3:13-cv-01159 #47

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION VALERIA TANCO and
SOPHY JESTY, IJPE DeKOE and THOMAS KOSTURA, KELLIE MILLER and VANESSA DEVILLEZ, and JOHNO ESPEJO and MATTHEW MANSELL, Plaintiffs, v. HASLAM, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. 3:13-cv-01159 Judge Aleta A. Trauger
APPENDIX TO REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Local Rule 7.01(e), Plaintiffs submit copies of the following unreported cases and reported state cases from states other than Tennessee cited in their Reply In Support of Motion for Preliminary Injunction, listed in order of reference in the Reply: 1. 2. 3. 4. 5. 6. 7. 1996 Tenn. Pub. Acts 1031. Lindsley v. Lindsley, No. E2011-00199-COA-R3-CV, 2012 WL 605548 (Tenn. Ct. App. Feb. 27, 2012). Bowser v. Bowser, No. M2001-01215-COA-R3CV, 2003 WL 1542148 (Tenn. Ct. App. March 26, 2003). Stoner v. Stoner, No. W2000-01230-COA-R3-CV, 2001 WL 43211 (Tenn. Ct. App. Jan. 18, 2001). Payne v. Payne, No. 03A01-9903-CH-00094, 1999 WL 1212435 (Tenn. Ct. App. Dec. 17, 1999). Ochalek v. Richmond, No. M2007-01628-COA-R3-CV, 2008 WL 2600692 (Tenn. Ct. App. Jan. 30, 2008). Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971).
Case 3:13-cv-01159 Document 47 Filed 12/20/13 Page 1 of 4 PageID #: 820
8.
Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives, United States v. Windsor, S. Ct. 2675 (2013) (No. 12-307), 2013 WL 267026. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). In re Marriage Cases, 43 Cal. 4th 757, 183 P.3d 384 (2008). Hight v. Cox, No. 3:13-CV-00367, 2013 WL 6096784 (M.D. Tenn. Nov. 20, 2013). Simpkins v. Corrs. Corp. of Am., No. 3:07-0948, 2007 WL 3012964 (M.D. Tenn. Oct. 10, 2007).
9. 10. 11. 12.
Dated: December 20, 2013 Respectfully submitted,
/s/ Abby R. Rubenfeld Abby R. Rubenfeld (B.P.R. No. 6645) RUBENFELD LAW OFFICE, PC 2409 Hillsboro Road, Suite 200 Nashville, Tennessee 37212 Tel.: (615) 386-9077 Fax: (615) 386-3897 arubenfeld@rubenfeldlaw.com
/s/ Maureen T. Holland Maureen T. Holland (B.P.R. No. 15202) HOLLAND AND ASSOCIATES, PLLC 1429 Madison Avenue Memphis, Tennessee 38104-6314 Tel.: (901) 278-8120 Fax: (901) 278-8125 mtholland@aol.com Admitted Pro Hac Vice /s/ Regina M. Lambert Regina M. Lambert (B.P.R. No. 21567) REGINA M. LAMBERT, ESQ. 7010 Stone Mill Drive Knoxville, Tennessee 37919 (865) 679-3483 (865) 558-8166 lambertregina@yahoo.com Admitted Pro Hac Vice
/s/ J. Scott Hickman J. Scott Hickman (B.P.R. No. 17407) William L. Harbison (B.P.R. No. 7012) Phillip F. Cramer (B.P.R. No. 20697) John L. Farringer IV (B.P.R. 22783) SHERRARD & ROE, PLC 150 3rd Avenue South, Suite 1100 Nashville, Tennessee 37201 Tel.: (615) 742-4200 bharbison@sherrardroe.com pcramer@sherrardroe.com shickman@sherrardroe.com jfarringer@sherrardroe.com
/s/ Shannon Minter Shannon P. Minter (CA Bar No. 168907) Christopher F. Stoll (CA Bar No. 179046) Asaf Orr (CA Bar No. 261650) NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, California 94102 Tel.: (415) 392-6257 Fax: (415) 392-8442 sminter@nclrights.org cstoll@nclrights.org aorr@nclrights.org Admitted Pro Hac Vice Attorneys for Plaintiffs
CERTIFICATE OF SERVICE Service of the foregoing was accomplished through the Courts Electronic Filing System this 20 day of December, 2013, upon the following:
th
Martha A. Campbell Kevin G. Steiling Tennessee Attorney Generals Office General Civil Division Cordell Hull Building, Second Floor P. O. Box 20207 Nashville, Tennessee 37214 martha.campbell@ag.tn.gov kevin.steiling@ag.tn.gov Attorneys for Defendants
/s/ J. Scott Hickman
MARRIAGESAME SEX MARRIAGESENFORCEABILITY, 1996 Tennessee Laws...
1996 Tennessee Laws Pub. Ch. 1031 (S.B. 2305) TENNESSEE 1996 SESSION LAWS 1996 SESSION OF THE 99TH GENERAL ASSEMBLY Additions and deletions are not identified in this document. Pub. Ch. 1031 S.B. No. 2305 MARRIAGESAME SEX MARRIAGESENFORCEABILITY AN ACT To amend Tennessee Code Annotated, Title 36, Chapter 3, relative to same sex marriages and the enforceability of such marriage contracts. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 36, Chapter 3, Part 1, is amended by adding the following language as a new, appropriately designated section: Section ___. (a) Tennessee's marriage licensing laws reinforce, carry forward, and make explicit the long-standing public policy of this state to recognize the family as essential to social and economic order and the common good and as the fundamental building block of our society. To that end it is further the public policy of this state that the historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage. (b) The legal union in matrimony of only one (1) man and one (1) woman shall be the only recognized marriage in this state. (c) Any policy, law or judicial interpretation that purports to define marriage as anything other than the historical institution and legal contract between one (1) man and one (1) woman is contrary to the public policy of Tennessee. (d) If another state or foreign jurisdiction issues a license for persons to marry which marriages are prohibited in this state, any such marriage shall be void and unenforceable in this state. SECTION 2. Tennessee Code Annotated, Section 363103(c)(1), is amended by adding the following language at the end of the subdivision: << TN ST 363103 >> A county clerk is prohibited from issuing a license for a marriage which is prohibited in this state. << TN ST 363111 >> SECTION 3. Tennessee Code Annotated, Section 363111, is amended by adding the language and the provisions of this act between the language 363110 and the words and not. SECTION 4. Tennessee Code Annotated, Section 363306, is amended by adding the following language at the end of the section: << TN ST 363306 >> Provided, however, no marriage shall be valid, whether consummated by ceremony or otherwise, if the marriage is prohibited in this state. << Note: TN ST 363103, 363111, 363306 >>
Case 3:13-cv-01159 Document 47-1 FiledU.S. 12/20/13 Page 1 of 2 PageID #: 824 2013 Thomson Reuters. No claim to original Government Works.
MARRIAGESAME SEX MARRIAGESENFORCEABILITY, 1996 Tennessee Laws...
SECTION 5. If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable. SECTION 6. This act shall take effect upon becoming a law, the public welfare requiring it. Approved this 15th day of May, 1996 TN LEGIS 1031 (1996)
End of Document 2013 Thomson Reuters. No claim to original U.S. Government Works.
Page 1 Slip Copy, 2012 WL 605548 (Tenn.Ct.App.) (Cite as: 2012 WL 605548 (Tenn.Ct.App.)) (Tenn. Ct.App. E.S., filed June 11, 2010) ( Lindsley I ) we held that under Texas law where [the parties were] married, ... they could, under the [Texas] statute, enter into a common-law marriage after the spouse was divorced in the prior marriage. Id. at * 1. Accordingly, we reversed the trial court upon finding that there was a disputed issue of fact ... whether the parties entered into a common-law marriage after the plaintiff's prior marriage ended. Id. We remanded for a determination of this factual issue. Id. On remand, the trial court heard evidence and held that the plaintiff did not satisfy his burden of showing that the parties' cohabitation established the elements of a common law marriage under Texas law. The plaintiff appeals. We affirm. I. In 1997, the parties lived together in California. While on a trip to Texas, they obtained a marriage license and were married in a ceremony officiated by a priest and attended by family and friends. Unbeknownst to the defendant, the plaintiff was still married to his previous wife, Debra Lindsley. Apparently, either the plaintiff or Debra Lindsley had not pursued to conclusion a divorce action that one or the other of them had initiated. After the Texas marriage ceremony, the parties returned immediately to California. In 2003, they learned that the plaintiff's previous marriage had not been dissolved. Thereafter, on or about June 16, 2003, the plaintiff obtained a divorce from Debra Lindsley. The parties continued to cohabit in California until 2007. In 2007 they moved to Tennessee and continued to cohabit until they separated in this state in July 2008. Following the parties' separation, the plaintiff filed this action for divorce. In Lindsley I, we recognized that even though Tennessee law does not permit common-law marriages to be contracted in this state, nor does it allow ratification of such marriages, if the Lindsleys have contracted a valid common-law marriage in a state that recognizes such marriages, Tennessee
Only the Westlaw citation is currently available. SEE COURT OF APPEALS RULES 11 AND 12 Court of Appeals of Tennessee. William Robert LINDSLEY v. Lisa Whitman LINDSLEY. No. E201100199COAR3CV. Dec. 7, 2011 Session. Feb. 27, 2012. Appeal from the Circuit Court for Blount County, No. E22576; Jon Kerry Blackwood, Senior Judge. Brett D. Stokes, Knoxville, Tennessee, for the appellant, William Robert Lindsley. Damon Wooten, Maryville, Tennessee, for the appellee, Lisa Whitman Lindsley. CHARLES D. SUSANO, JR., J., delivered the opinion of the Court, in which D. MICHAEL SWINEY and JOHN W. McCLARTY, JJ., joined. OPINION CHARLES D. SUSANO, JR., J. *1 William Robert Lindsley (the plaintiff') filed this action for divorce against Lisa Whitman Lindsley (the defendant). The defendant, along with her answer, asserted a counterclaim asking that the marriage be declared void for bigamy predicated upon the fact that the plaintiff was married when he purported to marry her. The plaintiff obtained a divorce from his previous wife before the parties to this action separated. The defendant filed a motion for summary judgment asking that their marriage be declared void. The trial court granted the defendant summary judgment and the plaintiff appealed. In Lindsley v. Lindsley, No. E200802525COAR3CV, 2010 WL 2349200
2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Case 3:13-cv-01159 Document 47-2 Filed 12/20/13 Page 1 of 7 PageID #: 826
Page 2 Slip Copy, 2012 WL 605548 (Tenn.Ct.App.) (Cite as: 2012 WL 605548 (Tenn.Ct.App.)) Courts will likewise recognize their marriage as valid. Id. at * 3. Ultimately, we concluded that California is like Tennessee in that it does not allow common law marriages but that it would also recognize a common law marriage contracted in another state. Id. at 5. Thus, the question was whether the parties could have entered a common law marriage under Texas law by their cohabitation in California and Tennessee. Id. at 4. We stated: *2 Texas law provides that a marriage entered into when one of the parties is already married is void. However, if the first marriage is later dissolved, the latter marriage may become valid under certain circumstances. Tex. Fam.Code Ann. 6.202 provides as follows: (a) A marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse. (b) The later marriage that is void under this section becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married. Texas courts have consistently interpreted Tex. Fam.Code Ann. 6.202(a) to mean that a marriage is void if entered into when either party has an existing marriage. However, the later marriage becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married. Omodele v. Adams, No. 140100999CV, 2003 WL 133602 at *3 (Tex.App.Houston [14 Dist.], Jan. 16, 2003); Garduno v. Garduno, 760 S.W.2d 735, 741 (Tex.App.Corpus Christi 1988). The Texas courts have also held that when a person continues to live with his or her spouse after the spouse's divorce in a previous marriage, a common-law marriage exists that may be the subject of divorce. Omodele at * 3 (citing Potter v. Potter, 342 S.W.2d 800, 801 (Tex.Civ.App.Dallas 1961, 2003)). The party seeking to establish the existence of a common law marriage after the impediment to the marriage has been removed bears the burden of proving that the parties continued to cohabitate [sic] as man and wife and held themselves out to others as married after the impediment was removed. Garduno at 741; Rodriguez v. Avalos, 567 S.W.2d 85, 86 (Tex.Civ.App.1978). There is no requirement that the parties had to be living in Texas when the impediment was removed but they then lived together and held themselves out to others to be man and wife. Durr v. Newman, 537 S.W.2d 323, 326 (Tex.Civ.App.1976). Under Tex. Fam.Code Ann. 6.202(a) the parties' 1997 marriage was void when they entered into it due to Mr. Lindsley's still existing first marriage. When the prior marriage was dissolved in 2003, the impediment to the marriage between the parties was removed and a valid common law marriage came into existence after the date of the dissolution as long as the parties lived together as husband and wife and represented themselves to others as being married. Tex. Fam.Code Ann. 6.202(b). There is no question that the Lindsleys did not live together as husband and wife or hold themselves out to others as married in Texas, but a Texas domicile is not required for Section 6.202(b) to effect a commonlaw marriage once the impediment is removed. The Trial Court can look to the Lindsleys' behavior in California from 2003 until the time they moved to Tennessee and also to their behavior in Tennessee from 2007 until their separation on July 4, 2008 to determine whether they met the requirements of Section 6.202(b) to establish a common-law marriage. See Durr v. Newman at 326. *3 As there is a genuine issue of material fact as
Page 3 Slip Copy, 2012 WL 605548 (Tenn.Ct.App.) (Cite as: 2012 WL 605548 (Tenn.Ct.App.)) to whether the Lindsleys lived as husband and wife and held themselves out to others after plaintiff obtained a divorce [from] his first wife, it is necessary that this case be remanded to the Trial Court for such a determination. Lindsley I at *35 (footnotes omitted; emphasis added). We have reviewed all of the evidence admitted in the hearing on remand. The trial court's summary of that evidence as reflected in its findings and conclusions filed December 2, 2010, is accurate and will complete the factual and procedural foundation for this appeal: The Court must look to the conduct of the parties after ... [the plaintiff's] prior marriage ... [was] dissolved. According to the testimony, [the plaintiff] was in financial difficulties with the IRS and was attempting to determine the child support payments he had made during his prior marriage when he learned that the marriage had not been dissolved. [The defendant] testified that at that time she considered that she was in a bigamous relationship and did not consider [the plaintiff] as her husband. Consequently, the parties began legal proceedings in California to dissolve [the plaintiff's] prior marriage. Prior to 2003, the parties had filed joint tax returns. After 2003, [the defendant] filed tax returns as head of household. She also amended her previous tax returns to reflect this status. The parties continued to live together, but [the defendant] considered that they were domestic partners, not husband and wife. When [the plaintiff's] health insurance elapsed, [the defendant] had [the plaintiff] added to her health insurance policy as spouse, but explained that she had discussed the living arrangement with her employer and that his relationship was as a domestic partner. The parties continued to reside in California and to cohabit. [The defendant] also testified that she repeatedly requested of [the plaintiff] that they undertake a ceremonial marriage, but he declined. During their period of cohabitation, ... the parties maintained their separate financial arrangements. At times [the plaintiff] would contribute to car payments and [the defendant] would provide financial assistance to [the plaintiff's] business. [The plaintiff] was in financial trouble for a period of time and [the defendant] acted in a manner to protect herself from his financial plight. Very little evidence was introduced to explain the dayto-day living financial arrangements between the parties.... The parties took family vacations periodically in which their child and [the plaintiff's] child from the previous marriage attended. There was no evidence except from the parties about how the parties held themselves out in California and from [the defendant's] conduct concerning the parties' legal obligations in California after learning of the prior existing marriage and that [the defendant] was concerned about insulating herself from any financial liability she might incur with the IRS because of the parties' arrangement. Once the parties moved to Tennessee, she purchased real estate in her own name and operated businesses without the involvement of [the plaintiff]. When [the plaintiff] encountered financial difficulty in Tennessee, [the defendant] loaned him Forty Thousand Dollars. However, this transaction was evidenced by a promissory note with collateral. This promissory note was listed as a debt by [the plaintiff] ... in his Petition for Bankruptcy that he filed in December 2008. Also, in this Petition he swore under oath that he was unmarried, which is in complete contradiction to his position that the parties were married. [The defendant] did seek and obtain an Order of Protection in which she listed [the plaintiff] as husband. However, later in that document she explained that the parties' ceremonial marriage occurred during the time that [the plaintiff] was still married. The only evidence of holding out was an email wherein [the defendant] referred to hubbie, and an electrician's testimony that both parties referred to each other as husband and wife. *4 In reviewing the testimony, the Court finds
