KRISTIN PERRY v. EDMUND G. BROWN, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY; SANDRA B. 

STIER; PAUL T. KATAMI; JEFFREY J.

ZARRILLO,

Plaintiffs-Appellees,

CITY AND COUNTY OF SAN

FRANCISCO,

Intervenor-Plaintiff-Appellee,

v.

EDMUND G. BROWN, JR., in his

official capacity as Governor of

California; KAMALA D. HARRIS, in

her official capacity as Attorney

General of California; MARK B.

HORTON, in his official capacity as

Director of the California 

Department of Public Health &

State Registrar of Vital Statistics;

LINETTE SCOTT, in her official

capacity as Deputy Director of

Health Information & Strategic

Planning for the California

Department of Public Health;

PATRICK O’CONNELL, in his official

capacity as Clerk-Recorder for the

County of Alameda; DEAN C.

LOGAN, in his official capacity as

Registrar-Recorder/County Clerk

for the County of Los Angeles,

Defendants,



1569

1570 PERRY v. BROWN

HAK-SHING WILLIAM TAM, 

Intervenor-Defendant,

and

DENNIS HOLLINGSWORTH; GAIL J. No. 10-16696

KNIGHT; MARTIN F. GUTIERREZ;

MARK A. JANSSON;  D.C. No.

3:09-cv-02292-

PROTECTMARRIAGE.COM-YES ON 8, VRW

A PROJECT OF CALIFORNIA

RENEWAL, as official proponents of

Proposition 8,

Intervenor-Defendants-Appellants.



KRISTIN M. PERRY; SANDRA B. 

STIER; PAUL T. KATAMI; JEFFREY J.

ZARRILLO,

Plaintiffs-Appellees,

CITY AND COUNTY OF SAN

FRANCISCO,

Intervenor-Plaintiff-Appellee,

v.

EDMUND G. BROWN, JR., in his 

official capacity as Governor of

California; KAMALA D. HARRIS, in

her official capacity as Attorney

General of California; MARK B.

HORTON, in his official capacity as

Director of the California

Department of Public Health &

State Registrar of Vital Statistics;



PERRY v. BROWN 1571

LINETTE SCOTT, in her official 

capacity as Deputy Director of

Health Information & Strategic

Planning for the California

Department of Public Health;

PATRICK O’CONNELL, in his official

capacity as Clerk-Recorder for the

County of Alameda; DEAN C.

LOGAN, in his official capacity as

Registrar-Recorder/County Clerk

for the County of Los Angeles, No. 11-16577

HAK-SHING WILLIAM TAM,

Defendants,

 D.C. No.

3:09-cv-02292-JW

Intervenor-Defendant, OPINION

and

DENNIS HOLLINGSWORTH; GAIL J.

KNIGHT; MARTIN F. GUTIERREZ;

MARK A. JANSSON;

PROTECTMARRIAGE.COM-YES ON 8,

A PROJECT OF CALIFORNIA

RENEWAL, as official proponents of

Proposition 8,

Intervenor-Defendants-Appellants.



Appeal from the United States District Court

for the Northern District of California

Vaughn R. Walker, Chief District Judge, Presiding

(No. 10-16696)

James Ware, Chief District Judge, Presiding

(No. 11-16577)

1572 PERRY v. BROWN

No. 10-16696:

Argued and Submitted December 6, 2010

San Francisco, California

Submission Withdrawn January 4, 2011

Resubmitted February 7, 2012

No. 11-16577:

Argued and Submitted December 8, 2011

San Francisco, California

Filed February 7, 2012

Before: Stephen Reinhardt, Michael Daly Hawkins, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Reinhardt;

Partial Concurrence and Partial Dissent by

Judge N.R. Smith

1576 PERRY v. BROWN

COUNSEL

No. 10-16696:

Theodore J. Boutrous, Jr., Christopher D. Dusseault, Theane

Evangelis Kapur, Sarah E. Piepmeier, Enrique A. Monagas,

and Joshua S. Lipshutz, Gibson, Dunn & Crutcher LLP, Los

Angeles, California; Theodore B. Olson (argued), Matthew D.

McGill, and Amir C. Tayrani, Gibson, Dunn & Crutcher LLP,

Washington, D.C.; David Boies (argued), Jeremy M. Gold-

man, and Theodore H. Uno, Boies, Schiller & Flexner LLP,

PERRY v. BROWN 1577

Armonk, New York; for plaintiffs-appellees Kristin M. Perry,

Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo.

Dennis J. Herrera, City Attorney; Therese M. Stewart

(argued), Chief Deputy City Attorney; Christine Van Aken

and Mollie M. Lee, Deputy City Attorneys; San Francisco,

California; for intervenor-plaintiff-appellee City and County

of San Francisco.

Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom,

California; Charles J. Cooper (argued), David H. Thompson,

Howard C. Nielson, Jr., and Peter A. Patterson, Cooper and

Kirk, PLLC, Washington, D.C.; Brian W. Raum and James A.

Campbell, Alliance Defense Fund, Scottsdale, Arizona; for

intervenor-defendants-appellants Dennis Hollingsworth, Gail

J. Knight, Martin F. Gutierrez, Mark A. Jansson, and Protect-

Marriage.com.

James Joseph Lynch, Jr., Sacramento, California; for amicus

curiae Margie Reilly.

Paul Benjamin Linton, Thomas More Society, Northbrook,

Illinois; Christopher M. Gacek, Family Research Council,

Washington, D.C.; Thomas Brejcha, Thomas More Society,

Chicago, Illinois; for amicus curiae The Family Research

Council.

Kelly J. Shackelford, Jeffrey C. Mateer, Hiriam S. Sasser, III,

and Justin E. Butterfield, Liberty Institute, Plano, Texas; for

amici curiae Liberty Institute, Association of Maryland Fami-

lies, California Family Council, Center for Arizona Policy,

Citizens for Community Values, Cornerstone Action, Corner-

stone Family Council, Delaware Family Policy Council, Fam-

ily Action Council of Tennessee, The Family Foundation, The

Family Policy Council of West Virginia, Family Policy Insti-

tute of Washington, Florida Family Policy Council, Georgia

Family Council, Illinois Family Institute, Independence Law

Center, Iowa Family Policy Center, Louisiana Family Forum

1578 PERRY v. BROWN

Action, Massachusetts Family Institute, Michigan Family

Forum, Minnesota Family Council, Missouri Family Policy

Council, Montana Family Foundation, New Jersey Family

First, New Jersey Family Policy Council, North Carolina

Family Policy Council, Oklahoma Family Policy Council,

Oregon Family Council, Palmetto Family Council, Pennsyl-

vania Family Institute, Wisconsin Family Action, and

Wywatch Family Action.

Lynn D. Wardle, Marriage Law Project, J. Reuben Clark Law

School, Provo, Utah; Stephen Kent Ehat, Lindon, Utah; Lin-

coln C. Oliphant, Columbus School of Law, The Catholic

University of America, Washington, D.C.; for amici curiae

High Impact Leadership Coalition, The Center for Urban

Renewal and Education, and The Frederick Douglass Founda-

tion, Inc.

Dean R. Broyles and James M. Griffiths, The Western Center

for Law & Policy, Escondido, California; for amici curiae

Parents and Friends of Ex-Gays and Desert Stream Ministries.

M. Edward Whelan III, Ethics and Public Policy Center,

Washington, D.C.; for amicus curiae The Ethics and Public

Policy Center.

Mary E. McAlister, Stephen M. Crampton, and Rena M.

Lindevaldsen, Liberty Counsel, Lynchburg, Virginia; Mat-

thew D. Staver and Anita L. Staver, Liberty Counsel,

Orlando, Florida; for amici curiae Liberty Counsel, Campaign

for Children and Families, and JONAH Inc.

Jay Alan Sekulow, Stuart J. Roth, and Walter M. Weber,

American Center for Law & Justice, Washington, D.C.; for

amicus curiae The American Center for Law and Justice.

Donald W. MacPherson, The MacPherson Group, Phoenix,

Arizona; for amicus curiae The Hausvater Project.

PERRY v. BROWN 1579

Matthew B. McReynolds and Kevin T. Snider, Pacific Justice

Institute, Sacramento, California; for amicus curiae Pacific

Justice Institute.

Von G. Keetch, Alexander Dushku, and R. Shawn Gunnar-

son, Kirton & McConkie, Salt Lake City, Utah; Anthony R.

Picarello, Jr., Jeffrey Hunter Moon, and Michael F. Moses,

U.S. Conference of Catholic Bishops, Washington, D.C.; Carl

H. Esbeck, National Association of Evangelicals, Washing-

ton, D.C.; James F. Sweeney, Sweeney & Greene LLP, Elk

Grove, California; for amici curiae United States Conference

of Catholic Bishops, California Catholic Conference, National

Association of Evangelicals, The Church of Jesus Christ of

Latter-day Saints, The Ethics & Religious Liberty Commis-

sion, Lutheran Church–Missouri Synod, Calvary Chapel Fel-

lowship of Ministries of California, The Christian and

Missionary Alliance, Coral Ridge Ministries, The Council of

Korean Churches in Southern California, Southern California

Korean Ministers Association, and Holy Movement for Amer-

ica.

Kristen K. Waggoner and Steven T. O’Ban, Ellis, Li & McK-

instry PLLC, Seattle, Washington; for amici curiae Robert P.

George, Sherif Girgis, and Ryan T. Anderson.

Gary G. Kreep, United States Justice Foundation, Ramona,

California; for amicus curiae National Association for

Research & Therapy of Homosexuality (NARTH).

Abram J. Pafford, Pafford, Lawrence & Ross, PLLC, Wash-

ington, D.C.; for amicus curiae American College of Pediatri-

cians.

John C. Eastman, Anthony T. Caso, and Karen J. Lugo, Cen-

ter for Constitutional Jurisprudence, Orange, California; for

amicus curiae Center for Constitutional Jurisprudence.

1580 PERRY v. BROWN

Kevin J. Hasson and Lori H. Windham, The Becket Fund for

Religious Liberty, Washington, D.C.; for amicus curiae The

Becket Fund for Religious Liberty.

Steven W. Fitschen, The National Legal Foundation, Virginia

Beach, Virginia; for amicus curiae National Legal Founda-

tion.

Lawrence J. Joseph, Washington, D.C.; for amicus curiae

Eagle Forum Education & Legal Defense Fund.

Holly L. Carmichael, Los Gatos, California; for amicus curiae

Concerned Women of America.

William C. Duncan, Marriage Law Foundation, Lehi, Utah;

Joshua K. Baker, National Organization for Marriage, Wash-

ington, D.C.; for amici curiae National Organization for Mar-

riage, National Organization for Marriage Rhode Island, and

Family Leader.

Herbert G. Grey, Beaverton, Oregon; for amicus curiae Paul

McHugh.

Eugene Dong, Palo Alto, California; for amicus curiae

Eugene Dong.

Gregory F. Zoeller, Attorney General; Thomas M. Fischer,

Solicitor General; and Ellen H. Meilaender, Deputy Attorney

General, State of Indiana; Kenneth T. Cuccinelli, II, Attorney

General; E. Duncan Getchell, Solicitor General; and Stephen

McCullough, Deputy Solicitor General, State of Virginia;

Michael A. Cox, Attorney General and Eric Restuccia, Solici-

tor General, State of Michigan; James D. Caldwell, Attorney

General and Kyle Duncan, Appellate Chief, State of Louisi-

ana; Troy King, Attorney General, State of Alabama; Daniel

S. Sullivan, Attorney General, State of Alaska; Bill McCol-

lum, Attorney General, State of Florida; Lawrence G. Was-

den, Attorney General, State of Idaho; Jon Bruning, Attorney

PERRY v. BROWN 1581

General, State of Nebraska; Thomas W. Corbett, Jr., Attorney

General, Commonwealth of Pennsylvania; Henry McMaster,

Attorney General, State of South Carolina; Mark L. Shurtleff,

Attorney General, State of Utah; Bruce A. Salzburg, Attorney

General, State of Wyoming; for amici curiae States of Indi-

ana, Virginia, Louisiana, Michigan, Alabama, Alaska, Flor-

ida, Idaho, Nebraska, Pennsylvania, South Carolina, Utah,

and Wyoming.

Kenneth A. Klukowski, American Civil Rights Union, Alex-

andria, Virginia; for amicus curiae American Civil Rights

Union.

Richard G. Katerndahl, San Rafael, California; for amicus

curiae Catholics for the Common Good.

Jerome C. Roth, Michelle Friedland, Mark R. Conrad, and

Miriam L. Seifter, Munger, Tolles & Olson LLP, San Fran-

cisco, California; for amici curiae Bay Area Lawyers for Indi-

vidual Freedom, Alameda County Bar Association, Bar

Association of San Francisco, Los Angeles County Bar Asso-

ciation, Marin County Bar Association, Santa Clara County

Bar Association, AIDS Legal Referral Panel, API Equality–

LA, Asian American Bar Association of the Greater Bay

Area, Asian Pacific American Bar Association of Los Ange-

les County, Asian Pacific Bar Association of Silicon Valley,

Asian Pacific Islander Legal Outreach, Bay Area Association

of Muslim Lawyers, California Employment Lawyers Associ-

ation, California Women’s Law Center, East Bay La Raza

Lawyers Association, Equal Justice Society, Family Equality

Council, Filipino Bar Association of Northern California,

Freedom to Marry, Impact Fund, Japanese American Bar

Association of Greater Los Angeles, Korean American Bar

Association of Northern California, Latina and Latino Critical

Legal Theory, Inc., Law Foundation of Silicon Valley, Law-

yers’ Committee for Civil Rights of the San Francisco Bay

Area, Legal Aid Society-Employment Law Center, Lesbian

and Gay Lawyers Association of Los Angeles, Marriage

1582 PERRY v. BROWN

Equality USA, Mexican American Bar Association, National

Asian Pacific American Bar Association, National Lawyers

Guild San Francisco Bay Area Chapter, People for the Ameri-

can Way Foundation, Queen’s Bench Bar Association, San

Francisco Chamber of Commerce, San Francisco La Raza

Lawyers Association, San Francisco Trial Lawyers Associa-

tion, Santa Clara County Black Lawyers Association, Society

of American Law Teachers, South Asian Bar Association of

Northern California, Transgender Law Center, and Women

Lawyers of Alameda County.

Elizabeth B. Wydra, David H. Gans, Douglas T. Kendall, and

Judith E. Schaeffer, Constitutional Accountability Center,

Washington, D.C.; for amicus curiae Constitutional Account-

ability Center.

