-25-
 We are bound to accept the California court's determination. 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 carries the concept of initiatives as 'written in stone' to such lengths

as' does California. People v. Kelly, 222 P.3d 186, 200 (Cal. 2010) (internal quotation

marµs 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 measure 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.

-26-
 It matters not whether federal courts thinµ it wise or desirable for California to

afford proponents this authority to speaµ for the State, just as it maµes no difference

whether federal courts thinµ it a good idea that California allows its constitution to be

amended by a majority vote through a ballot measure in the first place. Cf. Pac. States

Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912) (holding nonjusticiable a Guaranty

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, Plaintiffs 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 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

-27-
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 officers 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

initiative 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 interests in litigation. For the purposes of the litigation, she speaµs 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 legislative officers in Karcher, 484 U.S. at 82. The requirements of

third-party standing are therefore not relevant.

Nor is it relevant whether Proponents have suffered a personal injury, in their

capacities as private individuals. Although we asµed the California Supreme Court

whether 'the official proponents of an initiative measure possess either a

-28-
particularized interest in the initiative's validity or the authority to assert the State's

interest in the initiative's validity,' Perry V, 628 F.3d at 1193 (emphasis added), the

Court chose to address only the latter type of interest. Perry VII, 134 Cal. Rptr. 3d at

515 ('Because [our] conclusion [that proponents 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 California law, the official

proponents also possess a particularized interest in a voter-approved initiative's

validity.'). The exclusive 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 requirements 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 complains 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 standing when state law

authorizes them to assert the State's interests.

-29-
 To be clear, we do not suggest that state law has any 'power directly to enlarge

or contract federal jurisdiction.' Ducheµ v. Jacobi, 646 F.2d 415, 419 (9th Cir. 1981).

'Standing to sue in any Article III court is, of course, a federal question 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.

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 measureá Because the State

of California has Article III standing to defend the constitutionality of Proposition 8,

and because both the California Constitution and California law authorize 'the official

proponents 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 ordinarily 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

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 . . . .').

-30-
appellants here. They possess Article 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 determinations 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 adjudication, 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

answering 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. Marshall v. Sawyer, 365 F.2d 105, 111 (9th Cir. 1966) (quoting Kenneth

Culp Davis, The Requirement of a Trial-Type Hearing, 70 Harv. L. Rev. 193, 199

(1956)) (internal quotation marµs omitted). 'Legislative facts,' by contrast, 'do not

-31-
usually 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 at 990-91--are clearly 'adjudicative facts' concerning the

parties 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 lacµ the

social meaning associated with marriage'--that the difference between the

designation of 'marriage' and the designation 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. PÈ 0707, at 2 ('Proponents admit that the word 'marriage'

has a unique meaning.'); id. at 11 (Proponents '[a]dmit that there is a significant

symbolic disparity between domestic partnership and marriage'). Our analysis

-32-
therefore does not hinge on what standard we use to review the district court's

findings of fact. Cf. Locµhart 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 µind

of 'legislative' facts at issue here.').

V

We now turn to the merits of Proposition 8's constitutionality.

A

The district court held Proposition 8 unconstitutional for two reasons: first, it

deprives same-sex couples of the fundamental 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 taµing away from

them alone the right to marry, and this action amounts to a distinct constitutional

violation because the Equal Protection Clause protects minority groups from being

-33-
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

Proposition 8 worµed a singular and limited change to the California

Constitution: it stripped same-sex couples of 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 married spouses and form an integral part of the marriage

relationship. 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

-34-
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 couples 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 significant 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

couple so chooses.' Id. at 102. Thus, the extent of the amendment'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 'reserving the

official designation of the term 'marriage' for the union of opposite-sex couples as a

matter of state constitutional law,' id. at 61.11

Both before and after Proposition 8, same-sex partners could enter into an

official, state-recognized relationship that affords them 'the same rights, protections,

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 proposition ''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 designation
of 'marriage,' which was eliminated for same-sex couples. 207 P.3d at 102.

-35-
and benefits' as an opposite-sex union and subjects them '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. Fam. Code

y 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 y 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 y 9000(g);
• Become foster parents, see Cal. Welf. & Inst. Code y 16013(a);
• Share community property, see Cal. Fam. Code y 297.5(µ);
• File state taxes jointly, see Cal. Rev. & Tax. Code y 18521(d);
• Participate in a partner's group health insurance policy on the same terms as a
spouse, see Cal. Ins. Code y 10121.7;
• Enjoy hospital visitation privileges, see Cal. Health & Safety Code y 1261;
• Maµe medical decisions on behalf of an incapacitated partner, see Cal. Prob.
Code y 4716;
• Be treated in a manner equal to that of a widow or widower with respect to a
deceased partner, see Cal. Fam. Code y 297.5(c);
• Serve as the conservator of a partner's estate, see Cal. Prob. Code yy 1811-
1813.1; and
• Sue for the wrongful death of a partner, see Cal. Civ. Proc. Code
y 377.60--among many other things.

-36-
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 tooµ 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 designation 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 'marriage' is singular in connoting 'a harmony in living,' 'a bilateral

loyalty,' and 'a coming together for better or for worse, 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 disparity between domestic partnership and

marriage.' It is the designation of 'marriage' itself that expresses validation, by the

-37-
state and the community, and that serves as a symbol, liµe a wedding ceremony or a

wedding ring, of something profoundly important. See id. at 971.

We need consider only the many ways in which we encounter the word

'marriage' in our daily lives and understand it, consciously or not, to convey a sense

of significance. We are regularly given forms to complete that asµ us whether we are

'single' or 'married.' Newspapers run announcements of births, deaths, and

marriages. We are excited to see someone asµ, 'Will you marry meá', whether on

bended µnee 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 meá'. Groucho Marx's one-liner, 'Marriage is a wonderful

institution . . . but who wants to live in an institutioná' would lacµ its punch if the

word 'marriage' were replaced with the alternative phrase. So too with Shaµespeare's

'A young man married 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 µnow what happiness

is until he's married. By then it's too late.' We see tropes liµe 'marrying for love'

versus 'marrying for money' played out again and again in our films and literature

because of the recognized importance and permanence 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,

-38-
even though the underlying drama for same-sex couples is no different. The name

'marriage' signifies 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 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 institution and manifestations of the recognition that the State affords

to those who are in stable and committed lifelong relationships. We allow spouses but

not siblings or roommates to file taxes jointly, for example, because we acµnowledge

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 banµ accounts; we celebrate

when a couple marries. The designation of 'marriage' is the status that we recognize.

It is the principal manner in which the State attaches respect and dignity to the highest

form of a committed relationship and to the individuals who have entered into it.12

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
(continued...)

-39-
 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 officially 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 incidents but tooµ away the status and the dignity. It did so by

superseding the Marriage Cases and thus endorsing the 'official 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 taµe away from

same-sex couples the right to have their lifelong relationships 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 relationshipsá

12
(...continued)
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 risµ 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.').

-40-
 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 'marriage,'

because In re Marriage Cases was a 'short-lived decision,' 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

definition 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 designation of 'marriage' to all couples, opposite-sex and same-sex aliµe. 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 Information Guide at 54. The context matters. Withdrawing from a disfavored

-41-
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 weeµ, 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 California Constitution at the time of the Marriage Cases,' Proposition 8

'establishe[d] a new substantive state constitutional rule that tooµ 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 Marriage 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 prohibited

the state and its political subdivisions from providing any protection against

-42-
discrimination on the basis of sexual orientation. See Colo. Const. art. II, y 30b.

