1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 KRISTIN M PERRY, SANDRA B STIER, 5 PAUL T KATAMI and JEFFREY J ZARRILLO, 6 Plaintiffs, 7 CITY AND COUNTY OF SAN FRANCISCO, 8 Plaintiff-Intervenor, 9 v 10 ARNOLD SCHWARZENEGGER, in his 11 official capacity as Governor of California; EDMUND G BROWN JR, in 12 his official capacity as Attorney General of California; MARK B No C 09-2292 VRW 13 HORTON, in his official capacity as Director of the California PRETRIAL PROCEEDINGS AND 14 Department of Public Health and TRIAL EVIDENCE State Registrar of Vital 15 Statistics; LINETTE SCOTT, in her g official capacity as Deputy 16 Director of Health Information & CREDIBILITY DETERMINATIONS Strategic Planning for the 17 California Department of Public g United States District Court Health; PATRICK O’CONNELL, in his official capacity as Clerk- For the Northern District of California 18 FINDINGS OF FACT Recorder of the County of 19 Alameda; and DEAN C LOGAN, in his g official capacity as Registrar- 20 Recorder/County Clerk for the CONCLUSIONS OF LAW County of Los Angeles, 21 g Defendants, 22 ORDER DENNIS HOLLINGSWORTH, GAIL J 23 KNIGHT, MARTIN F GUTIERREZ, HAK- SHING WILLIAM TAM, MARK A 24 JANSSON and PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA 25 RENEWAL, as official proponents of Proposition 8, 26 Defendant-Intervenors. 27 / 28 1 TABLE OF CONTENTS 2 BACKGROUND TO PROPOSITION 8 ................ 1 3 PROCEDURAL HISTORY OF THIS ACTION ............. 3 4 PLAINTIFFS’ CASE AGAINST PROPOSITION 8 ........... 5 5 PROPONENTS’ DEFENSE OF PROPOSITION 8 ............ 6 6 TRIAL PROCEEDINGS AND SUMMARY OF TESTIMONY ........ 10 7 8 CREDIBILITY DETERMINATIONS .................. 25 9 PLAINTIFFS’ WITNESSES .................. 25 10 PROPONENTS’ WITNESSES .................. 35 11 12 FINDINGS OF FACT ....................... 54 13 THE PARTIES ....................... 54 14 WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX 60 15 WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST 16 IN DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS 71 17 United States District Court WHETHER THE EVIDENCE SHOWS THAT PROPOSITION 8 ENACTED A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE For the Northern District of California 18 GOVERNMENT INTEREST ................... 85 19 20 CONCLUSIONS OF LAW ...................... 109 21 DUE PROCESS ....................... 109 22 EQUAL PROTECTION ..................... 117 23 24 CONCLUSION .......................... 135 25 26 REMEDIES ........................... 136 27 28 1 Plaintiffs challenge a November 2008 voter-enacted 2 amendment to the California Constitution (“Proposition 8” or “Prop 3 8”). Cal Const Art I, § 7.5. In its entirety, Proposition 8 4 provides: “Only marriage between a man and a woman is valid or 5 recognized in California.” Plaintiffs allege that Proposition 8 6 deprives them of due process and of equal protection of the laws 7 contrary to the Fourteenth Amendment and that its enforcement by 8 state officials violates 42 USC § 1983. 9 Plaintiffs are two couples. Kristin Perry and Sandra 10 Stier reside in Berkeley, California and raise four children 11 together. Jeffrey Zarrillo and Paul Katami reside in Burbank, 12 California. Plaintiffs seek to marry their partners and have been 13 denied marriage licenses by their respective county authorities on 14 the basis of Proposition 8. No party contended, and no evidence at 15 trial suggested, that the county authorities had any ground to deny 16 marriage licenses to plaintiffs other than Proposition 8. 17 United States District Court Having considered the trial evidence and the arguments of For the Northern District of California 18 counsel, the court pursuant to FRCP 52(a) finds that Proposition 8 19 is unconstitutional and that its enforcement must be enjoined. 20 21 BACKGROUND TO PROPOSITION 8 22 In November 2000, the voters of California adopted 23 Proposition 22 through the state’s initiative process. Entitled 24 the California Defense of Marriage Act, Proposition 22 amended the 25 state’s Family Code by adding the following language: “Only 26 marriage between a man and a woman is valid or recognized in 27 California.” Cal Family Code § 308.5. This amendment further 28 codified the existing definition of marriage as “a relationship 1 between a man and a woman.” In re Marriage Cases, 183 P3d 384, 407 2 (Cal 2008). 3 In February 2004, the mayor of San Francisco instructed 4 county officials to issue marriage licenses to same-sex couples. 5 The following month, the California Supreme Court ordered San 6 Francisco to stop issuing such licenses and later nullified the 7 marriage licenses that same-sex couples had received. See Lockyer 8 v City & County of San Francisco, 95 P3d 459 (Cal 2004). The court 9 expressly avoided addressing whether Proposition 22 violated the 10 California Constitution. 