Perry v. Brown (abridged version)

I know that it’s a long post, but 9th Circuit judge, Stephen Reinhardt’s opinion — which upholds the lower court’s finding that Proposition 8 is unconstitutional — is such a beautifully written document. Give it a read and tell me that you don’t feel like the giant ship of history isn’t starting to turn in a more just direction.

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.

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.” Now as before, same-sex partners may:

  • Raise children together, and have the same rights and obligations as to their children as spouses have;
  • Enjoy the presumption of parentage as to a child born to either partner;
  • Adopt each other’s children;
  • Become foster parents;
  • Share community property;
  • File state taxes jointly;
  • Participate in a partner’s group health insurance policy on the same terms as a spouse;
  • Enjoy hospital visitation privileges;
  • Make medical decisions on behalf of an incapacitated partner;
  • Be treated in a manner equal to that of a widow or widower with respect to a deceased partner;
  • Serve as the conservator of a partner’s estate;
  • Sue for the wrongful death of a partner—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. In adopting the amendment, the People simply took the designation of ‘marriage’ away from lifelong same-sex partnerships, and with it the State’s authorization of that official status and the societal approval that comes with it.

By emphasizing Proposition 8’s limited effect, we do not mean to minimize the harm that this change in the law caused to same-sex couples and their families. To the contrary, we emphasize the extraordinary significance of the official 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. As Proponents have admitted, “the word ‘marriage’ has a unique meaning,” and “there is a significant symbolic disparity between domestic partnership and marriage.” It is the designation of ‘marriage’ itself that expresses validation, by the state and the community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important.

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 alter- native 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. . .

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 the same governmental and societal recognition as does the designation of ‘marriage’ itself. We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of ‘marriage’ is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.

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.” 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?

. . .

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 allow for “laws of this sort.”

“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.” Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite- sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.

Thus, as a result of our “traditional reluctance to extend constitutional interpretations to situations or facts which are not before the Court, much of the excellent research and detailed argument presented in th[is] case[ ] is unnecessary to [its] disposition.” 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. It is for the State of California to decide who may assert its interests in litigation, and we respect its decision by holding that Proposition 8’s proponents have standing to bring this appeal on behalf of the State. We there- fore conclude that, through the proponents of ballot measures, the People of California must be allowed to defend in federal courts, including on appeal, the validity of their use of the initiative power. Here, however, their defense fails on the merits. The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry. Accordingly, we affirm the judgment of the district court.

. . .

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. 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.” The law thus “withdr[ew] from homosexuals, but no others, specific legal protection . . . , and it forb[ade] reinstatement of these laws and policies.” 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.” 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.” Proposition 8 is remarkably similar to Amendment 2. Like Amendment 2, Proposition 8 “single[s] out a certain class of citizens for disfavored legal status . . . .”. Like Amendment 2, Proposition 8 has the “peculiar property,” of “withdraw[ing] from homosexuals, but no others,” an existing legal right—here, access to the official designation of ‘marriage’—that had been broadly available, notwithstanding the fact that the Constitution did not compel the state to confer it in the first place. Like Amendment 2, Proposition 8 denies “equal protection of the laws in the most literal sense,” because it “carves out” an “exception” to California’s equal protection clause, by removing equal access to marriage, which gays and lesbians had previously enjoyed, from the scope of that constitutional guarantee. Like Amendment 2, Proposition 8 “by state decree . . .  put[s] [homosexuals] in a solitary class with respect to” an important aspect of human relations, and accordingly “imposes a special disability upon [homosexuals] alone.” And like Amendment 2, Proposition 8 constitutionalizes that disability, meaning that gays and lesbians may overcome it “only by enlisting the citizenry of [the state] to amend the State Constitution” for a second time. As we explain below, Romer compels that we affirm the judgment of the district court.

To be sure, there are some differences between Amendment 2 and Proposition 8. Amendment 2 “impos[ed] a broad and undifferentiated disability on a single named group” by “identif[ying] persons by a single trait and then den[ying] them protection across the board.” 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.