Page 4 Slip Copy, 2012 WL 605548 (Tenn.Ct.App.) (Cite as: 2012 WL 605548 (Tenn.Ct.App.)) that [the defendant's] testimony is the more credible and is supported by her conduct after she learned that [the plaintiff's] prior marriage had not been dissolved. After this discovery, she maintained that the parties were not married. She co-operated [sic] with legal counsel to take the steps necessary to dissolve [the plaintiff's] prior marriage. However, she recognized that she did not wish to expose herself to any liability as a result of the mistaken impression that she was married. She amended her tax returns that were filed before her discovery of the prior marriage so that her proper status would be consistent to her true status. Thereafter, she filed tax returns as head of household rather than a joint return. When the parties moved to Tennessee, she purchased property and operated businesses in her own name. When [the plaintiff] needed money for his business, she required that he execute a promissory note with collateral. Finally, she repeatedly asked [the plaintiff] to engage in a valid marriage ceremony for which he declined. The mere fact that the parties were introduced as husband and wife is not sufficient to establish a common law marriage. More importantly, it is clear to the Court that after discovery of the undissolved marriage, the record does not support that there was a present agreement to be husband and wife. The parties may have continued to cohabit, but the Court finds that [the defendant] consistently believed they were not husband and wife unless and until a valid ceremony was conducted. The Court finds that there was no mutual agreement between the parties to be married. [The plaintiff] bears the burden to prove the existence of a valid common law marriage. The Court finds that he has failed to meet this burden and this Complaint for Divorce is dismissed with costs assessed against [the plaintiff]. The trial court entered an order declaring the marriage null and void ab initio because the parties did not hold themselves out to be married and ... there was no mutual agreement between the parties to be married. The plaintiff filed this appeal. II. We have restated the issues the plaintiff attempts to raise as follows: Whether the court violated our instructions in Lindsley 1 on remand. Whether the trial court erred in holding that the marriage was void ab initio. Whether the defendant has committed fraud on the court by perjury that should result in entry of a judgment in favor of the plaintiff. Whether the evidence preponderates against the trial court's findings. III. In a case tried without a jury, we review the trial court's findings of facts de novo upon the record accompanied by a presumption of correctness unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d); In re Angela E., 303 S.W.3d 240, 246 (Tenn.2010). Conclusions of law are reviewed de novo with no presumption of correctness. Id. IV. *5 The plaintiff argues that the trial court violated our instructions on remand in Lindsley I by requiring that, during the cohabitation, there be a mutual agreement between the parties to be married. In Lindsley I we looked to Durr v. Newman, 537 S.W.2d 323, 326 (Tex.Civ.App.1976) for the standard, under Texas law, to establish a commonlaw marriage by ratification after removal of the impediment of bigamy. Durr clearly holds that the acts that amount to ratification do not have to take place in the state of Texas. The appellant in Durr also argued that ratification cannot occur unless there is proven a new agreement to be married. The Durr court rejected the argument stating that the statute, now Tex. Fam.Code Ann. 6.202(b), imposes a tacit agreement upon parties [who contin-
Page 5 Slip Copy, 2012 WL 605548 (Tenn.Ct.App.) (Cite as: 2012 WL 605548 (Tenn.Ct.App.)) ue to] live together as husband and wife and represent themselves to others as being married. Id. at 326. The trial court on remand in the present case stated that the requirements are a present agreement to be husband and wife; living together as husband and wife; and holding each other out to the public as such. Garduno v. Garduno, 760 S.W.2d 735, 741 (Tex.App. Corpus Christi 1988). It is true that the Garduno lists the same three requirements as the elements of a common law marriage. Id. at 738. However, at the point in the Garduno opinion where the court considered the concept of ratification under the statute, it went on to state, in complete accord with Durr, that the void marriage becomes valid if, after removal of the impediment, the parties have lived together as husband and wife and represented themselves to others as being married. Garduno, 760 S.W.2d at 741. Thus, we agree with the plaintiff that, in alluding to the concept of a present intent to be married, the trial court imposed an element that is not required by Texas law under the facts of this case. We do not agree with the plaintiff that the trial court simply disregarded our opinion or that reversal is required. We cited the Garduno opinion in Lindsley I. We are convinced that the trial court attempted on remand to follow the law we cited but mistakenly looked to language in Garduno that does not directly apply to ratification after removal of an impediment. Nevertheless, the trial court did, also, consider the part of Garduno that is pertinent, i.e., whether the parties lived together and held themselves out as married after removal of the impediment. We are instructed by Tenn. R.App. P. 36(b) that we are not to set aside a final judgment unless considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process. The trial court also found that the parties did not hold themselves out to be married. For reasons we will more fully explain later in this opinion, we conclude that the evidence does not preponderate against the trial court's finding that the parties did not hold themselves out as married. Accordingly, we hold that the error of requiring a present agreement to be married did not affect the judgment. The court, despite the error, reached the correct conclusion. *6 The plaintiff also argues that the trial court erred in declaring the marriage void from the beginning. He suggests that such a finding is inconsistent with both the Texas statute, 6.202, and our holding in Lindsley I. We disagree on both points. The statute expressly states that a bigamous marriage is void. It later states that the marriage that is void may become valid if certain conditions are met. Those conditions were not met in this present case as the trial court found. In Lindsley I, we stated that, under the Texas statute, the parties' 1997 marriage was void, but could, depending on the proof on remand, possibly become a marriage by virtue of the parties actions after 2003. Id . at *6. To keep this from being a purely academic question, the plaintiff suggests that the Texas statute of limitations for declaring a marriage void is one year from the date of the marriage, citing, Tex. Fam.Code Ann. 6.109(b). Presumably, if we agreed with the plaintiff that the marriage was voidable, and not void, we would need to consider whether the defendant waited too long to challenge the status of the marriage. We stress the fact that the marriage was void under Texas, and therefore had no legal effect in Tennessee, as found by the trial court. Thus, we do not agree with the plaintiff's proposition underlying the need to look at the Texas statute of limitations. However, even if we were to treat the marriage as merely voidable, we do not agree with the plaintiff that the statute of limitations he relies on is applicable. By its express terms, 6.109 is limited to a narrow set of facts: (1) one party to the marriage obtained a divorce from a third party within 30 days of the marriage ceremony; (2) the offended spouse did not know or have reasonable basis to know of the divorce; and (3) the offended spouse discontinued cohabitation upon learning of the recent divorce. Under such an unusual set of facts,
Page 6 Slip Copy, 2012 WL 605548 (Tenn.Ct.App.) (Cite as: 2012 WL 605548 (Tenn.Ct.App.)) the offended spouse may seek to void or annul the marriage under Texas law, but must do so within one year of the date of the marriage. Id. 6.109(b). It is undisputed in the present case that the plaintiff did not obtain a divorce within 30 days of marrying the defendant and it is also undisputed that the defendant did not even learn the plaintiff was still married to another woman until 2003. Thus, we find no merit in the plaintiff's contention that the defendant waited too long to challenge the marriage. The two remaining issues both involve the defendants' credibility and should be discussed together. The trial court specifically found that the defendant's testimony is the more credible and is supported by her conduct after she learned that [the plaintiff's] prior marriage had not been dissolved. We cannot stress this finding too highly because [i]n a case tried without a jury, the question of credibility of the witnesses is exclusively for the trial judge.... Harwell v. Harwell, 612 S.W.2d 182, 184 (Tenn.Ct.App.1980). Further, on an issue which hinges on witness credibility, [the trial court] will not be reversed unless, other than the oral testimony of the witnesses, there is found in the record clear, concrete and convincing evidence to the contrary. Givler v. Givler, 964 S.W.2d 902, 905 (Tenn.Ct.App.1997) (quoting Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn.Ct.App.1974)). *7 The plaintiff acknowledges the above principles, but tries to do indirectly what he cannot do directly by arguing that the defendant perjured herself and that, in light of the defendant's perjury, the evidence preponderates against the trial courts finding of fact that the parties did not hold themselves out as married. In our opinion, the alleged perjury is nothing but a fabrication of the zealousness with which the plaintiff advances his position. The point most strenuously argued by the plaintiff is that the defendant denied ever holding herself out as the plaintiff's wife, and him as her husband, in responding to a request to admit, yet, admitted at the hearing, There are times in my past I have held myself out to be his wife. The context of the testimony makes it clear that the defendant readily admitted that she thought she was married and acted like she was married until the prior undissolved marriage was revealed and after that she thought she was not married and did not hold herself out as married. The plaintiff also points to an insurance application wherein the defendant referred to the plaintiff as her spouse. We are unable to locate the insurance application in the record. The defendant testified without objection that she listed the plaintiff as her spouse only after discussing the true status with her employer. It was her understanding, based on the policies of her employer, that for the purposes of the application an unmarried partner was treated as a spouse. The plaintiff argues that the defendant's perjury, in denying she held the plaintiff out as her husband, is revealed in a petition for order of protection wherein she listed him as husband . However, paragraph 6 on page 2 of the same petition provides additional context which makes her statements on the petition consistent with her testimony at the hearing: Respondent married petitioner while he was still married to his former wife, without petitioner's knowledge. The plaintiff also argues that the defendant must be lying because her testimony is at odds with his. We do not find the plaintiff's reliance on his own testimony convincing. As the trial court noted, the plaintiff listed himself as single in his bankruptcy petition. Further, the trial court had the opportunity to observe the demeanor of both parties and found the defendant to be the more credible of the two and consistent with the parties' actions in listing themselves as unmarried when acquiring property and filing numerous public documents. Finally, the plaintiff points us to the testimony of an electrician who did some work where the parties resided and testified that they referred to each other as husband and wife. It is clear, however, under Texas law that occasional intro-
Page 7 Slip Copy, 2012 WL 605548 (Tenn.Ct.App.) (Cite as: 2012 WL 605548 (Tenn.Ct.App.)) ductions as husband and wife do not establish the element of holding out. Winfield v. Renfro, 821 S.W.2d 640, 651 (Tex.App.1991). In summary, we have considered the plaintiff's arguments related to alleged perjury and the preponderance of the evidence and find no merit in them. We do not find any inconsistency in the defendant's testimony, much less intentional false testimony. We hold that the evidence does not preponderate against the trial court's findings. V. *8 The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant, William Robert Lindsley. This case is remanded, pursuant to applicable law, for collection of costs. Tenn.Ct.App.,2012. Lindsley v. Lindsley Slip Copy, 2012 WL 605548 (Tenn.Ct.App.) END OF DOCUMENT
Page 1 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) been guilty of inappropriate marital conduct. Ms. Bowser appeals the trial court's classification and distribution of property and the trial court's failure to award her spousal support. Mr. Bowser appeals the trial court's preliminary finding that the parties were married. We begin with that issue regarding the fundamental nature of the parties' relationship. I. Common Law Marriage Sue Ann Bowser and John Michael Bowser were married in the state of Ohio, where they resided, in 1973. The parties were divorced by order of an Ohio court on July 12, 1984. Both Mr. and Ms. Bowser appeared in court on the day the decree was entered and both signed the decree. Immediately after the divorce, Mr. Bowser spent about a month in Tennessee. Upon his return to London, Ohio, in August of 1984, Mr. Bowser began living with Ms. Bowser in what had been the marital residence. The parties continued to live together and moved to Tennessee in March of 1986, where they lived as husband and wife until they separated in 1999 after Ms. Bowser discovered Mr. Bowser was having an affair. Ms. Bowser filed a complaint for divorce, and Mr. Bowser answered and denied that a valid marriage existed between the parties and asserted that, therefore, Ms. Bowser was not entitled to a divorce. The trial court bifurcated the proceedings and first held a hearing on the issue of whether a marriage existed. The court entered an order finding that the parties had been remarried pursuant to the common law of Ohio after their divorce in 1984.FN1 FN1. Ms. Bowser asserts the validity of the marriage is not an appealable issue because Mr. Bowser did not appeal within thirty days of the trial court's order deciding that issue. That order did not adjudicate all the claims between the parties and, therefore, was not a final order subject to appellate review absent certification under Tenn. R.