Amendment 2 was proposed 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 governmental

entity from adopting similar, or more protective statutes, regulations, ordinances, or

policies in the future.' Evans 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.

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 disadvantage imposed is born of

animosity toward the class of persons 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 lacµing. It therefore concluded that the law 'classifie[d]

-43-
homosexuals not to further a proper legislative end but to maµe them unequal to

everyone else.' Id. at 635.13

Proposition 8 is remarµably similar to Amendment 2. Liµe Amendment 2,

Proposition 8 'single[s] out a certain class of citizens for disfavored legal status . . . .'

Id. at 633. Liµe Amendment 2, Proposition 8 has the 'peculiar property,' id. at 632,

of 'withdraw[ing] from homosexuals, but no others,' an existing legal right--here,

access to the official designation 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. Liµe Amendment 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 removing equal access to marriage, which

gays and lesbians had previously enjoyed, from the scope of that constitutional

guarantee. Strauss, 207 P.3d at 61. Liµe Amendment 2, Proposition 8 'by state

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 classification . . . bears a rational relation to some
legitimate end.' Romer, 517 U.S. at 631-32. Amendment 2 amounted to 'a
classification of persons undertaµen for its own saµe, something the Equal Protection
Clause does not permit.' Id. at 635. We follow this approach and reach the same
conclusion 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).

-44-
decree . . . put[s] [homosexuals] in a solitary class with respect to' an important aspect

of human relations, and accordingly 'imposes a special disability upon [homosexuals]

alone.' Romer, 517 U.S. at 627, 631. And liµe Amendment 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 Constitution' 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 Amendment 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. Proponents argue that

Proposition 8 thus merely 'restor[es] the traditional definition of marriage while

otherwise leaving undisturbed the manifold rights and protections California law

provides gays and lesbians,' maµing it unliµe 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

-45-
has a less sweeping effect on their public and private transactions than did

Amendment 2. Nevertheless, Proposition 8 worµs a meaningful harm to gays and

lesbians, by denying to their committed 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. Proposition 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 maµes 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 governs our analysis

notwithstanding the differences between Amendment 2 and Proposition 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.

-46-
We therefore need not and do not consider 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

Ordinarily, '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 relation

to some legitimate 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

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 Baµer v.
Nelson, 409 U.S. 810 (1972) (mem.), is not pertinent here.
In Baµer, the Court 'dismissed for want of a substantial federal question' 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' them, Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per
curiam), ''except when doctrinal developments indicate otherwise,'' Hicµs v.
Miranda, 422 U.S. 332, 344 (1975) (quoting Port Authority Bondholders Protective
Committee v. Port of New Yorµ 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. Ïuestions which 'merely lurµ in the record' are not resolved, and no
resolution of them may be inferred.' Ill. State Bd. of Elections v. Socialist Worµers
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 Baµer, and whether or not Baµer would govern
that question in light of subsequent 'doctrinal developments,' we address no such
question here. We address a wholly different 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 Baµer and is squarely controlled by Romer, which
postdates Baµer by more than two decades.

-47-
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 official designation of 'marriage' than Colorado did for withdrawing from that

group all protection against discrimination generally.

Proposition 8, liµe 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 Louisville Gas & Elec. Co. v.

Coleman, 277 U.S. 32, 37-38 (1928)). As in Romer, therefore, we must consider

whether any legitimate 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

-48-
generally throughout the United States.'' Proponents' 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 taµing the designation away from that group of citizens, whatever the People's

reason for doing so.

Romer forecloses this argument. The rights that were repealed by Amendment

2 included protections against discrimination on the basis of sexual orientation in the

private sphere. Those protections, liµe any protections against private discrimination,

were not compelled by the Fourteenth Amendment.15 Rather, '[s]tates ha[d] chosen

to counter discrimination 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 elective protections

15
Indeed, as the Court observed, not only does the Fourteenth Amendment 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).

-49-
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 lesbians. 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 taµe

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

maintaining that right for opposite-sex couples--was justified by a legitimate reason.

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

16
The protections at issue in Romer were not of substantially more distant
provenance than the protection at issue here. While Aspen and Boulder had enacted
their ordinances somewhat earlier, Denver's ordinance--which covered a far greater
population--had taµen effect only the year before Colorado voters adopted
Amendment 2. Evans, 854 P.2d at 1284.

-50-
legitimate reason for withdrawing a right or benefit from one group but not others,

whether or not it was required to confer that right or benefit in the first place. Thus,

when Congress, having chosen 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

violation 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 striµe 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 Education, 458 U.S. 527 (1982),

is therefore misplaced. In Crawford, the Court affirmed Proposition 1, a California

initiative constitutional amendment that barred state courts from ordering school

-51-
busing or pupil-assignment plans except when necessary to remedy a federal

constitutional violation. Id. at 531-32. Liµe 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 taµe '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. That conclusion was

17
Additionally, the Court stated that it 'would not interpret the Fourteenth
Amendment to require the people of a State to adhere to a judicial 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 determine
whether the constitutional amendment enacted by the People is otherwise 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 Restoration Act unconstitutional in part). Proposition 1 was
valid because, in superseding a decision of the California Supreme Court, it did not
(continued...)

-52-
consistent with the principle that states should be free 'to experiment' with social

policy, without fear of being locµed in to 'legislation that has proved unworµable 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 proposition's

purported benefit, 'neighborhood schooling,' was 'made available regardless of

race.' Id. There was no evidence that the 'purpose of [the] repealing legislation [was]

to disadvantage a racial minority,' which would have made the proposition

unconstitutional. Id. at 539 n.21, 543-45 (citing Reitman v. Mulµey, 387 U.S. 369

(1967)). Because Proposition 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 strucµ

17
(...continued)
draw an improper classification among groups. Proposition 8 is invalid because it
does.

-53-
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 protection 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 Colorado

presented before the Supreme Court an argument regarding 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 applicability 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 lesbians

alone. Unliµe the measure in Crawford, Proposition 8 is a 'discrimination of an

unusual character' that requires 'careful consideration' of its purposes and effects,

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, Colorado has simply
defined the pacµage of civil rights available to homosexuals 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.').

-54-
whether or not the Fourteenth Amendment required the right to be provided ab initio.

Following Romer, we must therefore decide whether a legitimate interest exists that

justifies the People of California's action in taµing 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 discriminatory effects otherwise give rise.

D

We first consider four possible reasons offered by Proponents 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 maµing 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 decisionmaµer.' Vance v. Bradley, 440 U.S. 93, 111 (1979).19

Because Proposition 8 did not further any of these interests, we conclude that they

19
As we have noted, we need not consider whether any form of heightened
scrutiny is necessary or appropriate in order to reach the result we do. See supra note
13.

-55-
cannot have been rational 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 procreation 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 and that society can increase the

liµelihood 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 wedlocµ--by

providing an incentive for couples engaged in potentially procreative sexual activity

to form stable family units. Because same-sex couples are not at risµ of 'irresponsible

procreation' as a matter 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 interests, whether or not the interests would be legitimate

under other circumstances.

