Hollingsworth v. Perry Lawsuit
Challenging Prop. 8 in California
Ninth Circuit’s Opinion
U.S. Supreme Court to Hear Case
Legal Director John Lewis
(Updated 9 January 2012)
In May 2009, two loving, committed same-sex couples (Kristin Perry & Sandra Stier and Paul Katami & Jeffrey Zarrillo) who wished to marry brought suit in federal court, asserting that Proposition 8’s taking away their freedom to marry violated the fundamental fairness guarantees of the United States Constitution.
On 7 February 2012, the Ninth Circuit Federal Court of Appeals, following United States Supreme Court precedent closely, issued a powerful decision striking down Proposition 8, the initiative that took away the freedom to marry from loving, committed same-sex couples in California in 2008.
The court wrote:
“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The [United States] Constitution simply does not allow for ‘laws of this sort.’”
Although profound, the Ninth Circuit decision is a relatively narrow one, focusing on the particular circumstances of Proposition 8 in California. The decision does not address broader questions such as 1) whether lesbian and gay people have a fundamental right to marry just as all other American citizens do; or 2) whether laws that discriminate against lesbian and gay people should be subject to the same heightened judicial scrutiny as laws discriminating against other minority groups are.
The court’s decision focused on Proposition 8’s uniqueness – the fact that it took away the existing freedom to marry from a particular minority group, based on no legitimate governmental policy rationale – something that had never before happened in American history.
Read the Summary of the 7 February 2012 Decision (3 pages)
Read the 7 February 2012 Full Opinion (133 pages)
Proponents of the initiative and ban asked the full Ninth US Circuit Court of Appeals to rehear the case en banc, but on 05 June 2012, the Ninth Circuit declined to do so.
On 7 December 2012, the United States Supreme Court announced that it will hear the case. The Court could approach the case in a variety of ways. It could rule on whether lesbian, gay, bisexual, and transgender people have a fundamental right under our United States Constitution to marry the person that they love, just as everyone has. It could evaluate the case more narrowly, focusing on the unique history of marriage equality in California as the 9th Circuit did. Or, it could rule on the jurisdictional issue of standing, whether the people who sponsored Proposition 8 (people who oppose the freedom to marry for all) may continue to pursue this lawsuit when they would suffer no personal harm from loving, committed same-sex couples being able to marry again in California.
The Court will hear oral argument in the case at 10:00 am (EDT) on Tuesday, 26 March 2013 and will likely issue a decision by the end of June 2013.
Background of Marriage Equality in California
The circumstances pertaining to marriage equality in California differ from those of any other state.
Prior to Proposition 8, every Californian had the freedom to marry the person they loved regardless of race, religion, gender, sexual orientation, or any other external characteristic. In May 2008, the California Supreme Court in In re Marriage Cases (2008) 183 P.3d 384, 43 Cal.4th 757 removed the last barrier to marriage equality in California, by holding that the state’s existing ban on marriage for same-sex couples violated the California state constitution. From 16 June to 4 November 2008 (the date Prop. 8 passed), over 18,000 lesbian and gay couples married in California.
In In Re Marriage Cases, the California Supreme Court found that under state law excluding same-sex couples from marriage “mark[s]” lesbian and gay people as “second-class citizens[],” (183 P.3d at 445), and denied the families of same-sex couples “the same dignity, respect, and stature as that accorded to all other officially recognized family relationships,” (id. at 434).
Proposition 8, enacted by a narrow majority of voters on 4 November 2008, took away that freedom to marry only from lesbian and gay Californians, thereby returning them to “second-class citizenship” under the law and undermining the “dignity [and] respect” they receive.
Resolution of the case focuses on a discrete question: Does the United States Constitution permit a statewide initiative to take away marriage equality from a particular minority group as an end in itself -- just to deprive those persons of the freedom to marry.
The question is narrow because the only thing Proposition 8 did was to take away lesbian and gay people’s freedom to marry; it left all other substantive rights and responsibilities of same-sex couples completely intact under state law.
California statutory and constitutional law both before and after Prop. 8 require that same-sex domestic partners have “rights and responsibilities that are identical to those of married spouses ….” Under California law, domestic partners have “the same rights, protections, and benefits” under state law as married spouses, including those relating to raising children.