Daniel H. Squire, Wilmer Cutler Pickering Hale and Dorr

LLP, Washington, D.C.; Alan E. Schoenfeld, David Sapir

Lesser, and Erin G.H. Sloane, Wilmer Cutler Pickering Hale

and Dorr LLP, New York, New York; for amici curiae Legis-

lators from United States Jurisdictions That Have Legalized

Same-Sex Marriage.

Nathalie F.P. Gilfoyle, American Psychological Association,

Washington, D.C.; Paul M. Smith, William M. Hohengarten,

and Julia K. Martinez, Jenner & Block LLP, Washington,

D.C.; for amici curiae American Psychological Association,

The California Psychological Association, The American Psy-

chiatric Association, and The American Association for Mar-

riage and Family Therapy.

Laura W. Brill, Nicholas F. Daum, and Richard M. Simon,

Kendall Brill & Klieger LLP, Los Angeles, California; for

amicus curiae Jon B. Eisenberg.

Herma Hill Kay, University of California—Berkeley School

of Law, Berkeley, California; Michael S. Wald, Stanford Law

PERRY v. BROWN 1583

School, Stanford, California; for amici curiae California Pro-

fessors of Family Law.

Aderson François, Howard University School of Law Civil

Rights Clinic, Washington, D.C.; Ayesha N. Khan, Ameri-

cans United for Separation of Church and State, Washington

D.C.; Brad W. Seiling, Kathryn A.B. Bartow, and Benjamin

G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, Cali-

fornia; Jon B. Streeter, Susan J. Harriman, and Jo W. Golub,

Keker & Van Nest, LLP, San Francisco, California; for amici

curiae Howard University School of Law Civil Rights Clinic

and Americans United for Separation of Church and State.

Justin Ford, O’Melveny & Myers LLP, Los Angeles, Califor-

nia; Walter Dellinger, Jonathan D. Hacker, Sarah Goldfrank,

and Anton Metlitsky, O’Melveny & Myers LLP, Washington,

D.C.; for amicus curiae National LGBT Bar Association.

Martha Coakley, Attorney General; Maura T. Healey, Jona-

than B. Miller, and Christopher K. Barry-Smith, Assistant

Attorneys General, Boston, Massachusetts; for amicus curiae

The Commonwealth of Massachusetts.

Christopher L. Lebsock and Arthur N. Bailey, Jr., Hausfeld

LLP, San Francisco, California; for amicus curiae The Cali-

fornia Teachers Association.

Steven M. Freeman, Steven C. Sheinberg, Deborah Besinger,

and Michelle Deutchman, Anti-Defamation League, New

York, New York; Victoria F. Maroulis, Anna T. Neill, and

Brett J. Arnold, Quinn Emanuel Urquhart & Sullivan, LLP,

Redwood Shores, California; for amicus curiae Anti-

Defamation League.

John Payton, Debo P. Adegbile, and Dale E. Ho, NAACP

Legal Defense & Educational Fund, Inc., New York, New

York; for amicus curiae NAACP Legal Defense & Educa-

tional Fund, Inc.

1584 PERRY v. BROWN

Kathleen M. O’Sullivan and Abha Khanna, Perkins Coie

LLP, Seattle, Washington; for amici curiae Professors Wil-

liam N. Eskridge, Jr., Bruce A. Ackerman, Rebecca L.

Brown, Daniel A. Farber, Kenneth L. Karst, and Andrew

Koppelman.

Sonya D. Winner, Bruce R. Deming, David M. Jolley, and

John D. Freed, Covington & Burling LLP, San Francisco,

California; for amici curiae American Anthropological Asso-

ciation, American Psychoanalytic Association, National Asso-

ciation of Social Workers, National Association of Social

Workers, California Chapter, American Sociological Associa-

tion, and American Academy of Pediatrics, California.

Jon W. Davidson, Jennifer C. Pizer, and Tara L. Borelli,

Lambda Legal Defense and Education Fund, Inc., Los Ange-

les, California; Alan L. Schlosser and Elizabeth O. Gill,

ACLU Foundation of Northern California, San Francisco,

California; Shannon P. Minter, Christopher F. Stoll, and Ilona

M. Turner, National Center for Lesbian Rights, San Fran-

cisco, California; for amici curiae ACLU Foundation of

Northern California, Gay and Lesbian Advocates and Defend-

ers, Lambda Legal Defense and Education Fund, Inc., and

National Center for Lesbian Rights.

Eric Alan Isaacson, San Diego, California; Stacey M. Kaplan,

San Francisco, California; for amici curiae California Faith

for Equality, California Council of Churches, General Synod

of the United Church of Christ, Universal Fellowship of Met-

ropolitan Community Churches, The Episcopal Bishops of

California and Los Angeles, Progressive Jewish Alliance,

Pacific Association of Reform Rabbis, Unitarian Universalist

Association, and Unitarian Universalist Legislative Ministry

California.

David C. Codell, Linda M. Burrow, Albert Giang, and Benja-

min A. Au, Caldwell Leslie & Proctor, PC, Los Angeles, Cal-

ifornia; for amicus curiae Equality California.

PERRY v. BROWN 1585

Diana E. Richmond and Louis P. Feuchtbaum, Sideman &

Bancroft LLP, San Francisco, California; Richard B. Rosen-

thal, The Law Offices of Richard B. Rosenthal, P.A., San

Rafael, California; for amici curiae Donald B. King, Justice

(Ret.) and The American Academy of Matrimonial Lawyers

(Northern California Chapter).

Elizabeth J. Cabraser, Kelly M. Dermody, Brendan P.

Glackin, Anne Shaver, and Alison Stocking, Lieff, Cabraser,

Heimann & Bernstein, LLP, San Francisco, California;

Rachel Geman, Lieff, Cabraser, Heimann & Bernstein, LLP,

New York, New York; for amici curiae Professors Bryan

Adamson, Janet Cooper Alexander, Barbara A. Atwood, Bar-

bara Babcock, Erwin Chemerinsky, Joshua P. Davis, David L.

Faigman, Pamela S. Karlan, Toni M. Massaro, Arthur Miller,

David Oppenheimer, Judith Resnik, Fred Smith, and Larry

Yackle.

Scott Wm. Davenport, Jason J. Molnar, Darin L. Wessel, and

Peter C. Catalanotti, Manning & Marder, Kass, Ellrod,

Ramirez LLP, Irvine, California; for amicus curiae The

Southern Poverty Law Center.

Peter Obstler, Jee Young You, Suneeta D. Fernandes, and

Doug Karpa, Bingham McCutchen LLP, San Francisco, Cali-

fornia; for amici curiae Asian American Justice Center, Asian

Law Caucus, Asian American Institute, Asian Pacific Ameri-

can Legal Center, Asian Pacific American Women Lawyers

Alliance, Asian Pacific Islander Legal Outreach, API Equal-

ity, California Conference of the NAACP, Chinese for Affir-

mative Action, Coalition for Humane Immigrant Rights of

Los Angeles, Korematsu Center at Seattle University, Mexi-

can American Legal Defense and Education Fund, and Zuna

Institute.

Susan M. Popik and Merri A. Baldwin, Chapman, Popik &

White LLP, San Francisco, California; Suzanne B. Goldberg,

Clinical Professor of Law and Director, Sexuality & Gender

1586 PERRY v. BROWN

Law Clinic, Columbia Law School, New York, New York;

for amici curiae National Gay and Lesbian Task Force Foun-

dation, Human Rights Campaign, American Humanist Asso-

ciation, and Courage Campaign Institute.

No. 11-16577:

David Boies (argued), Jeremy M. Goldman, and Theodore H.

Uno, Boies, Schiller & Flexner LLP, Armonk, New York;

Theodore B. Olson, Matthew D. McGill, and Amir C. Tay-

rani, Gibson, Dunn & Crutcher LLP, Washington, D.C.; The-

odore J. Boutrous, Jr., Christopher D. Dusseault, Theane

Evangelis Kapur, Enrique A. Monagas, and Joshua S. Lip-

shutz, Gibson, Dunn & Crutcher LLP, Los Angeles, Califor-

nia; for plaintiffs-appellees Kristin M. Perry, Sandra B. Stier,

Paul T. Katami, and Jeffrey J. Zarrillo.

Dennis J. Herrera, Therese M. Stewart (argued), and Christine

Van Aken, City and County of San Francisco, San Francisco,

California; for intervenor-plaintiff-appellee City and County

of San Francisco.

Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom,

California; Charles J. Cooper (argued), David H. Thompson,

Howard C. Nielson, Jr., and Peter A. Patterson, Cooper and

Kirk, PLLC, Washington, D.C.; Brian W. Raum and James A.

Campbell, Alliance Defense Fund, Scottsdale, Arizona; for

intervenor-defendants-appellants Dennis Hollingsworth, Gail

J. Knight, Martin F. Gutierrez, Mark A. Jansson, and Protect-

Marriage.com.

Jon W. Davidson, Tara L. Borelli, and Peter C. Renn, Lambda

Legal Defense and Education Fund, Los Angeles, California;

Shannon P. Minter, Christopher F. Stoll, and Ilona M. Turner,

National Center for Lesbian Rights, San Francisco, Califor-

nia; Alan L. Schlosser and Elizabeth O. Gill, ACLU Founda-

tion of Northern California, San Francisco, California; for

amici curiae Lambda Legal Defense and Education Fund,

PERRY v. BROWN 1587

National Center for Lesbian Rights, ACLU Foundation of

Northern California, and Equality California.

David M. Balabanian, Frank Busch, Elizabeth Benson, and

Kathryn Conrad, Bingham McCutchen LLP, San Francisco,

California; for amicus curiae The Bar Association of San

Francisco.

OPINION

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 con-

sider 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 mari-

tal status, all parties agree that Proposition 8 had one effect

only. It stripped same-sex couples of the ability they previ-

ously possessed to obtain from the State, or any other autho-

rized 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 child-

rearing or responsible procreation, for it had no effect on the

1588 PERRY v. BROWN

rights of same-sex couples to raise children or on the procre-

ative 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 pur-

pose, and has no effect, other than to lessen the status and

human dignity of gays and lesbians in California, and to offi-

cially reclassify their relationships and families as inferior to

those of opposite-sex couples. The Constitution simply does

not allow for “laws of this sort.” Romer v. Evans, 517 U.S.

620, 633 (1996).

“Broader issues have been urged for our consideration, but

we adhere to the principle of deciding constitutional questions

only in the context of the particular case before the Court.”

Sweatt v. Painter, 339 U.S. 629, 631 (1950). Whether under

the Constitution same-sex couples may ever be denied the

right to marry, a right that has long been enjoyed by opposite-

sex couples, is an important and highly controversial question.

It is currently a matter of great debate in our nation, and an

issue over which people of good will may disagree, some-

times 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 ‘mar-

riage,’ 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

PERRY v. BROWN 1589

effect of Proposition 8 allows us to address the amendment’s

constitutionality on narrow grounds.

Thus, as a result of our “traditional reluctance to extend

constitutional interpretations to situations or facts which are

not before the Court, much of the excellent research and

detailed argument presented in th[is] case[ ] is unnecessary to

[its] disposition.” Id. Were we unable, however, to resolve the

matter on the basis we do, we would not hesitate to proceed

to the broader question—the constitutionality of denying

same-sex couples the right to marry.

Before considering the constitutional question of the valid-

ity of Proposition 8’s elimination of the rights of same-sex

couples to marry, we first decide that the official sponsors of

Proposition 8 are entitled to appeal the decision below, which

declared the measure unconstitutional and enjoined its

enforcement. The California Constitution and Elections Code

endow the official sponsors of an initiative measure with the

authority to represent the State’s interest in establishing the

validity of a measure enacted by the voters, when the State’s

elected leaders refuse to do so. See Perry v. Brown, 134 Cal.

Rptr. 3d 499 (2011). It is for the State of California to decide

who may assert its interests in litigation, and we respect its

decision by holding that Proposition 8’s proponents have

standing to bring this appeal on behalf of the State. We 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 ini-

tiative 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, with-

out a legitimate justification, of a right as important as the

right to marry. Accordingly, we affirm the judgment of the

district court.

We also affirm—for substantially the reasons set forth in

the district court’s opinion—the denial of the motion by the

1590 PERRY v. BROWN

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 marriage for its residents. See, e.g.,

Cal. Const. of 1849, art. XI, §§ 12, 14 (discussing marriage

contracts and marital property); Cal. Stats. 1850, ch. 140 (“An

Act regulating Marriages”). Marriage in California was under-

stood, at the time and well into the twentieth century, to be

limited to relationships between a man and a woman. See In

re Marriage Cases, 183 P.3d 384, 407-09 (Cal. 2008). In

1977, that much was made explicit by the California Legisla-

ture, which amended the marriage statute to read, “Marriage

is a personal relation arising out of a civil contract between

a man and a woman, to which the consent of the parties capa-

ble of making that contract is necessary.” Cal. Stats. 1977, ch.

339, § 1. The 1977 provision remains codified in California

statute. See Cal. Fam. Code § 300(a).

Following the enactment of the Defense of Marriage Act of

1996, Pub. L. 104-199, 110 Stat. 2419 (codified in relevant

part at 1 U.S.C. § 7), which expressly limited the federal defi-

nition 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). Cali-

fornia did so in 2000 by adopting Proposition 22, an initiative

statute, which provided, “Only marriage between a man and

a woman is valid or recognized in California.” Cal. Fam.

Code § 308.5. The proposition ensured that same-sex mar-

riages performed in any state that might permit such mar-

riages in the future would not be recognized in California, and

PERRY v. BROWN 1591

it guaranteed that any legislative repeal of the 1977 statute

would not allow same-sex couples to marry within the State,

because the Legislature may not amend or repeal an initiative

statute enacted by the People. See Marriage Cases, 183 P.3d

at 409-10.

Meanwhile, however, California had created the designa-

tion “domestic partnership” for “two adults who have chosen

to share one another’s lives in an intimate and committed rela-

tionship of mutual caring.” Cal. Stats. 1999, ch. 588, § 2 (cod-

ified at Cal. Fam. Code § 297(a)). At first, California gave

registered domestic partners only limited rights, such as hos-

pital 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 opportu-

nity to . . . obtain virtually all of the benefits and responsibili-

ties afforded by California law to married opposite-sex

couples.” Marriage Cases, 183 P.3d at 417-18. The 2003

Domestic Partner Act provided broadly: “Registered domestic

partners shall have the same rights, protections, and benefits,

and shall be subject to the same responsibilities, obligations,

and duties under law, whether they derive from statutes,

administrative regulations, court rules, government policies,

common law, or any other provisions or sources of law, as are

granted to and imposed upon spouses.” Cal. Stats. 2003, ch.