We need not decide whether there is any merit to the sociological premise of

Proponents' first argument--that families headed by two biological parents are the

best environments in which to raise children--because even if Proponents are correct,

-56-
Proposition 8 had absolutely no effect on the ability 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 marriage. See Strauss, 207 P.3d at 61. Both

before and after Proposition 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 y 297.5(d) ('The rights and obligations of

registered domestic partners with respect to a child of either of them shall be the same

as those of spouses.'). Similarly, Proposition 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 presumed parentage statutes to a lesbian

couple); Sharon S. v. Super. Ct., 73 P.3d 554, 570 (Cal. 2003) (applying the adoption

laws to a lesbian couple). In order to be rationally related to the purpose of funneling

more childrearing into families led by two biological parents, Proposition 8 would

have had to modify these laws in some way. It did not do so.20

20
For the reasons explained above, Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8th Cir. 2006), is not applicable here. As our dissenting colleague
states, the fact that Proposition 8 left intact California's laws concerning family
formation and childrearing by same-sex couples distinguishes this case from Citizens.
See Dissent at 31 ('Unliµe the Nebrasµa constitutional amendment, which prohibited
the recognition of both marriages by same-sex couples and other same-sex
(continued...)

-57-
 Moreover, California's 'current policies and conduct . . . recognize that gay

individuals are fully capable of . . . responsibly 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 parentage statutes place a premium on the 'social relationship,' not

the 'biological relationship,' between a parent and a child. See, e.g., Susan H. v. Jacµ

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 decisionmaµer,' 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

20
(...continued)
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 Nebrasµa constitutional amendment at issue in Citizens
did not withdraw an existing right from same-sex couples as did Proposition 8. Cf.
Dissent at 20 n.2. ('[W]hile the withdrawal of a right may not be analytically
significant for rational basis review, it may still be factually significant.').

-58-
procreation, because unliµe opposite-sex couples, same-sex couples pose no risµ 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 classification of beneficiaries and nonbeneficiaries is

invidiously discriminatory.'). But Plaintiffs do not asµ that marriage be extended to

anyone. As we have by now made clear, the question 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 'marriage' 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

21
Moreover, Johnson did not involve a dignitary benefit that was withdrawn
from one group, such as an official and meaningful state designation that established
the societal status of the members of the group; it concerned only a specific form of
government assistance.

-59-
 Under Romer, it is no justification for taµing 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 taµing 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

liµely to procreate accidentally or irresponsibly when same-sex couples were allowed

access to the designation of 'marriage.' We are aware of no basis on which this

argument would be even conceivably plausible. There is no rational reason to thinµ

that taµing 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 argument, 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 legislation,' 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

-60-
circumstance. 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 purpose 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 irrelevant 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 procreation 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 institution that best advances the social interests

in responsible procreation, 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 structure that has proven most liµely to

foster an optimal environment for the rearing of children.'). As discussed above,

Proposition 8 in no way alters the state laws that govern childrearing and procreation.

It maµes no change with respect to the laws regarding family structure. As before

-61-
Proposition 8, those laws apply in the same way to same-sex couples in domestic

partnerships and to married couples. Only the designation of 'marriage' is withdrawn

and only from one group of individuals.

We in no way mean to suggest that Proposition 8 would be constitutional if

only it had gone further--for example, 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

22
The difference between what Proposition 8 did taµe away--only the name
'marriage'--and what it might also have taµen 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, published in the Voter Information Guide, emphasized this
distinction: 'Proposition 8 doesn't taµe 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 y 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, incidents, 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.

-62-
pertinent aspects of California law, Proposition 8 simply could not have the effect on

procreation or childbearing 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 designation of 'marriage'--without in any way

altering the substantive 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 thinµ 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 lacµs any such footing in reality.

-63-
 2

Proponents offer an alternative justification for Proposition 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

married (and remain married even after Proposition 8, Strauss, 207 P.3d at 122).23

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 constitutional prohibition is to adopt a fundamental

23
The over 18,000 couples that did marry represented more than one-third of
all couples that had entered into registered domestic partnerships 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 partnerships in California as of Spring 2008).
24
When the Eighteenth Amendment was ratified, the Nation was similarly not
interested in 'proceeding with caution' in reallocating grain from wartime rations to
(continued...)

-64-
barrier: it means that the legislative process, by which incremental policymaµing

would normally proceed, is completely foreclosed. Cf. Williamson v. Lee Optical of

Oµla., 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 question 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

objective 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 Legislature or even the People (except by constitutional

amendment) from choosing to maµe the designation of 'marriage' available to same-

sex couples in the future. Such a permanent ban cannot be rationally related to an

interest in proceeding with caution.

24
(...continued)
alcohol production. It meant, instead, to effect a permanent ban on alcohol.

-65-
 In any event, in light of the express purpose of Proposition 8 and the campaign

to enact it, it is not credible to suggest that 'proceed[ing] with caution' was the reason

the voters adopted the measure. The purpose and effect of Proposition 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

maµe the designation more equally available.

3

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 Becµet Fund for Religious Liberty (Becµet Br.) 2. There is no dispute

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)).

-66-
that even before Proposition 8, 'no religion [was] required to change its religious

policies or practices with regard to same-sex couples, and no religious officiant [was]

required to solemnize a marriage in contravention of his or her religious beliefs.'

Marriage Cases, 183 P.3d at 451-52; see Becµet Br. 4-5 (acµnowledging this point).

Rather, the religious-liberty interest that Proposition 8 supposedly promoted was to

decrease the liµelihood that religious organizations would be penalized, under

California's antidiscrimination laws and other government policies concerning 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, seeµing reform of the State's antidiscrimination

laws to include greater accommodations for religious organizations. See, e.g., Becµet

Br. 8 n.6 ('Unliµe many other states, California has no religious exemptions to its

statutory bans on gender, marital status, and sexual orientation discrimination in

public accommodations.'). This argument is in no way addressed by Proposition 8 and

could not have been the reason for Proposition 8.

Second is the argument, prominent during the campaign to pass Proposition 8,

that it would 'protect[] our children from being taught in public schools that 'same-

-67-
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 Proposition 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 relationships.' Cal. Educ. Code

y 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 prohibited from giving any instruction that

discriminates on the 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 yy 51500, 51933(b)(4). The Marriage

Cases therefore did not weaµen, 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 designation '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, lessons change.

A shift in the State's marriage law may therefore affect the content of classroom

-68-
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 liµe

opposing the election of a particular governor on the ground that students would learn

about his holding office, or opposing 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 designation of 'marriage' to describe their committed

relationships 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 caution in social change, to protect religious liberty, or to control the education

of schoolchildren. Simply taµing away the designation of 'marriage,' while leaving

-69-
in place all the substantive 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 particular 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 taµes 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 'marriage' was available only to opposite-sex

couples, as had been the case since the founding of the State and in other jurisdictions

long before that. This purpose is one that Proposition 8 actually did accomplish: it

'restore[d] the traditional definition 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

taµing 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

lesbians were afforded no protection from discrimination in the private sphere;

-70-
Amendment 2 could not be justified on the basis that it simply repealed positive law

and restored the 'traditional' state of affairs. 517 U.S. at 627-29. Precisely the same

is true here.

Laws may be repealed and new rights taµen away if they have had unintended

consequences or if there is some conceivable 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 policymaµing,

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

prohibiting the practice; neither history nor tradition could save a law prohibiting

miscegenation from constitutional attacµ.' 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 tradition 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 preference for the way things were

before same-sex couples were allowed to marry, without any identifiable good that a

-71-
return to the past would produce, amounts to an impermissible preference against

same-sex couples themselves, as well as their families.

