Lead Opinion
OPINION
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.
I
A
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 Cаlifornia.” 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,
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,
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
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,
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.,
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.,
C
Five California residents—defendantsintervenors-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 “[cjhanges 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.,
II
A
Two same-sex couples—plaintiffs Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo—filed this action under 42 U.S.C. § 1983 in May 2009, after being denied 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:
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),
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 defendantintervenor 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,
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
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,
We are bound to accept the California court’s determination. Although other states may act differently, California’s con
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,
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
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,
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,
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,
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,
B
Proposition 8 worked 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,
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:
• Raise children together, and have the same rights and obligations as to their children as spouses have, see Cal. Fam.Code § 297.5(d);
• Enjoy the presumption of parentage as to a child born to either partner, see Elisa B. v. Super. Ct. [37 Cal.4th 108 ,33 Cal.Rptr.3d 46 ],117 P.3d 660 , 670 (Cal.2005); Kristine M. v. David P.,135 Cal.App.4th 783 [37 Cal.Rptr.3d 748 ] (2006); or adopted by one partner and raised jointly by both, S.Y. v. S.B.,201 Cal.App.4th 1023 [134 Cal.Rptr.3d 1 ] (2011);
• Adopt each other’s children, see Cal. Fam.Code § 9000(g);
• Become foster parents, see Cal. Welf. & InstCode § 16013(a);
• Share community property, see Cal. Fam.Code § 297.5(k);
• File state taxes jointly, see Cal. Rev. & Tax.Code § 18521(d);
• Participate in a partner’s group health insurance poliсy on the same terms as a spouse, see Cal. Ins.Code § 10121.7;
• Enjoy hospital visitation privileges, see Cal. Health & Safety Code § 1261;
• Make medical decisions on behalf of an incapacitated partner, see Cal. Prob. Code § 4716;
• Be treated in a manner equal to that of a widow or widower with respect to a deceased partner, see Cal. Fam.Code § 297.5(c);
• Serve as the conservator of a partner’s estate, see Cal. Prob.Code §§ 1811— 1813.1; and
• Sue for the wrongful death of a partner, see Cal.Civ.Proc.Code § 377.60— among many other things.
Proposition 8 did not affect these rights or any of the other “ ‘constitutionally based incidents of marriage’ ” guaranteed to same-sex couples and their families. Strauss,
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 stаtus 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,
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. Propor nents’ 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,
Even were we not bound by the state court’s explanation, we would be obligated to consider Proposition 8 in light of its actuаl 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
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 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,
Proposition 8 is remarkably similar to Amendment 2. Like Amendment 2, Propo
To be sure, there are some differences between Amendment 2 and Proposition 8. Amendment 2 “imposfed] 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,
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,
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,
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,
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 Four
Romer forecloses this argument. The lights 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 dоes 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 withdraw
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,
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,
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 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,
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,
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 оptimal 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 visita
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,
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,
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 “proceeding] 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 “proceeding] 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,
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,
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
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 enactеd 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,
E
1
We are left to consider why else the People of California might have enacted a constitutional amendment that takes away from gays and lesbians the right to use the designation of ‘marriage.’ One explanation is the desire to revert to the way things were prior to the Marriage Cases, when ‘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 “restorefd] 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,
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,
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,
Just as a “desire to harm ... cannot constitute a legitimate governmental interest,” Moreno,
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.
When directly enacted legislation “singles] 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,
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 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. Kempthome,
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 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 resolvеd 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.
Notes
. 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, § 8(b). An initiative statutory enactment has somewhat greater status than a statute adopted by the Legislature, in that the Legislature may not amend or repeal the initiative statute without submitting the change to approval by the electors (unless the initiative statute provides otherwise). Id. § 10(c). Yet, like a statutory enactment by the Legislature, and unlike an initiative constitutional amendment, it is subject to the terms of the state constitution.