421, § 4 (codified at Cal. Fam. Code § 297.5(a)). It withheld

only the official designation of marriage and thus the offi-

cially conferred and societally recognized status that accom-

panies that designation.

B

In 2004, same-sex couples and the City and County of San

Francisco filed actions in California state courts alleging that

the State’s marriage statutes violated the California Constitu-

tion. Proposition 22 was among the statutes challenged,

1592 PERRY v. BROWN

because as an initiative statutory enactment, it was equal in

dignity to an enactment by the Legislature and thus subject to

the restrictions of the state constitution.1 The consolidated

cases were eventually decided by the California Supreme

Court, which held the statutes to be unconstitutional, for two

independent reasons.

First, the court held that the fundamental right to marry

provided by the California Constitution could not be denied

to same-sex couples, who are guaranteed “the same substan-

tive constitutional rights as opposite-sex couples to choose

one’s life partner and enter with that person into a committed,

officially recognized, and protected family relationship that

enjoys all of the constitutionally based incidents of marriage.”

Marriage Cases, 183 P.3d at 433-34. The court began by reaf-

firming that “the right to marry is an integral component of

an individual’s interest in personal autonomy protected by the

privacy provision of article I, section 1 [of the California Con-

stitution], and of the liberty interest protected by the due pro-

cess clause of article I, section 7.” Id. at 426 (emphasis

omitted). It then held “that an individual’s homosexual orien-

tation is not a constitutionally legitimate basis for withholding

or restricting the individual’s legal rights.” Id. at 429. The

court acknowledged that although such an inclusive under-

standing of the right to marry was one that had developed

only “in recent decades,” as the State extended greater recog-

nition to same-sex couples and households, it was “apparent

that history alone does not provide a justification for interpret-

1

The California Constitution differentiates between initiative statutes,

which require petitions signed by five percent of electors, and initiative

constitutional amendments, which require petitions signed by eight per-

cent 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.

PERRY v. BROWN 1593

ing the constitutional right to marry as protecting only one’s

ability to enter into an officially recognized family relation-

ship with a person of the opposite sex,” because

“ ‘[f]undamental rights, once recognized, cannot be denied to

particular groups on the ground that these groups have histori-

cally been denied those rights.’ ” Id. at 428-30 (quoting Her-

nandez v. Robles, 7 N.Y.3d 338, 381 (2006) (Kaye, C.J.,

dissenting)).

The court concluded its due process analysis by rejecting

the argument that the availability of domestic partnerships sat-

isfied “all of the personal and dignity interests that have tradi-

tionally 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 seri-

ous risk of denying the official family relationship of same-

sex couples the equal dignity and respect that is a core ele-

ment of the constitutional right to marry.” Id. at 434-35.

Second, the court held that “[t]he current statutory assign-

ment of different names for the official family relationships of

opposite-sex couples on the one hand, and of same-sex cou-

ples on the other” violated the equal protection clause in arti-

cle I, section 7 of the California Constitution. Id. at 435, 452-

53. The court determined that the State had no interest in

reserving the name ‘marriage’ for opposite-sex couples; “the

historic and well-established nature of this limitation” could

not itself justify the differential treatment, and the court found

no reason that restricting the designation of ‘marriage’ to

opposite-sex couples was necessary to preserve the benefits of

marriage enjoyed by opposite-sex couples or their children.

Id. at 450-52. The court noted specifically that “the distinction

in nomenclature between marriage and domestic partnership

1594 PERRY v. BROWN

cannot be defended on the basis of an asserted difference in

the effect on children of being raised by an opposite-sex cou-

ple instead of by a same-sex couple,” because “the governing

California statutes permit same-sex couples to adopt and raise

children and additionally draw no distinction between married

couples and domestic partners with regard to the legal rights

and responsibilities relating to children raised within each of

these family relationships.” Id. at 452 n.72. Restricting access

to the designation of ‘marriage’ did, however, “work[ ] a real

and appreciable harm upon same-sex couples and their chil-

dren,” because “providing only a novel, alternative institution

for same-sex couples” constituted “an official statement that

the family relationship of same-sex couples is not of compara-

ble stature or equal dignity to the family relationship of

opposite-sex couples.” Id. at 452. Consequently, the court

determined that withholding only the name ‘marriage’ from

same-sex couples violated the California Constitution’s guar-

antee of equal protection.

The court remedied these constitutional violations by strik-

ing the language from the marriage statutes “limiting the des-

ignation of marriage to a union ‘between a man and a

woman,’ ” invalidating Proposition 22, and ordering that the

designation of ‘marriage’ be made available to both opposite-

sex and same-sex couples. Id. at 453. Following the court’s

decision, California counties issued more than 18,000 mar-

riage licenses to same-sex couples.

C

Five California residents—defendants-intervenors-

appellants Dennis Hollingsworth, Gail J. Knight, Martin F.

Gutierrez, Hak-Shing William Tam, and Mark A. Jansson

(collectively, “Proponents”)—collected voter signatures and

filed petitions with the state government to place an initiative

on the November 4, 2008, ballot. Unlike Proposition 22, this

was an initiative constitutional amendment, which would be

equal in effect to any other provision of the California Consti-

PERRY v. BROWN 1595

tution, 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, immedi-

ately following the Constitution’s due process and equal pro-

tection clauses. The provision states, “Only marriage between

a man and a woman is valid or recognized in California.”

According to the official voter information guide, Proposition

8 “[c]hanges the California Constitution to eliminate the right

of same-sex couples to marry in California.” Official Voter

Information Guide, California General Election (Nov. 4,

2008), at 54. Following a contentious campaign, a slim major-

ity 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 Constitu-

tion.

Opponents of Proposition 8 then brought an original action

for a writ of mandate in the California Supreme Court. They

contended that Proposition 8 exceeded the scope of the Peo-

ple’s initiative power because it revised, rather than amended,

the California Constitution. The opponents did not raise any

federal constitutional challenge to Proposition 8 in the state

court. The state officials named as respondents refused to

defend the measure’s validity, but Proponents were permitted

to intervene and do so. Following argument, the court upheld

Proposition 8 as a valid initiative but construed the measure

as not nullifying the 18,000-plus marriages of same-sex cou-

ples that had already been performed in the State. Strauss v.

Horton, 207 P.3d 48, 98-110, 119-22 (Cal. 2009).

The court also explained Proposition 8’s precise effect on

California law: “[T]he measure carves out a narrow and lim-

ited 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

1596 PERRY v. BROWN

officially recognized and protected family relationship and the

guarantee of equal protection of the laws.” Id. at 61; see also

id. at 75. In other words, after Proposition 8, “[s]ame-sex cou-

ples retain all of the fundamental substantive components

encompassed within the constitutional rights of privacy and

due process, with the sole (albeit significant) exception of the

right to equal access to the designation ‘marriage.’ ” Id. at

116. Proposition 8 accomplished this result not by “declar-

[ing] the state of the law as it existed when the Marriage

Cases decision was rendered, but instead [by] establish[ing]

a new substantive state constitutional rule that became effec-

tive once Proposition 8 was approved by the voters.” Id. at

115; see also id. at 63.

II

A

Two same-sex couples—plaintiffs Kristin Perry and Sandra

Stier, and Paul Katami and Jeffrey Zarrillo—filed this action

under 42 U.S.C. § 1983 in May 2009, after being denied mar-

riage 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 unconstitutional-

ity and an injunction barring its enforcement. The City and

County of San Francisco (“San Francisco”) was later permit-

ted 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.2

2

The district court subsequently denied the motion to intervene brought

by the Campaign for California Families, a public interest organization

PERRY v. BROWN 1597

The district court held a twelve-day bench trial, during

which it heard testimony from nineteen witnesses and, after

giving the parties a full and fair opportunity to present evi-

dence and argument, built an extensive evidentiary record.3 In

a thorough opinion in August 2010, the court made eighty

findings of fact and adopted the relevant conclusions of law.

Perry v. Schwarzenegger (Perry IV), 704 F. Supp. 2d 921

(N.D. Cal. 2010).4 The court held Proposition 8 unconstitu-

that supported Proposition 8 but was not the measure’s official sponsor.

We affirmed that decision in Perry v. Proposition 8 Official Proponents

(Perry I), 587 F.3d 947 (9th Cir. 2009). The district court also denied

leave to intervene to a coalition of civil rights advocacy organizations. Id.

at 950 n.1.

3

A number of ancillary matters, none of which we need revisit here,

were presented to this court immediately prior to and during the trial. First,

we granted Proponents’ petition for a writ of mandamus to protect their

First Amendment interests in campaign communications against intrusion

by Plaintiffs’ discovery requests. Perry v. Schwarzenegger (Perry II), 591

F.3d 1147 (9th Cir. 2010), amending and denying reh’g en banc of 591

F.3d 1126 (9th Cir. 2009). Second, we denied a similar mandamus petition

brought by three non-party organizations that had campaigned against

Proposition 8. Perry v. Schwarzenegger (Perry III), 602 F.3d 976 (9th Cir.

2010). Finally, a motions panel of this court denied Proponents’ emer-

gency petition for a writ of mandamus, filed on the eve of trial, to prohibit

the district court from broadcasting the trial via streaming video and audio

to a few federal courthouses around the country. The Supreme Court then

granted Proponents’ application for a temporary and eventually permanent

stay of the broadcast. Hollingsworth v. Perry, 130 S. Ct. 1132 (2010)

(mem.); Hollingsworth v. Perry, 130 S. Ct. 705 (2010).

4

The court found, among other things, that (1) marriage benefits society

by organizing individuals into cohesive family units, developing a realm

of liberty for intimacy and free decision making, creating stable house-

holds, 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 par-

1598 PERRY v. BROWN

tional under the Due Process Clause because no compelling

state interest justifies denying same-sex couples the funda-

mental right to marry. Id. at 991-95. The court also deter-

mined that Proposition 8 violated the Equal Protection Clause,

because there is no rational basis for limiting the designation

of ‘marriage’ to opposite-sex couples. Id. at 997-1003. The

court therefore entered the following injunction: “Defendants

in their official capacities, and all persons under the control

or supervision of defendants, are permanently enjoined from

applying or enforcing Article I, § 7.5 of the California Constitu-

tion.”5 Doc. 728 (Permanent Injunction), Perry v. Schwar-

zenegger, No. 09-cv-02292 (N.D. Cal. Aug. 12, 2010).6

B

Proponents appealed immediately, and a motions panel of

this court stayed the district court’s injunction pending appeal.

ents marry, and they fare just as well as children raised by opposite-sex

parents, id. at 973, 980-81; (6) Proposition 8 stigmatizes same-sex couples

as having relationships inferior to those of opposite-sex couples, id. at

973-74, 979-80; (7) Proposition 8 eliminated same-sex couples’ right to

marry but did not affect any other substantive right they enjoyed, id. at

977; and (8) the campaign in favor of Proposition 8 relied upon stereo-

types and unfounded fears about gays and lesbians, id. at 988-91.

5

Without explanation, the district court failed to enter a separate declar-

atory judgment as Plaintiffs had requested. The court’s opinion made clear

its holding “that Proposition 8 is unconstitutional.” 704 F. Supp. 2d at

1003. But the clerk apparently never issued this declaratory judgment as

a separate document, as Fed. R. Civ. P. 58 requires.

6

Concurrently with its decision on the merits of Plaintiffs’ claim, the

district court denied a motion to intervene as a defendant brought by Impe-

rial County, its board of supervisors, and one of its Deputy County Clerks.

We affirmed the district court’s denial of the motion, on alternative

grounds, in Perry v. Schwarzenegger (Perry VI), 630 F.3d 898 (9th Cir.

2011). The newly elected County Clerk of Imperial County subsequently

moved to intervene in this court in the companion appeal, No. 10-16751.

In light of the fact that Proponents have standing to appeal, we deny the

motion as untimely but have considered the Clerk’s filings as briefs amici

curiae.

PERRY v. BROWN 1599

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’ stand-

ing to appeal depended on the precise rights and interests

given to official sponsors of an initiative under California law,

which had never been clearly defined by the State’s highest

court. We therefore certified the following question to the

California Supreme Court:

Whether under Article II, Section 8 of the California

Constitution, or otherwise under California law, the

official proponents of an initiative measure possess

either a particularized interest in the initiative’s

validity or the authority to assert the State’s interest

in the initiative’s validity, which would enable them

to defend the constitutionality of the initiative upon

its adoption or appeal a judgment invalidating the

initiative, when the public officials charged with that

duty refuse to do so.

Perry v. Schwarzenegger (Perry V), 628 F.3d 1191, 1193 (9th

Cir. 2011). The state court granted our request for certifica-

tion in February 2011, and in November 2011 rendered its

decision. See Perry v. Brown (Perry VII), 134 Cal. Rptr. 3d

499( 2011). We now resume consideration of this appeal.7

III

We begin, as we must, with the issue that has prolonged

our consideration of this case: whether we have jurisdiction

over an appeal brought by the defendant-intervenor Propo-

nents, rather than the defendant state and local officers who

were directly enjoined by the district court order.8 In view of

7

We vacated submission of this case upon ordering that our question be

certified to the California Supreme Court. Perry V, 628 F.3d at 1200. The

case is now ordered resubmitted.

8

Although we regret the delay that our need to resolve this issue has

caused, we note that this delay was not of our own making. See Perry V,

1600 PERRY v. BROWN

Proponents’ authority under California law, we conclude that

they do have standing to appeal.

For purposes of Article III standing, we start with the prem-

ise that “a State has standing to defend the constitutionality of

its [laws].” Diamond v. Charles, 476 U.S. 54, 62 (1986).

