PERRY v. BROWN Nos. 10-16696, 11-16577.
671 F.3d 1052 (2012)
Kristin M. PERRY; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs-Appellees, City and County of San Francisco, Intervenor-Plaintiff-Appellee, v. Edmund G. BROWN, Jr., in his official capacity as Governor of California; Kamala D. Harris, in her official capacity as Attorney General of California; Mark B. Horton, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; Linette Scott, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; Patrick O'Connell, in his official capacity as Clerk-Recorder for the County of Alameda; Dean C. Logan, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, 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. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs-Appellees, City and County of San Francisco, Intervenor-Plaintiff-Appellee, v. Edmund G. Brown, Jr., in his official capacity as Governor of California; Kamala D. Harris, in her official capacity as Attorney General of California; Mark B. Horton, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; Linette Scott, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; Patrick O'Connell, in his official capacity as Clerk-Recorder for the County of Alameda; Dean C. Logan, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, 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.
United States Court of Appeals, Ninth Circuit.
Filed February 7, 2012.
David M. Balabanian, Frank Busch, Elizabeth Benson, and Kathryn Conrad, Bingham McCutchen LLP, San Francisco, CA; for amicus curiae the Bar Association of San Francisco.
Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge N.R. SMITH.
REINHARDT, Circuit Judge:
Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We 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 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 take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of `marriage,' which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no 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
"Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court." Sweatt v. Painter,
Thus, as a result of our "traditional reluctance to extend constitutional interpretations to situations or facts which are not before the Court, much of the excellent research and detailed argument presented in th[is] case is unnecessary to [its] disposition." Id. Were we unable, however, to resolve the matter on the basis we do, we would not hesitate to proceed to the broader question—the constitutionality of denying same-sex couples the right to marry.
Before considering the constitutional question of the 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,
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 the judgment entered by former Chief Judge Walker, on the basis of his purported interest in being allowed to marry his same-sex partner.
Upon its founding, the State of California recognized the legal institution of civil
Following the enactment of the Defense of Marriage Act of 1996, Pub.L. 104-199, 110 Stat. 2419 (codified in relevant part at 1 U.S.C. § 7), which expressly limited the federal definition of marriage to relationships between one man and one woman, dozens of states enacted similar provisions into state law. See Andrew Koppelman, The Difference the Mini-DOMAs Make, 38 Loy. U. Chi. L.J. 265, 265-66 (2007). 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 § 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, 76 Cal.Rptr.3d 683, 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, § 2 (codified at Cal. Fam.Code § 297(a)). At first, California gave registered domestic partners only limited rights, such as hospital visitation privileges, id. § 4, and health benefits for the domestic partners of certain state employees, id. § 3. Over the next several years, however, the State substantially expanded the rights of domestic partners. By 2008, "California statutory provisions generally afford[ed] same-sex couples the opportunity to . . . obtain virtually all of the benefits and responsibilities afforded by California law to married opposite-sex couples." Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 417-18. The 2003 Domestic Partner Act provided broadly: "Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses." Cal. Stats. 2003, ch. 421, § 4 (codified at Cal. Fam.Code § 297.5(a)). It withheld only the official designation of marriage and thus the officially conferred and societally recognized status that accompanies that designation.
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
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, 76 Cal.Rptr.3d 683, 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., 76 Cal.Rptr.3d 683, 183 P.3d 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., 76 Cal.Rptr.3d 683, 183 P.3d at 429. The court acknowledged 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 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., 76 Cal.Rptr.3d 683, 183 P.3d at 428-30 (quoting Hernandez v. Robles,
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 risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry." Id., 76 Cal.Rptr.3d 683, 183 P.3d 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,
The court remedied these constitutional violations by striking 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., 76 Cal.Rptr.3d 683, 183 P.3d at 453. Following the court's decision, California counties issued more than 18,000 marriage licenses to same-sex couples.
Five California residents—defendants-intervenors-appellants Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson (collectively, "Proponents")—collected voter signatures and filed petitions with the state government to place an initiative on the November 4, 2008, ballot. Unlike Proposition 22, this was an initiative constitutional amendment, which would be equal in effect to any other provision of the California 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 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 took effect the next day, as article I, section 7.5 of the California Constitution.