District (Trial) Court Case
In May 2009, two loving, committed same-sex couples (Kristin Perry & Sandra Stier and Paul Katami & Jeffrey Zarrillo) who wished to marry brought suit in federal district court, asserting that Proposition 8’s taking away their freedom to marry violated the fundamental fairness guarantees of the United States Constitution. The City and County of San Francisco was also permitted to participate as a plaintiff in the case.
After a 12-day trial, the federal district court on 4 August 2010 held that Proposition 8 violated plaintiffs’ rights under the equal protection and due process clauses for the United States Constitution and enjoined the State of California from enforcing Proposition 8. (Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010)). However, the district court stayed its decision pending appeal and the stay remains in effect today. Accordingly, Proposition 8 continues to exclude loving, committed lesbian and gay couples from marrying in California.
The Ninth Circuit’s 7 February 2012 Decision
The Ninth Circuit decision carefully followed United States Supreme Court precedent. The court began by articulating the well-established principle that “[a]lthough the Constitution permits communities to enact most laws they believe to be desirable … a law that treats different classes of people differently” must serve “at least a legitimate reason for [its] passage.” The law must actually serve the interest, and the interest must be legitimate.
This standard applies without getting into the question of whether Prop. 8 impinges upon lesbian and gay people’s “fundamental right to marry” or discriminates against lesbian and people as a “protected class” such that the law would be required to serve an “important ” or even “compelling” purpose and be “substantially related” or “narrowly tailored” to serve that purpose.
However, the fact that marriage was unquestionably “an important right” and that lesbian and gay people were a “disfavored” class of people meant that the court should assess the reasons the opponents of equality offered to justify Prop. 8 more “carefully” than it would a law that applied neutrally to all citizens. The court stated:
Voters “may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.”
The Ninth Circuit systematically looked at every reason the opponents of equality offered for Prop. 8 and found that Prop. 8 simply served none of them regardless of whether any of the interests were “legitimate.” Prop. 8 took away lesbian and gay people’s freedom to marry -- “[n]othing more, nothing less.” It simply did not pertain to issues such as childrearing, religious freedom or school curriculum that the opponents of equality claim it did.
As such, it simply took away the chance for same-sex couples to have their relationships given the highest respect and recognition under the law through marriage, something that everyone else in California enjoys. In essence, Prop. 8 sent a message to lesbian and gay people and our society that lesbian and gay people are unequal and that same-sex couples love each other in an inferior way. As the United States Supreme Court has held, a law that simply makes some people unequal to everyone else violates the fundamental fairness and equality guarantees of our United States Constitution.
Analysis of Equality Opponents’ Purported Justifications for Prop. 8
The opponents of equality offered four primary rationales for Proposition 8. The Ninth Circuit found that Proposition 8 had nothing to do with furthering these purposes.
1. Furthering California’s interest in childrearing and responsible procreation.
The court broke this interest down into two claims.
a. The first claim was that “children are better off when raised by two biological parents and that society can increase the likelihood of that family structure by allowing only potential biological parents (i.e. different-sex couples) ... to marry.”
The court concluded that it need not determine if this claim had any potential validity, “because even if … [the opponents of equality] were correct, Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California.”
Prop. 8 did nothing to change California law relating either to same-sex couples’ or different-sex couples’ parenting rights. Under California law, both “ha[ve] identical rights with regard to forming families and raising children.” “[G]overning California statues permit same-sex couples to adopt and raise children and … draws no distinction between married couples and domestic partners with regard to the legal rights and responsibilities relating to children ….”
Indeed, California “law actually prefers a non-biological parent who has a parental relationship with a child to a biological parent who does not; in California, the parentage statutes place a premium on the ‘social relationship,’ not the ‘biological relationship,’ between a parent and a child.”
For Proposition 8 to have furthered a purpose to promote biological parents’ raising children, it would have had to change these laws in some manner.
The court refused to recognize a rationale “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.”
b. The second claim is that Prop. 8 served the state’s interest in “reduc[ing] the threat of ‘irresponsible procreation’ -- that is, unintended pregnancies out of wedlock -- by providing an incentive for couples” who engage in such “sexual activity” (only heterosexual couples) “to form stable family units.”