When a state law is ruled unconstitutional, either the state or

a state officer charged with the law’s enforcement may appeal

that determination. Typically, the named defendant in an

action challenging the constitutionality of a state law is a state

officer, because sovereign immunity protects the state from

being sued directly. See Ex parte Young, 209 U.S. 123, 157-

58 (1908); L.A. County Bar Ass’n v. Eu, 979 F.2d 697, 704

(9th Cir. 1992). In such cases, if a court invalidates the state

law and enjoins its enforcement, there is no question that the

state officer is entitled to appeal that determination. See, e.g.,

Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353 (2009) (Idaho

Secretary of State and Attorney General appealed decision

striking down an Idaho law on First Amendment grounds);

Stenberg v. Carhart, 530 U.S. 914 (2000) (Nebraska Attorney

General appealed decision holding unconstitutional a

Nebraska abortion law). Moreover, there is no reason that a

state itself may not also choose to intervene as a defendant,

and indeed a state must be permitted to intervene if a state

officer is not already party to an action in which the constitu-

tionality of a state law is challenged. See 28 U.S.C. § 2403(b);

Fed. R. Civ. P. 5.1; cf. Fed. R. App. P. 44(b). When a state

does elect to become a defendant itself, the state may appeal

an adverse decision about the constitutionality of one of its

laws, just as a state officer may. See, e.g., Caruso v. Yamhill

County ex rel. County Comm’r, 422 F.3d 848, 852-53 & n.2

(9th Cir. 2005) (sole appellant was the State of Oregon, which

had intervened as a defendant in the district court). In other

628 F.3d at 1200-02 (Reinhardt, J., concurring). We are grateful to the

California Supreme Court for the thoughtful and full consideration it gave

our question.

PERRY v. BROWN 1601

words, in a suit for an injunction against enforcement of an

allegedly unconstitutional state law, it makes no practical dif-

ference whether the formal party before the court is the state

itself or a state officer in his official capacity. Cf. Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 114 n.25

(1984) (discussing the “fiction” of Ex parte Young); see also

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269-70

(1997) (same).

Whether the defendant is the state or a state officer, the

decision to assert the state’s own interest in the constitutional-

ity of its laws is most commonly made by the state’s execu-

tive branch—the part of state government that is usually

charged with enforcing and defending state law. See, e.g.,

Ysursa, 555 U.S. at 354 (Idaho state officers represented by

state Attorney General); Caruso, 422 F.3d at 851 (State of

Oregon represented by Oregon Department of Justice). Some

sovereigns vest the authority to assert their interest in litiga-

tion exclusively in certain executive officers. See, e.g., 28

U.S.C. §§ 516-19; 28 C.F.R. § 0.20.

The states need not follow that approach, however. It is

their prerogative, as independent sovereigns, to decide for

themselves who may assert their interests and under what cir-

cumstances, and to bestow that authority accordingly. In Kar-

cher v. May, 484 U.S. 72 (1987), for example, the Supreme

Court held that the State of New Jersey was properly repre-

sented in litigation by the Speaker of the General Assembly

and the President of the Senate, appearing on behalf of the

Legislature, because “the New Jersey Legislature had author-

ity under state law to represent the State’s interests.” Id. at 82

(citing In re Forsythe, 450 A.2d 499, 500 (N.J. 1982)).9 Prin-

9

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

clerk was not barred from appealing a judgment invalidating California’s

felon disenfranchisement law, even though the only state officer who had

been sued, then-California Secretary of State Edmund G. Brown, Jr.,

refused to pursue the appeal. Id. at 26 n.1, 36-38.

1602 PERRY v. BROWN

ciples of federalism require that federal courts respect such

decisions by the states as to who may speak for them: “there

are limits on the Federal Government’s power to affect the

internal operations of a State.” Va. Office for Protection &

Advocacy v. Stewart, 131 S. Ct. 1632, 1641 (2011). It is not

for a federal court to tell a state who may appear on its behalf

any more than it is for Congress to direct state law-

enforcement officers to administer a federal regulatory

scheme, see Printz v. United States, 521 U.S. 898 (1997), to

command a state to take ownership of waste generated within

its borders, see New York v. United States, 505 U.S. 144

(1992), or to dictate where a state shall locate its capital, see

Coyle v. Smith, 221 U.S. 559 (1911). Who may speak for the

state is, necessarily, a question of state law. All a federal court

need determine is that the state has suffered a harm sufficient

to confer standing and that the party seeking to invoke the

jurisdiction of the court is authorized by the state to represent

its interest in remedying that harm.

Proponents claim to assert the interest of the People of Cal-

ifornia 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 ini-

tiatives made law of the State.” Arizonans for Official English

v. Arizona (Arizonans), 520 U.S. 43, 65-66 (1997). Absent

some conferral of authority by state law, akin to the authority

that the New Jersey legislators in Karcher had as “elected rep-

resentatives,” the Court suggested that proponents of a ballot

measure would not be able to appeal a decision striking down

the initiative they sponsored. Id. at 65.

[1] Here, unlike in Arizonans, we do know that California

law confers on “initiative sponsors” the authority “to defend,

PERRY v. BROWN 1603

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 invali-

dating the law decline to do so, under article II, sec-

tion 8 of the California Constitution and the relevant

provisions of the Elections Code, the official propo-

nents of a voter-approved initiative measure are

authorized to assert the state’s interest in the initia-

tive’s validity, enabling the proponents to defend the

constitutionality of the initiative and to appeal a

judgment invalidating the initiative.

Perry VII, 134 Cal. Rptr. 3d at 536-37. “[T]he role played by

the proponents in such litigation,” the court explained, “is

comparable to the role ordinarily played by the Attorney Gen-

eral or other public officials in vigorously defending a duly

enacted state law and raising all arguable legal theories upon

which a challenged provision may be sustained.” Id. at 525.

The State’s highest court thus held that California law pro-

vides precisely what the Arizonans Court found lacking in

Arizona law: it confers on the official proponents of an initia-

tive the authority to assert the State’s interests in defending

the constitutionality of that initiative, where the state officials

who would ordinarily assume that responsibility choose not to

do so.

We are bound to accept the California court’s determina-

tion. Although other states may act differently, California’s

conferral upon proponents of the authority to represent the

People’s interest in the initiative measure they sponsored is

consistent with that state’s unparalleled commitment to the

authority of the electorate: “No other state in the nation car-

ries the concept of initiatives as ‘written in stone’ to such

1604 PERRY v. BROWN

lengths as” does California. People v. Kelly, 222 P.3d 186,

200 (Cal. 2010) (internal quotation marks omitted). Indeed,

California defines the initiative power as “one of the most

precious rights of our democratic process,” and considers “the

sovereign people’s initiative power” to be a “fundamental

right” under the state constitution. Assoc. Home Builders v.

City of Livermore, 557 P.2d 473, 477 (Cal. 1976); Brosnahan

v. Brown, 651 P.2d 274, 277 (Cal. 1982); Costa v. Super. Ct.,

128 P.3d 675, 686 (Cal. 2006). As the California Supreme

Court explained in answering our certified question, “[t]he

initiative power would be significantly impaired if there were

no one to assert the state’s interest in the validity of the mea-

sure when elected officials decline to defend it in court or to

appeal a judgment invalidating the measure.” Perry VII, 134

Cal. Rptr. 3d at 523. The authority of official proponents to

“assert[ ] the state’s interest in the validity of an initiative

measure” thus “serves to safeguard the unique elements and

integrity of the initiative process.” Id. at 533.

It matters not whether federal courts think it wise or desir-

able 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 constitu-

tion to be amended by a majority vote through a ballot mea-

sure in the first place. Cf. Pac. States Tel. & Tel. Co. v.

Oregon, 223 U.S. 118 (1912) (holding nonjusticiable a Guar-

anty Clause challenge to Oregon’s initiative system). The

People of California are largely free to structure their system

of governance as they choose, and we respect their choice. All

that matters, for federal standing purposes, is that the People

have an interest in the validity of Proposition 8 and that, under

California law, Proponents are authorized to represent the

People’s interest. That is the case here.

In their supplemental brief on the issue of standing, Plain-

tiffs 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

PERRY v. BROWN 1605

who wish “to bring actions on behalf of third parties” must

satisfy three requirements. Powers v. Ohio, 499 U.S. 400,

410-11 (1991). First, they “must have suffered an ‘injury in

fact,’ thus giving [them] a ‘sufficiently concrete interest’ in

the outcome of the issue in dispute.” Id. at 411. Second, they

“must have a close relation to the third party.” Id. Third,

“there must exist some hindrance to the third party’s ability

to protect his or her own interests.” Id. Plaintiffs contend that

Proponents cannot satisfy these requirements with respect to

the State of California as a third party.

The requirements of third-party standing, however, are

beside the point: the State of California is no more a “third

party” relative to Proponents than it is to the executive offi-

cers 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 initia-

tive measure . . . is comparable to the role ordinarily played

by the Attorney General or other public officials in vigorously

defending a duly enacted state law.” Perry VII, 134 Cal. Rptr.

3d at 525. When the Attorney General of California appears

in federal court to defend the validity of a state statute, she

obviously need not satisfy the requirements of third-party

standing; she stands in the shoes of the State to assert its inter-

ests in litigation. For the purposes of the litigation, she speaks

to the court as the State, not as a third party. The same is true

of Proponents here, just as it was true of the presiding legisla-

tive officers in Karcher, 484 U.S. at 82. The requirements of

third-party standing are therefore not relevant.

[2] 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 validi-

ty,” Perry V, 628 F.3d at 1193 (emphasis added), the Court

1606 PERRY v. BROWN

chose to address only the latter type of interest. Perry VII, 134

Cal. Rptr. 3d at 515 (“Because [our] conclusion [that propo-

nents are authorized to assert the State’s interest] is sufficient

to support an affirmative response to the question posed by

the Ninth Circuit, we need not decide whether, under Califor-

nia law, the official proponents also possess a particularized

interest in a voter-approved initiative’s validity.”). The exclu-

sive basis of our holding that Proponents possess Article III

standing is their authority to assert the interests of the State

of California, rather than any authority that they might have

to assert particularized interests of their own. Just as the

Attorney General of California need not satisfy the require-

ments of third-party standing when she appears in federal

court to defend the validity of a state statute, she obviously

need not show that she would suffer any personal injury as a

result of the statute’s invalidity. The injury of which she com-

plains is the State’s, not her own. The same is true here.

Because “a State has standing to defend the constitutionality

of its [laws],” Diamond, 476 U.S. at 62, Proponents need not

show that they would suffer any personal injury from the

invalidation of Proposition 8. That the State would suffer an

injury, id., is enough for Proponents to have Article III stand-

ing when state law authorizes them to assert the State’s inter-

ests.

To be clear, we do not suggest that state law has any

“power directly to enlarge or contract federal jurisdiction.”

Duchek v. Jacobi, 646 F.2d 415, 419 (9th Cir. 1981). “Stand-

ing to sue in any Article III court is, of course, a federal ques-

tion which does not depend on the party’s . . . standing in state

court.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804

(1985). State courts may afford litigants standing to appear

where federal courts would not,10 but whether they do so has

no bearing on the parties’ Article III standing in federal court.

10

Cf. City of Los Angeles v. Lyons, 461 U.S. 95, 113 (1983) (“[T]he

state courts need not impose the same standing or remedial requirements

that govern federal-court proceedings. The individual States may permit

their courts to use injunctions to oversee the conduct of law enforcement

authorities on a continuing basis. But this is not the role of a federal court

. . . .”).

PERRY v. BROWN 1607

[3] State law does have the power, however, to answer

questions antecedent to determining federal standing, such as

the one here: who is authorized to assert the People’s interest

in the constitutionality of an initiative measure? Because the

State of California has Article III standing to defend the con-

stitutionality of Proposition 8, and because both the California

Constitution and California law authorize “the official propo-

nents of [an] initiative . . . to appear and assert the state’s

interest in the initiative’s validity and to appeal a judgment

invalidating the measure when the public officials who ordi-

narily defend the measure or appeal such a judgment decline

to do so,” Perry VII, 134 Cal. Rptr. 3d at 505, we conclude

that Proponents are proper appellants here. They possess Arti-

cle III standing to prosecute this appeal from the district

court’s judgment invalidating Proposition 8.

IV

We review the district court’s decision to grant a permanent

injunction for abuse of discretion, but we review the determi-

nations underlying that decision by the standard that applies

to each determination. Accordingly, we review the court’s

conclusions of law de novo and its findings of fact for clear

error. See Ting v. AT&T, 319 F.3d 1126, 1134-35 (9th Cir.

2003); Fed. R. Civ. P. 52(a).

Plaintiffs and Proponents dispute whether the district

court’s findings of fact concern the types of “facts”—so-

called “adjudicative facts”—that are capable of being “found”

by a court through the clash of proofs presented in adjudica-

tion, 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 answer-

ing 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. Mar-

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

Kenneth Culp Davis, The Requirement of a Trial-Type Hear-

1608 PERRY v. BROWN

ing, 70 Harv. L. Rev. 193, 199 (1956)) (internal quotation

marks omitted). “Legislative facts,” by contrast, “do not usu-

ally concern [only] the immediate parties but are general facts

which help the tribunal decide questions of law, policy, and

discretion.” Id.

It is debatable whether some of the district court’s findings

of fact concerning matters of history or social science are

more appropriately characterized as “legislative facts” or as

“adjudicative facts.” We need not resolve what standard of

review should apply to any such findings, however, because

the only findings to which we give any deferential weight—

those concerning the messages in support of Proposition 8

that Proponents communicated to the voters to encourage

their approval of the measure, Perry IV, 704 F. Supp. 2d at

990-91—are clearly “adjudicative facts” concerning the par-

ties and “ ‘who did what, where, when, how, why, with what

motive or intent.’ ” Marshall, 365 F.2d at 111. Aside from

these findings, the only fact found by the district court that

matters to our analysis is that “[d]omestic partnerships lack

the social meaning associated with marriage”—that the differ-

ence between the designation of ‘marriage’ and the designa-

tion of ‘domestic partnership’ is meaningful. Perry IV, 704 F.

Supp. 2d at 970. This fact was conceded by Proponents during

discovery. Defendant-Intervenors’ Response to Plaintiffs’

First Set of Requests for Admission, Exhibit No. PX 0707, at

2 (“Proponents admit that the word ‘marriage’ has a unique

meaning.”); id. at 11 (Proponents “[a]dmit that there is a sig-

nificant symbolic disparity between domestic partnership and

marriage”). Our analysis therefore does not hinge on what

standard we use to review the district court’s findings of fact.

Cf. Lockhart v. McCree, 476 U.S. 162, 168 n.3 (1986)

(“Because we do not ultimately base our decision today on the

[validity or] invalidity of the lower courts’ ‘factual’ findings,

we need not decide the ‘standard of review’ issue”—whether

“the ‘clearly erroneous’ standard of Rule 52(a) applies to the

kind of ‘legislative’ facts at issue here.”).