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. 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.” In short, Romer governs our analysis notwithstanding the differences between Amendment 2 and Proposition 8.

There is one further important similarity between this case and Romer. Neither case requires that the voters have stripped the state’s gay and lesbian citizens of any federal constitutional right. In Romer, Amendment 2 deprived gays and lesbians of statutory protections against discrimination; here, Proposition 8 deprived same-sex partners of the right to use the designation of ‘marriage.’ There is no necessity in either case that the privilege, benefit, or protection at issue be a constitutional right. We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further, we express no view on those questions.

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.” 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. 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.  As in Romer, therefore, we must consider whether any legitimate state interest constitutes a rational basis for Proposition 8; otherwise, we must infer that it was enacted with only the constitutionally illegitimate basis of “animus toward the class it affects.”

Before doing so, we briefly consider one other objection that Proponents raise to this analysis: the argument that because the Constitution “is not simply a one-way ratchet that forever binds a State to laws and policies that go beyond what the Fourteenth Amendment would otherwise require,” the State of California—“ ‘having gone beyond the requirements of the Federal Constitution’ ” in extending the right to marry to same-sex couples—“ ‘was free to return . . . to the standard prevailing generally throughout the United States.’ ” Proponents appear to suggest that unless the Fourteenth Amendment actually requires that the designation of ‘marriage’ be given to same-sex couples in the first place, there can be no constitutional infirmity in taking the designation away from that group of citizens, whatever the People’s reason for doing so. 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. Rather, “[s]tates ha[d] chosen to counter discrimination by enacting detailed statutory schemes” prohibiting discrimination in employment and public accommodations, among other contexts, and certain Colorado jurisdictions had chosen to extend those protections to gays and lesbians. It was these elective protections that Amendment 2 withdrew and forbade. The relevant inquiry in Romer was not whether the state of the law after Amendment 2 was constitutional; there was no doubt that the Fourteenth Amendment did not require anti-discrimination protections to be afforded to gays and lesbians. The question, instead, was whether the change in the law that Amendment 2 effected could be justified by some legitimate purpose.

The Supreme Court’s answer was “no”—there was no legitimate reason to 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.


The primary rationale Proponents offer for Proposition 8 is that it advances California’s interest in responsible procreation and childrearing. 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. Both before and after Proposition 8, committed opposite-sex couples (“spouses”) and same-sex couples (“domestic partners”) had identical rights with regard to forming families and raising children. Similarly, Proposition 8 did not alter the California adoption or presumed- parentage laws, which continue to apply equally to same-sex couples.  In order to be rationally related to the purpose of funneling more childrearing into families led by two biological parents, Proposition 8 would have had to modify these laws in some way. It did not do so.

Moreover, California’s “current policies and conduct . . . recognize that gay individuals are fully capable of . . . responsibly caring for and raising children.” 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. California thus has demonstrated through its laws that Proponents’ first rationale cannot “reasonably be conceived to be true by the governmental decisionmaker.” We will not credit a justification for Proposition 8 that is totally inconsistent with the measure’s actual effect and with the operation of California’s family laws both before and after its enactment.

Proponents’ second argument is that there is no need to hold out the designation of ‘marriage’ as an encouragement for same-sex couples to engage in responsible procreation, 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. But Plaintiffs do not ask that marriage be extended to anyone. As we have by now made clear, the question is whether there is a legitimate governmental interest in withdrawing access to marriage from same-sex couples. We therefore need not decide whether, under Johnson, California would be justified in not extending the designation of ‘marriage’ to same-sex couples; that is not what Proposition 8 did. Johnson concerns decisions not to add to a legislative scheme a group that is unnecessary to the purposes of that scheme, but Proposition 8 subtracted a disfavored group from a scheme of which it already was a part.