Only the Westlaw citation is currently available. SEE COURT OF APPEALS RULES 11 AND 12 Court of Appeals of Tennessee. Sue Ann BOWSER, v. John M. BOWSER. No. M2001-01215-COA-R3CV. March 26, 2003. Appeal from the Chancery Court for Maury County, No. 00-322; Jim T. Hamilton, Judge. Virginia Lee Story, Franklin, Tennessee, for the appellant, Sue Ann Bowser. James T. DuBois, D. Scott Porch, IV, Columbia, Tennessee, for the appellee, John M. Bowser. PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and HAMILTON V. GAYDEN, JR., Sp. J., joined. OPINION PATRICIA J. COTTRELL, J. *1 Prior to a determination on a complaint for divorce filed by Ms. Bowser, the trial court found the parties to be married pursuant to the common law of Ohio after their first divorce in that state in 1984. The trial court then classified and distributed the marital property and denied Ms. Bowser's request for rehabilitative or in futuro alimony. We affirm the decision of the trial court finding that a common law marriage existed, affirm the trial court's distribution of property, modify the alimony decision and remand the cause for further proceedings consistent with this opinion. This appeal arises from divorce proceedings in which the parties stipulated that Mr. Bowser had
Page 2 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) Civ. P. 54 or the grant of permission for an interlocutory or extraordinary appeal under Tenn. R.App. P. 9 or 10. In Tennessee, marriage is statutory, and common law marriages between its citizens based on conduct in this State are not recognized. Martin v. Coleman, 19 S.W.3d 757, 760 (Tenn.2000); In Re Estate of Glover, 882 S.W.2d 789, 791 (Tenn.Ct.App.1994). However, Tennessee courts will recognize a valid common law marriage entered into under the laws of another state where such marriages are sanctioned. Shelby County v. Williams, 510 S.W.2d 73, 73-74 (Tenn.1974); In re Estate of Glover, 882 S.W.2d at 791. The question, therefore, is whether the parties were married under the common law of Ohio. Prior to 1991, the State of Ohio recognized common law marriage, which was defined as the marital joinder of a man and a woman without the benefit of formal papers or procedures. Nestor v. Nestor, 472 N.E.2d 1091, 1094 (Ohio 1984).FN2 However, such marriages, because they contravene public policy, were disfavored by the courts, and the burden of proving a common law marriage rested with the party claiming its existence. In re Hammonds, 315 N.E.2d 843, 847 (Ohio Ct. of Common Pleas 1973). FN2. In 1991, Ohio enacted a statute which abolished any future common law marriages. Thus, Nestor was superceded by statute as stated in Fitzgerald v. Mayfield, No. CA516, 1991 Ohio App. LEXIS 5822 (Ohio Ct.App. Nov. 15, 1991), but the statute does not apply to common law marriages existing before its enactment. *2 In Nestor, the Supreme Court of Ohio reiterated that there are three basic elements which must be shown in order to establish a common law marriage: (1) an agreement by competent parties to presently take each other as husband and wife; (2) open cohabitation following the contract; and (3) reputation in the community as being husband and wife. Nestor, 472 N.E.2d at 1095. The court explained each element more fully: The fundamental requirement to establish the existence of a common law marriage is a meeting of the minds between the parties who enter into a mutual contract to presently take each other as man and wife. The agreement to marry in praesenti is the essential element of a common law marriage. Its absence precludes the establishment of such a relationship even though the parties live together and openly engage in cohabitation. Although cohabitation and reputation are necessary elements of a common law marriage, this court has previously held that standing alone they do not constitute a common law marriage. The contract of marriage in praesenti may be proven either by way of direct evidence which establishes the agreement, or by way of proof of cohabitation, acts, declarations, and the conduct of the parties and their recognized status in the community in which they reside. However, all of the essential elements to a common law marriage must be established by clear and convincing evidence. Where there is no direct proof in reference to the formation of the contract of marriage in praesenti, testimony regarding cohabitation and community reputation tends to raise an inference of the marriage. This inference is given more or less strength according to the circumstances of the particular case. The inference is generally strengthened with the lapse of time during which the parties are living together and cohabitating as man and wife. Where there is direct evidence concerning the formation of the contract of marriage in praesenti and a finding by the court, as here, that such a contract exists, the evidence of long-time cohabitation and reputation of living together as man and wife should be given even greater weight to further strengthen the inference of marriage.
Page 3 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) As to the element of cohabitation, there must be proof that the parties had sexual activity in the open manner of husband and wife in a marital state. Secret cohabitation with its attendant indusium of concealment concerning the sexual activity of the parties will not suffice as evidence of a valid common law marriage. As to the element surrounding the reputation of the parties in the community as being man and wife, in order to establish a common law marriage it is not necessary that they disseminate information to all society generally, or to all of the community in which they reside. Rather, there must be a holding out to those with whom they normally come in contact. A common law marriage will not necessarily be defeated by the fact that all persons in the community within which the parties reside are not aware of the marital arrangement, nor by the fact that all persons with whom they normally come in contact are also unaware of the arrangement. *3 Nestor, 472 N.E.2d at 1094-95 (citations omitted). The same day they appeared in court in 1984 for their divorce, Mr. Bowser came to Ms. Bowser's house and told her he had made a mistake and was unhappy. He went to Tennessee that or the next day, but attempts to reconcile continued. Ms. Bowser later spent a week with Mr. Bowser in Tennessee, and the couple traveled to Florida together. After Mr. Bowser returned to Ohio and moved back into the marital home, approximately one month after the divorce hearing, the parties simply continued their lives and their relationship as they had been before the divorce. Everyone, including Mr. Bowser, testified that the relationship between the parties went back to the same as it had been before the parties' divorce and that this arrangement continued for over a year while the parties continued to reside in Ohio. In late 1985, the parties decided to relocate to Tennessee because Mr. Bowser foresaw opportunities for his home-building business resulting from the announced new Saturn plant there. The parties made several trips to the Columbia area looking for property to build their home and to build other homes for sale. They met with a realtor who helped them in their search. The realtor sent letters to them in Ohio addressed to Mr. and Mrs. Bowser. Offers and contracts for the purchase of real estate were signed by Mr. and Mrs. Bowser; property was deeded to Mike Bowser and wife, Sue Bowser. Documents reflecting these transactions, dated September 11, 1985, October 7, 1985, and October 23, 1985, were introduced into the record. As part of the parties' divorce, they had agreed to a property settlement which required Mr. Bowser to pay Ms. Bowser $50,000 and to transfer certain real property to her. He made a first payment of $25,000, but never paid the rest, and, after the couple reconciled, the money paid was used for family and household expenses. The real property was never transferred to Ms. Bowser and remained jointly held. Because of the reconciliation, Mr. Bowser never paid the child support that was part of the divorce decree. Mr. Bowser's brief states that the parties moved to Tennessee in March of 1986. After deciding to move to Tennessee, the parties returned to Ohio on several occasions to sell their real property located there. General warranty deeds for these properties dated October 16, 1985, September 3, 1986, and November 20, 1987, were made part of the record. Again, these documents reflected that the parties were husband and wife. It is undisputed that the parties have filed joint tax returns, as married persons, for a number of years. In his deposition and testimony at trial Mr. Bowser stated that in 1984 and 1985 the couple more than likely filed joint tax returns and that since the parties moved to Tennessee in 1985 or 1986 they had filed joint tax returns. Although Mr. Bowser testified he never introduced Ms. Bowser as his wife and did not hold
Page 4 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) himself out as married to Sue Bowser, he also testified he did nothing to correct the many references to the parties as husband and wife, including those on legal documents and tax returns. *4 Ms. Bowser testified she believed the divorce was never final or effective, although she was not allowed to testify as to the basis for that belief. Essentially, she allowed Mr. Bowser to return to the marital home and to a relationship that was the same as before the divorce because he wanted things back as they used to be and promised not to be unfaithful again. They remained together, living and acting as husband and wife, for another sixteen years after their reconciliation. There was testimony from the parties, members of their families, a longtime friend who lived in Ohio when the parties lived there, the Tennessee realtor who helped them find property when they moved, and others. From all the evidence, the trial court concluded that Ms. Bowser had shown by clear and convincing evidence that the parties had cohabited in Ohio for more than a year after their divorce, that the parties' community reputation was as husband and wife in Ohio, and that the parties' acts and declarations while in Ohio supported a finding of common law marriage in Ohio. Our review of the evidence supports those findings. Further, there is clear and convincing evidence that the parties, through their acts and conduct, held themselves out as husband and wife. Mr. Bowser testified he never agreed or promised to re-marry Ms. Bowser. Of course, if she believed they had never been divorced, no such promise would have been expected. It was her intent and understanding that when they resumed cohabitation they were married. Thus, she had the present intent to be married and entered into the arrangement with that intent and understanding. Although Mr. Bowser disputes his intent to re-marry Ms. Bowser, his actions and conduct at that point and in the future contradict any assertion he did not intend to be married to her. Thus, applying the facts of this case to the Ohio Supreme Court's instruction regarding how the necessary contract may be proved, i.e., by inference which may be stronger or weaker depending upon the particular facts and is created by cohabitation and community reputation, we affirm the trial court's conclusion that Ms. Bowser had proved by clear and convincing evidence a present contract to marry at the time they resumed cohabitation. While the existence of a valid contract between the parties had to be proved by conduct that occurred while the parties lived in Ohio, we find that the conduct of the parties in the sixteen years after they moved to Tennessee strengthened the inference of that contract. Consequently, we affirm the trial court's determination that the parties were married in 1984 according to the common law of Ohio. II. Distribution of Property The next issue in this appeal is the trial court's classification, valuation and distribution of the parties' real and personal property. Ms. Bowser argues that the trial court erred by not awarding her all her separate property and also erred in failing to award her a greater share of the marital property. *5 Upon the dissolution of a marriage, courts are called upon to divide the assets the parties accumulated during the marriage. Such decisions are very fact-specific, and many circumstances surrounding the property, the parties, and the marriage itself play a role. The task involves several steps, the first being to determine whether an asset is subject to division at all. A. Wife's Separate Property Tennessee, being a dual property state, recognizes two distinct classes of property: marital property and separate property. Batson v. Batson, 769 S.W.2d 849, 856 (Tenn.Ct.App.1988). The distinction is important because, in an action for divorce, only marital property is divided between the parties. Tenn.Code Ann. 36-4-121(a)(1); Brock v. Brock, 941 S.W.2d 896, 900 (Tenn.Ct.App.1996).
Page 5 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) Separate property is not part of the marital estate subject to division. Cutsinger v. Cutsinger, 917 S.W.2d 238, 241 (Tenn.Ct.App.1995). Accordingly, when it comes to dividing a divorcing couple's property, the court should initially identify the separate property, if any, belonging to each party. Anderton v. Anderton, 988 S.W.2d 675, 679 (Tenn.Ct.App.1998). The general rules for determining whether property is separate or marital are found in statute. Tenn.Code Ann. 36-4-121(b)(1) & -121(b)(2). Of course, the courts must apply these rules to the specific facts of each case. In addition, conduct between the parties can affect the classification of the property, and certain conduct can create presumptions as to separate or joint ownership. See, e.g., Kincaid v. Kincaid, 912 S.W.2d 140, 142 (Tenn.Ct.App .1995); McClellan v. McClellan, 873 S.W.2d 350, 351 (Tenn.Ct.App.1993); Barnhill v. Barnhill, 826 S.W.2d 443, 452 (Tenn.Ct.App.1991) ; Batson, 769 S.W.2d at 858. Therefore, the determination of whether property is jointly or separately held depends upon the circumstances. Langford v. Langford, 220 Tenn. 600, 421 S.W.2d 632, 634 (1967). Whether an asset is separate property or marital property is a question of fact. Cutsinger, 917 S.W.2d at 241; Sherrill v. Sherrill, 831 S.W.2d 293, 295 (Tenn.Ct.App.1992). Thus, a trial court's classification decisions are entitled to great weight on appeal. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn.Ct.App.1996). These decisions will be presumed to be correct unless the evidence preponderates otherwise, Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn.Ct.App.1983), or unless they are based on an error of law. Mahaffey v. Mahaffey, 775 S.W.2d 618, 622 (Tenn.Ct.App.1989). Ms. Bowser asserts that the trial court incorrectly classified some items as marital property which were actually her separate property. At trial, Ms. Bowser testified that fifty items, listed on a schedule which was attached as Exhibit A to the court's order, were her separate property. The trial court specifically found all items on this schedule, except for items 17 and 18, the Pecos Bill Disney collectible and the Slewfoot Sue Disney collectible, to be the separate property of the Plaintiff. Indeed, item 17 on the schedule was the Pecos Bill Disney collectible and item 18 was the Slewfoot Sue Disney collectible, which Ms. Bowser valued at $1,000 and $600 respectively. *6 After hearing both parties' motions to alter or amend, the trial court clarified its earlier order and awarded the two specified Disney collectibles to Ms. Bowser, stating the court had re-examined its notes and had intended to award these pieces to Ms. Bowser. On appeal, Ms. Bowser's brief merely states that based on the evidence, Ms. Bowser should receive as her separate property the 50 separately listed items. She was awarded 48 of those items as separate property and the other 2 in the later order. In her table explaining the trial court's distribution of property, Ms. Bowser lists $1,000 of the Disney collection as having been awarded to her. In her suggestion to this court of how the property should be divided, she appears to include in the marital property only that portion of the Disney collection awarded to Mr. Bowser. From this, we interpret Ms. Bowser's argument to be that the two collectibles awarded to her by the trial court's clarification should not be included in the marital estate. The trial court's original order treated most of the Disney collection as marital property, awarding $20,000 of it to Mr. Bowser and $1,000 worth to Ms. Bowser. The trial court's later order awarded the two collectibles which had been excluded from the list of Ms. Bowser's separate property to Ms. Bowser, but did not identify the two collectibles as either marital or separate. We interpret the two orders, however, as classifying the Pecos Bill and Slewfoot Sue pieces as marital property.