PERRY v. BROWN 1609

V

We now turn to the merits of Proposition 8’s constitutional-

ity.

A

The district court held Proposition 8 unconstitutional for

two reasons: first, it deprives same-sex couples of the funda-

mental right to marry, which is guaranteed by the Due Process

Clause, see Perry IV, 704 F. Supp. 2d at 991-95; and second,

it excludes same-sex couples from state-sponsored marriage

while allowing opposite-sex couples access to that honored

status, in violation of the Equal Protection Clause, see id. at

997-1003. Plaintiffs elaborate upon those arguments on

appeal.

Plaintiffs and Plaintiff-Intervenor San Francisco also offer

a third argument: Proposition 8 singles out same-sex couples

for unequal treatment by taking away from them alone the

right to marry, and this action amounts to a distinct constitu-

tional violation because the Equal Protection Clause protects

minority groups from being targeted for the deprivation of an

existing right without a legitimate reason. Romer, 517 U.S. at

634-35. Because this third argument applies to the specific

history of same-sex marriage in California, it is the narrowest

ground for adjudicating the constitutional questions before us,

while the first two theories, if correct, would apply on a

broader basis. Because courts generally decide constitutional

questions on the narrowest ground available, we consider the

third argument first. See Plaut v. Spendthrift Farm, Inc., 514

U.S. 211, 217 (1995) (citing Ashwander v. Tenn. Valley Auth.,

297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).

B

[4] Proposition 8 worked a singular and limited change to

the California Constitution: it stripped same-sex couples of

1610 PERRY v. BROWN

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 mar-

ried spouses and form an integral part of the marriage rela-

tionship. In determining that the law had this effect, “[w]e

rely not upon our own interpretation of the amendment but

upon the authoritative construction of [California’s] Supreme

Court.” Romer, 517 U.S. at 626. The state high court held in

Strauss that “Proposition 8 reasonably must be interpreted in

a limited fashion as 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 cou-

ples to establish an officially recognized family relationship,”

which California calls a ‘domestic partnership.’ 207 P.3d at

76. Proposition 8 “leaves intact all of the other very signifi-

cant constitutional protections afforded same-sex couples,”

including “the constitutional right to enter into an officially

recognized and protected family relationship with the person

of one’s choice and to raise children in that family if the cou-

ple so chooses.” Id. at 102. Thus, the extent of the amend-

ment’s effect was to “establish[ ] a new substantive state

constitutional rule,” id. at 63, which “carves out a narrow and

limited exception to these state constitutional rights,” by “re-

serving the official designation of the term ‘marriage’ for the

union of opposite-sex couples as a matter of state constitu-

tional law,” id. at 61.11

11

In rejecting the argument that Proposition 8 had impermissibly

revised, rather than amended, the state constitution, Strauss explained that

it “drastically overstates the effect of Proposition 8 on the fundamental

state constitutional rights of same-sex couples” to suggest that the proposi-

tion “ ‘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 des-

ignation of ‘marriage,’ which was eliminated for same-sex couples. 207

P.3d at 102.

PERRY v. BROWN 1611

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 responsi-

bilities, obligations, and duties under law, whether they derive

from statutes, administrative regulations, court rules, govern-

ment 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.,

117 P.3d 660, 670 (Cal. 2005); Kristine M. v.

David P., 135 Cal. App. 4th 783 (2006); or

adopted by one partner and raised jointly by both,

S.Y. v. S.B., 201 Cal. App. 4th 1023 (2011);

• Adopt each other’s children, see Cal. Fam. Code

§ 9000(g);

• Become foster parents, see Cal. Welf. & Inst.

Code § 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

policy on the same terms as a spouse, see Cal.

Ins. Code § 10121.7;

1612 PERRY v. BROWN

• Enjoy hospital visitation privileges, see Cal.

Health & Safety Code § 1261;

• Make medical decisions on behalf of an incapaci-

tated 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, 207 P.3d at

61 (quoting Marriage Cases, 183 P.3d at 434). 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 desig-

nation 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 ‘mar-

riage’ is singular in connoting “a harmony in living,” “a bilat-

eral loyalty,” and “a coming together for better or for worse,

PERRY v. BROWN 1613

hopefully enduring, and intimate to the degree of being

sacred.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

As Proponents have admitted, “the word ‘marriage’ has a

unique meaning,” and “there is a significant symbolic dispar-

ity between domestic partnership and marriage.” It is the des-

ignation 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 pro-

foundly important. See id. at 971.

We need consider only the many ways in which we

encounter the word ‘marriage’ in our daily lives and under-

stand 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 some-

one 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 institu-

tion . . . 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 mar-

ried 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 per-

manence 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’ sig-

nifies the unique recognition that society gives to harmonious,

loyal, enduring, and intimate relationships. See Knight v.

Super. Ct., 128 Cal. App. 4th 14, 31 (2005) (“[M]arriage is

1614 PERRY v. BROWN

considered a more substantial relationship and is accorded a

greater stature than a domestic partnership.”); cf. Griswold,

381 U.S. at 486.

The official, cherished status of ‘marriage’ is distinct from

the incidents of marriage, such as those listed in the California

Family Code. The incidents are both elements of the institu-

tion and manifestations of the recognition that the State

affords to those who are in stable and committed lifelong rela-

tionships. 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 designa-

tion of ‘marriage’ is the status that we recognize. It is the

principal manner in which the State attaches respect and dig-

nity to the highest form of a committed relationship and to the

individuals who have entered into it.12

[5] 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 offi-

cially 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 inci-

dents but took away the status and the dignity. It did so by

12

Cf. Marriage Cases, 183 P.3d at 434-35 (“[D]rawing a distinction

between the name assigned to the family relationship available to

opposite-sex couples and the name assigned to the family relationship

available to same-sex couples, and . . . reserving the historic and highly

respected designation of marriage exclusively to opposite-sex couples

while offering same-sex couples only the new and unfamiliar designation

of domestic partnership[,] pose[s] a serious 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.”).

PERRY v. BROWN 1615

superseding the Marriage Cases and thus endorsing the “offi-

cial statement that the family relationship of same-sex couples

is not of comparable stature or equal dignity to the family

relationship of opposite-sex couples.” Marriage Cases, 183

P.3d at 452. The question we therefore consider is this: did

the People of California have legitimate reasons for enacting

a constitutional amendment that serves only to take away

from same-sex couples the right to have their lifelong rela-

tionships dignified by the official status of ‘marriage,’ and to

compel the State and its officials and all others authorized to

perform marriage ceremonies to substitute the label of

‘domestic partnership’ for their relationships?

Proponents resist this framing of the question. They deem

it irrelevant to our inquiry that the California Constitution, as

interpreted by the Marriage Cases, had previously guaranteed

same-sex couples the right to use the designation of ‘mar-

riage,’ because In re Marriage Cases was a “short-lived deci-

sion,” and same-sex couples were allowed to marry only

during a “143-day hiatus” between the effective date of the

Marriage Cases decision and the enactment of Proposition 8.

Proponents’ Reply Br. 75, 79-80. According to Proponents, a

decision to “restore” the “traditional definition of marriage”

is indistinguishable from a decision to “adhere” to that defini-

tion in the first place. Id. at 79-80. We are bound, however,

by the California Supreme Court’s authoritative interpretation

of Proposition 8’s effect on California law, see Romer, 517

U.S. at 626: Proposition 8 “eliminat[ed] . . . the right of same-

sex couples to equal access to the designation of marriage” by

“carv[ing] out a narrow and limited exception to these state

constitutional rights” that had previously guaranteed the des-

ignation of ‘marriage’ to all couples, opposite-sex and same-

sex alike. Strauss, 207 P.3d at 61, 76.

Even were we not bound by the state court’s explanation,

we would be obligated to consider Proposition 8 in light of its

actual effect, which was, as the voters were told, to “eliminate

the right of same-sex couples to marry in California.” Voter

1616 PERRY v. BROWN

Information Guide at 54. The context matters. Withdrawing

from a disfavored group the right to obtain a designation with

significant societal consequences is different from declining

to extend that designation in the first place, regardless of

whether the right was withdrawn after a week, a year, or a

decade. The action of changing something suggests a more

deliberate purpose than does the inaction of leaving it as it is.

As the California Supreme Court held, “Proposition 8 [did]

not ‘readjudicate’ the issue that was litigated and resolved in

the Marriage Cases.” Strauss, 207 P.3d at 63. Rather than

“declar[ing] the state of the law as it existed under the Cali-

fornia Constitution at the time of the Marriage Cases,” Propo-

sition 8 “establishe[d] a new substantive state constitutional

rule that took effect upon” its adoption by the electorate. Id.

(emphasis added). Whether or not it is a historical accident,

as Proponents argue, that Proposition 8 postdated the Mar-

riage Cases rather than predating and thus preempting that

decision, the relative timing of the two events is a fact, and

we must decide this case on its facts.

C

1

This is not the first time the voters of a state have enacted

an initiative constitutional amendment that reduces the rights

of gays and lesbians under state law. In 1992, Colorado

adopted Amendment 2 to its state constitution, which prohib-

ited the state and its political subdivisions from providing any

protection against discrimination on the basis of sexual orien-

tation. See Colo. Const. art. II, § 30b. Amendment 2 was pro-

posed 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 govern-

mental entity from adopting similar, or more protective stat-

utes, regulations, ordinances, or policies in the future.” Evans

PERRY v. BROWN 1617

v. Romer, 854 P.2d 1270, 1284-85 (Colo. 1993). The law thus

“withdr[ew] from homosexuals, but no others, specific legal

protection . . . , and it forb[ade] reinstatement of these laws

and policies.” Romer, 517 U.S. at 627.

[6] 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 disad-

vantage imposed is born of animosity toward the class of per-

sons affected.” Id. at 633-34. The Court considered possible

justifications for Amendment 2 that might have overcome the

“inference” of animus, but it found them all lacking. It there-

fore concluded that the law “classifie[d] homosexuals not to

further a proper legislative end but to make them unequal to

everyone else.” Id. at 635.13

[7] 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 . . . .” Id. at 633.

Like Amendment 2, Proposition 8 has the “peculiar property,”

id. at 632, of “withdraw[ing] from homosexuals, but no oth-

ers,” an existing legal right—here, access to the official desig-

nation of ‘marriage’—that had been broadly available,

notwithstanding the fact that the Constitution did not compel

the state to confer it in the first place. Id. at 627. Like Amend-

13

Romer did not apply heightened scrutiny to Amendment 2, even

though the amendment targeted gays and lesbians. Instead, Romer found

that Amendment 2 “fail[ed], indeed defie[d], even [the] conventional

inquiry” for non-suspect classes, concerning whether a “legislative classi-

fication . . . bears a rational relation to some legitimate end.” Romer, 517

U.S. at 631-32. Amendment 2 amounted to “a classification of persons

undertaken for its own sake, something the Equal Protection Clause does

not permit.” Id. at 635. We follow this approach and reach the same con-

clusion as to Proposition 8. See also High Tech Gays v. Defense Indus.

Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990) (declining to

apply heightened scrutiny).

1618 PERRY v. BROWN

ment 2, Proposition 8 denies “equal protection of the laws in

the most literal sense,” id. at 633, because it “carves out” an

“exception” to California’s equal protection clause, by remov-

ing equal access to marriage, which gays and lesbians had

previously enjoyed, from the scope of that constitutional guar-

antee. Strauss, 207 P.3d at 61. Like Amendment 2, Proposi-

tion 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 [homosex-

uals] alone.” Romer, 517 U.S. at 627, 631. And like Amend-

ment 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 Consti-

tution” for a second time. Id. at 631. As we explain below,

Romer compels that we affirm the judgment of the district

court.

To be sure, there are some differences between Amend-

ment 2 and Proposition 8. Amendment 2 “impos[ed] a broad

and undifferentiated disability on a single named group” by

“identif[ying] persons by a single trait and then den[ying]

them protection across the board.” Romer, 517 U.S. at 632-33.

Proposition 8, by contrast, excises with surgical precision one

specific right: the right to use the designation of ‘marriage’ to

describe a couple’s officially recognized relationship. Propo-

nents argue that Proposition 8 thus merely “restor[es] the tra-

ditional definition of marriage while otherwise leaving

undisturbed the manifold rights and protections California law

provides gays and lesbians,” making it unlike Amendment 2,

which eliminated various substantive rights. Proponents’

Reply Br. 77.

These differences, however, do not render Romer less

applicable. It is no doubt true that the “special disability” that

Proposition 8 “imposes upon” gays and lesbians has a less

sweeping effect on their public and private transactions than

did Amendment 2. Nevertheless, Proposition 8 works a mean-

ingful harm to gays and lesbians, by denying to their commit-

PERRY v. BROWN 1619

ted lifelong relationships the societal status conveyed by the

designation of ‘marriage,’ and this harm must be justified by

some legitimate state interest. Romer, 517 U.S. at 631. Propo-

sition 8 is no less problematic than Amendment 2 merely

because its effect is narrower; to the contrary, the surgical

precision with which it excises a right belonging to gay and

lesbian couples makes it even more suspect. A law that has no

practical effect except to strip one group of the right to use a

state-authorized and socially meaningful designation is all the

more “unprecedented” and “unusual” than a law that imposes

broader changes, and raises an even stronger “inference that

the disadvantage imposed is born of animosity toward the

class of persons affected,” id. at 633-34. In short, Romer gov-

erns our analysis notwithstanding the differences between

Amendment 2 and Proposition 8.

[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 con-

sider whether same-sex couples have a fundamental right to

marry, or whether states that fail to afford the right to marry

to gays and lesbians must do so. Further, we express no view

on those questions.14

14

Because we do not address the question of the constitutionality of a

state’s ban on same-sex marriage, the Supreme Court’s summary dismissal

of Baker v. Nelson, 409 U.S. 810 (1972) (mem.), is not pertinent here.

In Baker, the Court “dismissed for want of a substantial federal ques-

tion” 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”

1620 PERRY v. BROWN

Ordinarily, “if a law neither burdens a fundamental right

nor targets a suspect class, we will uphold the legislative clas-

sification so long as it bears a rational relation to some legiti-

mate end.” Romer, 517 U.S. at 631. Such was the case in

Romer, and it is the case here as well. The end must be one

that is legitimate for the government to pursue, not just one

that would be legitimate for a private actor. See id. at 632,

635. The question here, then, is whether California had any

more legitimate justification for withdrawing from gays and

lesbians its constitutional protection with respect to the offi-

cial designation of ‘marriage’ than Colorado did for with-

drawing from that group all protection against discrimination

generally.

