# KRISTIN PERRY v. EDMUND G. BROWN, Jr. > Court of Appeals for the Ninth Circuit · February 7, 2012 URL: https://www.frixlaw.com/law-library/cases/3065867 ## Case - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** February 7, 2012 - **Precedential status:** Published - **Opinion:** Opinion - **Nature of suit:** Civil - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3065867 ## How later opinions describe it (automated extraction) - stating that “mere negative attitudes, or fear” are not legiti- mate governmental interests - discussing Cleburne, 473 U.S. at 448 - stating that a “bare . . . desire to 1654 PERRY v. BROWN harm a politically unpopular group” is not a legitimate gov- ernmental interest - applying “traditional” principles of rational basis review to Congress’s determination “that some of those who in the past received full windfall benefits would not continue to do so” - discussing the “fiction” of Ex parte Young ## Opinion text 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 whet [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3065867. Public record. Not legal advice.