FN3
FN3. At trial, Ms. Bowser only claimed three pieces in the collection as gifts to
Page 6 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) her. The third, Snow White and the Seven Dwarfs, which she valued at $1,000, was awarded to Ms. Bowser as her separate property, since it was not one of the two items on the list excluded by the court. At trial, Ms. Bowser testified that although the collection had started out as hers, most of the collection had been bought by Mr. Bowser for himself. He was the one who was interested in the collection. She testified that the Pecos Bill and Slewfoot Sue figures had been bought by Mr. Bowser as gifts for her. Mr. Bowser testified that he bought each of those for his collection, that both were older pieces he had wanted to acquire, that Ms. Bowser was with him when he made the purchases, and that they were not gifts to Ms. Bowser. Faced with this directly contradictory evidence, the trial court was free to accredit one party's testimony. Here, the trial court found the two pieces to be marital property, but awarded them to Ms. Bowser. The evidence does not preponderate against the trial court's classification of the pieces. We also feel compelled to point out that reducing the marital estate by the value of the two figures ($1,600 according to Ms. Bowser; $1,000 according to the court), as Ms. Bowser insists should be done, would make an infinitesimal difference in the total amount, since the trial court valued the marital property at a little over $500,000. It would make no difference in the equities of the division. B. Distribution of the Marital Property After classification of the parties' property as either marital or separate, the trial court is charged with equitably dividing, distributing, or assigning the marital property in proportions as the court deems just. Tenn.Code Ann. 36-4-121(a)(1). The court is to consider several factors in its distribution. Tenn.Code Ann. 36-4-121(c) (listing the factors to be considered). The court may consider any other factors necessary in determining the equities between the parties, Tenn.Code Ann. 36-4-121(c)(11), except that division of the marital property is to be made without regard to marital fault. Tenn.Code Ann. 36-4-121(a)(1). *7 The court's distribution of property is not achieved by a mechanical application of the statutory factors, but rather by considering and weighing the most relevant factors in light of the unique facts of the case. Batson, 769 S.W.2d at 859. An equitable distribution is not necessarily an equal one. Word v. Word, 937 S.W.2d 931, 933 (Tenn.Ct.App.1996). Thus, a division is not rendered inequitable simply because it is not precisely equal, Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn.1996); Kinard v. Kinard, 986 S.W.2d 220, 230 (Tenn.Ct.App.1998). Similarly, equity does not require that each party receive a share of every piece of marital property. King v. King, 986 S.W.2d 216, 219 (Tenn.Ct.App .1998); Brown v. Brown, 913 S.W.2d 163, 168 (Tenn.Ct.App.1994). The trial court's goal in a divorce case is to divide the marital property in an essentially equitable manner, and equity in such cases is dependent on the facts of each case. The fairness of a particular division of property between two divorcing parties is judged upon its final results. Watters v. Watters, 959 S.W.2d 585, 591 (Tenn.Ct.App.1997). Because dividing a marital estate is a process guided by considering all relevant factors, including those listed in Tenn.Code Ann. 36-4-121(c), in light of the facts of a particular case, a trial court has a great deal of discretion concerning the manner in which it divides marital property. Smith v. Smith, 984 S.W.2d 606, 609 (Tenn.Ct.App.1997); Wallace v. Wallace, 733 S.W.2d 102, 106 (Tenn.Ct.App.1987). Appellate courts ordinarily defer to the trial judge's decision unless it is inconsistent with the factors in Tenn.Code Ann. 36-4-121(c) or is not supported by a preponderance of the evidence. Wilson, 929 S.W.2d at 372; Brown, 913 S.W.2d at 168. As part of its responsibility to divide the marital estate equitably, the trial court must determine the value of the property included. The value to be placed on an asset is a question of fact. Kinard, 986 S.W.2d at 231. The parties herein submitted pretrial
Page 7 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) stipulations of fact establishing an agreed-upon value for most assets. In the case before us, the trial court first dealt with the personal property, valuing and then distributing it. The total of the values assigned by the court to the items included in its list of personal property is $279,872. The trial court then made awards of specific assets to each of the parties. The total of the values assigned to the awarded assets is $201,175. The difference between the two totals is explained by the fact that the court included a retirement account in its original listing of marital property, but did not award that asset to either party in its itemized distribution of personal property assets. FN4 FN4. In addition, the court valued the Disney collection at $20,000 in its listing of assets in the marital estate, but valued the portion awarded to Mr. Bowser at $20,000 and the portion awarded to Ms. Bowser at $1,000. This small discrepancy does not affect the equity of the division. We merely point it out to clarify our numbers. The trial court totaled the values of the assets awarded to Ms. Bowser, arriving at $107,200, and stated that was 53.29% of the total personal property in the marital estate.FN5 The court then made awards of specific assets to Mr. Bowser, totaled the value of those awards at $93,975, and determined that amount to be 46.71% of the personal property estate. FN5. The trial court obviously meant that it was 53.29% of the total personal property actually awarded. *8 In making the specific awards of personal property, the trial court awarded Ms. Bowser: the Leann Cole note ($20,000); clothing, jewelry, household goods and furnishings in the marital residence ($15,750); the 1999 Lexus ($26,950); onehalf of the checking account (approximately $9,500); FN6 the monetary equivalent to one-half of the business known as John Bowser Homebuilder ($34,000); FN7 and the two Disney Collectibles ($1,000), as discussed above. FN6. Ms. Bowser claimed the value of the checking account to be $21,610 and Mr. Bowser claimed the account contained only $18,500. The trial court resolved this issue by assigning a value to the checking account of approximately $19,000 and ordering it to be divided equally between the parties. FN7. The court thus found the business was worth $68,000, and divided this amount between the parties. We note that in both her pretrial filing and in her tabulation filed pursuant to Tenn. Ct.App. R. 7, Ms. Boswer valued the business at $68,000. Out of the personal property, the trial court awarded Mr. Bowser: all items of personalty including clothing, jewelry, household goods and furnishings in his possession; all tools, equipment, inventory and accounts receivable pertaining to the business known as John Bowser Homebuilders, less the cash award to the Plaintiff ($34,000); the 1997 Chevy 3500 with utility, the 1992 Chevy 3500 dump truck and the 1997 Riviera automobiles ($30,475); one-half of the checking account (approximately $9,500); and the bulk of the Disney collectibles ($20,000). The parties stipulated that their real property had a total value of $415,200 with an indebtedness of $187,700. After dividing the personal property, the trial court then ordered the parties' real property FN8 to be sold at public auction with all proceeds to be applied to the marital debts, court costs, and attorney's fees of both parties. After the deductions specified, the court ordered that the remaining proceeds be divided between the parties in the same percentage as resulted from the distribution of personal property, with Ms. Bowser receiving 53.29% and Mr. Bowser receiving 46.71%. Some clarifica-
Page 8 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) tions were later made, as more fully described below. FN8. This included the marital home located at 112 Masters Lane, Columbia, Tennessee; the adjoining lot, being Lot 47 of the Stoneybrook Estates; Lot 10 of the Allan Allias Subdivision, which was where the business known as John Bowser Homebuilder was located; Lot 9 with improvements in the Forrest Hills Subdivision; and Lots 1, 2 and 3 of Picketts Pointe. In addition to this general description of the property distribution, Mr. Bowser was awarded a Met Life cash value insurance policy as his separate property. The parties' retirement account, in Mr. Bowser's name only, valued at $79,697, was awarded to Ms. Bowser as alimony in solido. The trial court found that the parties had accumulated total assets in an approximate amount of $696,072 and indebtedness totaling $187,700 for a net worth of $508,372. Ms. Bowser makes a general argument regarding the equity of the distribution of property, which we will discuss below. That discussion will be aided, however, by our first discussing a few specific findings or awards by the trial court and Ms. Bowser's objections thereto. (1) The Leann Cole Note Ms. Bowser alleges that the trial court erred in awarding, as part of her portion of the marital property, a $20,000 note representing a lien on a home built by Mr. Bowser for Ms. Bowser's daughter from a previous marriage, Leann Cole. Ms. Bowser argues that the note is not a real asset of the parties, as they never intended to collect on it and only placed the lien against the property in the event that her daughter and former son-in-law got a divorce. The trial court found the note which is secured by a deed of trust on Ms. Cole's residence to be a real note and that it was due and payable to the holder thereof and awarded it to Ms. Bowser in her marital property. We find that the evidence does not preponderate against this finding of fact by the trial court. Of course Ms. Bowser's real complaint is that because she has no intention of collecting on the note, it has no real value and its face amount should not be credited to her as part of her share of the marital property. Whether or not she intends to collect, the note is an asset which was properly included in the marital estate and in Ms. Bowser's share of that estate. (2) The Retirement Account *9 In the trial court both parties listed the retirement account, valued at $79,697, as marital property. Each party proposed that the trial court award the entirety of the account to him or her. In their Tenn. Ct.App. R. 7 tabulations, both parties also list the account as marital property. That classification is correct. Tenn.Code Ann. 36-4-121(b)(1)(A) & (b)(1)(B). The trial court specifically included this account in its listing of personal property in the marital estate. However, it did not award the account, or a portion thereof, to either or both parties in its distribution of marital property. Instead, the trial court awarded Ms. Bowser the parties' retirement account as alimony in solido. The failure of the court to distribute the funds in the account according to the principles set out above was, technically, error. However, it is clear that the court awarded the entirety of the account to Ms. Bowser based upon its balancing of the financial situations of both parties. We will not disturb that award, but correct the nomenclature to reflect its true character as an award of marital property. We note, however, that the award of the retirement account to Ms. Bowser changes the percentages of the distribution. Including the retirement account in the distributed marital estate increases the total of their personal property to $280,872. Awarding the account to Ms. Bowser increases her total to $186,897. Mr. Bowser's total remains the same at $93,975. Therefore Ms. Bowser was awarded 66.5% of the marital personal property, or essentially two-thirds, and Mr. Bowser was awarded
Page 9 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) 33.5%, or essentially one-third. Overall equity of the distribution is the goal, and the precise percentages involved are not determinative. They are simply a sometimes helpful way to apply practical measurements to the goal. (3) The Marital Residence Ms. Bowser objects to the way the trial court dealt with the marital residence, valued at $180,000, and an adjoining lot, valued at $20,000. The trial court, finding that the parties owned several tracts of real property, including the marital residence, with a total stipulated value of $415,200, and a total indebtedness of $187,700, ordered that all the real property be sold and the proceeds applied: (1) to the marital debt consisting of a line of credit and loan secured by a lot in Forest Hills subdivision; (2) all court costs and remaining balances toward attorney's fees of both parties; and (3) the remaining balance split between the wife, at 53.29% and the husband at 46.71%. After motions to alter or amend, the trial court determined that the proceeds from the sale of the marital residence should not be used to satisfy the line of credit because it was totally business related and beyond the control of the Plaintiff. After the trial court's order on the motions to alter or amend, a number of other motions were filed regarding, among other things, disposition of proceeds from the sale of real estate, a stay of the order to sell the marital residence, contempt for not complying with the order, and attorney's fees.FN9 The issues raised in these numerous post-trial motions were dealt with in part in an Agreed Order. FN9. Some of the fees were apparently related to proceedings requesting and opposing protective orders. *10 In a later order, the trial court limited the documents to be included in the record as post judgment facts; clarified the award of a specific portion of the attorney's fees; denied Mr. Bowser's request for a protective order and a finding of contempt against Ms. Bowser; and made other rulings discussed later in this opinion. The documents allowed in the record include a settlement statement showing the sale of six parcels of property for a total of $228,250, with deductions for expenses, taxes, and payoff of indebtedness, leaving a balance of $18,285.28 to be paid to the Bowsers. The documents indicate that Mr. Bowser purchased five of the six parcels of property. In addition to those six parcels, the parties agreed, as evidenced by an Agreed Order, to list the marital residence with a realtor before auctioning it. Ms. Bowser asserts that the trial court erred in requiring that the marital residence be auctioned. After the trial court's initial order, Ms. Bowser had asked for a stay of the sale of the residence. However, Ms. Bowser signed an agreed order evidencing the parties' agreement that the residence would continue to be listed until a specified date and if no contract were executed by that date, the house was to be sold at auction. Because Ms. Bowser agreed to the auction of the house, however reluctantly, she cannot complain of it on appeal. In the agreed order, however, Ms. Bowser retained the right to contest the distribution of assets on appeal, and she has done so. In her brief, Ms. Bowser suggests that the marital residence and adjoining lot, or the equity therein, should be awarded to her. (4) Equitable Distribution Ms. Bowser asserts that the award to her of 53.29% of the parties' property was inequitable because she is the economically disadvantaged spouse, is 58 years old with health problems, and has an 8th grade education and little employment history except with her husband's construction business, making her earning potential much less than her husband's. In addition, she asserts that her contributions to the marriage and to the parties' accumulation of assets, as well as the duration of the parties' marriage, weigh in favor of a greater share of property being awarded to her. She asks for an additional judgment in an amount determined by
Page 10 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) this court to be equitable. The financial situation of the parties is also relevant to Ms. Bowser's request for alimony or spousal support, as many of the same factors are applicable in that consideration. In addition, the property a spouse receives as part of the distribution of the marital estate upon divorce is an important factor in determining the need for, nature, and amount of spousal support. It is one of the statutory factors which courts are to consider in making spousal support decisions. Tenn.Code Ann. 36-5-101(d)(1)(H). Both property division and support awards can be used to address the needs of an economically disadvantaged spouse. *11 Our Supreme Court has explained the relationship between spousal support and the distribution of marital property when one spouse is economically disadvantaged. All relevant factors, including those set out in 36-5-101(d)(1), must be considered on a caseby-case basis to determine the nature and extent of support. Tenn.Code Ann. 36-5-101(d)(1). Factor (H) requires the trial court to consider the division of marital property when awarding alimony. Tenn.Code Ann. 36-5-101(d)(1)(H). The division of marital property involves the distribution of both marital assets and marital debts. See Anderton v. Anderton, 988 S.W.2d 675, 679 (Tenn.Ct.App.1998); Mondelli v. Howard, 780 S.W.2d 769, 773 (Tenn.Ct.App.1989). We encourage trial courts to use the division of marital property to assist in meeting the disadvantaged spouse's financial needs when feasible. See Crabtree, 16 S.W.3d at 361 n. 4 (In cases in which there is a disparity between the relative earning capacities of the parties, a trial court also may consider adjusting the award of marital assets to assist the disadvantaged spouse.); see also Renfro v. Renfro, 848 P.2d 830, 834 (Alaska 1993) (establishing a preference for meeting the parties' needs with the division of marital property, rather than with alimony). Section 36-4-121 of the Tennessee Code Annotated does not require an equal division of marital property but an equitable division. Tenn.Code Ann. 36-4-121(a)(1); see Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn.1988). When practical, therefore, a trial court should consider awarding more assets to an economically disadvantaged spouse to provide future support, rather than relying solely upon an award of alimony. When there are few marital assets but a considerable amount of marital debt, a trial court should similarly consider awarding a disadvantaged spouse a lesser amount of marital debt. Careful distribution of the marital property may assist the disadvantaged spouse in achieving rehabilitation in furtherance of the legislative policy of eliminating spousal dependency. Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn.2002). Absent a showing by Ms. Bowser of greater need due to economic disadvantage, the trial court's distribution of property would appear equitable. Whether that distribution should be modified to meet Ms. Bowser's needs depends upon consideration of the factors and issues relevant to spousal support. Therefore, we must consider the issues surrounding Ms. Bowser's request for spousal support. III. Spousal Support After dividing the parties' property, the trial court awarded Ms. Bowser the parties' retirement fund with a balance of approximately $79,697, as alimony in solido. As discussed above, that award is more accurately characterized as part of the distribution of marital property. The trial court's intent in that award was to assist Ms. Bowser financially, and the use of marital property to help meet the needs of an economically disadvantaged spouse is appropriate. *12 Ms. Bowser alleges that the trial court erred in failing to award her alimony in futuro or rehabilitative alimony. Trial courts have broad discretion to determine whether spousal support is needed and, if so, its