Under Romer, it is no justification for taking something away to say that there was no need to provide it in the first place; instead, there must be some legitimate reason for the act of taking it away, a reason that overcomes the “inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” In order to explain how rescinding access to the designation of ‘marriage’ is rationally related to the State’s interest in responsible procreation, Proponents would have had to argue that opposite-sex couples were more likely to procreate accidentally or irresponsibly when same-sex couples were allowed access to the designation of ‘marriage.’ We are aware of no basis on which this argument would be even conceivably plausible. There is no rational reason to think that taking away the designation of ‘marriage’ from same-sex couples would advance the goal of encouraging California’s opposite- sex couples to procreate more responsibly. The Johnson argument, to put it mildly, does not help Proponents’ cause.

Given the realities of California law, and of human nature, both parts of Proponents’ primary rationale simply “find [no] footing in the realities of the subject addressed by the legislation,” and thus cannot be credited as rational. 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. 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. . . Only if Proposition 8 had actually had any effect on childrearing or “responsible procreation” would it be necessary or appropriate for us to consider the legitimacy of Proponents’ primary rationale for the measure.  Here, given all other pertinent aspects of California law, Proposition 8 simply could not have the effect on procreation or childbearing that Proponents claim it might have been intended to have. Accordingly, an interest in responsible procreation and childbearing cannot provide a rational basis for the measure.

We add one final note. To the extent that it has been argued that withdrawing from same-sex couples access to the designation of ‘marriage’—without in any way altering the substantive laws concerning their rights regarding childrearing or family formation—will encourage heterosexual couples to enter into matrimony, or will strengthen their matrimonial bonds, we believe that the People of California “could not reasonably” have “conceived” such an argument “to be true.” 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.” “[E]ven the standard of rationality . . . must find some footing in the realities of the subject addressed by the legislation.” Here, the argument that withdrawing the designation of ‘marriage’ from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality.



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. 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. . . Perhaps what Proponents mean is that California had an interest in pausing at 18,000 married same-sex couples to evaluate whether same-sex couples should continue to be allowed to marry, or whether the same-sex marriages that had already occurred were having any adverse impact on society. Even if that were so, there could be no rational connection between the asserted purpose of “proceeding with caution” and the enactment of an absolute ban, unlimited in time, on same-sex marriage in the state constitution. To enact a constitutional prohibition is to adopt a fundamental barrier: it means that the legislative process, by which incremental policymaking would normally proceed, is completely foreclosed. Once Proposition 8 was enacted, any future steps forward, however cautious, would require “enlisting the citizenry of [California] to amend the State Constitution” once again.

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. The avowed purpose of Proposition 8 was to return with haste to a time when same-sex couples were barred from using the official designation of ‘marriage,’ not to study the matter further before deciding whether to make the designation more equally available.



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. 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.” Rather, the religious-liberty interest that Proposition 8 supposedly promoted was to decrease the likelihood that religious organizations would be penalized, under California’s anti-discrimination 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 anti-discrimination 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 anti-discrimination laws to include greater accommodations for religious organizations. 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.” 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.” 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.” 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 facts of the world around them. But to protest the teaching of these facts is little different from protesting their very existence; it is like opposing the election of a particular governor on the ground that students would learn about his holding office, or opposing the legitimation of no-fault divorce because a teacher might allude to that fact if a course in societal structure were taught to graduating seniors. The prospect of children learning about the laws of the State and society’s assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of those rights they presently enjoy.



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 relation- ships and thus to deprive them of a societal status that affords dignity to those relationships. Proposition 8 could not have reasonably been enacted to promote childrearing by biological parents, to encourage responsible procreation, to proceed with 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.” We therefore need not, and do not, decide whether any of these purported rationales for the law would be “legitimate,” or would suffice to justify Proposition 8 if the amendment actually served to further them.