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 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.,
Two same-sex couples—plaintiffs Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo—filed this action under 42 U.S.C. § 1983 in May 2009, after being denied marriage licenses by the County Clerks of Alameda County and Los Angeles County, respectively. Alleging that Proposition 8 violates the Fourteenth Amendment to the United States Constitution, they sought a declaration of its 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 clerks and four state officers, including the Governor and Attorney General—filed answers to the complaint but once again refused to argue in favor of Proposition 8's constitutionality. As a result, the district court granted Proponents' motion to intervene as of right under Federal Rule of Civil Procedure 24(a) to defend the validity of the proposition they had sponsored.
Proponents appealed immediately, and a motions panel of this court stayed the district court's injunction pending appeal. The motions panel asked the parties to discuss in their briefs, as a preliminary matter, whether the Proponents had standing to seek review of the district court order. After considering the parties' arguments, we concluded that Proponents' 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:
Perry v. Schwarzenegger (Perry V),
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 directly enjoined by the district court order.
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,
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,
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,
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),
Here, unlike in Arizonans, we do know 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
Perry VII, 134 Cal.Rptr.3d at 536-37, 265 P.3d 1002. "[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, 265 P.3d 1002. The State's highest court thus held that California law provides precisely what the Arizonans Court found lacking 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.
We are bound to accept the California court's determination. Although other states may act differently, California's conferral
It matters not whether federal courts think it wise or desirable for California to afford proponents this authority to speak for the State, just as it makes no difference whether federal courts think it a good idea that California allows its constitution to be amended by a majority vote through a ballot measure in the first place. Cf. Pac. States Tel. & Tel. Co. v. Oregon,
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,
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
Nor is it relevant whether Proponents have suffered a personal injury, in their capacities as private individuals. Although we asked the California Supreme Court whether "the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's 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, 265 P.3d 1002 ("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, 106 S.Ct. 1697, 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.
To be clear, we do not suggest that state law has any "power directly to enlarge or contract federal jurisdiction." Duchek v. Jacobi,
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
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,
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,
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 lack 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. PX 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 therefore does not hinge on what standard we use to review the district court's findings of fact. Cf. Lockhart v.
We now turn to the merits of Proposition 8's constitutionality.
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 taking 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 targeted for the deprivation of an existing right without a legitimate reason. Romer, 517 U.S. at 634-35, 116 S.Ct. 1620. 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 Plant v. Spendthrift Farm, Inc.,
Proposition 8 worked asingular 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, 116 S.Ct. 1620. The state high court held in Strauss that "Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship," which California calls a `domestic partnership.'
Both before and after Proposition 8, same-sex partners could enter into an official, state-recognized relationship that affords them "the same rights, protections, and benefits" as an opposite-sex union and subjects them "to the same 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 § 297.5(a). Now as before, same-sex partners may:
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,
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,
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 ask us whether we are "single" or "married." Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, "Will you marry me?", whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see "Will you enter into a registered domestic partnership with me?". Groucho Marx's one-liner, "Marriage is a wonderful institution ... but who wants to live in an institution?" would lack its punch if the word `marriage' were replaced with the alternative phrase. So too with Shakespeare'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 know what happiness is until he's married. By then it's too late." We see tropes like "marrying for love" versus "marrying for money" played out again and again in our films and literature because of the recognized importance and 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, 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.,
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 acknowledge the financial interdependence of those who have entered into an "enduring" relationship. The incidents of marriage, standing alone, do not, however, convey
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 took 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, 76 Cal.Rptr.3d 683, 183 P.3d at 452. The question we therefore consider is this: did the People of California have legitimate reasons for enacting a constitutional amendment that serves only to take away from same-sex couples the right to have their lifelong 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 relationships?