The claim is that excluding same-sex couples from marriage is rational because they cannot engage in sexual activity that would result in accidental pregnancies.
The court rejected this rationale for a couple reasons. First, the court stated that regardless of whether California would have been obligated to extend the freedom to marry to same-sex couples, Proposition 8 “subtracted a disfavored group (i.e. lesbian and gay people) from” marriage.
Under United States Supreme Court precedent, “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.’”
Furthermore, the court found the substance of the argument not “even conceivably plausible.” For the rationale to be credible “opposite-sex couples … [would have to be] more likely to procreate accidentally or irresponsibly when same-sex couples were allowed” to marry.”
“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…. [T]he argument that … [taking away the freedom to marry] from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships” or “encourage heterosexual couples to enter into matrimony” lacks any … footing in reality.”
2. Proceeding with caution before making significant changes to marriage
The court found this rationale nonsensical because Proposition 8 “was enacted after the State had provided same-sex couples the right to marry and after more than 18,000 couples had married (and remain married even after Proposition 8 …).”
If the idea of Proposition 8 was to evaluate how allowing marriage for same-sex couples was working, Proposition 8’s “absolute ban, unlimited in time, on same-sex marriage in the state constitution” was inconsistent with “proceeding with caution.” Prop. 8 “completely foreclosed” “incremental policymaking” through “the legislative process,” presumably the typical channel for “proceeding with caution.”
Perhaps a “time-specific moratorium” on marriage for same-sex couples with a mechanism by which voters would have to “renew the ban” could conceivably serve an interest in “proceeding with caution” -- if, in fact, proceeding with caution is a legitimate state interest when dealing with an issue as important to an individual’s life as marriage. But in any event, Proposition 8 proposed no such scheme.
The official ballot materials and arguments also made clear that the purpose of Proposition 8 was “’to eliminate the right of same-sex couples to marry in California’ – not to ‘suspend’ or ‘study’ that right.”
3. Protecting religious liberty
In rejecting the claim that “protecting religious liberty” was conceivably one of Prop. 8’s purposes, the court observed that even the opponents of equality conceded that “”no religion [was] required to change its religious policies or practices with regard to same-sex couples, and no religious officiant [was]required to solemnize a marriage in contravention of his or her religious beliefs.’”
The opponents of equality claimed instead that Prop. 8 was intended to lessen the chance that religious organizations would run afoul of California’s laws and policies protecting lesbian and gay people against differential treatment. The court found that Prop. 8 had nothing to do with this issue, and that the argument seemed more an appeal to the legislature to create “religious exemptions” to state laws banning discrimination in public accommodations and businesses.
4. Preventing public schools from teaching that marriages of same-sex couples were the same as marriages of heterosexual couples.
As with the other rationales, the court found that Proposition 8 simply did not pertain to this issue. “Both before and after Proposition 8, schools have not been required to teach anything about same-sex marriage.” Prop. 8 had no effect on “the rights of schools to control their curricula and of parents to control their children’s education.”
To the extent that students may have learned that state law permitted same-sex couples to marry when that was the law in California, this fact could not serve as a legitimate purpose for Proposition 8. “Schools teach about the world as it is; when the world changes, lessons change….The prospect of children learning about the laws of the State and society’s assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of those rights they presently enjoy.”
The actual, and constitutionally impermissible, purpose of Proposition 8: Disapproval of lesbian and gay people as a class of people
After evaluating thoroughly all of the above purported purposes for Prop. 8, the Ninth Circuit could simply find no rationale for Proposition 8 other than “disapproval of gays and lesbians as a class” of people.
All parties, including the opponents of equality, conceded that being able to marry was superior to only being able to enter into a domestic partnership.
The Ninth Circuit “emphasize[d] the extraordinary significance of the official designation of ‘marriage.’ That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults…. The word ‘marriage’ is singular in connoting ‘a harmony in living,’ ‘a bilateral loyalty,’ and ‘a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred… As [the opponents of equality] have admitted, ‘the word “marriage” has a unique meaning,’ and ‘there is a significant symbolic disparity between domestic partnership and marriage.’”