. 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 (Peny I),
. 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) ,
. The court found, among other things, that (1) marriage benefits society by organizing individuals into cohesive family units, developing a realm of liberty for intimacy and free decision making, creating stable 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 lack the social meaning associated with marriage, id. at 970, 973-75; (4) permitting same-sex couples to marry would not affect the number or stability of opposite-sex marriages, id. at 972-73; (5) the children of same-sex couples benefit when their 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 cоuples’ 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.
. 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.”
. 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 Clerks. We af
. We vacated submission of this case upon ordering that our question be certified to the California Supreme Court. Perry V,
. Although we regret the delay that our need to resolve this issue has caused, we note that this delay was not of our own making. See Perry V,
. See also Richardson v. Ramirez,
. Cf. City of Los Angeles v. Lyons,
. 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.
. Cf. Marriage Cases,
. 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], indeеd defie[d], even [the] conventional inquiry” for non-suspect classes, concerning whether a "legislative classification ... bears a rational relation to some legitimate end.” Romer,
. Because we do not address the question of the constitutionality of a state's ban on same-sex marriage, the Supreme Court’s summary dismissal of Baker v. Nelson,
In Baker, 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,
Whether or not the constitutionality of any ban on same-sex marriage was "presented and necessarily decided" in Baker, and whether or not Baker would govern that question in light of subsequent "doctrinal 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 Baker and is squarely controlled by Romer, which postdates Baker by more than two decades.
. 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,
. 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 taken effect only the year before Colorado voters adopted Amendment 2. Evans,
. 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,
. See Petitioners’ Br. 32-33, 48, Romer v. Evans,
. 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.
. For the reasons explained above, Citizens for Equal Protection v. Bruning,
We also note that the Nebraska constitutional amendment at issue in Citizens did not withdraw an existing right from same-sex couples as did Proposition 8. Cf. Dissent at 1105 n. 2. (“[W]hile the withdrawal of a right may not be analytically significant for rational basis review, it may still be factually significant.’’).
. Moreover, Johnson did not involve a dignitaiy 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 con
. The difference between what Proposition 8 did take away—only the name ‘marriage'— and what it might also have taken away—any of the substantive “incidents of marriage” that same-sex couples still enjoy—influenced the underlying politics of Proposition 8 and shapes the basic issues in this case. The official argument in favor of Proposition 8, published in the Voter Information Guide, emphasized this distinction: "Proposition 8 doesn’t take away any rights or benefits of gay or lesbian domestic partnerships. Under California law, 'domestic partners shall have the same rights, protections, and benefits’ as married spouses. (Family Code § 297.5.) There are NO exceptions. Proposition 8 WILL NOT change this.” Voter Information Guide at 56. Moreover, Strauss observed “that an alternative, much more sweeping initiative measure—proposing the addition of a new constitutional section that would have provided not only that '[ojnly marriage between one man and one woman is valid or recognized in California,’ but also that '[njeither 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."
. 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
. When the Eighteenth Amendment was ratified, the Nation was similarly not interested in "proceeding with caution” in reallocating grain from wartime rations to alcohol production. It meant, instead, to effect a permanent ban on alcohol.
. In California, "[b] allot summaries ... in the ‘Voter Information Guide’ are recognized sources for determining the voters’ intent.” People v. Gairett,
. A contextual evaluation is both useful and appropriate as part of the "careful consideration” in which courts must engage when faced with “[djiscriminations of an unusual character.” Romer,
. The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate.
Concurrence Opinion
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,
I.
Proponents and their supporting amici (hereinafter Proponents) argue that the United States Supreme Court’s summary dismissal in Baker v. Nelson,
A.
In Baker v. Nelson, two men were denied a marriage license by a Minnesota county clerk.
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,
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,
As Justice Stewart opined in his concurrence in Zablocki v. Redhail, a State
may in many circumstances absolutely prohibit [marriage]. Surely, for example, a State may 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.