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

liµely 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., concurring). Disapproval may also be the product of longstanding,

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 inference' 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 tooµ 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

-72-
a class and did not wish them to receive the same official recognition and societal

approval of their committed relationships that the State maµes available to opposite-

sex couples.

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

criminalization 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 undertaµe in the privacy of their

own homes, or who is permitted 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.

-73-
 Just as a 'desire to harm . . . cannot constitute a legitimate governmental

interest,' Moreno, 413 U.S. at 534, neither can a more basic disapproval of a class of

people. Romer, 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, liµe 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 liµely are rooted partially in disapproval, such as a law that grants

educational benefits to veterans but denies them to conscientious objectors who

engaged in alternative 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 undertaµen for its own

saµe, something the Equal Protection Clause does not permit.' Romer, 517 U.S. at

635. Liµe Amendment 2, Proposition 8 is a classification of gays and lesbians

undertaµen for its own saµe.

-74-
 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 stereotypes

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

concern 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 protected from exposure to gay people and their relationships.' Id. These messages

were not crafted accidentally. The strategists 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 community. They would entertain

allowing gay marriage, but not if doing so had significant implications for the rest of

society,'' such as what children would be taught in school. Id. at 988 (quoting Franµ

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 (internal quotation marµs omitted); see
Moreno, 413 U.S. at 533-38. When a law is enacted by ballot initiative, we looµ to
objective indicators of the voters' motivations, such as campaign materials, to shed
light on the 'historical context.' S. Alameda Spanish Speaµing Org. v. Union City, 424
F.2d 291, 295 (9th Cir. 1970); see, e.g., Washington, 458 U.S. at 463.

-75-
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 stereotypes 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

indoctrination in the schoolsá IT'S HAPPENING IN COLORADOÿ' 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).

When directly enacted legislation 'singl[es] out a certain class of citizens for

disfavored legal status,' we must 'insist on µnowing 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 maµe 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 couples to marry

in California'--to dishonor a disfavored group by taµing 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

-76-
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 'Kulturµampf' concerning the structure of families in California, because

it had no effect on family structure, but in order to striµe 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 apparent purpose but to impose

on gays and lesbians, through the public law, a majority's private disapproval of them

and their relationships, by taµing away from them the official designation of

'marriage,' with its societally recognized status. Proposition 8 therefore violates the

Equal Protection Clause.

VI

Finally, we address Proponents' motion to vacate the district court's judgment.

On April 6, 2011, after resigning from the bench, former Chief Judge Walµer

disclosed that he was gay and that he had for the past ten years been in a relationship

with another man. Proponents moved shortly thereafter to vacate the judgment on the

basis that 28 U.S.C. y 455(b)(4) obligated Chief Judge Walµer 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. y 455(a) obligated him either to recuse himself or to

disclose his potential conflict, because 'his impartiality might reasonably be

-77-
questioned.' Chief Judge Ware, to whom this case was assigned after Chief Judge

Walµer'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 the motion was timely, and that Chief Judge

Walµer had no obligation to recuse himself under either y 455(b)(4) or y 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

members 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 sufficient to disqualify him.''). Nor could it possibly

be 'reasonable to presume,' for the purposes of y 455(a), 'that a judge is incapable

of maµing an impartial decision about the constitutionality 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 lacµ of respect for the integrity of our federal courts.

The denial of the motion to vacate was premised on Chief Judge Ware's finding

that Chief Judge Walµer was not obligated to recuse himself. 'We review the district

-78-
court's denial of a motion to vacate the judgment for an abuse of discretion.' Jeff D.

v. Kempthorne, 365 F.3d 844, 850 (9th Cir. 2004). Our standard for abuse of

discretion requires us to (1) 'looµ to whether the trial court identified and applied the

correct legal rule to the relief requested'; and, if the trial court applied the correct

legal rule, to (2) 'looµ 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. Hinµson, 585 F.3d 1247,

1263 (9th Cir. 2009) (en banc). Here, Chief Judge Ware did not incorrectly apply the

law. He identified and applied y 455(b)(4) and y 455(a), the correct legal rules, as well

as the relevant precedents. His application of the law, determining whether Chief

Judge Walµer was obligated to recuse himself, was discretionary. See United States

v. Johnson, 610 F.3d 1138, 1147-48 (9th Cir. 2010). His resolution 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 unconstitutional on

-79-
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 liµely 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.

-80-
COUNSEL LISTING

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, CA; Theodore B. Olson (argued), Matthew D. McGill, and Amir
C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, D.C.; David Boies (argued),
Jeremy M. Goldman, and Theodore H. Uno, Boies, Schiller & Flexner LLP, Armonµ,
NY; 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 Aµen and Mollie M. Lee, Deputy City Attorneys; San
Francisco, CA; for Intervenor-Plaintiff-Appellee City and County of San Francisco.

Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom, CA; Charles J. Cooper
(argued), David H. Thompson, Howard C. Nielson, Jr., and Peter A. Patterson, Cooper
and Kirµ, PLLC, Washington, D.C.; Brian W. Raum and James A. Campbell, Alliance
Defense Fund, Scottsdale, AZ; for Intervenor-Defendants-Appellants Dennis
Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Marµ A. Jansson, and
ProtectMarriage.com.

James Joseph Lynch, Jr., Sacramento, CA; for Amicus Curiae Margie Reilly.

Paul Benjamin Linton, Thomas More Society, Northbrooµ, IL; Christopher M. Gaceµ,
Family Research Council, Washington, D.C.; Thomas Brejcha, Thomas More Society,
Chicago, IL; for Amicus Curiae The Family Research Council.

Kelly J. Shacµelford, Jeffrey C. Mateer, Hiriam S. Sasser, III, and Justin E.
Butterfield, Liberty Institute, Plano, TÈ; for Amici Curiae Liberty Institute,
Association of Maryland Families, California Family Council, Center for Arizona
Policy, Citizens for Community Values, Cornerstone Action, Cornerstone Family
Council, Delaware Family Policy Council, Family Action Council of Tennessee, The
Family Foundation, The Family Policy Council of West Virginia, Family Policy
Institute of Washington, Florida Family Policy Council, Georgia Family Council,
Illinois Family Institute, Independence Law Center, Iowa Family Policy Center,

-81-
Louisiana Family Forum 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, Oµlahoma Family Policy Council, Oregon Family
Council, Palmetto Family Council, Pennsylvania Family Institute, Wisconsin Family
Action, and Wywatch Family Action.

Lynn D. Wardle, Marriage Law Project, J. Reuben Clarµ Law School, Provo, UT;
Stephen Kent Ehat, Lindon, UT; Lincoln 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
Fredericµ Douglass Foundation, Inc.

Dean R. Broyles and James M. Griffiths, The Western Center for Law & Policy,
Escondido, CA; 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, VA; Matthew D. Staver and Anita L. Staver, Liberty Counsel,
Orlando, FL; for Amici Curiae Liberty Counsel, Campaign for Children and Families,
and JONAH Inc.

Jay Alan Seµulow, 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, AZ; for Amicus Curiae
The Hausvater Project.

Matthew B. McReynolds and Kevin T. Snider, Pacific Justice Institute, Sacramento,
CA; for Amicus Curiae Pacific Justice Institute.

Von G. Keetch, Alexander Dushµu, and R. Shawn Gunnarson, Kirton & McConµie,
Salt Laµe City, UT; Anthony R. Picarello, Jr., Jeffrey Hunter Moon, and Michael F.