Page 11 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) nature, amount and duration. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn.2001). Appellate courts are generally disinclined to second-guess a trial court's spousal support decision unless it is not supported by the evidence or is contrary to public policies reflected in applicable statutes. Bogan v. Bogan, 60 S.W.3d 721, 733 (Tenn.2001); Kinard, 986 S.W.2d at 234; Brown, 913 S.W.2d at 169. Our role is to determine whether the award reflects a proper application of the relevant legal principles and that it is not clearly unreasonable. Bogan, 60 S.W.3d at 733. When the trial court has set forth its factual findings in the record, we will presume the correctness of those findings so long as the evidence does not preponderate against them. Tenn. R.App. P. 13(d); Bogan, 60 S.W.3d at 733; Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn.2000). Alimony or spousal support is authorized by statute, Tenn.Code Ann. 36-5-101(a)(1), which gives courts discretion to order suitable support and maintenance of either spouse by the other spouse ... according to the nature of the case and the circumstances of the parties.... There are no hard and fast rules for spousal support decisions, and such determinations require a careful balancing of the relevant factors. Anderton, 988 S .W.2d at 682-83. In determining whether to award support and the nature, amount and length of such support, the court is to consider all relevant factors, including those enumerated in Tenn.Code Ann. 36-5-101(d)(1).FN10 FN10. The factors the court must consider in setting the alimony obligation are: (A) The relative earning capacity, obligations, needs and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources; (B) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party's earning capacity to a reasonable level; (C) The duration of the marriage; (D) The age and mental condition of each party; (E) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease; (F) The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage; (G) The separate assets of each party, both real and personal, tangible and intangible; (H) The provisions made with regard to the marital property as defined in 36-4-121; (I) The standard of living of the parties established during the marriage; (J) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party; (K) The relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so; and (L) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
Page 12 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) Tenn.Code Ann. 36-5-101(d)(1). Initial decisions regarding the entitlement to spousal support, as well as the amount and duration of spousal support, hinge on the unique facts of each case, and court must weigh and balance all relevant factors. Robertson, 76 S.W.3d at 338; Watters, 22 S.W.3d at 821. Among these factors, the two considered to be the most important are the disadvantaged spouse's need and the obligor spouse's ability to pay. Robertson, 76 S.W.3d at 342; Bogan, 60 S.W.3d at 730; Manis v. Manis, 49 S.W.3d 295, 304 (Tenn.Ct.App.2001). Of these two factors, the disadvantaged spouse's need is the threshold consideration. While there is no absolute formula for determining the amount of alimony, the real need of the spouse seeking the support is the single most important factor. In addition to the need of the disadvantaged spouse, the courts most often consider the ability of the obligor spouse to provide support. Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn.1995) (quoting Cranford v. Cranford, 772 S.W.2d 48, 50) (Tenn.Ct.App.1989)). Among the statutory factors to be considered in deciding whether to award alimony are: the relative earning capacity, obligations, needs, and financial resources of each party; the relative education and training of each party; the ability and opportunity and necessity of each party to secure such education and training in order to improve such party's earning capacity to a reasonable level; and the assets of each party, whether they be separate assets or marital property awarded in the divorce. Tenn.Code Ann. 36-5-101(d)(1). Relative economic disadvantage incorporates the principles of need and ability to pay. *13 Where such disadvantage exists, the legislature has expressed a preference for rehabilitative alimony over long-term, open-ended alimony in futuro. Tenn.Code Ann. 36-5-101(d)(1); Robertson, 76 S.W.3d at 339-40; Burlew, 40 S.W.3d at 470; Crabtree, 16 S.W.3d at 358. The purpose of an award of rehabilitative alimony is to encourage divorced spouses to become self-sufficient. Robertson, 76 S.W.3d at 339-40; Burlew, 40 S.W.3d at 471, Crabtree, 16 S.W.3d at 360. Rehabilitative alimony is appropriate where the spouse is economically disadvantaged, but where rehabilitation is possible by the grant of rehabilitative, temporary support and maintenance. Tenn.Code Ann. 36-5-101(d)(1). Our Supreme Court has discussed the purposes behind alimony, stating: The prior concept of alimony as lifelong support enabling the disadvantaged spouse to maintain the standard of living established during the marriage has been superseded by the legislature's establishment of a preference for rehabilitative alimony. The parties' incomes and assets will not always be sufficient for them to achieve the same standard of living after divorce that they enjoyed during the marriage. However, rehabilitative alimony may assist the disadvantaged spouse in obtaining further education or training. It may also provide temporary income to support the disadvantaged spouse during the post-divorce economic adjustment. Robertson, 76 S.W.3d at 340-41. In determining whether a disadvantaged spouse can be rehabilitated with short-term support, the court is to consider every relevant factor. Id. 76 S.W.3d at 340. Neither the standard of living the parties enjoyed during the marriage nor the income or earning potential of the other spouse can be used as the sole or determinative factor. Id.; Crabtree, 16 S.W.3d at 359. Where, considering all the relevant factors, rehabilitation is not possible, the courts should not refrain from awarding long-term support when that support is appropriate under the statutory factors. Robertson, 76 S.W.3d at 341-42. The statutory
Page 13 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) preference for rehabilitative support does not entirely displace other forms of support. Id.; Anderton, 988 S.W.2d at 682. The support statute itself provides for the grant of an award of support on a long-term basis where there is such relative economic disadvantage and rehabilitation is not feasible in consideration of all relevant factors. Tenn.Code Ann. 36-5-101(d)(1). The purpose of alimony in futuro is to provide financial support to a spouse who cannot be rehabilitated. Burlew, 40 S.W.3d at 470-71. In the present case, the trial court found that it was feasible for Ms. Bowser to be rehabilitated even though Ms. Bowser at the time of the divorce trial was fifty-seven (57) years old and has only an 8th grade education stating: This Court feels that the Plaintiff is capable of being rehabilitated despite her age and educational background. She has ample experience in the home construction business to be placed in home improvement and construction companies such as Home Depot or Lowes. These companies look favorably on employing persons with experience in home construction or improvement. The Court therefore finds that the Plaintiff is not a candidate for alimony in futuro and the award of alimony in solido is more appropriate. *14 The Court in making a decision toward alimony is taking into consideration the facts that Plaintiff's earning capacity is substantially less than the Defendant's, the Defendant's contribution to the demise of the marriage based on his inappropriate marital conduct, the long duration of the parties and the standard of living enjoyed by the parties as well as the drug trafficking the parties admitted to participating in some years ago which enabled them to enjoy a higher standard of living and where most of the assets of the parties originated. The more important factor to the decision to award rehabilitative alimony or alimony in solido is the Plaintiff's need and the Defendant's ability to pay. Need and the ability to pay are the critical factors in setting the amount of an alimony award. Smith v. Smith, 912 S.W.2d 155, 159 (Tenn.Ct.App.1995). The Court finds that with the Plaintiff's talent shown in her exhibit, she will be able to find employment. The Court does, however, award the Plaintiff the retirement plan of the parties with an approximate balance of Seventy-nine Thousand Six Hundred Ninety-seven ($79,697.00) Dollars as alimony in solido. With the award to her from the sale of their assets, along with her portion of the marital personal property and the retirement fund as alimony in solido, the Plaintiff will be able to live comfortably. The trial court found that Ms. Bowser's earning capacity was substantially less than her husband's. We agree. She has limited education and has several health problems, including heart problems, a thyroid condition and scoliosis. FN11 Combined with her age and her past work experience, which involved working in the parties' construction business for which she did not receive pay, these facts indicate little likelihood she could greatly increase her earning capacity through training. Mr. Bowser, on the other hand, testified at the trial that he was 51 years old and in excellent mental and physical health, aside from occasional back pain. He retained the construction business, which will provide him with income, while Ms. Bowser must find employment elsewhere. The tax returns in the record indicate income from the business of $58,000 in 1999, $38,000 in 1998, and $58,000 in 1997. FN11. Mr. Bowser testified that he was aware that Ms. Bowser had these health problems. Ms. Bowser's Income and Expense statement reflects that she had no income. During the pendency of the case, Ms. Bowser received pendente lite support, and had $3,219 in monthly expenses. The trial court found that the Plaintiff [Ms. Bowser] has sustained her needs since the parties' separation with the Defendant paying her Two Hundred Dollars ($200) per week plus her utility bills. Ms.
Page 14 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) Bowser testified that she had barely sustained herself on this amount, and had to forego some things including some medication, necessary repairs and maintenance to her car and home appliances, clothes, and paying her medical and legal bills. Her expense statement did not include an amount for rent or house payment. *15 Mr. Bowser's Income and Expense statement reflected that his monthly net business profits were $4,293 and that his net monthly income after taxes and deductions is $2,862. He claimed monthly expenses of $2,799, leaving him only $63 a month after expenses. In addition, he testified that several of his expenses such as the $236 per month in insurance and $167 per month in car expenses are at least in part written off at the end of the year as business expenses on his income taxes. Importantly, Mr. Bowser did not dispute that he had been paying Ms. Bowser $200 per week in support since the parties separated in addition to paying all of the utilities for the marital residence. This amount was not included as an expense on his Income and Expense statement. We note that neither party came out of the divorce with any debt. Because of the way the trial court structured the distribution of property, all then existing debt was paid from the proceeds of the sale of the real property, and the parties' assets were awarded free of encumbrance. Thus, their needs, or expenses, do not include loan payments. Neither was awarded a residence, so housing costs are to be anticipated. Suffice it to say that certain items of claimed expenses could be questioned for both parties. We note that Ms. Bowser's claimed monthly expenses exceed those of Mr. Bowser by approximately $420 per month, and her expenses do not include housing costs, which Mr. Bowser claims at $550. One area in which Ms. Bowser could be expected to have greater expense than Mr. Bowser is in medical care and medication. She lists that cost at $250 more per month than Mr. Bowser claims. If we accept Mr. Bowser's expenses as reasonable, and assume that it is reasonable to expect the parties to have roughly equivalent expenses, but allowing for Ms. Bowser's increased medical costs, Ms. Bowser's monthly living expenses would amount to approximately $3,000. There is nothing in the record to indicate that Ms. Bowser could obtain employment which would in the immediate or near future provide her with that amount of take home pay each month. While Ms. Bowser was awarded over half of the marital property, none appears to be income producing. Thus, she would be required to deplete those assets, including the retirement account, in order to be self-sufficient. We do not disagree with the trial court's assessment that its award to her of the retirement account will assist her in maintaining herself, but have concerns about her need to totally deplete that asset before retirement. Neither do we disagree that Ms. Bowser should be expected to maintain employment, but are unconvinced that she can in the near future earn enough to be self-sufficient without using her assets in their entirety in a short time. Based upon all the relevant factors, including the economic factors outlined above, the duration of the marriage, the contributions of each to the marriage, and the age and health of each, we conclude that Ms. Bowser is entitled to rehabilitative alimony for support during the post-divorce economic adjustment with the goal of her reaching self-sufficiency, through employment, use or investment of assets, or other income, after that period of adjustment. Consequently, we hold that Ms. Bowser should be awarded rehabilitative alimony in the amount of $500 per month for five years, or sixty months, from the date of the divorce. Upon remand, the trial court shall determine an appropriate method for payment of those amounts which would have been paid during the pendency of this appeal. *16 We have considered a re-distribution of the marital property to effectuate the same result, but determined that the practicalities of implementing such an order, especially in view of the auctions
Page 15 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) which were to have taken place, militate against that course. We affirm the trial court's distribution of property. IV. The Accounting Evidence Ms. Bowser also seeks to have this court remand the case to the trial court for a new trial to consider accounting evidence regarding the finances of Mr. Bowser's business. This issue requires a background explanation. In preparation for trial, Ms. Bowser hired an accountant to review various records of the construction business operated by Mr. Bowser. This fact was first brought out at trial in cross-examination of Ms. Bowser regarding her request that Mr. Bowser pay her attorney's fees and the bill offered in support of that request. The bill included an outside fee for David Mensel, an accountant, as well as attorney time spent with Mr. Mensel. Ms. Bowser stated Mr. Mensel would not be a witness in the case, and her attorney argued that the accountant's fees were litigation expenses incurred upon recommendation of counsel, whether they chose to use Mr. Mensel as a witness or not. Mr. Bowser's attorney argued the fees were not reasonable, stating, he's not going to be a witness in this case. They spent a lot of money for nothing.... Ms. Bowser, in fact, did not call Mr. Mensel as a witness. Mr. Bowser presented the testimony of his accountant, Mr. Regeon, who testified he had prepared tax returns for Mr. Bowser's business and the statements of financial condition filed with the state contractor's licensing board for a number of years. Those documents were introduced into evidence. The trial court ordered that each party be responsible for his or her own attorney's fees and directed that all costs and attorney's fees be paid from the proceeds of the sale of real property with the exception of the fees due Mr. David Mensel, for which the Plaintiff will be solely responsible. In her motion to alter or amend, Ms. Bowser asserted the trial court's ruling with regard to the payment of Mr. Mensel's fee was unclear, ambiguous, and in need of clarification. This was the only mention in this motion of Mr. Mensel. The court found: The Court nor anyone else received any enlightenment from any of the work performed by Mr. David Mensel, CPA. Therefore, any charges submitted by him for payment should not be paid from the proceeds of the marital home. After Ms. Bowser changed counsel, two motions for clarification and to consider post-judgment facts were filed, the second of which addressed the trial court's ruling on Mr. Mensel's fee. In part, the motion states: That after spending $5,000 in retainer and incurring another $9,700 in fees for Mr. Mensel, Plaintiff would submit that his report should be considered. That Plaintiff would respectfully request that the Report from Mr. Mensel be a part of the record and marked as an exhibit in this cause and his statement of fees introduced for consideration by the Court of Appeals. *17 The trial court denied this request [b]ecause no proof was entered at trial regarding the findings of David Mensel, CPA, and because the Defendant [Mr. Bowser] was given no opportunity to cross-examine or depose Mr. Mensel.... On appeal, Ms. Bowser states that she asked the trial court to be allowed to supplement the record with the report of the forensic accountant she hired to review the books of John Bowser Homebuilder. Her brief then states: Ms. Bowser argued that her trial counsel should have introduced the report in support of her argument that Mr. Bowser's income was greater than he actually reported and to supply the court with expert proof regarding the value of the business. This case should be remanded so that Ms. Bowser can present proof as to Mr. Bowser's actual earnings and the value of the business. The trial court quite correctly refused to supplement the record with a report that was not intro-