The Ninth Circuit reasoned that “the elimination of the right to use the official designation of “’marriage’ for the relationships of committed same-sex couples send[s] a message that gays and lesbians are of lesser worth as a class – that they enjoy a lesser societal status.”
And “[w]ithdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend the designation in the first place …. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.”
The Ninth Circuit also noted that the Prop. 8 campaign in their political advertisements intentionally exploited decades-old, unfounded stereotypes and prejudices about lesbian and gay people, such as: “’gay people and [their] relationships are inferior, that homosexuality is undesirable and that children need to be protected from exposure to gay people and their relationships.’” These messages were part and parcel of messages from the campaigns (like the 1970’s Anita Bryant campaigns) “designed to appeal to stereotypes of gays and lesbians as predators, threats to children, and practitioners of a deviant ‘lifestyle.’”
As such, Prop. 8 enshrined in law an “’official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples.’” (citing In re Marriage Cases, 183 P.3d at 452.)
It is important to note that the Ninth Circuit’s ruling does not rest on a conclusion that the slim majority of California voters who approved Prop. 8 had this degree of hostility against lesbian and gay people. The Ninth Circuit quoted Justice Kennedy’s observation in Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring): “Prejudice, we are beginning to understand, rises not from malice or hostile animus alone.” Justice Kennedy went on to explain that prejudice “may result … from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.”
The virulently anti-gay messages of the Prop. 8 campaign could have affected voters in more subtle ways and played on some voters’ lack of sensitivity to lesbian and gay people or less intense disapproval of homosexuality.
Although not discussed explicitly by the Ninth Circuit, seemingly neutral aspirations, such as “preserving the traditional institution of marriage as a man and a woman,” actually reflect a (perhaps sometimes less intense) moral judgment against lesbian and gay people. Indeed, Justice Scalia observed in his dissent in Lawrence v. Texas, 539 U.S. 558 (2003) "preserving the traditional institution of marriage" -- “is just a kinder way of describing the State's moral disapproval of same-sex couples.”
As Justice Scalia appears to recognize, a state law’s assertion that marriage is between a man and a woman, in fact, acts as an exclusion of same-sex couples from marriage and reflects an insensitivity and form of disapproval of lesbian and gay people and a belief that their love, commitment, and relationships are not worthy of the same status as heterosexual ones.
And, the fact that same-sex couples have only relatively recently been able to marry legally cannot justify the law. The Ninth Circuit noted that “tradition alone is not a justification for taking away a right that had already been granted,” even if the right altered tradition.
The Constitution prohibits this “insensitivity” and “disapproval” of a class of people from being the basis for governmental action. The issue is not whether people are entitled to hold their personal beliefs, but whether the state may enforce these beliefs on others through the power of law.
As the Ninth Circuit stated, quoting United States Supreme Court precedent: “Basic disapproval of a class of people ... ’cannot constitute a legitimate governmental interest.’” “Enacting a rule into law based solely on the disapproval of a group … ‘is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.’”
The Constitution requires that a “law exists ‘to further a proper legislative end’” and not simply “‘to make’” a class of people “’unequal to everyone else.’”
As such, Proposition 8 violates the fundamental fairness guarantees of our Constitution.
Key United States Supreme Court Precedent Upon Which the Ninth Circuit Relied:
The Ninth Circuit relied especially on two United States Supreme Court decisions holding unconstitutional laws involving “the targeted exclusion of a group of citizens from a right or benefit that they had enjoyed on equal terms with all other citizens.”
Romer v. Evans, 517 U.S. 620 (1996)
In Romer, the United States Supreme Court considered the constitutionality of a Amendment 2, a Colorado state constitutional initiative that took away from lesbian and gay people protections from discrimination in areas housing, employment, and education that various local governments had passed. The initiative also prohibited the state or local governments from passing any such protections in the future.
The United States Supreme Court held that Amendment 2 was unconstitutional. The Court observed that “laws that ‘single out a certain class of citizens for disfavored legal status … raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.’” The Court considered all possible justifications for the initiative and could find none that made sense. Accordingly, the Court concluded that the law impermissibly “’classified homosexuals not to further a proper legislative end but to make them unequal to everyone else.’”