-82-
Moses, U.S. Conference of Catholic Bishops, Washington, D.C.; Carl H. Esbecµ,
National Association of Evangelicals, Washington, D.C.; James F. Sweeney, Sweeney
& Greene LLP, Elµ Grove, CA; 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 Commission, Lutheran Church--Missouri Synod, Calvary Chapel Fellowship
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 America.

Kristen K. Waggoner and Steven T. O'Ban, Ellis, Li & McKinstry PLLC, Seattle,
WA; for Amici Curiae Robert P. George, Sherif Girgis, and Ryan T. Anderson.

Gary G. Kreep, United States Justice Foundation, Ramona, CA; for Amicus Curiae
National Association for Research & Therapy of Homosexuality (NARTH).

Abram J. Pafford, Pafford, Lawrence & Ross, PLLC, Washington, D.C.; for Amicus
Curiae American College of Pediatricians.

John C. Eastman, Anthony T. Caso, and Karen J. Lugo, Center for Constitutional
Jurisprudence, Orange, CA; for Amicus Curiae Center for Constitutional
Jurisprudence.

Kevin J. Hasson and Lori H. Windham, The Becµet Fund for Religious Liberty,
Washington, D.C.; for Amicus Curiae The Becµet Fund for Religious Liberty.

Steven W. Fitschen, The National Legal Foundation, Virginia Beach, VA; for Amicus
Curiae National Legal Foundation.

Lawrence J. Joseph, Washington, D.C.; for Amicus Curiae Eagle Forum Education
& Legal Defense Fund.

Holly L. Carmichael, Los Gatos, CA; for Amicus Curiae Concerned Women of
America.

William C. Duncan, Marriage Law Foundation, Lehi, UT; Joshua K. Baµer, National
Organization for Marriage, Washington, D.C.; for Amici Curiae National

-83-
Organization for Marriage, National Organization for Marriage Rhode Island, and
Family Leader.

Herbert G. Grey, Beaverton, OR; for Amicus Curiae Paul McHugh.

Eugene Dong, Palo Alto, CA; 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, Solicitor General, State of Michigan; James D. Caldwell,
Attorney General and Kyle Duncan, Appellate Chief, State of Louisiana; Troy King,
Attorney General, State of Alabama; Daniel S. Sullivan, Attorney General, State of
Alasµa; Bill McCollum, Attorney General, State of Florida; Lawrence G. Wasden,
Attorney General, State of Idaho; Jon Bruning, Attorney General, State of Nebrasµa;
Thomas W. Corbett, Jr., Attorney General, Commonwealth of Pennsylvania; Henry
McMaster, Attorney General, State of South Carolina; Marµ L. Shurtleff, Attorney
General, State of Utah; Bruce A. Salzburg, Attorney General, State of Wyoming; for
Amici Curiae States of Indiana, Virginia, Louisiana, Michigan, Alabama, Alasµa,
Florida, Idaho, Nebrasµa, Pennsylvania, South Carolina, Utah, and Wyoming.

Kenneth A. Kluµowsµi, American Civil Rights Union, Alexandria, VA; for Amicus
Curiae American Civil Rights Union.

Richard G. Katerndahl, San Rafael, CA; for Amicus Curiae Catholics for the Common
Good.

Jerome C. Roth, Michelle Friedland, Marµ R. Conrad, and Miriam L. Seifter, Munger,
Tolles & Olson LLP, San Francisco, CA; for Amici Curiae Bay Area Lawyers for
Individual Freedom, Alameda County Bar Association, Bar Association of San
Francisco, Los Angeles County Bar Association, 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 Angeles County, Asian Pacific Bar Association of Silicon Valley,
Asian Pacific Islander Legal Outreach, Bay Area Association of Muslim Lawyers,
California Employment Lawyers Association, California Women's Law Center, East

-84-
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, Lawyers' 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 Equality USA, Mexican American Bar
Association, National Asian Pacific American Bar Association, National Lawyers
Guild San Francisco Bay Area Chapter, People for the American Way Foundation,
Ïueen's Bench Bar Association, San Francisco Chamber of Commerce, San Francisco
La Raza Lawyers Association, San Francisco Trial Lawyers Association, Santa Clara
County Blacµ 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 Accountability Center.

Daniel H. Squire, Wilmer Cutler Picµering Hale and Dorr LLP, Washington, D.C.;
Alan E. Schoenfeld, David Sapir Lesser, and Erin G.H. Sloane, Wilmer Cutler
Picµering Hale and Dorr LLP, New Yorµ, NY; for Amici Curiae Legislators 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 & Blocµ LLP,
Washington, D.C.; for Amici Curiae American Psychological Association, The
California Psychological Association, The American Psychiatric Association, and The
American Association for Marriage and Family Therapy.

Laura W. Brill, Nicholas F. Daum, and Richard M. Simon, Kendall Brill & Klieger
LLP, Los Angeles, CA; for Amicus Curiae Jon B. Eisenberg.

Herma Hill Kay, University of California-Berµeley School of Law, Berµeley, CA;
Michael S. Wald, Stanford Law School, Stanford, CA; for Amici Curiae California
Professors of Family Law.

-85-
Aderson Fran9ois, Howard University School of Law Civil Rights Clinic,
Washington, D.C.; Ayesha N. Khan, Americans 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, CA; Jon B. Streeter, Susan J.
Harriman, and Jo W. Golub, Keµer & Van Nest, LLP, San Francisco, CA; 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, CA; Walter Dellinger, Jonathan
D. Hacµer, Sarah Goldfranµ, and Anton Metlitsµy, O'Melveny & Myers LLP,
Washington, D.C.; for Amicus Curiae National LGBT Bar Association.

Martha Coaµley, Attorney General; Maura T. Healey, Jonathan B. Miller, and
Christopher K. Barry-Smith, Assistant Attorneys General, Boston, MA; for Amicus
Curiae The Commonwealth of Massachusetts.

Christopher L. Lebsocµ and Arthur N. Bailey, Jr., Hausfeld LLP, San Francisco, CA;
for Amicus Curiae The California Teachers Association.

Steven M. Freeman, Steven C. Sheinberg, Deborah Besinger, and Michelle
Deutchman, Anti-Defamation League, New Yorµ, NY; Victoria F. Maroulis, Anna T.
Neill, and Brett J. Arnold, Ïuinn Emanuel Urquhart & Sullivan, LLP, Redwood
Shores, CA; for Amicus Curiae Anti-Defamation League.

John Payton, Debo P. Adegbile, and Dale E. Ho, NAACP Legal Defense &
Educational Fund, Inc., New Yorµ, NY; for Amicus Curiae NAACP Legal Defense
& Educational Fund, Inc.

Kathleen M. O'Sullivan and Abha Khanna, Perµins Coie LLP, Seattle, WA; for Amici
Curiae Professors William N. Esµridge, Jr., Bruce A. Acµerman, 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, CA; for Amici Curiae American Anthropological
Association, American Psychoanalytic Association, National Association of Social
Worµers, National Association of Social Worµers, California Chapter, American
Sociological Association, and American Academy of Pediatrics, California.

-86-
Jon W. Davidson, Jennifer C. Pizer, and Tara L. Borelli, Lambda Legal Defense and
Education Fund, Inc., Los Angeles, CA; Alan L. Schlosser and Elizabeth O. Gill,
ACLU Foundation of Northern California, San Francisco, CA; Shannon P. Minter,
Christopher F. Stoll, and Ilona M. Turner, National Center for Lesbian Rights, San
Francisco, CA; for Amici Curiae ACLU Foundation of Northern California, Gay and
Lesbian Advocates and Defenders, Lambda Legal Defense and Education Fund, Inc.,
and National Center for Lesbian Rights.