E 1

We are left to consider why else the People of California might have enacted a constitutional amendment that takes away from gays and lesbians the right to use the designation of ‘marriage.’ One explanation is the desire to revert to the way things were prior to the Marriage Cases, when ‘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.” But tradition alone is not a justification for taking away a right that had already been granted, even though that grant was in derogation of tradition. In Romer, it did not matter that at common law, gays and lesbians were afforded no protection from discrimination in the private sphere; Amendment 2 could not be justified on the basis that it simply repealed positive law and restored the “traditional” state of affairs. Precisely the same is true here.

Laws may be repealed and new rights taken away if they have had unintended consequences or if there is some conceivable affirmative good that revocation would produce, 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. “[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” If tradition alone is insufficient to justify maintaining a prohibition with a discriminatory effect, then it is necessarily insufficient to justify changing the law to revert to a previous state. A preference for the way things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves, as well as their families.

Absent any legitimate purpose for Proposition 8, we are left with “the inevitable inference that the disadvantage imposed is born of animosity toward,” or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, “the class of persons affected.” 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.” Disapproval may also be the product of longstanding, sincerely held private beliefs. Still, while “[p]rivate biases may be outside the reach of the law, . . . the law cannot, directly or indirectly, give them effect.” Ultimately, the “inevitable inference” we must draw in this circumstance is not one of ill will, but rather one of disapproval of gays and lesbians as a class. “[L]aws singling out a certain class of citizens for disfavored legal status or general hardships are rare.” Under Romer, we must infer from Proposition 8’s effect on California law that the People took away from gays and lesbians the right to use the official designation of ‘marriage’ —and the societal status that accompanies it—because they disapproved of these individuals as a class and did not wish them to receive the same official recognition and societal approval of their committed relationships that the State makes available to opposite-sex couples.

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,” 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. By withdrawing the availability of the recognized designation of ‘marriage,’ Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class.

Just as a “desire to harm . . . cannot constitute a legitimate governmental interest,” neither can a more basic disapproval of a class of people. “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. 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.” 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. . . 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.” 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. The district court found that “[t]he campaign to pass Proposition 8 relied on stereo types to show that same-sex relationships are inferior to opposite-sex relationships.” Television and print advertisements “focused on . . . the concern that people of faith and religious groups would somehow be harmed by the recognition of gay marriage” and “conveyed a message that gay people and relationships are inferior, that homosexuality is undesirable and that children need to be protected from exposure to gay people and their relationships.” These messages were not crafted accidentally. The strategists responsible for the campaign in favor of Proposition 8 later explained their approach: “ ‘[T]here were limits to the degree of tolerance Californians would afford the gay community. They would entertain allowing gay marriage, but not if doing so had significant implications for the rest of society,’ ” such as what children would be taught in school. Nor were these messages new; for decades, ballot measures regarding homosexuality have been presented to voters in terms designed to appeal to stereotypes of gays and lesbians as predators, threats to children, and practitioners of a deviant “lifestyle.” The messages presented here mimic those presented to Colorado voters in support of Amendment 2. . . 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.” 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. “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. 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.” 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.



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

7 responses to “Perry v. Brown (abridged version)”

  1. LP says:

    It’s always wonderful to read an official document of any kind that reaffirms why people should be allowed to marry, and of course it’s all the better when it’s a judicial decision. But I’m still so nervous about the next phase of all this… I’ve read pundits who suggest that this is a fantastic opinion to push our case forward, and those who’ve said it’s too narrowly tailored. I’ve heard others suggest that the Supreme Court might not even hear the case, since the opinion is written so specifically to California.

    If the Supreme Court does hear the case, I will be a quivering wreck until the decision comes down. If we win, absolutely everything changes in this country, instantly. If we lose, we are set so far back that I might wish we’d never brought the case at all, especially since the more time goes by, the more public opinion here grows in favor of marriage, and the greater the likelihood that we would win. There’s a 4-4 split on the court right now, with one swing vote. Eeeeeeeeeeeks.