Proposition 8, like Amendment 2, enacts a

“ ‘[d]iscrimination[ ] of an unusual character,’ ” which

requires “ ‘careful consideration to determine whether [it] [is]

obnoxious to the’ ” Constitution. Id. at 633 (quoting Louis-

ville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).

As in Romer, therefore, we must consider whether any legiti-

them, Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam), “ ‘except

when doctrinal developments indicate otherwise,’ ” Hicks v. Miranda, 422

U.S. 332, 344 (1975) (quoting Port Authority Bondholders Protective

Committee v. Port of New York Authority, 387 F.2d 259, 263 n.3 (2d Cir.

1967)). “[N]o more may be read into” them, however, “than was essential

to sustain th[e] judgment. Questions which ‘merely lurk in the record’ are

not resolved, and no resolution of them may be inferred.” Ill. State Bd. of

Elections v. Socialist Workers Party, 440 U.S. 173, 183 (1979) (citations

omitted).

Whether or not the constitutionality of any ban on same-sex marriage

was “presented and necessarily decided” in Baker, and whether or not

Baker would govern that question in light of subsequent “doctrinal devel-

opments,” we address no such question here. We address a wholly differ-

ent 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.

PERRY v. BROWN 1621

mate state interest constitutes a rational basis for Proposition

8; otherwise, we must infer that it was enacted with only the

constitutionally illegitimate basis of “animus toward the class

it affects.” Romer, 517 U.S. at 632.

2

Before doing so, we briefly consider one other objection

that Proponents raise to this analysis: the argument that

because the Constitution “is not simply a one-way ratchet that

forever binds a State to laws and policies that go beyond what

the Fourteenth Amendment would otherwise require,” the

State of California—“ ‘having gone beyond the requirements

of the Federal Constitution’ ” in extending the right to marry

to same-sex couples—“ ‘was free to return . . . to the standard

prevailing generally throughout the United States.’ ” Propo-

nents’ Reply Br. 76 (quoting Crawford v. Bd. of Educ., 458

U.S. 527, 542 (1982)). Proponents appear to suggest that

unless the Fourteenth Amendment actually requires that the

designation of ‘marriage’ be given to same-sex couples in the

first place, there can be no constitutional infirmity in taking

the designation away from that group of citizens, whatever the

People’s reason for doing so.

[9] Romer forecloses this argument. The rights that were

repealed by Amendment 2 included protections against dis-

crimination on the basis of sexual orientation in the private

sphere. Those protections, like any protections against private

discrimination, were not compelled by the Fourteenth Amend-

ment.15 Rather, “[s]tates ha[d] chosen to counter discrimina-

15

Indeed, as the Court observed, not only does the Fourteenth Amend-

ment not prohibit private discrimination; it does not even “give Congress

a general power to prohibit discrimination in public accommodations” by

statute. Romer, 517 U.S. at 628 (emphasis added) (citing Civil Rights

Cases, 109 U.S. 3, 25 (1883)). Congress has passed antidiscrimination

laws regulating private conduct only under its Article I powers. See, e.g.,

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)

(upholding the Civil Rights Act of 1964 under the Commerce Clause).

1622 PERRY v. BROWN

tion by enacting detailed statutory schemes” prohibiting

discrimination in employment and public accommodations,

among other contexts, and certain Colorado jurisdictions had

chosen to extend those protections to gays and lesbians.

Romer, 517 U.S. at 628 (emphasis added). It was these elec-

tive protections that Amendment 2 withdrew and forbade.16

The relevant inquiry in Romer was not whether the state of

the law after Amendment 2 was constitutional; there was no

doubt that the Fourteenth Amendment did not require

antidiscrimination protections to be afforded to gays and les-

bians. 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 maintain-

ing that right for opposite-sex couples—was justified by a

legitimate reason.

[10] This does not mean that the Constitution is a “one-

way ratchet,” as Proponents suggest. It means only that the

Equal Protection Clause requires the state to have a legitimate

reason for withdrawing a right or benefit from one group but

16

The protections at issue in Romer were not of substantially more dis-

tant provenance than the protection at issue here. While Aspen and Boul-

der 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, 854 P.2d at 1284.

PERRY v. BROWN 1623

not others, whether or not it was required to confer that right

or benefit in the first place. Thus, when Congress, having cho-

sen to provide food stamps to the poor in the Food Stamp Act

of 1964, amended the Act to exclude households of unrelated

individuals, such as “hippies” living in “hippie communes,”

the Supreme Court held the amendment unconstitutional

because “a bare congressional desire to harm a politically

unpopular group cannot constitute a legitimate governmental

interest.” U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534

(1973). In both Romer and Moreno, the constitutional viola-

tion that the Supreme Court identified was not the failure to

confer a right or benefit in the first place; Congress was no

more obligated to provide food stamps than Colorado was to

enact antidiscrimination laws. Rather, what the Supreme

Court forbade in each case was the targeted exclusion of a

group of citizens from a right or benefit that they had enjoyed

on equal terms with all other citizens. The constitutional

injury that Romer and Moreno identified—and that serves as

a basis of our decision to strike down Proposition 8—has little

to do with the substance of the right or benefit from which a

group is excluded, and much to do with the act of exclusion

itself. Proponents’ reliance on Crawford v. Board of Educa-

tion, 458 U.S. 527 (1982), is therefore misplaced. In Craw-

ford, the Court affirmed Proposition 1, a California initiative

constitutional amendment that barred state courts from order-

ing school busing or pupil-assignment plans except when nec-

essary to remedy a federal constitutional violation. Id. at 531-

32. Like Proposition 8, Proposition 1 was adopted in response

to a decision of the California Supreme Court under the state

constitution, which had held that state schools were obligated

to take “reasonably feasible steps,” including busing and

pupil-assignment plans, “to alleviate school segregation.”

Crawford v. Bd. of Educ., 551 P.2d 28, 45 (Cal. 1976). The

Supreme Court “reject[ed] the contention that once a State

chooses to do ‘more’ than the Fourteenth Amendment

requires, it may never recede.”17 Crawford, 458 U.S. at 535.

17

Additionally, the Court stated that it “would not interpret the Four-

teenth Amendment to require the people of a State to adhere to a judicial

1624 PERRY v. BROWN

That conclusion was consistent with the principle that states

should be free “to experiment” with social policy, without

fear of being locked in to “legislation that has proved unwork-

able or harmful when the State was under no obligation to

adopt the legislation in the first place.” Id. at 535, 539-40.

Critically, however, the Court noted that Proposition 1 did

not itself draw any classification; “[i]t simply forb[ade] state

courts” from ordering specific remedies under state law “in

the absence of a Fourteenth Amendment violation,” while

maintaining the state constitution’s more robust “right to

desegregation than exists under the Federal Constitution.” Id.

at 537, 542 (emphasis added); see also id. at 544 (noting that

other remedies remained available). Most important, the prop-

osition’s purported benefit, “neighborhood schooling,” was

“made available regardless of race.” Id. There was no evi-

dence that the “purpose of [the] repealing legislation [was] to

construction of their State Constitution when that Constitution itself vests

final authority in the people.” Crawford, 458 U.S. at 540. In enacting

Proposition 8, the People did not “declare the state of the law as it existed

when the Marriage Cases decision was rendered, but instead establishe[d]

a new substantive state constitutional rule” that amended the charter’s text

to supersede the previous California Declaration of Rights. Strauss, 207

P.3d at 115. The People thus acted as Congress does when it disapproves

of a statutory interpretation by a federal court and enacts a new statute to

produce its preferred result. See, e.g., Religious Freedom Restoration Act

of 1993, Pub. L. No. 103-141 (enacted in response to the Supreme Court’s

decision in Employment Division v. Smith, 494 U.S. 872 (1990)). Of

course, Crawford did not suggest that it ends the inquiry to note that the

Fourteenth Amendment generally allows the People to exercise their state

constitutional right to supersede a decision of the state supreme court by

an initiative constitutional amendment. A federal court must still deter-

mine whether the constitutional amendment enacted by the People is oth-

erwise valid under the Federal Constitution; sometimes laws passed

because of disagreement with judicial decisions are not. Cf. City of Boerne

v. Flores, 521 U.S. 507 (1997) (holding the Religious Freedom Restora-

tion Act unconstitutional in part). Proposition 1 was valid because, in

superseding a decision of the California Supreme Court, it did not draw

an improper classification among groups. Proposition 8 is invalid because

it does.

PERRY v. BROWN 1625

disadvantage a racial minority,” which would have made the

proposition unconstitutional. Id. at 539 n.21, 543-45 (citing

Reitman v. Mulkey, 387 U.S. 369 (1967)). Because Proposi-

tion 1 did not establish any classification, and because it was

supported by permissible policy preferences against specific

court remedies, the Supreme Court held that it was valid. On

the same day, by contrast, the Court struck down a similar

Washington initiative, because it had been “drawn for racial

purposes” in a manner that “impose[d] substantial and unique

burdens on racial minorities” and accordingly violated the

Fourteenth Amendment. Washington v. Seattle Sch. Dist. No.

1, 458 U.S. 457, 470-71 (1982).

Romer, not Crawford, controls where a privilege or protec-

tion 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 Colo-

rado presented before the Supreme Court an argument regard-

ing Crawford identical to the one that Proponents present

here, that argument did not persuade the Court.18 Neither

Proposition 8 nor Amendment 2 was a law of general applica-

bility that merely curtailed state courts’ remedial powers, as

opposed to a single group’s rights. Rather, both Proposition 8

and Amendment 2 “carve[d] out” rights from gays and lesbi-

ans alone. Unlike the measure in Crawford, Proposition 8 is

a “discrimination of an unusual character” that requires “care-

ful consideration” of its purposes and effects, whether or not

the Fourteenth Amendment required the right to be provided

18

See Petitioners’ Br. 32-33, 48, Romer v. Evans, 517 U.S. 620 (1996)

(No. 94-1039) (“Crawford controls this case. Through Amendment 2, Col-

orado has simply defined the package of civil rights available to homosex-

uals and bisexuals under the Colorado Constitution as no larger than that

provided by the Constitution and laws of the United States. . . . While a

state or local government can grant more protection than that required by

the United States Constitution, a state or local government can also rescind

that additional protection—and prohibit its subsequent reextension—

without committing a federal constitutional violation. [Crawford, 458 U.S.

at 538-39.] Amendment 2 does nothing more.”).

1626 PERRY v. BROWN

ab initio. Following Romer, we must therefore decide whether

a legitimate interest exists that justifies the People of Califor-

nia’s action in taking away from same-sex couples the right

to use the official designation and enjoy the status of

‘marriage’—a legitimate interest that suffices to overcome the

“inevitable inference” of animus to which Proposition 8’s dis-

criminatory effects otherwise give rise.

D

We first consider four possible reasons offered by Propo-

nents 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, 509 U.S.

312, 321 (1993). They are, conversely, not to be credited if

they “could not reasonably be conceived to be true by the

governmental decisionmaker.” Vance v. Bradley, 440 U.S. 93,

111 (1979).19 Because Proposition 8 did not further any of

these interests, we conclude that they cannot have been ratio-

nal bases for this measure, whether or not they are legitimate

state interests.

1

The primary rationale Proponents offer for Proposition 8 is

that it advances California’s interest in responsible procre-

ation 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

19

As we have noted, we need not consider whether any form of height-

ened scrutiny is necessary or appropriate in order to reach the result we

do. See supra note 13.

PERRY v. BROWN 1627

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 sex-

ual activity to form stable family units. Because same-sex

couples are not at risk of “irresponsible procreation” as a mat-

ter 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 inter-

ests, whether or not the interests would be legitimate under

other circumstances.

[11] We need not decide whether there is any merit to the

sociological premise of Proponents’ first argument—that fam-

ilies headed by two biological parents are the best environ-

ments in which to raise children—because even if Proponents

are correct, Proposition 8 had absolutely no effect on the abil-

ity 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 mar-

riage. See Strauss, 207 P.3d at 61. Both before and after Prop-

osition 8, committed opposite-sex couples (“spouses”) and

same-sex couples (“domestic partners”) had identical rights

with regard to forming families and raising children. See Cal.

Fam. Code § 297.5(d) (“The rights and obligations of regis-

tered domestic partners with respect to a child of either of

them shall be the same as those of spouses.”). Similarly, Prop-

osition 8 did not alter the California adoption or presumed-

parentage laws, which continue to apply equally to same-sex

couples. Cf. Elisa B., 117 P.3d at 667-71 (applying the pre-

sumed parentage statutes to a lesbian couple); Sharon S. v.

Super. Ct., 73 P.3d 554, 570 (Cal. 2003) (applying the adop-

tion laws to a lesbian couple). In order to be rationally related

to the purpose of funneling more childrearing into families led

1628 PERRY v. BROWN

by two biological parents, Proposition 8 would have had to

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

Moreover, California’s “current policies and conduct . . .

recognize that gay individuals are fully capable of . . . respon-

sibly caring for and raising children.” Marriage Cases, 183

P.3d at 428. And California law actually prefers a non-

biological parent who has a parental relationship with a child

to a biological parent who does not; in California, the parent-

age statutes place a premium on the “social relationship,” not

the “biological relationship,” between a parent and a child.

See, e.g., Susan H. v. Jack S., 30 Cal. App. 4th 1435, 1442-43

(1994). California thus has demonstrated through its laws that

Proponents’ first rationale cannot “reasonably be conceived to

be true by the governmental decisionmaker,” Vance, 440 U.S.

at 111. We will not credit a justification for Proposition 8 that

is totally inconsistent with the measure’s actual effect and

with the operation of California’s family laws both before and

after its enactment.

Proponents’ second argument is that there is no need to

hold out the designation of ‘marriage’ as an encouragement

for same-sex couples to engage in responsible procreation,

20

For the reasons explained above, Citizens for Equal Protection v. Bru-

ning, 455 F.3d 859 (8th Cir. 2006), is not applicable here. As our dissent-

ing colleague states, the fact that Proposition 8 left intact California’s laws

concerning family formation and childrearing by same-sex couples distin-

guishes this case from Citizens. See Dissent at 1669 (“Unlike the Nebraska

constitutional amendment, which prohibited the recognition of both mar-

riages by same-sex couples and other same-sex relationships, Proposition

8 left California’s existing domestic partnership laws intact. . . . Thus, it

cannot be said that Proposition 8 ‘confer[s] the inducements of marital . . .

benefits on opposite-sex couples . . . , but not on same-sex couples . . . .