Page 16 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) duced at trial and, therefore, not part of the evidence considered by the court in reaching its decisions. The report was not a post-judgment fact; it was evidence not offered at trial. It is not perfectly clear from the record that Ms. Bowser asked the trial court for a new trial and a new opportunity to present the accountant's report and testimony, as opposed to asking the court to reconsider its order on Mr. Mensel's fees. If she did not present this issue to the trial court, she cannot raise it for the first time on appeal. Generally, this court will not entertain an issue on appeal that was not raised in the court below. Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn.1991) (citing Lovell v. Metro. Gov't, 696 S.W.2d 2 (Tenn.1985)); Davis v. Tennesseean, 83 S.W.3d 125, 127 (Tenn.Ct.App.2001); Harlan v. Hardaway, 796 S.W.2d 953, 957 (Tenn.Ct.App.1990). Numerous Tennessee cases hold that an issue raised for the first time on appeal is waived. See, e.g., Norton v. McCaskill, 12 S.W.3d 789, 795 (Tenn.2000); Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn.1983) (noting, It has long been the general rule that questions not raised in the trial court will not be entertained on appeal....). An issue not presented to, decided, or dealt with by the trial court will not be considered by appellate courts. In re Adoption of a Female Child, 42 S.W.3d 26, 32 (Tenn.2001); Reid v. State, 9 S.W.3d 788, 796 (Tenn.Ct.App.1999). Even if she did ask the trial court for a new trial and can raise the issue in this court, Ms. Bowser is not entitled to a new trial and a new determination of the value of the business on the basis of the report. With regard to granting a new trial under a Tenn. R.App. P. Rule 59.04 Motion to Alter or Amend Judgment: To justify a new trial for newly discovered evidence it must be shown that the new evidence was not known to the moving party prior to or during trial and that it could not have been known to him through exercise of reasonable diligence. *18 Thus, an attorney has a duty to investigate prior to trial, Tipton v. Smith, 593 S.W.2d 298 (Tenn.App.1979); Brown v. University Nursing Home, Inc., 496 S.W.2d 503 (Tenn.App.1972); City of Knoxville v. Ryan, 13 Tenn.App. 186 (1929); Demonbreun v. Walker, 63 Tenn. 199 (1874); Tabler v. Connor, 60 Tenn. 195 (1873), to call appropriate witnesses at trial, Zirkle v. Stegall, 163 Tenn. 323, 43 S.W.2d 192 (1931); Wilson v. Nashville C. & St. L. Ry., 16 Tenn.App. 695, 65 S.W.2d 637 (1933); Stafford v. Stafford, 1 Tenn.App. 477 (1926); Ware v. State, 108 Tenn. 466, 67 S.W. 853 (1902), to fully examine all witnesses, Noel v. McCrory, 47 Tenn. 623 (1868); Luna v. Edmiston, 37 Tenn. 159 (1857); Darnell v. McNichols, 22 Tenn.App. 287, 122 S.W.2d 808 (1938), and to secure evidence of which counsel becomes aware at trial. Bradshaw v. Holt, 200 Tenn. 249, 292 S.W.2d 30 (1956); Southwestern Transp. Co. v. Waters, 168 Tenn. 596, 79 S.W.2d 1028 (1935); Whitfield v. Loveless, 1 Tenn.App. 377 (1925). The client is also under a duty to act with due diligence in securing evidence for trial. Hayes v. Cheatham, 74 Tenn. 1 (1880); Harbour v. Rayburn, 15 Tenn. 432 (1835); Puckett v. Laster, 56 Tenn.App. 66, 405 S.W.2d 35 (1965); Spence v. Carne, 40 Tenn.App. 580, 292 S.W.2d 438 (1954). Seay v. City of Knoxville, 654 S.W.2d 397, 399 (Tenn.Ct.App.1983) (some citations omitted). Ms. Bowser admits in her brief that her attorney should have admitted the accounting evidence at trial. Upon obtaining new counsel after the trial, Ms. Bowser filed a Second Motion for Clarification and to Consider Post Judgment Facts and to Supplement the Record on Appeal, on May 24, 2001, stating that Mr. Mensel completed an evaluation [of] the Bowser Construction business John Bowser Homebuilder and was prepared to provide testimony regarding Mr. Bowser's real income. Consequently, the evidence she now seeks to have considered by this court on appeal was evidence that was available at trial, but according to the transcript
Page 17 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) of the proceedings, Ms. Bowser's counsel at that time chose not to use. Thus, this evidence is not newly discovered evidence as is required to warrant a new trial under Tenn. R.App. P. Rule 59.04. V. Attorney's Fees Finally, Ms. Bowser asserts that the trial court should have ordered Mr. Bowser to pay her attorney's fees rather than directing that the fees be paid out of the proceeds of the sale of real property. She also asserts that the court's order that some of Mr. Bowser's attorney's fees from those proceeds resulted in her paying 46.71% of her husband's remaining fees.FN12 FN12. She arrives at this conclusion in part because, she states, she purchased the marital residence at auction. That fact is not apparent from the record before us. It would make no difference in our analysis of the issue, however, because the trial court simply ordered that the fees be paid from the proceeds of the auction and did not order Ms. Bowser to purchase the house or to pay additional fees because of that purchase. An award of attorney's fees in divorce cases is considered alimony or spousal support, generally characterized as alimony in solido. Yount v. Yount, 91 S.W.3d 777, 783 (Tenn.Ct.App.2002); Miller v. Miller, 81 S.W.3d 771, 775 (Tenn.Ct.App.2001); Wilder v. Wilder, 66 S.W.3d 892, 894 (Tenn.Ct.App.2001); Kinard, 986 S.W.2d at 235-36; Smith, 984 S.W.2d at 610; Long v. Long, 957 S.W.2d 825, 829 (Tenn.Ct.App.1997); Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn.Ct.App.1996); Smith v. Smith, 912 S.W.2d 155, 161 (Tenn.Ct.App.1995); Storey v. Storey, 835 S.W.2d 593, 597 (Tenn.Ct.App.1992); Cranford, 772 S.W.2d at 52, overruled on other grounds by Bogan, 60 S.W.3d at 730; Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn.Ct.App.1988). *19 Because attorney's fees are considered alimony or spousal support, an award of such fees is subject to the same factors that must be considered in the award of any other type of alimony. Yount, 91 S.W.3d at 783; Lindsey v. Lindsey, 976 S.W.2d 175, 181 (Tenn.Ct.App.1997). Therefore, the statutory factors listed in Tenn.Code Ann. 36-5-0101(d)(1) are to be considered in a determination of whether to award attorney's fees. Langschmidt v. Langschmidt, 81 S.W.3d 741, 751 (Tenn.2000); Kincaid, 912 S .W.2d at 144. There are no hard and fast rules for spousal support decisions, and such determinations require a careful balancing of the relevant factors. Anderton, 988 S.W.2d at 682-83. Initial decisions regarding the entitlement to spousal support, as well as the amount and duration of spousal support, hinge on the unique facts of each case and require a careful balancing of all relevant factors. Robertson, 76 S.W.3d at 338. As with other forms of spousal support, the need of the spouse requesting the award of attorney's fees is the single most important factor. Miller, 81 S.W.3d at 775; Watters, 22 S.W.3d at 821. The obligor spouse's ability to pay is also an important consideration. Miller, 81 S.W.3d at 775; Hazard v. Hazard, 833 S.W.2d 911, 917 (Tenn.Ct.App.1991). Courts have held that in determining whether to award attorney's fees as spousal support, the most important factors are the real need of the disadvantaged spouse, a demonstrated financial inability to obtain counsel, and the ability of the obligor spouse to pay. Wilder, 66 S.W.3d at 895; Cranford, 772 S.W.2d at 50. In a recent opinion, the Supreme Court stated that an award of attorney's fees is conditioned upon a lack of resources to prosecute or defend a suit in good faith ... and that such an award is to ensure access to the courts. Langschmidt, 81 S.W.3d at 751 (quoting Fox v. Fox, 657 S.W.2d 747, 749 (Tenn.1983)). Consequently, a spouse with adequate property and income is not entitled to an award of additional alimony to compensate for attorney's fees and expenses. Lindsey, 976 S.W.2d at 181; Umstot v. Umstot, 968 S.W.2d 819, 824 (Tenn.Ct.App.1997); Houghland v. Houghland, 844
Page 18 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) S.W.2d 619, 623-24 (Tenn.Ct.App.1992); Duncan Duncan, 686 S.W.2d 568, 573 v. (Tenn.Ct.App.1984). The trial court herein gave a thorough and accurate statement of the applicable legal principles, citing many of the authorities set out herein. Applying those principles to the facts of this case, the court concluded: It is clear that [Ms. Bowser] has received a larger portion of the marital assets which are in the form of liquidated cash and has assumed no indebtedness. It is clear that [Ms. Bowser] shall receive a larger portion of the net proceeds from the sale of the parties' real property. Therefore, the Court finds that there is no reason why the parties should not be responsible for their respective attorney fees.... *20 Although stating that each party would be responsible for his or her attorney's fees, the court then directed that any unpaid balances toward fees of both parties would be deducted from the proceeds of the sale of the real property before distribution of the remainder to the parties.FN13 FN13. The court specifically excluded fees due and payable to Mr. Mensel from this deduction and directed that those fees be paid solely by Ms. Bowser. Her filings indicate those fees total over $14,000. In a later order, the court clarified its order, stating all of Ms. Bowser's fees owed by her to her attorney were to be paid from the proceeds of the sale of the marital home and that only that portion of Mr. Bowser's attorney's fees that were still unpaid were to be deducted. The court specifically held that any attorney's fees already paid by Mr. Bowser were not to be reimbursed to him from the proceeds of the sale of the marital home. The trial court also ordered that all of Ms. Bowser's attorney's fees owed to her trial counsel, including that related to working with Mr. Mensel, were to be paid from joint funds. FN14 FN14. This ruling allowed fees for attorney time consulting with and reviewing and directing the work of the accountant, while leaving in place the order that none of the accountant's fees themselves be paid from the proceeds. According to Ms. Bowser's attorney's affidavit she incurred $32,783.15, and had an outstanding balance of $26,810.65 in attorney's fees. In her brief, Ms. Bowser states her attorney's fees were $33,000. Mr. Bowser's attorney's affidavit stated that Mr. Bowser had unpaid legal fees in the amount of $2,276.20. Although the court found that each party should be responsible for his or her own fees, the court did not order that each party's fees would be deducted from only that party's share of the proceeds. Because the remaining proceeds were to be divided 53.29% / 46.71% between the parties, the result of the order that the fees be deducted first was that each party paid a share of the other's fees. This situation operated to Ms. Bowser's advantage because the total of her fees payable from the proceeds was significantly larger than the amount of Mr. Bowser's fees allowed by the court. Thus, while it could be accurately stated that as a result of the court's orders she paid 53% of Mr. Bowser's $2,276 in fees, it would also be accurate to state that Mr. Bowser paid 47% of the $32,700 she incurred in fees.FN15 FN15. It is not clear to us whether the entire $32,783.15 was to be deducted from the proceeds or only the $26,810.65 balance, or, even, some other final number. Nonetheless, the principle is the same: Mr. Bowser's share of the proceeds was reduced by a portion of Ms. Bowser's much more substantial fees. An award of attorney's fees as alimony is considered to be within the sound discretion of the trial court, Loyd v. Loyd, 860 S.W.2d 409, 413
Page 19 Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) (Cite as: 2003 WL 1542148 (Tenn.Ct.App.)) (Tenn.Ct.App.1993); Wallace, 733 S.W.2d at 110-11, and such an award will not be reversed on appeal if the trial court acted within its discretion. Yount, 91 S.W.3d at 783; Garfinkle v. Garfinkle, 945 S.W.2d 744, 748 (Tenn.Ct.App.1996); Lyon v. Lyon, 765 S.W.2d 759, 762-63 (Tenn.Ct.App.1988) . The Tennessee Supreme Court has made it clear that [t]he allowance of attorney's fees is largely in the discretion of the trial court, and the appellate court will not interfere except upon a clear showing of abuse of that discretion. Aaron, 909 S.W.2d at 411 (citing Storey, 835 S.W.2d at 597 and Crouch v. Crouch, 53 Tenn.App. 594, 606, 385 S.W.2d 288, 293 (Tenn.Ct.App.1964)). Under the abuse of discretion standard, a trial court's ruling will be upheld so long as reasonable minds can disagree as to the propriety of the decision made. A trial court abuses its discretion only when it applies an incorrect legal standard, or reaches a decision which is against logic or reasoning or that causes an injustice to the party complaining. The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court. *21 Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001) (citations omitted). The trial court herein acted within its discretion in its orders regarding attorney's fees. It applied the correct legal standard, reached a decision which is reasonable in light of the substantial fees involved and the parties' property, and we cannot find that any injustice was caused to Ms. Bowser. We affirm the trial court's decision regarding attorney's fees. VI. Conclusion For the foregoing reasons, we affirm the trial court's determination that the parties were married in 1984 according to the common law of Ohio; affirm the trial court's distribution of marital and separate property; modify the trial court's order to award Ms. Bowser rehabilitative alimony in the amount of $500 per month for five years; affirm the trial court's decision refusing to supplement the record with a report that was not introduced at trial; and affirm the trial court's decision regarding attorney's fees. We remand for any further proceedings that may be necessary. Costs of the appeal are assessed equally between the appellant, Sue Ann Bowser and the appellee, John M. Bowser. Tenn.Ct.App.,2003. Bowser v. Bowser Not Reported in S.W.3d, 2003 WL 1542148 (Tenn.Ct.App.) END OF DOCUMENT
Page 1 Not Reported in S.W.3d, 2001 WL 43211 (Tenn.Ct.App.) (Cite as: 2001 WL 43211 (Tenn.Ct.App.)) awarded alimony in futuro and attorney's fees. We affirm in part and reverse in part. On February 14, 1997, Richard and Mary Stoner were married in Maryland after a relationship stretching back almost twenty years. They moved to Tennessee in September of that year, shortly after Mr. Stoner retired from his job with the federal government. Mrs. Stoner was not employed during this twenty year period but did receive Social Security payments.FN1 The couple purchased a house and made the down payment using funds from Mr. Stoner's stock account. They also purchased a new car for Mr. Stoner using his premarital vehicle as a trade-in. Eventually, the couple was joined by Mrs. Stoner's son from a previous marriage, who moved in with them after a request by Mrs. Stoner. FN1. Mrs. Stoner received Social Security before her 65th birthday due to a disability. The marriage was not a happy one. Mrs. Stoner ran the household's finances and Mr. Stoner claimed he was given an allowance of $15 per week. Mr. and Mrs. Stoner maintained separate bedrooms and constantly argued over seating arrangements in the other rooms. Mr. Stoner testified that he was verbally abused by both his wife and her son. Eventually, after Mrs. Stoner's son claimed he was attacked by Mr. Stoner, Mrs. Stoner committed Mr. Stoner to a mental hospital for depression. After he was released, Mr. Stoner filed for divorce citing inappropriate marital conduct. During the parties' twenty year relationship but prior to their marriage, Mrs. Stoner claimed to have placed money in a joint checking account which was used to pay for various expenses of both parties. In her deposition, Mrs. Stoner stated she deposited her $337 Social Security check in the joint account once or twice a year. However, at trial, Mrs. Stoner testified that she had deposited her check every month. Mr. Stoner disputed the as-