Proponents resist this framing of the question. They deem it irrelevant to our inquiry that the California Constitution, as interpreted by the Marriage Cases, had previously guaranteed same-sex couples the right to use the designation of `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, 116 S.Ct. 1620: 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 alike. Strauss,
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 group the right to obtain a designation
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 discrimination on the basis of sexual orientation. See Colo. Const. art. II, § 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,
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, 116 S.Ct. 1620. The Court considered possible justifications for Amendment 2 that might have overcome the "inference" of animus, but it found them all lacking. It therefore concluded that the law "classifie[d] homosexuals not to further a proper legislative end but to make them unequal to everyone else." Id. at 635, 116 S.Ct. 1620.
Proposition 8 is remarkably similar to Amendment 2. Like Amendment 2, Proposition
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 "identifying] persons by a single trait and then den[ying] them protection across the board." Romer, 517 U.S. at 632-33, 116 S.Ct. 1620. 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," making it unlike Amendment 2, which eliminated various substantive rights. Proponents' Reply Br. 77.
These differences, however, do not render Romer less applicable. It is no doubt true that the "special disability" that Proposition 8 "imposes upon" gays and lesbians has a less sweeping effect on their public and private transactions than did Amendment 2. Nevertheless, Proposition 8 works a 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, 116 S.Ct. 1620. 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 makes it even more suspect. A law that has no practical effect except to strip one group of the right to use a state-authorized and socially meaningful designation is all the more "unprecedented" and "unusual" than a law that imposes broader changes, and raises an even stronger "inference that the disadvantage imposed is born of animosity toward the class of persons affected," id. at 633-34, 116 S.Ct. 1620. 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
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, 116 S.Ct. 1620. Such was the case in Romer, and it is the case here as well. The end must be one that is legitimate for the government to pursue, not just one that would be legitimate for a private actor. See id. at 632, 635, 116 S.Ct. 1620. 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, like Amendment 2, enacts a "`[d]iscrimination of an unusual character,'" which requires "`careful consideration to determine whether [it][is] obnoxious to the'" Constitution. Id. at 633, 116 S.Ct. 1620 (quoting Louisville Gas & Elec. Co. v. Coleman,
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
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, like any protections against private discrimination, were not compelled by the Fourteenth Amendment.
The Supreme Court's answer was "no"—there was no legitimate reason to take away broad legal protections from gays and lesbians alone, and to inscribe that deprivation of equality into the state constitution, once those protections had already been provided. We therefore need not decide whether a state may decline to provide the right to marry to same-sex couples. To determine the validity of Proposition 8, we must consider only whether the change in the law that it effected—eliminating by constitutional amendment the right of same-sex couples to have the official designation and status of `marriage' bestowed upon their relationships, while 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 legitimate reason for withdrawing
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, 102 S.Ct. 3211 (emphasis added); see also id. at 544, 102 S.Ct. 3211 (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, 102 S.Ct. 3211 (citing Reitman v. Mulkey,
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.
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 making significant changes to marriage, (3) protecting religious freedom, and (4) preventing children from being taught about same-sex marriage in schools. To be credited, these rationales "must find some footing in the realities of the subject addressed by the legislation." Heller v. Doe,
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 likelihood of that family structure by allowing only potential biological parents—one man and one woman—to marry. The second is that marriage reduces the threat of "irresponsible procreation"—that is, unintended pregnancies out of wedlock—by providing an incentive for couples engaged in potentially procreative sexual activity to form stable family units. Because same-sex couples are not at risk 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, 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,
Moreover, California's "current policies and conduct ... recognize that gay individuals are fully capable of ... responsibly caring for and raising children." Marriage Cases, 76 Cal.Rptr.3d 683, 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. Jack S.,
Proponents' second argument is that there is no need to hold out the designation of `marriage' as an encouragement for same-sex couples to engage in responsible procreation, because unlike opposite-sex couples, same-sex couples pose no risk of procreating accidentally. Proponents contend that California need not extend marriage to same-sex couples when the State's interest in responsible procreation would not be advanced by doing so, even if the interest would not be harmed, either. See Johnson v. Robison,
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, 113 S.Ct. 2637. 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 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 likely 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 makes no change with respect to the laws regarding family structure. As before Proposition 8, those laws apply in the same way to same-sex couples in domestic partnerships and to married couples. Only the 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
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, 99 S.Ct. 939. It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman. While deferential, the rational-basis standard "is not a toothless one." Mathews v. Lucas,
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,
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 make 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.
