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Perry v. Schwarzenegger (“Proposition 8”), United States District Court for the Northern District of California (4 August 2010)

Procedural Posture

The plaintiffs, two same-sex couples, brought suit challenging Proposition 8 as a violation of due process (“liberty”) and equal protection under the 14th Amendment of the United States Constitution. The plaintiffs named as defendants the Governor and Attorney-General of California, but these parties either refused to defend the suit or acknowledged that Proposition 8 was unconstitutional. Defendant-intervenors, the official proponents of Proposition 8, were granted leave to intervene.


In November 2008 California voters enacted an amendment to the State constitution providing that only marriage between a man and a woman was valid or recognised in California. For five months previously, under a ruling of the California Supreme Court, same-sex couples had been able to marry. Eighteen thousand marriage licences were issued to same-sex couples during this period.


Whether Proposition 8, defining marriage as exclusively heterosexual, violated the Due Process and Equal Protection Clauses of the 14th Amendment of the United States Constitution.

Domestic Law

United States Constitution, 14th Amendment, Due Process Clause (“No state shall deprive any person of life, liberty, or property, without due process of law”), and Equal Protection Clause (“No state shall deny to any person within its jurisdiction the equal protection of the laws”).

Reasoning of the Court

The plaintiffs argued that marrying a person of one’s choice was a fundamental right, part of the “liberty” protected by the Due Process Clause. The plaintiffs also argued that Proposition 8 violated the Equal Protection Clause by denying them the right to marry a person of their choice, whereas heterosexual men and women could do so freely.

Although, during the campaign for a referendum, Proposition 8 proponents had argued for the moral superiority of heterosexual marriage and presented same-sex marriage as inferior and gays and lesbians as dangerous to children, at trial the defendant-intervenors advanced a different set of reasons. The Court, noting this change of tactic, stated: “A state’s interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.” The proponents’ main argument was that Proposition 8 promoted stability in relationships between men and women, which naturally produced children, and promoted statistically optimal households in which children were raised by a man and a woman who were married to each other.

The proponents argued that it was in the State’s interest to encourage child-bearing and child raising in stable household units, and that, since procreation only occurred naturally in heterosexual sexual relationships, it was in the State’s interest to promote heterosexual marriage. The Court asked proponents to explain how permitting same-sex marriage might adversely affect the State’s assumed interest in promoting procreation within heterosexual marriage, but the proponents had no response.

The Court defined marriage as “the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents”. It recognised that, in licensing and fostering marriage, the State had an interest in facilitating governance and public order by organising individuals into cohesive family units and creating stable households and providing for legitimate (as opposed to out-of-wedlock) children. But it rejected the proponents’ assertion that the State’s interest in marriage was solely in the promotion of biological procreation. It also found that domestic partnerships did not provide gays and lesbians with a status equivalent to marriage because “the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships”.

Under the Due Process Clause, the freedom to marry was a fundamental right. The question was whether the plaintiffs, who sought to marry their same-sex partners, were actually seeking recognition of a new right. Although same-sex marriage was not part of the tradition of marriage, the Court emphasised that the nature and definition of marriage had changed over the years. Race restrictions and specific gender roles for partners no longer defined marriage. At the core of the institution of marriage was the right to choose a spouse and, with mutual consent, join together to form a household. The ability to procreate was not part of this core definition. The plaintiffs, the Court determined, were asking the State to recognise relationships that were “consistent with the core of the history, tradition and practice of marriage.” They were not seeking recognition of a new right. Proposition 8 was unconstitutional because it denied to the plaintiffs their fundamental right, without legitimate reason.

Under the Equal Protection Clause, most laws creating classifications would be upheld if they were rationally related to some legitimate government interest. Rational basis was a deferential standard of review, but it had to be shown that the law did more than disadvantage a particular group. Although the Court applied a rational basis review, it found that the trial evidence showed that gays and lesbians were the type of minority that strict scrutiny (a higher standard of review) was intended to protect. Strict scrutiny was appropriate where a group had experienced a “history of purposeful unequal treatment” or had been subjected to “unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities”.

The Court held that Proposition 8 failed even rational basis review because it lacked any legitimate government interest. Proponents had argued that the State had a legitimate interest in promoting traditional marriage by excluding same-sex marriage, but the Court found that tradition alone could not form a rational basis for a law. The State “must have an interest apart from the fact of the tradition itself”. The Court also rejected the assertion that Proposition 8 promoted opposite-sex parenting, because the exclusion of same-sex couples from marriage did not “make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents”. The Court stated: “[E]ven if California had an interest in preferring opposite-sex parents to same-sex parents – and the evidence plainly shows that California does not – Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law”. Finally, the Court found unconvincing the argument that Proposition 8 protected the freedom of those who opposed same-sex marriage, reasoning that Proposition 8 did not impinge on anyone’s right to freedom of expression.

Having rejected moral disapproval and tradition as justifications for the law, the Court concluded there was no rational basis. It found that Proposition 8 “was premised on the belief that same-sex couples are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus between gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate …The Constitution cannot control private biases but neither can it tolerate them”.

Proposition 8 was held to be unconstitutional under both the Equal Protection and Due Process Clauses.

Perry v. Schwarzenegger (“Proposition 8”), United States District Court for the Northern District of California (full text of judgment, PDF)

Perry v. Schwarzenegger (“Proposition 8”), United States Court of Appeals, Ninth Circuit (full text of judgment at Court of Appeals, filed 2012)