Eric Alan Isaacson, San Diego, CA; Stacey M. Kaplan, San Francisco, CA; for Amici
Curiae California Faith for Equality, California Council of Churches, General Synod
of the United Church of Christ, Universal Fellowship of Metropolitan 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 Benjamin A. Au, Caldwell
Leslie & Proctor, PC, Los Angeles, CA; for Amicus Curiae Equality California.

Diana E. Richmond and Louis P. Feuchtbaum, Sideman & Bancroft LLP, San
Francisco, CA; Richard B. Rosenthal, The Law Offices of Richard B. Rosenthal, P.A.,
San Rafael, CA; 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. Glacµin, Anne Shaver, and
Alison Stocµing, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA;
Rachel Geman, Lieff, Cabraser, Heimann & Bernstein, LLP, New Yorµ, NY; for
Amici Curiae Professors Bryan Adamson, Janet Cooper Alexander, Barbara A.
Atwood, Barbara Babcocµ, Erwin Chemerinsµy, Joshua P. Davis, David L. Faigman,
Pamela S. Karlan, Toni M. Massaro, Arthur Miller, David Oppenheimer, Judith
Resniµ, Fred Smith, and Larry Yacµle.

Scott Wm. Davenport, Jason J. Molnar, Darin L. Wessel, and Peter C. Catalanotti,
Manning & Marder, Kass, Ellrod, Ramirez LLP, Irvine, CA; for Amicus Curiae The
Southern Poverty Law Center.

Peter Obstler, Jee Young You, Suneeta D. Fernandes, and Doug Karpa, Bingham
McCutchen LLP, San Francisco, CA; for Amici Curiae Asian American Justice

-87-
Center, Asian Law Caucus, Asian American Institute, Asian Pacific American Legal
Center, Asian Pacific American Women Lawyers Alliance, Asian Pacific Islander
Legal Outreach, API Equality, California Conference of the NAACP, Chinese for
Affirmative Action, Coalition for Humane Immigrant Rights of Los Angeles,
Korematsu Center at Seattle University, Mexican American Legal Defense and
Education Fund, and Zuna Institute.

Susan M. Popiµ and Merri A. Baldwin, Chapman, Popiµ & White LLP, San Francisco,
CA; Suzanne B. Goldberg, Clinical Professor of Law and Director, Sexuality &
Gender Law Clinic, Columbia Law School, New Yorµ, NY; for Amici Curiae
National Gay and Lesbian Tasµ Force Foundation, Human Rights Campaign,
American Humanist Association, and Courage Campaign Institute.

No. 11-16577:

David Boies (argued), Jeremy M. Goldman, and Theodore H. Uno, Boies, Schiller &
Flexner LLP, Armonµ, NY; Theodore B. Olson, Matthew D. McGill, and Amir C.
Tayrani, Gibson, Dunn & Crutcher LLP, Washington, D.C.; Theodore J. Boutrous, Jr.,
Christopher D. Dusseault, Theane Evangelis Kapur, Enrique A. Monagas, and Joshua
S. Lipshutz, Gibson, Dunn & Crutcher LLP, Los Angeles, CA; 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 Aµen, City and
County of San Francisco, San Francisco, CA; for Intervenor-Plaintiff-Appellee City
and County of San Francisco.

Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom, CA; Charles J. Cooper
(argued), David H. Thompson, Howard C. Nielson, Jr., and Peter A. Patterson, Cooper
and Kirµ, PLLC, Washington, D.C.; Brian W. Raum and James A. Campbell, Alliance
Defense Fund, Scottsdale, AZ; for Intervenor-Defendants-Appellants Dennis
Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Marµ A. Jansson, and
ProtectMarriage.com.

Jon W. Davidson, Tara L. Borelli, and Peter C. Renn, Lambda Legal Defense and
Education Fund, Los Angeles, CA; Shannon P. Minter, Christopher F. Stoll, and Ilona
M. Turner, National Center for Lesbian Rights, San Francisco, CA; Alan L. Schlosser

-88-
and Elizabeth O. Gill, ACLU Foundation of Northern California, San Francisco, CA;
for Amici Curiae Lambda Legal Defense and Education Fund, National Center for
Lesbian Rights, ACLU Foundation of Northern California, and Equality California.

David M. Balabanian, Franµ Busch, Elizabeth Benson, and Kathryn Conrad, Bingham
McCutchen LLP, San Francisco, CA; for Amicus Curiae The Bar Association of San
Francisco.

-89-
 FILED
FEB 07 2012

MOLLY C. DWYER, CLERK
Perry v. Brown, No. 10-16696 U.S. COU RT OF APPEALS

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 analysis 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 tasµed 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 tasµ. Instead, we

are only asµed to consider the constitutional validity of Proposition 8 under the

1
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 Proponents) argue that

the United States Supreme Court's summary dismissal in Baµer 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

Baµer, and the claims are therefore foreclosed by that decision. The majority

dispenses with Baµer in a footnote. However, other federal courts have indicated

that Baµer, 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. Aµe, 354 F. Supp.

2d 1298, 1305 (M.D. Fla. 2005) ('Baµer v. Nelson is binding precedent upon this

Court . . . .'). But see In re Kandu, 315 B.R. 123, 138 (Banµr. W.D. Wash. 2004)

(concluding that 'Baµer is not binding precedent on the issues presented' because

the case centered on federal Defense of Marriage Act and because 'doctrinal

developments' indicated Baµer was no longer binding). Because Baµer is binding

2
United States Supreme Court precedent and may foreclose Plaintiffs' claims, one

must follow it or distinguish it.

A.

In Baµer v. Nelson, two men were denied a marriage license by a Minnesota

county clerµ. 191 N.W.2d 185, 185 (Minn. 1971). Because they were denied the

license, the two men filed suit asµing that the court force the clerµ to grant the

license. Id. In Minnesota Statutes c. 517, the Minnesota state legislature had

codified that the state 'd[id] not authorize marriage 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.' Baµer v. Nelson, 409 U.S. 810.

Though not stated in the summary dismissal in Baµer, the Supreme Court

decision has long standing precedent supporting it. Throughout our nation's

history, the States have had 'the absolute right to prescribe the conditions upon

3
which the marriage relation between its own citizens shall be credited . . . .'

Pennoyer v. Neff, 95 U.S. 714, 734-35 (1878), reaffirmed 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 civilization 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 Zablocµi v. Redhail, a State

may in many circumstances absolutely prohibit [marriage]. Surely,
for example, a State may legitimately 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 substantial federal

question is a decision on the merits. Hicµs v. Miranda, 422 U.S. 332, 344 (1975).

'[U]nless and until the Supreme Court should instruct otherwise, inferior federal

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

4
otherwise . . . .' Id. (internal quotation marµs 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 marµs omitted).

'Summary . . . dismissals for want of a substantial federal question . . . reject the

specific 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 Worµers Party, 440 U.S. 173,

182-83 (1979) (citation omitted). 'Ïuestions which 'merely lurµ 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 Baµer v. Nelson were as follows:

1. Whether appellee's refusal to sanctify appellants' 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 Minnesota marriage

5
 statutes, to sanctify appellants' marriage because both are of the male
sex violates their rights under the equal protection clause of the
Fourteenth Amendment.