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).
We briefly consider two other potential rationales for Proposition 8, not raised by Proponents but offered by amici curiae. First is the argument that Proposition 8 advanced the State's interest in protecting religious liberty. See, e.g., Br. Amicus Curiae of the Becket Fund for Religious Liberty (Becket Br.) 2. There is no dispute that even before 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, 76 Cal.Rptr.3d 683, 183 P.3d at 451-52; see Becket Br. 4-5 (acknowledging this point). Rather, the religious-liberty interest that Proposition 8 supposedly promoted was to decrease the likelihood that 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, seeking reform of the State's antidiscrimination laws to include greater accommodations for religious organizations. See, e.g., Becket Br. 8 n. 6 ("Unlike many other states, California has no religious exemptions to its statutory bans on gender, marital status, and sexual orientation discrimination in public 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-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 § 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 §§ 51500, 51933(b)(4). The Marriage Cases therefore did not weaken, and Proposition 8 did not strengthen, the rights of schools to control their curricula and of parents to control their children's education.
There is a limited sense in which the extension of the 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 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
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 taking away the designation of `marriage,' while leaving 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, 116 S.Ct. 1620. We therefore need not, and do not, decide whether any of these purported rationales for the law would be "legitimate," id. at 632, 116 S.Ct. 1620, or would suffice to justify Proposition 8 if the amendment actually served to further them.
We are left to consider why else the People of California might have enacted a constitutional amendment that takes away from gays and lesbians the right to use the designation of `marriage.' One explanation is the desire to revert to the way things were prior to the Marriage Cases, when `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,
Laws may be repealed and new rights taken 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, 102 S.Ct. 3211, but new rights may not be stripped away solely because they are new. Tradition is a legitimate consideration in policymaking, of course, but it cannot be an end unto itself. Cf. Williams v. Illinois,
Absent any legitimate purpose for Proposition 8, we are left with "the inevitable inference that the disadvantage imposed is born of animosity toward," or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, "the class of persons affected." Romer, 517 U.S. at 634, 116 S.Ct. 1620. 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,
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, 123 S.Ct. 2472, so too does the elimination of the right to use the official designation of `marriage' for the relationships of committed same-sex couples send a message that gays and lesbians are of lesser worth as a class— that they enjoy a lesser societal status. Indeed, because laws affecting gays and lesbians' rights often regulate individual conduct—what sexual activity people may undertake in the privacy of their own homes, or who is 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, ___ U.S. ___,
Just as a "desire to harm ... cannot constitute a legitimate governmental interest," Moreno, 413 U.S. at 534, 93 S.Ct. 2821, neither can a more basic disapproval of a class of people. Romer, 517 U.S. at 633-35, 116 S.Ct. 1620. "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, 123 S.Ct. 2472. It may not. Without more, "[m]oral disapproval of [a] group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause." Id. at 582, 123 S.Ct. 2472 (O'Connor, J., concurring). Society does sometimes draw classifications that likely are rooted partially in disapproval, such as a law that grants educational benefits to veterans but denies them to conscientious objectors who engaged in alternative civilian service. See Johnson, 415 U.S. at 362-64, 94 S.Ct. 1160. 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, 94 S.Ct. 1160. Enacting a rule into law based solely on the disapproval of a group, however, "is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit." Romer, 517 U.S. at 635, 116 S.Ct. 1620. Like Amendment 2, Proposition 8 is a classification of gays and lesbians undertaken for its own sake.
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.
