CONCLUSIONS OF LAW
Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.
DUE PROCESS
The Due Process Clause provides that no ?State [shall] deprive any person of life, liberty, or property, without due process of law.? US Const Amend XIV, § 1. Due process protects
individuals against arbitrary governmental intrusion into life, liberty or property. See Washington v Glucksberg, 521 US 702, 719-720 (1997). When legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny. Zablocki v Redhail, 434 US 374, 388 (1978).
THE RIGHT TO MARRY PROTECTS AN INDIVIDUAL?S CHOICE OF MARITAL PARTNER REGARDLESS OF GENDER
The freedom to marry is recognized as a fundamental right protected by the Due Process Clause. See, for example, Turner v Safely, 482 US 78, 95 (1987) (?[T]he decision to marry is a
fundamental right? and marriage is an ?expression[ ] of emotional support and public commitment.?); Zablocki, 434 US at 384 (1978) (?The right to marry is of fundamental importance for all individuals.?); Cleveland Board of Education v LaFleur, 414 US 632,
639-40 (1974) (?This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.?); Loving v Virginia, 388 US 1, 12 (1967) (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.?); Griswold v Connecticut, 381 US 479, 486 (1965) (?Marriage
is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.?). The parties do not dispute that the right to marry is fundamental. The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.
To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted ?in our Nation?s history, legal traditions, and practices.?
Glucksberg, 521 US at 710. Here, because the right to marry is fundamental, the court looks to the evidence presented at trial to determine: (1) the history, tradition and practice of marriage in the United States; and (2) whether plaintiffs seek to exercise their right to marry or seek to exercise some other right. Id. Marriage has retained certain characteristics throughout the history of the United States. See FF 19, 34-35. Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. FF 20, 34. The spouses must consent to support each other and any dependents. FF 34-35, 37. The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace. FF 35-37. The state respects an
individual?s choice to build a family with another and protects the relationship because it is so central a part of an individual?s life. See Bowers v Hardwick, 478 US 186, 204-205 (1986) (Blackmun, J, dissenting).
Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. FF 21. ?t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.? Lawrence, 539 US at 567. The Supreme Court
recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship. See Griswold, 381 US at 485-486.
Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre. FF 23-25. When the Supreme Court invalidated race restrictions in Loving, the definition of the right to marry did not change. 388
US at 12. Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry. Id. The marital bargain in California (along with other states) traditionally required that a woman?s legal and economic identity be subsumed by her husband?s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage
now is regarded as antithetical to the notion of marriage as a union of equals. FF 26-27, 32. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse?s role within a marriage. FF 26-27, 32. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality. The evidence at trial shows that marriage in the United States traditionally has not been open to same-sex couples. The evidence suggests many reasons for this tradition of exclusion, including gender roles mandated through coverture, FF 26-27, social disapproval of same-sex relationships, FF 74, and the reality that the vast majority of people are heterosexual and have had no reason to challenge the restriction, FF 43. The evidence shows that the movement of marriage away from a gendered institution and toward an
institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. FF 21. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed. The right to marry has been historically and remains the
right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender
inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses? obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of
equals.
Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs? relationships are consistent with the core of the history, tradition and practice of
marriage in the United States. Perry and Stier seek to be spouses; they seek the mutual obligation and honor that attend marriage, FF 52. Zarrillo and Katami seek recognition from the state that their union is ?a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.? Griswold, 381 US at 486. Plaintiffs? unions encompass the historical purpose and form of marriage. Only the plaintiffs? genders relative to one another prevent California from giving their relationships due recognition. Plaintiffs do not seek recognition of a new right. To characterize plaintiffs? objective as ?the right to same-sex marriage? would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy ?? namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.
DOMESTIC PARTNERSHIPS DO NOT SATISFY CALIFORNIA?S OBLIGATION TO
ALLOW PLAINTIFFS TO MARRY
[edited out for length, but this portion of the ruling specifoes that domestic partnerships aren't marriages, and therefore do not equate to equal rights. -m]
PROPOSITION 8 IS UNCONSTITUTIONAL BECAUSE IT DENIES PLAINTIFFS A
FUNDAMENTAL RIGHT WITHOUT A LEGITIMATE (MUCH LESS COMPELLING)
REASON
Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 US at 388. That the majority of California voters supported Proposition 8 is irrelevant, as ?fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.? West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943). Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. Carey v Population Services International, 431 US 678, 686 (1977). Because the government defendants declined to advance such arguments, proponents seized the role of asserting the existence of a compelling California interest in Proposition 8. As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less
can Proposition 8 survive the strict scrutiny required by plaintiffs? due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs? fundamental right to marry; proponents stipulated that ?[t]here is a significant symbolic disparity between domestic partnership and marriage.? Doc #159-2 at 6. Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.
EQUAL PROTECTION
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall ?deny to any person within its jurisdiction the equal protection of the laws.? US Const Amend XIV, § 1. Equal protection is ?a pledge of the protection of equal laws.? Yick Wo v Hopkins, 118 US 356, 369 (1886). The guarantee of equal protection coexists, of course, with the reality that most legislation must classify for some purpose or another. See Romer v Evans, 517 US 620, 631 (1996). When a law creates a classification but neither targets a suspect class nor burdens a fundamental right, the court presumes the law is valid and will uphold it as
long as it is rationally related to some legitimate government interest. See, for example, Heller v Doe, 509 US 312, 319-320 (1993).