’ ” (all but first alteration in original)).

We also note that the Nebraska constitutional amendment at issue in

Citizens did not withdraw an existing right from same-sex couples as did

Proposition 8. Cf. Dissent at 1660 n.2. (“[W]hile the withdrawal of a right

may not be analytically significant for rational basis review, it may still

be factually significant.”).

PERRY v. BROWN 1629

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, 415 U.S. 361, 383

(1974) (“When . . . the inclusion of one group promotes a

legitimate governmental purpose, and the addition of other

groups would not, we cannot say that the statute’s classifica-

tion of beneficiaries and nonbeneficiaries is invidiously dis-

criminatory.”). But Plaintiffs do not ask that marriage be

extended to anyone. As we have by now made clear, the ques-

tion 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 ‘mar-

riage’ to same-sex couples; that is not what Proposition 8 did.

Johnson concerns decisions not to add to a legislative scheme

a group that is unnecessary to the purposes of that scheme, but

Proposition 8 subtracted a disfavored group from a scheme of

which it already was a part.21

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.” Romer, 517 U.S. at 634.

In order to explain how rescinding access to the designation

of ‘marriage’ is rationally related to the State’s interest in

responsible procreation, Proponents would have had to argue

that opposite-sex couples were more likely to procreate acci-

dentally or irresponsibly when same-sex couples were

21

Moreover, Johnson did not involve a dignitary benefit that was with-

drawn from one group, such as an official and meaningful state designa-

tion that established the societal status of the members of the group; it

concerned only a specific form of government assistance.

1630 PERRY v. BROWN

allowed access to the designation of ‘marriage.’ We are aware

of no basis on which this argument would be even conceiv-

ably 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 argu-

ment, 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 legisla-

tion,” and thus cannot be credited as rational. Heller, 509 U.S.

at 321. Whatever sense there may be in preferring biological

parents over other couples—and we need not decide whether

there is any—California law clearly does not recognize such

a preference, and Proposition 8 did nothing to change that cir-

cumstance. 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 pur-

pose 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 irrel-

evant 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 pro-

creation 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 institu-

tion that best advances the social interests in responsible pro-

creation, 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

PERRY v. BROWN 1631

structure that has proven most likely to foster an optimal envi-

ronment for the rearing of children.”). As discussed above,

Proposition 8 in no way alters the state laws that govern child-

rearing 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 desig-

nation of ‘marriage’ is withdrawn and only from one group of

individuals.

[12] We in no way mean to suggest that Proposition 8

would be constitutional if only it had gone further—for exam-

ple, by also repealing same-sex couples’ equal parental rights

or their rights to share community property or enjoy hospital

visitation privileges. Only if Proposition 8 had actually had

any effect on childrearing or “responsible procreation” would

it be necessary or appropriate for us to consider the legitimacy

of Proponents’ primary rationale for the measure.22 Here,

given all other pertinent aspects of California law, Proposition

8 simply could not have the effect on procreation or child-

22

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, pub-

lished in the Voter Information Guide, emphasized this distinction: “Prop-

osition 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 ‘[o]nly marriage between one man and one woman is valid or

recognized in California,’ but also that ‘[n]either the Legislature nor any

court, government institution, government agency, initiative statute, local

government, or government official shall . . . bestow statutory rights, inci-

dents, or employee benefits of marriage on unmarried individuals’—was

circulated for signature at the same time as Proposition 8, but did not

obtain sufficient signatures to qualify for the ballot.” 207 P.3d at 76 n.8.

1632 PERRY v. BROWN

bearing 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 desig-

nation of ‘marriage’—without in any way altering the sub-

stantive laws concerning their rights regarding childrearing or

family formation—will encourage heterosexual couples to

enter into matrimony, or will strengthen their matrimonial

bonds, we believe that the People of California “could not

reasonably” have “conceived” such an argument “to be true.”

Vance, 440 U.S. at 111. It is implausible to think that denying

two men or two women the right to call themselves married

could somehow bolster the stability of families headed by one

man and one woman. While deferential, the rational-basis

standard “is not a toothless one.” Mathews v. Lucas, 427 U.S.

495, 510 (1976). “[E]ven the standard of rationality . . . must

find some footing in the realities of the subject addressed by

the legislation.” Heller, 509 U.S. at 321. Here, the argument

that withdrawing the designation of ‘marriage’ from same-sex

couples could on its own promote the strength or stability of

opposite-sex marital relationships lacks any such footing in

reality.

2

[13] Proponents offer an alternative justification for Propo-

sition 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 mar-

ried (and remain married even after Proposition 8, Strauss,

207 P.3d at 122).23

23

The over 18,000 couples that did marry represented more than one-

third of all couples that had entered into registered domestic partnerships

PERRY v. BROWN 1633

Perhaps what Proponents mean is that California had an

interest in pausing at 18,000 married same-sex couples to

evaluate whether same-sex couples should continue to be

allowed to marry, or whether the same-sex marriages that had

already occurred were having any adverse impact on society.

Even if that were so, there could be no rational connection

between the asserted purpose of “proceeding with caution”

and the enactment of an absolute ban, unlimited in time, on

same-sex marriage in the state constitution.24 To enact a con-

stitutional prohibition is to adopt a fundamental barrier: it

means that the legislative process, by which incremental poli-

cymaking would normally proceed, is completely foreclosed.

Cf. Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483,

489 (1955) (observing that legislatures may rationally reform

policy “one step at a time”). Once Proposition 8 was enacted,

any future steps forward, however cautious, would require

“enlisting the citizenry of [California] to amend the State

Constitution” once again. Romer, 517 U.S. at 631.

Had Proposition 8 imposed not a total ban but a time-

specific moratorium on same-sex marriages, during which the

Legislature would have been authorized to consider the ques-

tion 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 objec-

tive 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

in California at the time. See Gary J. Gates et al., The Williams Institute,

Marriage, Registration and Dissolution by Same-Sex Couples in the U.S.

5 (July 2008) (noting that there were 48,157 registered domestic partner-

ships in California as of Spring 2008).

24

When the Eighteenth Amendment was ratified, the Nation was simi-

larly not interested in “proceeding with caution” in reallocating grain from

wartime rations to alcohol production. It meant, instead, to effect a perma-

nent ban on alcohol.

1634 PERRY v. BROWN

Legislature or even the People (except by constitutional

amendment) from choosing to make the designation of ‘mar-

riage’ available to same-sex couples in the future. Such a per-

manent ban cannot be rationally related to an interest in

proceeding with caution.

[14] In any event, in light of the express purpose of Propo-

sition 8 and the campaign to enact it, it is not credible to sug-

gest that “proceed[ing] with caution” was the reason the

voters adopted the measure. The purpose and effect of Propo-

sition 8 was “to eliminate the right of same-sex couples to

marry in California”—not to “suspend” or “study” that right.

Voter Information Guide at 54 (Proposition 8, Official Title

and Summary) (emphasis added).25 The voters were told that

Proposition 8 would “overturn[ ]” the Marriage Cases “to

RESTORE the meaning of marriage.” Id. at 56 (Argument in

Favor of Proposition 8). The avowed purpose of Proposition

8 was to return with haste to a time when same-sex couples

were barred from using the official designation of ‘marriage,’

not to study the matter further before deciding whether to

make the designation more equally available.

3

[15] 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 Proposi-

tion 8, “no religion [was] required to change its religious poli-

cies or practices with regard to same-sex couples, and no

religious officiant [was] required to solemnize a marriage in

25

In California, “[b]allot summaries . . . in the ‘Voter Information

Guide’ are recognized sources for determining the voters’ intent.” People

v. Garrett, 92 Cal. App. 4th 1417, 1426 (2001) (citing Hodges v. Super.

Ct., 980 P.2d 433, 438-39 (Cal. 1999)).

PERRY v. BROWN 1635

contravention of his or her religious beliefs.” Marriage Cases,

183 P.3d at 451-52; see Becket Br. 4-5 (acknowledging this

point). Rather, the religious-liberty interest that Proposition 8

supposedly promoted was to decrease the likelihood that reli-

gious organizations would be penalized, under California’s

antidiscrimination laws and other government policies con-

cerning sexual orientation, for refusing to provide services to

families headed by same-sex spouses. But Proposition 8 did

nothing to affect those laws. To the extent that California’s

antidiscrimination laws apply to various activities of religious

organizations, their protections apply in the same way as

before. Amicus’s argument is thus more properly read as an

appeal to the Legislature, seeking reform of the State’s

antidiscrimination laws to include greater accommodations

for religious organizations. See, e.g., Becket Br. 8 n.6

(“Unlike many other states, California has no religious

exemptions to its statutory bans on gender, marital status, and

sexual orientation discrimination in public accommoda-

tions.”). This argument is in no way addressed by Proposition

8 and could not have been the reason for Proposition 8.

[16] Second is the argument, prominent during the cam-

paign to pass Proposition 8, that it would “protect[ ] our chil-

dren from being taught in public schools that ‘same-sex

marriage’ is the same as traditional marriage.” Perry IV, 704

F. Supp. 2d at 930, 989-90 (quoting the Voter Information

Guide at 56) (emphasis omitted); see Br. Amicus Curiae for

the Hausvater Project 13-15. Yet again, California law belies

the premise of this justification. Both before and after Propo-

sition 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 rela-

tionships.” Cal. Educ. Code § 51933(a)-(b), (b)(7). Both

before and after Proposition 8, schools have retained control

over the content of such lessons. And both before and after

Proposition 8, schools and individual teachers have been pro-

hibited from giving any instruction that discriminates on the

1636 PERRY v. BROWN

basis of sexual orientation; now as before, students could not

be taught the superiority or inferiority of either same- or

opposite-sex marriage or other “committed relationships.”

Cal. Educ. Code §§ 51500, 51933(b)(4). The Marriage Cases

therefore did not weaken, and Proposition 8 did not

strengthen, the rights of schools to control their curricula and

of parents to control their children’s education.

There is a limited sense in which the extension of the desig-

nation ‘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, les-

sons 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 oppos-

ing the legitimation of no-fault divorce because a teacher

might allude to that fact if a course in societal structure were

taught to graduating seniors. The prospect of children learning

about the laws of the State and society’s assessment of the

legal rights of its members does not provide an independent

reason for stripping members of a disfavored group of those

rights they presently enjoy.

4

Proposition 8’s only effect, we have explained, was to

withdraw from gays and lesbians the right to employ the des-

ignation 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

PERRY v. BROWN 1637

caution in social change, to protect religious liberty, or to con-

trol the education of schoolchildren. Simply taking away the

designation of ‘marriage,’ while leaving in place all the sub-

stantive 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 particu-

lar justifications that we find it impossible to credit them.”

Romer, 517 U.S. at 635. We therefore need not, and do not,

decide whether any of these purported rationales for the law

would be “legitimate,” id. at 632, or would suffice to justify

Proposition 8 if the amendment actually served to further

them.

E

1

We are left to consider why else the People of California

might have enacted a constitutional amendment that 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 ‘mar-

riage’ was available only to opposite-sex couples, as had been

the case since the founding of the State and in other jurisdic-

tions long before that. This purpose is one that Proposition 8

actually did accomplish: it “restore[d] the traditional defini-

tion of marriage as referring to a union between a man and a

woman.” Strauss, 207 P.3d at 76. But tradition alone is not a

justification for 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 les-

bians 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 “tra-

ditional” state of affairs. 517 U.S. at 627-29. 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 con-

1638 PERRY v. BROWN

ceivable affirmative good that revocation would produce, cf.

Crawford, 458 U.S. at 539-40, but new rights may not be

stripped away solely because they are new. Tradition is a

legitimate consideration in policymaking, of course, but it

cannot be an end unto itself. Cf. Williams v. Illinois, 399 U.S.

235, 239-40 (1970). “[T]he fact that the governing majority in

a State has traditionally viewed a particular practice as

immoral is not a sufficient reason for upholding a law prohib-

iting the practice; neither history nor tradition could save a

law prohibiting miscegenation from constitutional attack.”

Lawrence v. Texas, 539 U.S. 558, 577-78 (2003); see Loving

v. Virginia, 388 U.S. 1 (1967) (noting the historical pedigree

of bans on interracial marriage but not even considering tradi-

tion as a possible justification for Virginia’s law). If tradition

alone is insufficient to justify maintaining a prohibition with

a discriminatory effect, then it is necessarily insufficient to

justify changing the law to revert to a previous state. A prefer-

ence 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 pref-

erence against same-sex couples themselves, as well as their

families.

[17] Absent any legitimate purpose for Proposition 8, we

are left with “the inevitable inference that the disadvantage

imposed is born of animosity toward,” or, as is more likely

with respect to Californians who voted for the Proposition,

mere disapproval of, “the class of persons affected.” Romer,

517 U.S. at 634. We do not mean to suggest that Proposition

8 is the result of ill will on the part of the voters of California.

“Prejudice, we are beginning to understand, rises not from

malice or hostile animus alone.” Bd. of Trustees of Univ. of

Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., con-

curring). Disapproval may also be the product of longstand-

ing, sincerely held private beliefs. Still, while “[p]rivate

biases may be outside the reach of the law, . . . the law cannot,

directly or indirectly, give them effect.” Palmore v. Sidoti,

466 U.S. 429, 433 (1984). Ultimately, the “inevitable infer-

PERRY v. BROWN 1639

ence” we must draw in this circumstance is not one of ill will,

but rather one of disapproval of gays and lesbians as a class.

“[L]aws singling out a certain class of citizens for disfavored

legal status or general hardships are rare.” Romer, 517 U.S. at

633. Under Romer, we must infer from Proposition 8’s effect

on California law that the People 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.

[18] 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 criminal-

ization of “homosexual conduct . . . is an invitation to subject

homosexual persons to discrimination both in the public and

in the private spheres,” Lawrence, 539 U.S. at 575, so too

does the elimination of the right to use the official designation

of ‘marriage’ for the relationships of committed same-sex

couples send a message that gays and lesbians are of lesser

worth as a class—that they enjoy a lesser societal status.

Indeed, because laws affecting gays and lesbians’ rights often

regulate individual conduct—what sexual activity people may

undertake in the privacy of their own homes, or who is per-

mitted to marry whom—as much as they regulate status, the

Supreme Court has “declined to distinguish between status

and conduct in [the] context” of sexual orientation. Christian

Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2990 (2010). By

withdrawing the availability of the recognized designation of

‘marriage,’ Proposition 8 enacts nothing more or less than a

judgment about the worth and dignity of gays and lesbians as

a class.