Only the Westlaw citation is currently available. SEE COURT OF APPEALS RULES 11 AND 12 Court of Appeals of Tennessee. Richard Eugene STONER, v. Mary Elizabeth STONER. No. W2000-01230-COA-R3-CV. Jan. 18, 2001. Direct Appeal from the Chancery Court for Henry County, No. 17938; Ron E. Harmon, Chancellor. Teresa McCaig Marshall, Paris, TN, for appellant, Richard Eugene Stoner. Vicki H. Hoover, Paris, TN, for appellee, Mary Elizabeth Stoner. FARMER, J., delivered the opinion of the court, in which LILLARD, J. and TOMLIN, Sp. J., joined. OPINION FARMER. *1 This appeal arises from a divorce between a couple with a long standing pre-marital relationship. Citing this relationship, the trial court classified two stock accounts as marital property and awarded Wife a portion of their funds. These accounts were pre-marital accounts of Husband. No marital funds were deposited in the accounts by either party and Wife had no interaction with the accounts. Under the circumstances of this case, the trial court's classification of this property as marital property amounts to recognition of a common-law marriage, and Tennessee does not recognize common-law marriages. As such, the trial court was incorrect in awarding funds from the accounts to Wife. The trial court correctly assigned pre-marital debt, divided the remainder of marital property, and
Page 2 Not Reported in S.W.3d, 2001 WL 43211 (Tenn.Ct.App.) (Cite as: 2001 WL 43211 (Tenn.Ct.App.)) sertion that Mrs. Stoner deposited any funds, claiming that her name was on the account because she had authority to sign checks. While Mrs. Stoner confirmed at her deposition that she only had the authority to sign checks, she testified at trial that this statement was incorrect and that the account was a joint account. Funds from this account were invested by Mr. Stoner at Legg Masons. These stocks were placed in both a stock account and a trust account. Both accounts were solely in Mr. Stoner's name and remained so throughout the couple's relationship and eventual marriage. *2 The trial court granted the plaintiff a divorce on the grounds of inappropriate marital conduct. In its property division, the trial court cited the long term relationship of twenty years between the parties as the basis for its division. Mr. Stoner received his personal checking account, one-half of his vehicle, one-half of the marital home, one-half of the Legg Mason stock account valued at approximately $78,250 and one-half of the accumulated marital property. Mrs. Stoner received the remainder of the marital property. Mr. Stoner was awarded $41,340 of a Legg Mason Value Trust account as pre-marital separate property. The remaining balance, representing the growth of the account's value during the marriage, was split equally between the parties. In addition, Mrs. Stoner kept her pre-marital vehicle and was awarded attorney's fees. Mr. Stoner was assigned all the debt from the marriage and ordered to pay alimony in futuro. The issues presented on appeal by the appellant, as we perceive them, are as follows: I. Did the trial court err in determining that the pre-marital relationship revealed that the parties had used joint efforts and funds to accumulate assets? II. Did the trial court err in finding that the premarital relationship entitled Mrs. Stoner to approximately one-half of the value of the two Legg Mason accounts in Mr. Stoner's name? III. Did the trial court appropriately divide the equity in the marital home? IV. Did the court appropriately divide the marital debts? V. Did the court appropriately divide the equity in Mr. Stoner's vehicle? VI. Did the court properly award alimony in futuro after only two years of marriage? VII. Did the trial court properly award attorney's fees to Ms. Stoner? To the extent that these issues involve questions of fact, our review of the trial court's ruling is de novo with a presumption of correctness. See Tenn.R.App.P. 13(d). Accordingly, we may not reverse the court's factual findings unless they are contrary to the preponderance of the evidence. See, e.g., Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn.1996); Tenn.R.App.P. 13(d). With respect to the court's legal conclusions, however, our review is de novo with no presumption of correctness. See, e.g., Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn.1999); Tenn.R.App.P. 13(d). Pre-Marital Relationship The trial court in this case found that the parties ha[d] ... long term relations extending back some twenty (20) or more years; that during that time these parties used joint efforts and joint funds in accumulating assets of both parties. That Mrs. Stoner, while not accumulating in her own name, contributed significantly to the accumulation of the parties' assets by her domestic assistance and companionship and that these parties held themselves out to be, and in fact, accumulated as if they were husband and wife.... [T]his long standing partnership gave rise to the Court's allowing Mrs. Stoner a portion of the assets. This finding by the trial court resulted in Mrs. Stoner receiving one-half of the Legg Mason stock account valued at $78,250. In
Page 3 Not Reported in S.W.3d, 2001 WL 43211 (Tenn.Ct.App.) (Cite as: 2001 WL 43211 (Tenn.Ct.App.)) addition, the trial court found that the Legg Mason Value Trust account had experienced significant growth since the date of the marriage. The court awarded Mr. Stoner $41,340 as separate pre-marital property and split the account's growth during the marriage equally, resulting in Mrs. Stoner receiving $28,515. *3 It is settled law in Tennessee that though a common law marriage cannot be contracted within this State, our courts do recognize a common law marriage contracted in a state where such a marriage is valid. Lightsey v. Lightsey, 407 S.W.2d 684, 690 (Tenn.Ct.App.1966). As the entire premarital relationship of the parties involved in this action took place in Maryland, it is thus necessary to examine Maryland law. Our examination of Maryland law discovers that its views on common law marriage parallels Tennessee law in many respects. Maryland has continuously held that a commonlaw marriage, valid where contracted, is recognized in this State. Absent a showing that the marriage was valid where performed, no amount of holding out as husband and wife, reputation as being husband and wife, number of children, or any other factor will transpose the living together of a man and woman into a legal marriage in this State. Goldin v. Goldin, (Md.Ct.Spec.App.1981). 426 A.2d 410, 412 law marriage. As such, the trial court in essence recognized a common-law marriage between the Stoners, and the trial court erred in dividing the pre-marital assets of Mr. Stoner on this basis.FN2 FN2. We do not suggest that there cannot be reasons for dividing pre-marital assets in a related situation. For example, if the parties had, in addition to maintaining a pre-marital relationship, run a business together, a court could find that a business partnership existed between the parties. See Bass v. Bass, 814 S .W.2d 38 (Tenn.1991). We note, however, that such a finding would most likely not be based in the law of domestic relations but in some other area of law such as business partnership law. Division of Pre-Marital Assets As stated above, the trial court incorrectly determined that the pre-marital actions of the parties in this case should be determinative in the allocation of assets upon the divorce of the parties. As such, it is necessary to correct this error. This court finds that Mr. Stoner should have been awarded the entire balance of the Legg Mason stock account as separate property and the trial court's order is modified accordingly. The trial court also determined that a portion of the Legg Mason Value Trust was marital property. This account, like the Legg Mason stock account, was a pre-marital asset solely in Mr. Stoner's name. It remained so throughout the marriage. The court determined that the increase in value that this Trust experienced during the marriage should be divided as marital property. However, Tennessee Code Annotated section 36-4-121(b)(1)(B) states that [m]arital property includes income from, and any increase in value during the marriage of, property determined to be separate property ... if each party substantially contributed to its preservation and appreciation ... during the period of the marriage. Tenn.Code Ann. 36-4-121(b)(1)(B) (Supp.2000) (emphasis added).
The trial court's findings in this matter are clearly erroneous under Tennessee law. The court's findings show that it used the parties' pre-marital actions as a basis for the property division of the assets held by the parties. The court found that Mrs. Stoner had contributed significantly to the accumulation of the parties' assets by her domestic assistance and companionship. In addition, the court cited the fact that these assets had been accumulated while the parties held themselves out to be husband and wife. As we have already stated, neither Tennessee nor Maryland recognize common
Page 4 Not Reported in S.W.3d, 2001 WL 43211 (Tenn.Ct.App.) (Cite as: 2001 WL 43211 (Tenn.Ct.App.)) *4 The testimony of Mrs. Stoner during the trial made it clear that she had not substantially contributed to the increase in the value of this account. Q. How many times have you contacted the broker regarding this stock, Ms. Stoner? A. I have never contacted-I let [Mr. Stoner] do everything and I trusted him and he always told me what was going on. .... Q. But you've never had any active participation in the stocks, have you? A. No. I never requested to do so. Dick handled it and I trusted him to do what was right with it. Mrs. Stoner's lack of substantial contribution was reinforced by Mr. Stoner's testimony. Q. Mr. Stoner, the stock that we've been talking about today, is that your premarital stock? A. It is. I owned all that stock prior to the marriage. Q. When did you first have that stock? A. I was just talking to my broker today and he said I'd been up there about 20 years. Q. Do you recall the last time you actually contributed any finances to the stock yourself? A. I haven't since I got married. .... Q. Before that, did you do anything yourself with the stock except just let your broker handle it? A. Mostly my broker, on his advise I bought and sold. .... (3) The tangible or intangible contribution by Q. Did [Mrs. Stoner] assist you in any way handling the stock? A. No way. It is thus clear that Mrs. Stoner did not substantially contribute to the increase in Mr. Stoner's premarital Legg Mason Value Trust account. Therefore, the increase in value of this account during the marriage is not marital property. Instead, it is the separate property of Mr. Stoner. Thus, we find that the entire amount of the Legg Mason Value Trust, approximately $98,000, should have been awarded as separate property to Mr. Stoner, and the trial court's order is modified accordingly. Marital Home Subsequent to the filing of this appeal, an order was entered in the trial court stating that the parties had agreed that Mr. Stoner would purchase Mrs. Stoner's interest in the marital residence for the sum of $16,676.03. As this action was taken upon the agreement of the parties, we hereby find that this issue has been waived on appeal. Marital Debts Courts should apportion marital debts equitably in much the same way that they divide marital assets. Mondelli v. Howard, 780 S.W.2d 769, 773 (Tenn.Ct.App.1989). As such, it is necessary to examine the relevant statute concerning the apportionment of marital assets to determine if the trial court properly assigned the marital debts of the parties. That statute states: In making equitable division of marital property, the court shall consider all relevant factors including: (1) The duration of the marriage; (2) The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
Page 5 Not Reported in S.W.3d, 2001 WL 43211 (Tenn.Ct.App.) (Cite as: 2001 WL 43211 (Tenn.Ct.App.)) one (1) party to the education, training or increased earning power of the other party; *5 (4) The relative ability of each party for future acquisitions of capital assets and income; (5) The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role; (6) The value of the separate property of each party; (7) The estate of each party at the time of the marriage; (8) The economic circumstances of each party at the time the division of property is to become effective; (9) The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset; (10) The amount of social security benefits available to each spouse; and (11) Such other factors as are necessary to consider the equities between the parties. Tenn.Code Ann. 36-4-121(c) (Supp.2000). While examining the trial court's division of marital debts in light of the statute above, we must be cognizant that [t]rial courts have wide latitude in allocating debt, and appellate courts are hesitant to secondguess their decisions as long as the debt has been properly classified and then divided in a fair and equitable manner. Determining whether debt has been divided fairly and equitably requires appellate courts to consider the trial court's allocation of the debt in light of the division of property and the provision, if any, for spousal support. Mansfield v. Mansfield, No. 01A019412CH0058, 1995 WL 643329, at *9 (Tenn.Ct.App. Nov. 3, 1995). In our review of the record in this case, we feel that the trial court classified and divided the debt of the parties in a fair and equitable manner. Id. The court properly allocated the debt using the factors listed in Tennessee Code Annotated section 36-4-121(c). Indeed, our previous determination that Mrs. Stoner was not entitled to any funds from Mr. Stoner's Legg Mason accounts reinforces this allocation. We hereby affirm the trial court's order assigning the entire amount of the marital debt to Mr. Stoner. Equity in Mr. Stoner's Vehicle Marital property means all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing or up to the date of the legal separation hearing unless equity would require another valuation date and owned by either or both spouses as of the date of filing of a complaint for divorce or complaint for legal separation, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, or the date of legal separation hearing unless equity would require another valuation date, and valued as of a date as near as reasonably possible to the final divorce hearing date or the date of the legal separation hearing.... *6 Tenn.Code Ann. 36-4-121(b)(1)(A) (Supp.2000). Upon a review of the record, we take notice that Mr. Stoner has acknowledged that his vehicle is marital property. As such, he does not claim that his vehicle is improperly classified as marital property. Instead, he claims that it was unfair that he did
Page 6 Not Reported in S.W.3d, 2001 WL 43211 (Tenn.Ct.App.) (Cite as: 2001 WL 43211 (Tenn.Ct.App.)) not receive a larger portion of the vehicle's worth. Mr. Stoner argues that he should receive credit for the value of his pre-marital vehicle that was tradedin to purchase the new vehicle. As the trial court is granted broad discretion in adjusting and adjudicating the parties' interest in all jointly owned property.... Its decision regarding division of the marital property is entitled to great weight on appeal. Watters v. Watters, 959 S.W.2d 585, 590 (Tenn.Ct.App.1997). Upon reviewing the record, we find that the trial court did not abuse its discretion in this area of the property division. As such, we affirm the trial court's ruling in respect to the division of Mr. Stoner's vehicle. Alimony Award The trial court has broad discretion concerning the amount and duration of spousal support. Its decision is factually driven and requires a balancing of factors. Watters, 959 S.W.2d at 593. The factors, as set forth under Tennessee statute, are as follows: (A) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources; (B) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party's earning capacity to a reasonable level; (C) The duration of the marriage; (D) The age and mental condition of each party; (E) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease; (F) The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage; (G) The separate assets of each party, both real and personal, tangible and intangible; (H) The provisions made with regard to the marital property as defined in 36-4-121; (I) The standard of living of the parties established during the marriage; (J) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party; (K) The relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so; and (L) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties. Tenn.Code Ann. 36-5-101(d) (Supp.2000). *7 In the past, this court has determined that [t]he most significant factors are need and the ability to pay. Watters, 959 S.W.2d at 593. Examining all of the factors set forth under the statute and giving due weight to the most significant, we find that the trial court did not incorrectly determine the amount and type of support for Mrs. Stoner. It is clear that Mrs. Stoner, due to her age and medical problems, has a great need for alimony in futuro. It is equally clear that Mr. Stoner has the ability to pay the amount awarded by the court. As such, we affirm the trial court's award of alimony in futuro to Mrs. Stoner. Attorney's Fees The award of legal expenses is appropriate when the spouse seeking them lacks sufficient funds to pay her expenses or would be required to
Page 7 Not Reported in S.W.3d, 2001 WL 43211 (Tenn.Ct.App.) (Cite as: 2001 WL 43211 (Tenn.Ct.App.)) deplete her resources. Watters, 959 S.W.2d at 594. In this case, Mrs. Stoner was awarded attorney's fees by the trial court. We take notice that the trial court thought such an award appropriate even after the division of marital property and the award of alimony in futuro. We feel that such an award is even more proper given on modification of the trial court's award of the Legg Mason accounts.FN3 Therefore, we hereby affirm the trial court's award of attorney's fees to Mrs. Stoner. FN3. The Appellant has also recognized that Mrs. Stoner would be unable to pay her attorney's fees if the court ruled in his favor on this issue. The recognition by the Appellant that it would be equitable to pay such fees is to be commended. Conclusion Based on the foregoing conclusions, the trial court's order awarding Mrs. Stoner part of the value of the Legg Mason accounts is hereby reversed. The trial court's decisions on all other matters are affirmed. Costs on appeal are assessed against the appellant, Richard Eugene Stoner, and his surety, for which execution may issue if necessary. Tenn.Ct.App.,2001. Stoner v. Stoner Not Reported in (Tenn.Ct.App.)