11 Shortly thereafter, San Francisco and various other 12 parties filed state court actions challenging or defending 13 California’s exclusion of same-sex couples from marriage under the 14 state constitution. These actions were consolidated in San 15 Francisco superior court; the presiding judge determined that, as a 16 matter of law, California’s bar against marriage by same-sex 17 United States District Court couples violated the equal protection guarantee of Article I For the Northern District of California 18 Section 7 of the California Constitution. In re Coordination 19 Proceeding, Special Title [Rule 1550(c)], 2005 WL 583129 (March 14, 20 2005). The court of appeal reversed, and the California Supreme 21 Court granted review. In May 2008, the California Supreme Court 22 invalidated Proposition 22 and held that all California counties 23 were required to issue marriage licenses to same-sex couples. See 24 In re Marriage Cases, 189 P3d 384. From June 17, 2008 until the 25 passage of Proposition 8 in November of that year, San Francisco 26 and other California counties issued approximately 18,000 marriage 27 licenses to same-sex couples. 28 \\ 2 1 After the November 2008 election, opponents of 2 Proposition 8 challenged the initiative through an original writ of 3 mandate in the California Supreme Court as violating the rules for 4 amending the California Constitution and on other grounds; the 5 California Supreme Court upheld Proposition 8 against those 6 challenges. Strauss v Horton, 207 P3d 48 (Cal 2009). Strauss 7 leaves undisturbed the 18,000 marriages of same-sex couples 8 performed in the four and a half months between the decision in In 9 re Marriage Cases and the passage of Proposition 8. Since 10 Proposition 8 passed, no same-sex couple has been permitted to 11 marry in California. 12 13 PROCEDURAL HISTORY OF THIS ACTION 14 Plaintiffs challenge the constitutionality of Proposition 15 8 under the Fourteenth Amendment, an issue not raised during any 16 prior state court proceeding. Plaintiffs filed their complaint on 17 United States District Court May 22, 2009, naming as defendants in their official capacities For the Northern District of California 18 California’s Governor, Attorney General and Director and Deputy 19 Director of Public Health and the Alameda County Clerk-Recorder and 20 the Los Angeles County Registrar-Recorder/County Clerk 21 (collectively “the government defendants”). Doc #1. With the 22 exception of the Attorney General, who concedes that Proposition 8 23 is unconstitutional, Doc #39, the government defendants refused to 24 take a position on the merits of plaintiffs’ claims and declined to 25 defend Proposition 8. Doc #42 (Alameda County), Doc #41 (Los 26 Angeles County), Doc #46 (Governor and Department of Public Health 27 officials). 28 \\ 3 1 Defendant-intervenors, the official proponents of 2 Proposition 8 under California election law (“proponents”), were 3 granted leave in July 2009 to intervene to defend the 4 constitutionality of Proposition 8. Doc #76. On January 8, 2010, 5 Hak-Shing William Tam, an official proponent and defendant- 6 intervenor, moved to withdraw as a defendant, Doc #369; Tam’s 7 motion is denied for the reasons stated in a separate order filed 8 herewith. Plaintiff-intervenor City and County of San Francisco 9 (“CCSF” or “San Francisco”) was granted leave to intervene in 10 August 2009. Doc #160 (minute entry). 11 The court denied plaintiffs’ motion for a preliminary 12 injunction on July 2, 2009, Doc #77 (minute entry), and denied 13 proponents’ motion for summary judgment on October 14, 2009, Doc 14 #226 (minute entry). Proponents moved to realign the Attorney 15 General as a plaintiff; the motion was denied on December 23, 2009, 16 Doc #319. Imperial County, a political subdivision of California, 17 United States District Court sought to intervene as a party defendant on December 15, 2009, Doc For the Northern District of California 18 #311; the motion is denied for the reasons addressed in a separate 19 order filed herewith. 20 The parties disputed the factual premises underlying 21 plaintiffs’ claims and the court set the matter for trial. The 22 action was tried to the court January 11-27, 2010. The trial 23 proceedings were recorded and used by the court in preparing the 24 findings of fact and conclusions of law; the clerk is now DIRECTED 25 to file the trial recording under seal as part of the record. The 26 parties may retain their copies of the trial recording pursuant to 27 the terms of the protective order herein, see Doc #672. 28 \\ 4 1 Proponents’ motion to order the copies’ return, Doc #698, is 2 accordingly DENIED. 3 4 PLAINTIFFS’ CASE AGAINST PROPOSITION 8 5 The Due Process Clause provides that no “State [shall] 6 deprive any person of life, liberty, or property, without due 7 process of law.” US Const Amend XIV, § 1. Plaintiffs contend that 8 the freedom to marry the person of one’s choice is a fundamental 9 right protected by the Due Process Clause and that Proposition 8 10 violates this fundamental right because: 11 1.