U.S. Dep’t of Agric. V. Moreno, 4134 U.S. 528, 534 (1973)
In Moreno, the United States Supreme Court held that a federal statute that took away the ability of households of unrelated people to receive Food Stamps violated the equality guarantees of the Constitution. The law was aimed to prevent so-called “hippies,” living in “hippie communes,” from received Food Stamps.
The Supreme Court stated: [I]f the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, "[a] purpose to discriminate against hippies cannot, in and of itself and without reference to [some independent] considerations in the public interest, justify the 1971 amendment."
Standing
The Ninth Circuit held that the official proponents of Proposition 8 have standing to pursue the appeal, but the United States Supreme Court specifically asked the parties to brief the standing issue.
The issue of standing to appeal arose because the named defendant in the case, the State of California, reviewed the district court’s extensive opinion and concluded that the decision was correct and that Proposition 8 violates the U.S. Constitution. Accordingly, the state decided not to appeal the decision.
The official proponents of Proposition 8, whom the district court permitted to intervene in the litigation for purposes of trial, then sought to appeal the district court’s decision.
In Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997), the United States Supreme Court unanimously expressed “grave doubts” as to whether initiative proponents have legal standing to pursue an appeal on their own when they have suffered no “concrete and particularized” injury.
However, the Supreme Court also intimated that initiative proponents may have standing to pursue an appeal (even if they have suffered no “concrete and particularized” injury as a result of the lower court decision), if state law permitted the proponents to represent the interests of the State.
Resolution of the standing issue may depend on either or both of the following questions: 1) whether California state law permits initiative proponents to assert the state’s interest in a federal court appeal when the state does not appeal; 2) whether permitting loving, committed same-sex couples to marry causes the Prop. 8 proponents to suffer “concrete and particularized” injury that gives them the right to pursue a federal appeal.
On 04 January 2011, the Ninth Circuit sought guidance from the California Supreme Court on state law issues and issued an order certifying 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 (9th Cir. 2011) 628 F.3d 1191, 1193).
On November 17, 2011, the California Supreme Court in a written opinion answered that California state law gives official initiative proponents the authority to assert the State’s interest in an initiative’s validity if the state does not appeal an adverse judgment regarding the initiative. The California Supreme Court declined to answer whether the official initiative proponents possessed a “particularized” interest in the initiative’s validity. (Perry v. Brown, 134 Cal. Rptr. 3d 499 (2011).)
The Ninth Circuit then held in its 07 February 2012 decision that the official proponents of Prop. 8 had standing because the California Supreme Court answered that they could represent the State’s interest when it did not appeal. However, the United States Supreme Court asked the parties to address the standing issue, and the Court may decide the question of whether, despite the California Supreme Court's opinion, Prop. 8 proponents need to have suffered “concrete and particularized” injury for them to have standing.
If the United States Supreme Court were to find that the Prop. 8 proponents have no standing, the Ninth Circuit Court of Appeal would have lacked jurisdiction to hear the appeal, and the district court ruling invalidating Proposition 8 would stand.
Equality Opponents’ Attempt to Vacate Decision because Trial Judge was Gay
The Ninth Circuit also upheld the district court’s rejection of the Prop. 8 proponents’ attempt to vacate the trial court’s decision on the grounds that Judge Vaughn Walker, the now-retired trial judge, is gay and in a long-term relationship. Affirming the district court, the Ninth Circuit stated “the fact that a judge could be affected by the outcome of a proceeding[,] in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification ….’”
In denying the motion, the current Presiding Judge of the district court wrote:
”In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.”
”To hold otherwise, and require recusal merely based on the fact that [a] … judge is engaged in a long-term same-sex relationship, is to place an inordinate burden on minority judges.”
Public Access to Videotapes of the Trial
On 02 February 2012, the Ninth Circuit reversed the district court’s order that videotapes of the trial should be made public because all parties agreed that they should be part of the record on appeal. As such, the videotapes of the trial remain unavailable to the public and press.
What’s Next?
As noted in the first section of this page, on 7 December 2012 the United States Supreme Court Court agreed to take the case and will hear oral argument in the case at 10:00 am (EDT) on Tuesday, 26 March 2013. The Court will likely issue a decision in the case by the end of June 2013.