[19] Just as a “desire to harm . . . cannot constitute a legiti-

mate governmental interest,” Moreno, 413 U.S. at 534, nei-

ther can a more basic disapproval of a class of people. Romer,

1640 PERRY v. BROWN

517 U.S. at 633-35. “The issue is whether the majority may

use the power of the State to enforce these views on the whole

society” through a law that abridges minority individuals’

rights. Lawrence, 539 U.S. at 571. It may not. Without more,

“[m]oral disapproval of [a] group, like a bare desire to harm

the group, is an interest that is insufficient to satisfy rational

basis review under the Equal Protection Clause.” Id. at 582

(O’Connor, J., concurring). Society does sometimes draw

classifications that likely are rooted partially in disapproval,

such as a law that grants educational benefits to veterans but

denies them to conscientious objectors who engaged in alter-

native civilian service. See Johnson, 415 U.S. at 362-64.

Those classifications will not be invalidated so long as they

can be justified by reference to some independent purpose

they serve; in Johnson, they could provide an incentive for

military service and direct assistance to those who needed the

most help in readjusting to post-war life, see id. at 376-83.

Enacting a rule into law based solely on the disapproval of a

group, however, “is a classification of persons undertaken for

its own sake, something the Equal Protection Clause does not

permit.” Romer, 517 U.S. at 635. Like Amendment 2, Propo-

sition 8 is a classification of gays and lesbians undertaken for

its own sake.

2

The “inference” that Proposition 8 was born of disapproval

of gays and lesbians is heightened by evidence of the context

in which the measure was passed.26 The district court found

that “[t]he campaign to pass Proposition 8 relied on stereo-

26

A contextual evaluation is both useful and appropriate as part of the

“careful consideration” in which courts must engage when faced with

“[d]iscriminations of an unusual character.” Romer, 517 U.S. at 633 (inter-

nal quotation marks omitted); see Moreno, 413 U.S. at 533-38. When a

law is enacted by ballot initiative, we look to objective indicators of the

voters’ motivations, such as campaign materials, to shed light on the “his-

torical context.” S. Alameda Spanish Speaking Org. v. Union City, 424

F.2d 291, 295 (9th Cir. 1970); see, e.g., Washington, 458 U.S. at 463.

PERRY v. BROWN 1641

types to show that same-sex relationships are inferior to

opposite-sex relationships.” Perry IV, 704 F. Supp. 2d at 990.

Television and print advertisements “focused on . . . the con-

cern 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 pro-

tected from exposure to gay people and their relationships.”

Id. These messages were not crafted accidentally. The strate-

gists 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 com-

munity. They would entertain allowing gay marriage, but not

if doing so had significant implications for the rest of soci-

ety,’ ” such as what children would be taught in school. Id. at

988 (quoting Frank Schubert & Jeff Flint, Passing Prop 8,

Politics, Feb. 2009, at 45-47). Nor were these messages new;

for decades, ballot measures regarding homosexuality have

been presented to voters in terms designed to appeal to stereo-

types of gays and lesbians as predators, threats to children,

and practitioners of a deviant “lifestyle.” See Br. Amicus

Curiae of Constitutional Law Professors at 2-8. The messages

presented here mimic those presented to Colorado voters in

support of Amendment 2, such as, “Homosexual indoctrina-

tion in the schools? IT’S HAPPENING IN COLORADO!”

Colorado for Family Values, Equal Rights—Not Special

Rights, at 2 (1992), reprinted in Robert Nagel, Playing

Defense, 6 Wm. & Mary Bill Rts. J. 167, 193 (1997).

[20] When directly enacted legislation “singl[es] out a cer-

tain class of citizens for disfavored legal status,” we must “in-

sist on knowing the relation between the classification

adopted and the object to be attained,” so that we may ensure

that the law exists “to further a proper legislative end” rather

than “to make the[ ] [class] unequal to everyone else.” Romer,

517 U.S. at 632-33, 635. Proposition 8 fails this test. Its sole

purpose and effect is “to eliminate the right of same-sex cou-

ples to marry in California”—to dishonor a disfavored group

1642 PERRY v. BROWN

by taking away the official designation of approval of their

committed relationships and the accompanying societal status,

and nothing more. Voter Information Guide at 54. “It is at

once too narrow and too broad,” for it changes the law far too

little to have any of the effects it purportedly was intended to

yield, yet it dramatically reduces the societal standing of gays

and lesbians and diminishes their dignity. Romer, 517 U.S. at

633. Proposition 8 did not result from a legitimate “Kultur-

kampf” concerning the structure of families in California,

because it had no effect on family structure, but in order to

strike it down, we need not go so far as to find that it was

enacted in “a fit of spite.” Id. at 636 (Scalia, J., dissenting).

It is enough to say that Proposition 8 operates with no appar-

ent 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 designa-

tion of ‘marriage,’ with its societally recognized status. Prop-

osition 8 therefore violates the Equal Protection Clause.

VI

Finally, we address Proponents’ motion to vacate the dis-

trict 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 relation-

ship 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) obli-

gated him either to recuse himself or to disclose his potential

conflict, because “his impartiality might reasonably be ques-

tioned.” 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

PERRY v. BROWN 1643

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 mem-

bers of the general public would be affected, is not a basis for

either recusal or disqualification under Section 455(b)(4).”

Perry v. Schwarzenegger, 790 F. Supp. 2d 1119, 1122 (N.D.

Cal. 2011); see In re City of Houston, 745 F.2d 925, 929-30

(5th Cir. 1984) (“We recognize that ‘an interest which a judge

has in common with many others in a public matter is not suf-

ficient to disqualify him.’ ”). Nor could it possibly be “reason-

able to presume,” for the purposes of § 455(a), “that a judge

is incapable of making an impartial decision about the consti-

tutionality of a law, solely because, as a citizen, the judge

could be affected by the proceeding.” 790 F. Supp. 2d at

1122; see United States v. Alabama, 828 F.2d 1532, 1541-42

(11th Cir. 1987). To hold otherwise would demonstrate a lack

of respect for the integrity of our federal courts.

[21] 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 dis-

cretion.” Jeff D. v. Kempthorne, 365 F.3d 844, 850 (9th Cir.

2004). Our standard for abuse of discretion requires us to (1)

“look to whether the trial court identified and applied the cor-

rect legal rule to the relief requested”; and, if the trial court

applied the correct legal rule, to (2) “look to whether the trial

court’s resolution . . . resulted from a factual finding that was

illogical, implausible, or without support in inferences that

may be drawn from the facts in the record.” United States v.

Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).

Here, Chief Judge Ware did not incorrectly apply the law. He

identified and applied § 455(b)(4) and § 455(a), the correct

legal rules, as well as the relevant precedents. His application

of the law, determining whether Chief Judge Walker was obli-

gated to recuse himself, was discretionary. See United States

1644 PERRY v. BROWN

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

lution of the issue on the basis of the facts was not illogical,

implausible, or without support in inferences that may be

drawn from the facts in the record. Thus, we affirm Chief

Judge Ware’s decision not to grant the motion to vacate.

VII

By using their initiative power to target a minority group

and withdraw a right that it possessed, without a legitimate

reason for doing so, the People of California violated the

Equal Protection Clause. We hold Proposition 8 to be uncon-

stitutional 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

AFFIRMED.27

27

The stay pending appeal issued by this court on August 16, 2010

remains in effect pending issuance of the mandate.

PERRY v. BROWN 1645

N.R. SMITH, Circuit Judge, concurring in part and dissenting

in part:

I agree with the majority’s analysis and decisions in parts

III and VI of its opinion, determining that (1) the Proponents

have standing to bring this appeal; and (2) the Motion to

Vacate the Judgment should be denied. Because I do not

agree with the majority’s analysis of other topics regarding

the constitutionality of Proposition 8, I have chosen to write

separately. Ultimately, I am not convinced that Proposition 8

is not rationally related to a legitimate governmental interest.

I must therefore respectfully dissent.

Before addressing the issues now presented before our

panel, I want to emphasize a distinguishing point in my analy-

sis 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, 207 P.3d 48, 59 (Cal. 2009). Our personal views

regarding the political and sociological debate on marriage

equality are irrelevant to our task. Instead, we are only asked

to consider the constitutional validity of Proposition 8 under

the federal Constitution. The California Supreme Court has

already interpreted and applied “the principles and rules

embodied in the California Constitution” to Proposition 8 and

found it valid. Strauss, 207 P.3d 48.

I.

Proponents and their supporting amici (hereinafter Propo-

nents) argue that the United States Supreme Court’s summary

dismissal in Baker v. Nelson, 409 U.S. 810 (1972) (mem.),

“mandates reversal of the district court’s ruling.” According

to Proponents, the claims raised here are the same as those

rejected in Baker, and the claims are therefore foreclosed by

1646 PERRY v. BROWN

that decision. The majority dispenses with Baker in a foot-

note. However, other federal courts have indicated that Baker,

if it is not controlling, at least stands for exercising “restraint”

when it comes to addressing due process and equal protection

challenges against laws prohibiting marriage by same-sex

couples. Citizens for Equal Protection v. Bruning, 455 F.3d

859, 870 (8th Cir. 2006); see also Wilson v. Ake, 354 F. Supp.

2d 1298, 1305 (M.D. Fla. 2005) (“Baker v. Nelson is binding

precedent upon this Court . . . .”). But see In re Kandu, 315

B.R. 123, 138 (Bankr. W.D. Wash. 2004) (concluding that

“Baker is not binding precedent on the issues presented”

because the case centered on federal Defense of Marriage Act

and because “doctrinal developments” indicated Baker was no

longer binding). Because Baker is binding United States

Supreme Court precedent and may foreclose Plaintiffs’

claims, one must follow it or distinguish it.

A.

In Baker v. Nelson, two men were denied a marriage

license by a Minnesota county clerk. 191 N.W.2d 185, 185

(Minn. 1971). Because they were denied the license, the two

men filed suit asking that the court force the clerk to grant the

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

legislature had codified that the state “d[id] not authorize mar-

riage between persons of the same sex. . . .” Id. at 186. On

appeal, the Minnesota Supreme Court addressed several

issues, including whether the Minnesota statutes prohibiting

marriage by same-sex couples denied the petitioners “the

equal protection of the laws” as guaranteed by the Fourteenth

Amendment. Id. The Minnesota Supreme Court held that

“[t]he equal protection clause of the Fourteenth Amendment

. . . is not offended by the state’s classification of persons

authorized to marry.” Id. at 187. On appeal to the United

States Supreme Court, the Court summarily dismissed the

appeal “for want of a substantial federal question.” Baker v.

Nelson, 409 U.S. 810.

PERRY v. BROWN 1647

Though not stated in the summary dismissal in Baker, the

Supreme Court decision has long standing precedent support-

ing 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, 95 U.S. 714, 734-35 (1878), reaf-

firmed in Sosna v. Iowa, 419 U.S. 393, 404 (1975).

Marriage, as creating the most important relation in

life, as having more to do with the morals and civili-

zation of a people than any other institution, has

always been subject to the control of the legislature.

That body prescribes the age at which parties may

contract to marry, the procedure or form essential to

constitute marriage, the duties and obligations it

creates, its effects upon the property rights of both,

present and prospective, and the acts which may

constitute grounds for its dissolution.

Maynard v. Hill, 125 U.S. 190, 205 (1888).

As Justice Stewart opined in his concurrence in Zablocki v.

Redhail, a State

may in many circumstances absolutely prohibit

[marriage]. Surely, for example, a State may legiti-

mately say that no one can marry his or her sibling,

that no one can marry who is not at least 14 years

old, that no one can marry without first passing an

examination for venereal disease, or that no one can

marry who has a living husband or wife.

434 U.S. 374, 392 (1978) (Stewart, J., concurring).

The summary dismissal of an appeal for want of a substan-

tial federal question is a decision on the merits. Hicks v.

Miranda, 422 U.S. 332, 344 (1975). “[U]nless and until the

Supreme Court should instruct otherwise, inferior federal

1648 PERRY v. BROWN

courts had best adhere to the view that if the Court has

branded a question as unsubstantial, it remains so except

when doctrinal developments indicate otherwise . . . .” Id.

(internal quotation marks omitted). “[L]ower courts are bound

by summary decisions by [the Supreme] Court until such time

as the Court informs (them) that (they) are not.” Id. at 344-45

(internal quotation marks omitted). “Summary . . . dismissals

for want of a substantial federal question . . . reject the spe-

cific challenges presented in the statement of jurisdiction and

do leave undisturbed the judgment appealed from. They do

prevent lower courts from coming to opposite conclusions on

the precise issues presented and necessarily decided by those

actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per

curiam). Thus, “[a] summary disposition affirms only the

judgment of the court below, and no more may be read into

[the] action than was essential to sustain that judgment.” Ill.

State Bd. of Elections v. Socialist Workers Party, 440 U.S.

173, 182-83 (1979) (citation omitted). “Questions which

‘merely lurk in the record’ are not resolved, and no resolution

of them may be inferred.” Id. at 183 (citation omitted).

The jurisdictional statements presented to the United States

Supreme Court in Baker v. Nelson were as follows:

1. Whether appellee’s refusal to sanctify appel-

lants’ 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 Minne-

sota marriage statutes, to sanctify appellants’ mar-

riage because both are of the male sex violates their

rights under the equal protection clause of the Four-

teenth Amendment.

3. Whether appellee’s refusal to sanctify appel-

lants’ marriage deprives appellants of their right to

PERRY v. BROWN 1649

privacy under the Ninth and Fourteenth Amend-

ments.

See In re Kandu, 315 B.R. at 137.

B.

Here, we must address whether the question before us

involves “the precise issues presented and necessarily decided

by” 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 Pro-

tection Clause of the Fourteenth Amendment to the

United States Constitution.

Plaintiff-Intervenor City and County of San Francisco (here-

inafter San Francisco) presented the following additional

issue for review:

1. Whether Proposition 8, a constitutional amend-

ment 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 hon-

ored title “marriage” but not the incidents of mar-

1650 PERRY v. BROWN

riage 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 nec-

essarily decided in Baker, especially when the equal protec-

tion issue is framed as San Francisco advocates.1 The equal

protection issue decided in Baker rested on whether Minneso-

ta’s “refusal, pursuant to Minnesota marriage statutes, to sanc-

tify appellants’ marriage . . . violates their

This text is long and has been trimmed here. Open the source document for the complete record.