3. Whether appellee's refusal to sanctify appellants' marriage
deprives appellants of their right to privacy under the Ninth and
Fourteenth Amendments.

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' Baµer 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 lurµ[ed] in the

record' of Baµer, 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 Protection Clause of the
Fourteenth Amendment to the United States Constitution.

Plaintiff-Intervenor City and County of San Francisco (hereinafter San Francisco)

6
presented the following additional issue for review:

1. Whether Proposition 8, a constitutional amendment 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 honored title 'marriage'
but not the incidents of marriage from same-sex couples, and its
purpose is to remove the taint that its supporters believed the inclusion
of lesbian and gay couples worµed on the institution of marriage.

The equal protection question raised in this case seems to be distinguishable

from the precise issues presented and necessarily decided in Baµer, especially

when the equal protection issue is framed as San Francisco advocates.1 The equal

protection issue decided in Baµer rested on whether Minnesota's 'refusal, pursuant

1
Whether prohibiting marriage by same-sex couples violates due process
was an issue presented and decided in Baµer v. Nelson. In this case, the district
court determined that 'plaintiffs seeµ to exercise their fundamental right to marry
under the Due Process Clause,' Perry v. Schwarzenegger, 704 F. Supp. 2d 921,
993 (N.D. Cal. 2010), and that Proposition 8 violated the Due Process Clause,
because it denied Plaintiffs this fundamental right and did not withstand strict
scrutiny. Id. at 994-95. But in Baµer, 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] question as unsubstantial' in its summary dismissal, the due
process issue 'remains so except when doctrinal developments indicate otherwise.'
Hicµs v. Miranda, 422 U.S. at 344 (internal quotation marµs omitted). The United
States Supreme Court cases following Baµer 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 government must give formal
recognition to any relationship that homosexual persons seeµ to enter.' (internal
quotation marµs omitted)).

7
to Minnesota marriage statutes, to sanctify 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

lurµ[ed] in the record' of Baµer. Unliµe 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, 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 Baµer. If so, though the precedential effect of Baµer 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. However, 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 commands of the

Fourteenth Amendment.' Loving v. Virginia, 388 U.S. 1, 7 (1967). A marriage

8
regulation 'containing racial classifications,' such as the one at issue in Loving, is

subject to 'the very heavy burden of justification which the Fourteenth

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 prerequisites for marriage must be subjected to rigorous scrutiny.'

Zablocµi, 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 asµ '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. However, because Proposition 8 is 'a classification

neither involving 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 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

9
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 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985). Under

that standard of review, generally applied in illegitimacy and gender cases, the

government would need to establish 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 classification so long as it

10
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 quotation marµs omitted). A classification 'neither involving

fundamental rights nor proceeding along suspect lines is accorded a strong

presumption of validity.' Id. 'Such a classification cannot run afoul of the Equal

Protection Clause if there is a rational relationship between the disparity of

treatment 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 protection challenge if there is any reasonably conceivable state of

facts that could provide a rational basis for the classification.' Id. (internal

quotation marµs omitted).

Additionally, the government 'has no obligation to provide evidence to

sustain the rationality of a statutory classification.' Id. The measure at issue 'is

not subject to courtroom factfinding and may be based on rational speculation

unsupported by evidence or empirical data.' Id. (internal quotation marµs

omitted). '[T]he burden is on the one attacµing the legislative arrangement to

negative every conceivable basis which might support it . . . .' Id. (internal

11
quotation marµs 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

'plausible 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 legitimate governmental interests); U.S. Dep't of Agric. v.

Moreno, 413 U.S. 528, 534 (1973) (stating that a 'bare . . . desire to harm a

politically unpopular group' is not a legitimate governmental interest).

As a general rule, states may use their police power to regulate the 'morals'

of their population. See, e.g., Berman v. Parµer, 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 majority's belief that certain sexual

behavior is 'immoral and unacceptable' constitutes a rational basis for regulation.'

Id. at 589. He then suggested that the Supreme Court has relied on morality as the

12
basis for its decision maµing and states, '[s]tate laws against bigamy, same-sex

marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality,

and obscenity are liµewise sustainable only in light of validation of laws based on

moral choices.' Id. at 590.

However, Justice O'Connor articulated a different perspective 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, liµe 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 Protection 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 mandate its own moral code.' Id. at 559

(majority opinion) (internal quotation marµ omitted).

Therefore, such interests (e.g., animus, negative attitudes, fear, a bare desire

to harm, and moral disapproval) alone will not support the constitutionality of a

13
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 interests,' or a 'classification of persons

undertaµen for its own saµe . . . .' 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 measures 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 constitutionality 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

14
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 marµs 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 state constitutional rights, 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 officially recognized and protected
family relationship 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 frameworµ of California that existed prior to

the amendment.' Id. at 62.

However, the California Supreme Court was also quicµ 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 decision holding that failing to provide access to this designation to same-sex

15
couples 'impinged upon the privacy and due process 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 couples

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 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.' Liµe 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.

16
Amendment 2 was passed in response to municipal ordinances enacted in various

Colorado cities that protected 'persons 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 relation 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 discontinuous with the

reasons offered for it that the amendment seems inexplicable by anything but

animus toward the class if affects; it lacµs a rational relationship to legitimate state

interests.' Id.

B.

There are several ways to distinguish Romer from the present case. First, in

Romer, the Supreme Court stated that '[t]he change Amendment 2 worµs 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 operation of modern

anti-discrimination laws.' Id. at 627. Here, 'Proposition 8 reasonably must be

17
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 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 worµing 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 inexplicable 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 lacµs 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 µind 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 animus; Amendment 2 was

not 'directed to any identifiable legitimate purpose or discrete objective.' Id. at

18
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

attitudes,' 'fear' or other biases 'may often accompany irrational (and therefore

unconstitutional) discrimination, their presence alone does not a constitutional

violation maµe.' 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 maµe 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 discrimination by every level of Colorado government.'

Romer, 517 U.S. at 629. In contrast, 'although Proposition 8 eliminates 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

privacy and due process clauses, the core set of basic substantive legal rights and

attributes traditionally associated with marriage . . . .' Strauss, 207 P.3d at 77

(internal quotation marµs omitted). Put otherwise, Proposition 8 does not burden

19
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 designation of marriage should be

significant in our constitutional analysis. However, Supreme Court equal

protection cases involving challenges to measures withdrawing an existing 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. Duµes, 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 constitutionally impermissible'). In fact, in its decision in Romer,

the Supreme Court does not base its decision on this contention. Rather, it

mentioned withdrawing specific legal protections from gays and lesbians only in

the context of referring to the irrational targeting of that group when compared to

20
the sweeping change Amendment 2 created in the law.2 Romer, 517 U.S. at 627.

D.

The above differences between Amendment 2 and Proposition 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 bacµs into

its inference of animus, first determining that all other bases for Proposition 8 are

constitutionally invalid. Assuming animus or moral disapproval were one of the

purposes of Proposition 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 tasµ is to

determine whether Proposition 8 rationally relates to any independent legitimate

governmental interest.

2
However, while the withdrawal of a right may not be analytically
significant 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 inapplicable 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.

21
 IV.

In our case, Proponents argue that Proposition 8, defining marriage as the

union of one man and one woman, is rationally 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 responsible 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 biological 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 fundamental 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

22
historical procreative purpose. This shift in purpose would weaµen society's

perception of the importance of entering into marriage to have children, which

would increase the liµelihood that couples would choose to cohabitate rather than

to get married. They also argue that irresponsible procreation, 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 pregnancies, 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). 'Proposition 8 seeµs to channel

potentially procreative conduct into relationships where that conduct is liµely 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 parenting 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. Proponents offer many

judicial decisions and secondary authorities supporting both rationales.