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:
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 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 them right to privacy under the Ninth and Fourteenth Amendments.
See In re Kandu,
B.
Here, we must address whether the question before us involves “the precise issues presented and necessarily decided by” Baker v. Nelson, such that the Supreme Court’s summary dismissal would have precedential effect here. Alternatively, the question before us could be one that “merely lurk[ed] in the record” of Baker, and the present case would not be resolved by the Supreme Court’s summary dismissal.
In this case, the following issues were presented for review:
1. Whether [Proponents] have standing to appeal the district court’s judgment.
2. Whether Proposition 8 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
3. Whether Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Plaintiff-Intervenor City and County of San Francisco (hereinafter San Francisco) 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 worked 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 Baker, especially when the equal protection issue is framed as San Francisco advocates.
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,
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,
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.,
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,
In equal protection analysis, rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Heller,
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,
However, “even the standard of rationality ... must find some footing in the realities of the subject addressed by the legislation.” Id. at 321,
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 “[mjoral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy i'ational basis review under the Equal Protection Clause.” Id. at 582,
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,
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,
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 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.,
Accordingly, although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationshiр designated “marriage,” in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, “the core set of basic substantive legal rights and attributes traditionally associated with marriage,” including, “most fundamentally, the opportunity of an individual to establish—with the person with whom the individual has chose to share his or her life—an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” Like opposite-sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right.
Id.,
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.”
B.
There are several ways to distinguish Romer from the present ease. 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,
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,
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.”
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,
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,
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 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.
IV.
In our case, Proponents argue that Proposition 8, defining marriage as the union of one man and onе woman, is ra
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 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.
B.
The first requirement of rational basis review is that there must be some conceivable legitimate governmental interest for the measure at issue.
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 awoman 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.... [AJlthough 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,
2.
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”:
[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 make clear that this right is not confined to, or restrictively defined by, that purpose alone. As noted above, our past cases have recognized that the right to marry is 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.... [Uhe 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,
a.
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.,
b.
In Heller, the Supreme Court stated that “legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”
Under rational basis review, the challenger has the burden to “negative every conceivable basis which might support” the measure. Id. at 320,
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,
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.”
1.
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:
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 married couples are rationally related to the government interest in “steering procreation into marriage.” By affording legal recognition and a basket of rights and benefitsto married heterosexual couples, such laws “encourage procreation to take 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 “lacks a rational relationship to legitimate state interests.”
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 “conferís] 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.
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 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,
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.”
[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 risk 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 take appropriate precautions in planning for parenthood.
Marriage Cases,
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’ theory only increases the likelihood that children are born and raised in a family structurе 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.
3.
“[C]ourts are compelled under rational-basis review to accept a legislature’s gen
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
V.
Given the presumption of validity accorded Proposition 8 for rational basis review, I am not convinced that Proposition 8 lacks a rational relationship to legitimate state interests. 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.... [Restraints 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 amatter for legislative, rather than judicial, consideration.
Beach Commc’ns,
[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,
Applying rational basis review in these circumstances also requires such restraint. As the Eighth Circuit said, in Citizens for Equal Protection,
In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge 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 Baker 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 federal question.” There is good reason for this restraint.
. Whether prohibiting marriage by same-sex couples violates due process was an issue presented and decided in Baker v. Nelson. In this case, the district court determined that "plaintiffs seek to exercise their fundamental right to marry under the Due Process Clause,” Perry v. Schwarzenegger,
. 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,
. 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 Chemerinsky, Constitutional Law: Principles and Policies 698 (4th ed.2011).
. 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 § 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 § 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 § 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 pro
. See also City of Dallas v. Stanglin,
. In Lawrence v. Texas,
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. Unlike 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.
Id. at 585,
. 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).
. In Palmore, the Supreme Court stated that "[plrivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”
While the Supreme Court quoted Palmore in Cleburne, it did so in the context of rejecting "mere negative attitudes” or "fear” as ends.