When directly enacted legislation "singl[es] out a certain class of citizens for disfavored legal status," we must "insist on knowing the relation between the classification adopted and the object to be attained," so that we may ensure that the law exists "to further a proper legislative end" rather than "to make the [class] unequal to everyone else." Romer, 517 U.S. at 632-33, 635, 116 S.Ct. 1620. 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 taking away the official designation of approval of their committed relationships and the accompanying societal status, and nothing more. Voter Information Guide at 54. "It is at once too narrow and too broad," for it changes the law far too little to have any of the effects it purportedly was intended to yield, yet it dramatically reduces the societal standing of gays and lesbians and diminishes their dignity. Romer, 517 U.S. at 633, 116 S.Ct. 1620. Proposition 8 did not result from a legitimate "Kulturkampf' concerning the structure of families in California, because it had no effect on family structure, but in order to strike it down, we need not go so far as to find that it was enacted in "a fit of spite." Id. at 636, 116 S.Ct. 1620 (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 taking away from them the official designation of `marriage,' with its societally recognized status. Proposition 8 therefore violates the Equal Protection Clause.
Finally, we address Proponents' motion to vacate the district court's judgment. On April 6, 2011, after resigning from the bench, former Chief Judge Walker disclosed that he was gay and that he had for the past ten years been in a relationship with another man. Proponents moved shortly thereafter to vacate the judgment on the basis that 28 U.S.C. § 455(b)(4) obligated Chief Judge Walker to recuse himself, because he had an "interest that could be substantially affected by the outcome of the proceeding," and that 28 U.S.C. § 455(a) obligated him either to recuse himself or to disclose his potential conflict, because "his impartiality might reasonably be questioned." Chief Judge Ware, to whom this case was assigned after Chief Judge Walker's retirement, denied the motion after receiving briefs and hearing argument.
The district court properly held that it had jurisdiction to hear and deny the motion under Fed.R.Civ.P. 62.1(a), that the motion was timely, and that Chief Judge Walker had no obligation to recuse himself under either § 455(b)(4) or § 455(a) or to disclose any potential conflict. As Chief Judge Ware explained, the fact that a judge "could be affected by the outcome of a proceeding[,] in the same way that other members of the general public would be affected, is not a basis for either recusal or
The denial of the motion to vacate was premised on Chief Judge Ware's finding that Chief Judge Walker was not obligated to recuse himself. "We review the district court's denial of a motion to vacate the judgment for an abuse of discretion." Jeff D. v. Kempthorne,
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 this ground. We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts. For now, it suffices to conclude that the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class. The judgment of the district court is
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,
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 tasked with determining whether this constitutional amendment "is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution." Strauss v. Horton,
Proponents and their supporting amici (hereinafter Proponents) argue that the United States Supreme Court's summary dismissal in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) (mem.), "mandates reversal of the district court's ruling." According to Proponents, the claims raised here are the same as those rejected in Baker, and the claims are therefore foreclosed by that decision. The majority dispenses with Baker in a footnote. However, other federal courts have indicated that Baker, if it is not controlling, at least stands for exercising "restraint" when it comes to addressing due process and equal protection challenges against laws prohibiting marriage by same-sex couples. Citizens for Equal Protection v. Bruning,
In Baker v. Nelson, two men were denied a marriage license by a Minnesota county clerk. 291 Minn. 310,
Though not stated in the summary dismissal in Baker, 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 which the marriage relation between its own citizens shall be credited...." Pennoyer v. Neff,
Maynard v. Hill,
As Justice Stewart opined in his concurrence in Zablocki v. Redhail, a State
The summary dismissal of an appeal for want of a substantial federal question is a decision on the merits. Hicks v. Miranda,
The jurisdictional statements presented to the United States Supreme Court in Baker v. Nelson were as follows:
See In re Kandu, 315 B.R. at 137.
Here, we must address whether the question before us involves "the precise issues presented and necessarily decided by" Baker v. Nelson, such that the Supreme Court's summary dismissal would have precedential effect here. Alternatively, the question before us could be one that "merely lurk[ed] in the record" of Baker, and the present case would not be resolved by the Supreme Court's summary dismissal.
In this case, the following issues were presented for review:
Plaintiff-Intervenor City and County of San Francisco (hereinafter San Francisco) presented the following additional issue for review:
The equal protection question raised in this case seems to be distinguishable from the precise issues presented and necessarily decided in Baker, especially when the equal protection issue is framed as San Francisco advocates.