The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational. Minnesota
v Clover Leaf Creamery Co, 449 US 456, 464 (1980). Even under the most deferential standard of review, however, the court must ?insist on knowing the relation between the classification adopted and the object to be attained.? Romer, 517 US at 632; Heller, 509 US at 321 (basis for a classification must ?find some footing in the realities of the subject addressed by the legislation?). The court may look to evidence to determine whether the basis for the
underlying debate is rational. Plyler v Doe, 457 US 202, 228 (1982) (finding an asserted interest in preserving state resources by prohibiting undocumented children from attending public school to be irrational because ?the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc?). The search for a rational relationship, while quite deferential,
?ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.? Romer, 517 US at 633. The classification itself must be related to the purported interest. Plyler, 457 US at 220 (?It is difficult to conceive of a rational basis for penalizing [undocumented children] for their presence within the United States,? despite the state?s interest in preserving resources.). Most laws subject to rational basis easily survive equal protection review, because a legitimate reason can nearly always be found for treating different groups in an unequal manner. See Romer, 517 US at 633. Yet, to survive rational basis review, a law must do more than disadvantage or otherwise harm a particular
group. United States Department of Agriculture v Moreno, 413 US 528, 534 (1973).
SEXUAL ORIENTATION OR SEX DISCRIMINATION
Plaintiffs challenge Proposition 8 as violating the Equal Protection Clause because Proposition 8 discriminates both on the basis of sex and on the basis of sexual orientation. Sexual orientation discrimination can take the form of sex discrimination. Here, for example, Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry?s choice of marital partner because of her sex. But Proposition 8 also operates to restrict Perry?s choice of marital partner because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian. The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation. Gays and lesbians have historically been targeted for discrimination because of their sexual orientation; that discrimination continues to the present. FF 74-76. As the case of Perry and the other plaintiffs illustrates, sex and sexual orientation are necessarily interrelated, as an individual?s choice of romantic or intimate
partner based on sex is a large part of what defines an individual?s sexual orientation. See FF 42-43. Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination.
Proponents argue that Proposition 8 does not target gays and lesbians because its language does not refer to them. In so arguing, proponents seek to mask their own initiative. FF 57.
Those who choose to marry someone of the opposite sex ?? heterosexuals ?? do not have their choice of marital partner restricted by Proposition 8. Those who would choose to marry someone of the same sex ?? homosexuals ?? have had their right to marry eliminated by an amendment to the state constitution. Homosexual conduct and identity together define what it means to be gay or lesbian. See FF 42-43. Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian. Lawrence, 539 US at 579; FF 42- 43; see also Christian Legal Society v Martinez, 561 US __, 130 SCt
2971, No 08-1371 Slip Op at 23 (?Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].?) (June 28, 2010) (citing Lawrence, 539 US at 583 (O?Connor, J, concurring)). Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs? equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.
STANDARD OF REVIEW
As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review. Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect. Massachusetts Board of Retirement v Murgia, 427 US 307, 313 (1976) (noting that strict scrutiny may be appropriate where a group has experienced a ??history of purposeful unequal treatment? or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities? (quoting San Antonio School District v Rodriguez, 411 US 1, 28 (1973)). See FF 42-43, 46-48, 74-78. Proponents admit that ?same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities.? PX0707 at RFA No 21. The court asked the parties to identify a difference between heterosexuals and homosexuals that the government might fairly need to take into account when crafting legislation. Doc #677 at 8. Proponents pointed only to a difference between samesex couples (who are incapable through sexual intercourse of producing offspring biologically related to both parties) and opposite-sex couples (some of whom are capable through sexual intercourse of producing such offspring). Doc #687 at 32-34. Proponents did not, however, advance any reason why the government may use sexual orientation as a proxy for fertility or why the government may need to take into account fertility when legislating. Consider, by contrast, City of Cleburne v Cleburne Living Center, 473 US 432, 444 (1985) (Legislation singling out a class for differential treatment hinges upon a demonstration of ?real and undeniable differences? between the class and others); see also United States v Virginia, 518 US 515, 533 (1996)
(?Physical differences between men and women * * * are enduring.?). No evidence at trial illuminated distinctions among lesbians, gay men and heterosexuals amounting to ?real and undeniable differences? that the government might need to take into account in legislating.
The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.
PROPOSITION 8 DOES NOT SURVIVE RATIONAL BASIS
Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate
state interest. One example of a legitimate state interest in not issuing marriage licenses to a particular group might be a scarcity of marriage licenses or county officials to issue them. But marriage licenses in California are not a limited commodity, and the existence of 18,000 same-sex married couples in California shows that the state has the resources to allow both same-sex and opposite-sex couples to wed. See Background to Proposition 8 above. Proponents put forth several rationales for Proposition 8, see Doc #605 at 12-15, which the court now examines in turn: (1) reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; (2) proceeding with caution when implementing social changes; (3) promoting oppositesex parenting over same-sex parenting; (4) protecting the freedom of those who oppose marriage for same-sex couples; (5) treating same-sex couples differently from opposite-sex couples; and (6) any other conceivable interest.