  2. SG says:

    One analysis that I’ve read suggests that the Court might not take the case (both sides being too unsure which way Kennedy will go) which means that this ruling stands, and marriage equality is once again instituted in California. But it wouldn’t mean equality in other states — of course, other federal courts would have this ruling to use as precedent in their own rulings.

    As for the timing of this case going to the Supreme Court, it all depends on who occupies that old White House for the next four years, doesn’t it… If Mr. Obama were to lose, it might be the best (or only) time for the case to be affirmed. YIKES!

  3. LP says:

    Yes – however, even if marriage equality is reinstituted in California, we still don’t have any federal rights thanks to DOMA, so we’re still pretty screwed. However, if the Supreme Court were to hear the case and rule in our favor, that’s when dominos start falling fast. Ultimately, until DOMA is gone, it’s nice to be able to marry in certain states, but the real battle is yet to be won.

    And… I am one of those who simply can’t believe that any of the candidates left for the R’s could possibly win in the general election. In order to get the nomination, they have to contort themselves so much to win the fringes that they make themselves really unappealing for the rest of the electorate. If Obama got four more years AND a chance to replace a conservative-leaning justice, then we’d really be talking.

    Anyway, it is nice to celebrate a decision that so resoundingly confirms our cause. Thanks for posting it.

  4. swells says:

    Here’s an interesting article detailing why Romer v. Evans might not be the most watertight defense against Prop 8–but why 1973’s Lawrence v Texas might serve us better:,0,2509949.story?track=rss

  5. SG says:

    …or Reinhard is bringing another opinion (also written by Kennedy) into the argument, and therefore strengthening the entire body of cases against Prop 8’s constitutionality.

  6. Dave says:

    Lawrence v. Texas was 2003. Also a Kennedy decision.

    I think Reinhardt’s decision is brilliant politics. (It’s also delightful and very clear.) The core of it is applying the logic of Romer to the Prop 8 case. This results in a narrower opinion than some would like, but it’s specifically tailored to appeal to Kennedy, who everyone knows is the swing vote if the Supremes decide to take an appeal.

    I would be very surprised if the Prop 8 proponents don’t appeal, but they might choose to appeal to the 9th Circuit en banc before going to the Supremes. Nobody knows. But given how the Prop 8 proponents are so ideologically committed to a losing cause, I can’t imagine them just leaving this be. I also can’t imagine the Supremes not taking the appeal when given the chance; it’s just too big and sexy an issue. When they hear the case, I think we’ll be glad Reinhardt wrote this opinion the way he did.

    There are several very good challenges to DOMA in the courts right now, and all things being equal at least one of them will get to the Supreme Court before the Prop 8 case does. The DOMA challenges present trickier constitutional issues for a conservative like Kennedy, and I have no idea what the court is likely to do. Also, even a complete repeal of DOMA wouldn’t force non-equality states to recognize same-sex marriages, under the longstanding doctrine that a state doesn’t have to recognize marriages performed in other states if they violate the state’s public policy. I imagine it actually would take a fairly sweeping Supreme Court decision to make universal inter-state marriage equality happen, along the lines of Loving v. Virginia (still the greatest Supreme Court case name of all time). Of course, who knows, maybe Justice Kennedy will go beyond Reinhardt’s decision when he gets to rule on Perry, and cite (with apologies for non-gender-neutral language?) Chief Justice Warren’s words from Loving: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. “

  7. Dave says:

    And LP, I am totally with you in not being able to see how any of the current Republicans could win in November. On the other hand, lots of Republicans didn’t like McCain during the primaries but rallied around him once he clinched the nomination. On the other hand, Romney is now losing to Obama in polls of independent voters, and the more people get acquainted with Mittens the less they like him.

    It would be great if Obama got to replace one or two of the arch-conservatives on the court, although we would still have a serious shortage of genuine liberal justices. (Let alone lefty justices — why do I have trouble even imagining a justice as far to the left as Justice Thomas is to the right?)