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,
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,
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.,
"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,
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, 113 S.Ct. 2637 (internal quotation marks 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, 113 S.Ct. 2637. 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 marks 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 marks omitted). "[T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it...." Id. (internal quotation marks omitted). Further, a legislature's generalizations may pass rational basis review "even when there is an imperfect fit between means and ends." Id. at 321, 113 S.Ct. 2637. In sum, the measure need only have "arguable" assumptions underlying its "plausible rationales" to survive constitutional challenge. Id. at 333, 113 S.Ct. 2637.
However, "even the standard of rationality... must find some footing in the realities of the subject addressed by the legislation." Id. at 321, 113 S.Ct. 2637. Also, some interests are not legitimate governmental interests. E.g., Romer, 517 U.S. at 634, 116 S.Ct. 1620 (stating that "animosity toward the class of persons affected" is not a legitimate governmental interest); Cleburne, 473 U.S. at 448, 105 S.Ct. 3249 (stating that "mere negative attitudes, or fear" are not legitimate governmental interests); U.S. Dep't of Agric. v. Moreno,
As a general rule, states may use their police power to regulate the "morals" of their population. See, e.g., Berman v. Parker,
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, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause." Id. at 582, 123 S.Ct. 2472 (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, 123 S.Ct. 2472 (majority opinion) (internal quotation mark 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 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 undertaken for its own sake...." Romer, 517 U.S. at 635, 116 S.Ct. 1620.
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,
Further, the California Supreme Court continued, "as a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples [through Proposition 8] does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment." Id.,
However, the California Supreme Court was also quick to point out that this differentiation did not diminish or minimize "the significance of the official designation of `marriage,'" which they characterized as "a vital factor" in their prior decision holding that failing to provide access to this designation to same-sex 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.
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.,
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, 116 S.Ct. 1620. 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, 116 S.Ct. 1620. The Supreme Court held that Amendment 2 failed rational basis review for two reasons. Id. at 632, 116 S.Ct. 1620. "First, the amendment has the peculiar property of imposing
There are several ways to distinguish Romer from the present case. First, in Romer, the Supreme Court stated that "[t]he change Amendment 2 works in the legal status of gays and lesbians in the private sphere is far reaching, both on its own terms and when considered in light of the structure and operation of modern anti-discrimination laws." Id. at 627, 116 S.Ct. 1620. Here, "Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship." Strauss,
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, 116 S.Ct. 1620. Again, Proposition 8 "carves out a narrow and limited exception to [the] state constitutional rights" of privacy and due process. Strauss,
The effect of animus is also unclear. In Romer, the Supreme Court stated that "laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity towards the class of persons affected." 517 U.S. at 634, 116 S.Ct. 1620. 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 635, 116 S.Ct. 1620. 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 make." Bd. of Trustees of Univ. of Ala. v. Garrett,
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, 116 S.Ct. 1620. 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
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,
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 backs 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 task is to determine whether Proposition 8 rationally relates to any independent legitimate governmental interest.
In our case, Proponents argue that Proposition 8, defining marriage as the union of one man and one woman, is rationally
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 historical procreative purpose. This shift in purpose would weaken society's perception of the importance of entering into marriage to have children, which would increase the likelihood that couples would choose to cohabitate rather than to get married. They also argue that irresponsible 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 seeks to channel potentially procreative conduct into relationships where that conduct is likely to further, rather than harm, society's interest in responsible procreation and childrearing."
Proponents also argue the "optimal parenting" rationale serves as a rational basis for Proposition 8. The optimal 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 governmental interests.
The first requirement of rational basis review is that there must be some conceivable legitimate governmental interest for the measure at issue.
The California Supreme Court indicated that responsible procreation is a legitimate governmental interest:
In re Marriage Cases,
With regard to the optimal parenting rationale, the California Supreme Court stated the following about "the state's interest in fostering a favorable environment for the procreation and raising of children":
Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 432 (citations and internal quotation marks 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.
Plaintiffs argue that the optimal parenting rationale cannot be a legitimate governmental interest because same-sex couples in domestic partnerships have all the substantive parenting rights opposite-sex couples in marriages enjoy. Additionally, California family law does not give any official preferences to opposite-sex parents.