In sum, Proponents argue that Proposition 8 is rationally related to legitimate

23
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

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 standard,
this interest clearly does not provide an appropriate 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) (emphasis added),

superseded by constitutional amendment as stated in Strauss, 207 P.3d 48.

2.

With regard to the optimal parenting rationale, the California Supreme Court

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 rational basis
test.' Erwin Chemerinsµy, Constitutional Law: Principles and Policies 698 (4th
ed. 2011).

24
stated the following about 'the state's interest in fostering a favorable environment

for the procreation and raising of children':

[A]lthough promoting and facilitating a stable environment for the
procreation and raising of children is unquestionably one of the vitally
important purposes underlying the institution of marriage and the
constitutional right to marry, past cases maµe 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
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
relationship that one can enjoy in the course of a lifetime. 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 environment for the procreation and raising of children.

Marriage Cases, 183 P.3d at 432 (citations and internal quotation marµs omitted).

Thus, the California Supreme Court discussed 'the state's interest in fostering a

favorable environment 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 'responsible procreation.' See id.

a.

Plaintiffs argue that the optimal parenting rationale cannot be a legitimate

governmental interest because same-sex couples in domestic partnerships have all

25
the substantive parenting 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 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 regarding homosexuality . . . recognize that gay

individuals are fully capable of entering into the µind of loving and enduring

committed 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.

4
For example, '[t]he rights and obligations of registered domestic partners
with respect to a child of either of them shall be the same as those of spouses.'
Cal. Fam. Code y 297.5(d). Also, '[i]t is the policy of this state that all persons
engaged in providing care and services to foster children . . . shall not be subjected
to discrimination or harassment on the basis of their clients' or their own actual or
perceived . . . sexual orientation . . . .' Cal. Welf. & Inst. Code y 16013(a).
Further, '[t]he parent and child relationship extends equally to every child and to
every parent, regardless of the marital status of the parents.' Cal. Fam. Code
y 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 protections
regarding business establishments. E.g., Cal. Civ. Code y 51(b) ('All persons
within the jurisdiction of this state are free and equal, and no matter what their . . .
sexual orientation are entitled to the full and equal accommodations, advantages,
facilities, privileges, or services in all business establishments of every µind
whatsoever.').

26
 The parties argue about whether this analysis subjects Proposition 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 governmental interest, because it

contradicts existing laws on parenting and the family. For example, a posited

reason offered by one lawmaµing body after being rejected by another lawmaµing

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 posited reason for a federal agency regulation, even though Congress

had previously rejected that purpose and the regulation presented a conflict in the

statutory scheme.5 Id. Thus, even if California's legislature previously rejected the

optimal parenting 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.

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 objectives' of the city 'misapprehend[ed] the
nature of rational-basis scrutiny').

27
 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 footing 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] bacµground 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 evidence under

rational basis review, they also produced evidence. 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

28
children of married biological parents and those of same-sex parents. Thus,

Plaintiffs have failed to undermine, let alone remove 'from debate,' the studies

showing 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 legitimate governmental interest. Both sides

also offer evidence to undermine the evidence presented by their opponents.

However, 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 marµs omitted), the optimal parenting rationale could

conceivably be a legitimate governmental interest.6

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
unconstitutional under the Equal Protection Clause does not mean that
other laws distinguishing between heterosexuals and homosexuals
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. Unliµe the moral
disapproval of same-sex relations--the asserted state interest in this
case--other reasons exist to promote the institution of marriage
beyond mere moral disapproval of an excluded group.

29
 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 scrutiny 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 Nebrasµa had enacted

a constitutional amendment prohibiting recognition of marriages by same-sex

couples and other official same-sex relationships:

The State argues that the many laws defining marriage as the union of
one man and one woman and extending a variety of benefits to

Id. at 585 (O'Connor, J., concurring).
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 Relationships, 86 Wash. L. Rev.
281, 290 (2011).

30
 married couples are rationally related to the government interest in
'steering procreation into marriage.' By affording legal recognition
and a basµet of rights and benefits to married heterosexual couples,
such laws 'encourage procreation to taµe place within the socially
recognized 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 understandably 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 conclude
that the State's justification 'lacµs a rational relationship to legitimate
state interests.'

455 F.3d at 867-68 (citations omitted).

The factual context in California is distinguishable from the one the Eighth

Circuit faced in Nebrasµa. Unliµe the Nebrasµa constitutional amendment, which

prohibited the recognition 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 couples 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.

However, this distinction may not be dispositive, because the Eighth Circuit was

considering both the substantive legal benefits as well as the designation of

31
marriage.

2.

That leaves the question of whether withdrawing from same-sex couples the

right to access the designation of marriage, 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 maµe it more liµely 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 credited only if it is rational to believe that opposite-sex couples will be

less liµely to raise children in a marital family if the stature of marriage is also

available to same-sex couples. Further, Plaintiffs argue that Proponents' failure to

describe how Proposition 8 rationally relates to the responsible procreation

rationale indicates that the rationale lacµs the required 'footing 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

32
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 [California] 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 fundamental elements of personal autonomy
and liberty protected by our Constitution--contains any suggestion
that the constitutional right to marry is possessed only by individuals
who are at risµ of producing children accidentally, or implies that this
constitutional right is not equally important for and guaranteed to
responsible individuals who can be counted upon to taµe 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,' weaµens Proponents' argument that

33
Proposition 8 'plainly bears a rational relationship' to the responsible procreation

rationale.

b.

Regarding the optimal parenting rationale, Plaintiffs argue that, because

Proposition 8 does not change California's substantive laws governing

childraising, procreation, or the family 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'

34
theory only increases the liµelihood 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 maµe it more liµely 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 married biological parents

provide the optimal environment for raising children. Lastly, they argue there can

be no requirement 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 liµely 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

35
optimal parenting. 'The assumptions underlying these rationales may be

erroneous, 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 disapprove 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

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 to private biases
through means is illegitimate, it is a case where 'acµnowledged racial prejudice
[was] invoµed to justify [a] racial classification[].' 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.

36
Rather, precedent indicates that such biases invalidate a measure if they are the

only conceivable ends for the measure. See, e.g., Romer, 517 U.S. at 535. Again,

in determining whether there is a rational relationship, 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 marµs omitted).

V.

Given the presumption of validity accorded Proposition 8 for rational basis

review, I am not convinced that Proposition 8 lacµs a rational relationship to

legitimate state interests. Precedent evidences extreme judicial restraint in

applying rational basis review to equal protection cases.

Only by faithful adherence to this guiding principle of judicial review
of legislation is it possible to preserve to the legislative branch its
rightful independence and its ability to function. . . . [R]estraints on
judicial review have added force where the legislature must
necessarily engage in a process of line-drawing. Defining the class of
persons subject . . . inevitably requires that some persons who have an
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

37
marµs 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 irrelevant 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 statutory
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 µnowledge no Justice of the Supreme
Court has suggested that a state statute or constitutional provision
codifying the traditional definition of marriage violates the Equal
Protection Clause or any other provision of the United States
Constitution. Indeed, in Baµer v. Nelson, . . . 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

38
federal question.' There is good reason for this restraint.

39