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 lawmaking body after being rejected by another lawmaking body can "provide a conceivable basis" for a measure. FCC v. Beach Comm'ns, Inc.,
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, 113 S.Ct. 2637 (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, 113 S.Ct. 2637.
Under rational basis review, the challenger has the burden to "negative every conceivable basis which might support" the measure. Id. at 320, 113 S.Ct. 2637. In light of this burden, Plaintiffs have offered many secondary authorities to support their argument that the optimal parenting rationale cannot be a legitimate governmental interest. "Against [a] background of more than 100 peer-reviewed studies, the State of California could not reasonably accept as a true—or even debatable— statement of fact Proponents' view that only opposite-sex couples can create an `ideal' childrearing environment." Thus, "[i]t is not an end that the State rationally
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 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, 113 S.Ct. 2637. Considering "the question is at least debatable," id. at 326, 113 S.Ct. 2637 (internal quotation marks omitted), the optimal parenting rationale could conceivably be a legitimate governmental interest.
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."
The Eighth Circuit credited the responsible procreation and optimal parenting rationales in Citizens for Equal Protection, where Nebraska had enacted a constitutional amendment prohibiting recognition of marriages by same-sex couples and other official same-sex relationships:
455 F.3d at 867-68 (citations omitted).
The factual context in California is distinguishable from the one the Eighth Circuit faced in Nebraska. Unlike the Nebraska constitutional amendment, which prohibited the 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 marriage.
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.
Regarding the responsible procreation rationale, Plaintiffs argue that Proponents suggest no reason to believe prohibiting same-sex couples from entering relationships designated "marriage" will make it more likely that opposite-sex couples in California will marry. Put differently, Plaintiffs argue that, because Proposition 8 does not bestow an honor on opposite-sex couples but instead withdraws an honor from same-sex couples, the responsible procreation rationale could be credited only if it is rational to believe that opposite-sex couples will be less likely to raise children in a marital family if the stature of marriage is also available to same-sex couples. Further, Plaintiffs argue that Proponents' failure to describe how Proposition 8 rationally relates to the responsible procreation rationale indicates that the rationale lacks the required "footing in the realities of the subject addressed by the legislation." Heller, 509 U.S. at 321, 113 S.Ct. 2637.
In response, Proponents argue that, "[b]ecause only sexual relationships between men and woman can produce children, such relationships have the potential to further—or harm—this interest in a way that other types of relationships do not." Thus, "it follows that the commonsense distinction that our law has always drawn between opposite-sex couples, on the one hand, and all other types of relationships—including same-sex couples—on the other hand, plainly bears a rational relationship to the government interest in steering procreation into marriage."
Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 432. In this particular context, the fact that Proposition 8 established a new rule, instead of continuing a "distinction that [California] law has always drawn," weakens Proponents' argument that Proposition 8 "plainly bears a rational relationship" to the responsible procreation rationale.
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' theory only increases the likelihood that children are born and raised in a family structure of biological parents by encouraging such parents to marry; the designation of marriage for only that union would make it more likely that opposite-sex couples will want to enter into marriage and then subsequently raise their own biological offspring, rather than implying that any other union could not be good parents. Proponents claim this interest does not depend on any judgment about the relative parenting capabilities of opposite-sex and same-sex couples; it only confirms the instinctive, commonsense belief that 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 likely to fail equal protection by denying important government rights, thus increasing the burden of the test.
"[C]ourts are compelled under rational-basis review to accept a legislature's generalizations
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,
Given the presumption of validity accorded Proposition 8 for rational basis review, I am not convinced that Proposition 8 lacks a rational relationship to legitimate state interests. Precedent evidences extreme judicial restraint in applying rational basis review to equal protection cases.
Beach Commc'ns, 508 U.S. at 315-16, 113 S.Ct. 2096 (alteration, citations, and internal quotation marks omitted). Thus, the judiciary faces a conspicuous limit on our judicial role in applying equal protection to legislative enactments, because
McGowan v. Maryland,
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:
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