S.W.3d,
2001
WL
43211
END OF DOCUMENT
Page 1 Not Reported in S.W.3d, 1999 WL 1212435 (Tenn.Ct.App.) (Cite as: 1999 WL 1212435 (Tenn.Ct.App.)) we reverse the judgment of the Trial Court. Only the Westlaw citation is currently available. SEE COURT OF APPEALS RULES 11 AND 12 Court of Appeals of Tennessee. Lois Hill PAYNE, Plaintiff/Appellee, v. Donald P. PAYNE and Terry L. Payne, Defendants/Appellants. No. 03A01-9903-CH-00094. Dec. 17, 1999. Appeal as of right from the Monroe Co. Chancery Court, Earl H. Henley, Chancellor, No 03A01-9903-CH-00094. Eugene G. Hale, Athens, TN, for the appellant. J. Lewis Kinkard, Madisonville, TN, for the appellee. OPINION SWINEY. *1 In this case, Lois Hill Payne (Plaintiff) sued Donald and Terry Payne (Defendants) seeking a judicial declaration that she was the common law wife under Georgia law of Defendants' father, Cleo (Tony) Payne, now deceased; that, as such, she was entitled to a marital share of real property owned by the father and sons as tenants in common; and that a quitclaim deed from Tony Payne to his sons of his interest in this real property was void. The Trial Court found for the Plaintiff on all issues and ordered the property sold for partition. While not precisely as stated by the parties, the issues we address in this appeal are as follows: (1) Did the Trial Court err in determining that a common law marriage existed between the Plaintiff and the late Tony Payne; and (2) If the response to issue number one is no, did the Trial Court err in holding the quitclaim deed from Payne to the Defendants was void. For the reasons stated in this opinion BACKGROUND Plaintiff met Tony Payne in Florida in 1975, at her job as a bartender. He moved into her Florida home on January 1, 1978, and shortly thereafter obtained a divorce from his wife. Payne and Plaintiff lived together in her mobile home in Florida for ten months, then moved to a farm near Tampa, where they lived together for three and one-half years. Plaintiff testified that she and Payne had gotten married in Florida but never filed the marriage license: We was all out New Year's Eve and got married while we was all drinking. Something was said that made me a little mad, and the man that married us was a friend of ours, and I got them back from him and tore them up before they got to the courthouse. She also testified they bought several other marriage licenses before they moved to Tennessee, but they never went through another ceremony. While they were living together in Florida, Plaintiff and Payne traveled to Tennessee on two or three occasions, stopping en route in Georgia to spend the night in different motels. Plaintiff testified that on those occasions Payne registered them at the motels as Tony and Lois Payne. Payne and Plaintiff were both originally from Tennessee and wanted to be near their families, so they decided to move back to Tennessee. In May 1982, Payne and two of his seven children, sons Don and Terry Payne (Defendants), purchased a twenty acre tract of unimproved land as tenants in common. A certificate of deposit belonging to son Don Payne was used as collateral on the loan. Mortgage payments on the property were made by Payne and his sons. In June 1982, Plaintiff and Payne moved from Florida to Tennessee, and Payne and his sons completed the loan documents to close
Page 2 Not Reported in S.W.3d, 1999 WL 1212435 (Tenn.Ct.App.) (Cite as: 1999 WL 1212435 (Tenn.Ct.App.)) the deal on the property. Plaintiff testified that I was to have a lifetime dowry there. Payne and Plaintiff began building a house on the property with help from Payne's children. Plaintiff began referring to herself as Lois Payne, [b]ecause I felt in my heart that I was married to him. *2 Plaintiff's exhibits at trial included a property insurance bill for 1985-86 listing the property owners as C. P. Payne and Wife Lois Payne, a federal income tax receipt for 1989 listing the taxpayers as Cleo P. Payne & Lois J. Payne, who filed the return as married filing jointly, and a motor vehicle title listing the owners as C. P. Payne or Lois Payne. Thirteen years later, on April 14, 1995, Payne, who had learned he was terminally ill with lung cancer, quitclaimed his interest in the real property at issue to his sons, the Defendants. Defendant Don Payne testified that, we had talked about her living on the place, and I'm not going to say we didn't. Tony Payne died in May 1995. Plaintiff testified that Payne was of sound mind up to the time of his death. She further testified: Q: Did you and Mr. Payne ever discuss his making out a will? A: Yeah. But he said he didn't need to do that, said he could trust the boys and they had promised. And both of them told me afterwards that they intended to see that I was taken care of, what their daddy wanted. So I never realized I had a problem. Plaintiff testified that after Payne's death, his sons told her that she could continue to live on the property so long as she paid the taxes and insurance and kept the property up. However, the house was soon broken into and she became afraid to live there alone. In November 1995, she moved to a homeless shelter in Etowah, where she was provided a free room in exchange for volunteer service to the shelter. After she left, the condition of the house and property deteriorated, in part because Plaintiff collected clothes and furniture for the needy and had no place to store them, so she stored them in and around the house. When someone came on the property and uncovered the items, they got wet from rain, which ruined the donations and made the property look unkept. Defendant Don Payne testified that, although he and his father had talked about Plaintiff living on the property, ... when that place became a dump for the whole community up there, we had a problem with it. He said that he and other relatives spent three days cleaning up the garbage and digging a ditch to bury the junk that had been dropped there. Plaintiff testified that she was ill and could not move the stored items, and could not mow the grass because someone took the three riding lawnmowers. Defendants obtained counsel, who wrote Plaintiff a letter on January 28, 1997, informing her that Defendants were interested in doing something with the house and asking her to advise him if she had any claim of any kind so we could see if we could get something done about that. On the same date, the quitclaim deed of April 14, 1995 was recorded at the register's office, on advice of Defendants' counsel. Plaintiff did not respond to the letter, and Defendants filed a detainer warrant on April 10, 1997. When subsequently deposed, Plaintiff testified that she claimed an interest described as what their daddy wanted for me ... a home as long as I lived as long as I did not remarry. *3 Plaintiff then filed this Complaint for Declaratory Judgment and Partition in Chancery Court, asking the Court to find that she and Payne were common law husband and wife and that the quitclaim deed was null and void. DISCUSSION Our review is de novo upon the record, accompanied by a presumption of the correctness of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Rule 13(d), T R A P.; Davis v. Inman, 974 S.W.2d 689, 692
Page 3 Not Reported in S.W.3d, 1999 WL 1212435 (Tenn.Ct.App.) (Cite as: 1999 WL 1212435 (Tenn.Ct.App.)) (Tenn.1998). A Trial Court's conclusions of law are subject to a de novo review. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 28 (Tenn.1996). The Trial Court found: It is admitted that a common law marriage could not have been created in the State of Tennessee or Florida. However, until 1997 cohabitation in the State of Georgia, under certain conditions, could create a common law marriage. During the course of the relationship between the parties, they on different occasions spent nights together at motels in Georgia as they toured between Tennessee and Georgia. In analyzing all of the facts of the cause, the Court is of the opinion that a common law marriage was created, and the Plaintiff is, in fact, the widow of Cleo P. Payne. When the Trial Court was requested by Defendants to provide a more detailed finding of fact and conclusions of law as to how this marriage was created and why the deed was invalid, the Trial Court filed a second Memorandum Opinion which stated: The Petitioners [sic] allege that Cleo P. Payne and the Plaintiff, Lois Hill Payne, were married in Tampa, Florida in 1992 [sic-1982], but their marriage license was never registered with the proper Florida authorities. This Court holds that the alleged Florida marriage never occurred. The two would buy the license, then they would go through a partying stage and never went through with the marriage; consequently, this allegation is of no validity. The next question arises as to whether a common law marriage existed that would afford Lois Hill Payne widow's rights in real estate that was owned by Cleo P. Payne, the decedent, and his sons, Donald P. Payne and Terry L. Payne. A number of year ago, money was borrowed by the sons to purchase this property for their father. It is admitted that different ones of the three made payments toward the loan. It is first necessary to make a decision as to whether or not a common law marriage existed. At the time the events were occurring in the mid 1970's, Florida and Georgia each held that if a party held another out to be his legal spouse and they cohabited together, then a common law marriage resulted. The Court believes it was 1996 that Georgia changed its law relative to such. In the instant case, however, there was no doubt that these parties held themselves out to be husband and wife, and not only did they do so in the respective states, but their action was corroborated by the fact that they lived together on the disputed land for nearly twenty years. As a result of the facts involved in this case, the Court holds that a common law marriage existed. *4 Although a common law marriage cannot be established by conduct within the State of Tennessee, it can be proved by a showing of the required elements in a jurisdiction where such a marriage is sanctioned. In re Estate of Glover, 882 S.W.2d 789, 789-90 (Tenn.Ct.App.1994). The Trial Court's comment that they lived together on the disputed land for nearly twenty years cannot be the basis for finding a common law marriage, since a common law marriage cannot be established by conduct within the State of Tennessee. Id. The Trial Court in this case was thus required to find a common law marriage existed between these parties in Florida or Georgia, if at all. No common law marriage entered into after January 1, 1968 is valid in Florida. F.S.A. 741, 211 (Laws 1967). Plaintiff admits that the parties never resided in Georgia. Their contact with the Georgia was limited to two or three nights spent in Georgia motels while traveling through Georgia. In Georgia, [i]n order for a common law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement. In Re: The Estate of Teresa K. Wilson, No. A98A2230 (Ga.App., filed February 17, 1999). When the alleged marriage is unlicensed and nonceremonial, the burden is on the proponent to prove that a common law marriage existed. Baynes v. Baynes, 219
Page 4 Not Reported in S.W.3d, 1999 WL 1212435 (Tenn.Ct.App.) (Cite as: 1999 WL 1212435 (Tenn.Ct.App.)) Ga.App. 848, 849, 467 S.E.2d 195 (Ga.1996). Further, the Georgia Court of Appeals has recently held that: When the relationship between the parties begins as an illicit arrangement, the burden is on the party asserting the validity of the marriage to show that the illicit relationship ended and that the parties did actually enter a marriage contract. In the case of a common law marriage, This may be done by ... such circumstances as the act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and indeed all such facts as usually accompany the marriage relation and indicate the factum of marriage .... Of particular import is that such legal relationship cannot be partial or periodic. Wright v. Goss, 229 Ga.App. 393, 394, 494 S.E.2d 23 (1997), cert. denied Feb. 20, 1998. In the case before us, Plaintiff testified that she and Payne stayed overnight several times between 1979 and 1982 in motels in the State of Georgia, and that she saw him register them as a married couple at the motels. The testimony of the Plaintiff shows they were, at that time, still involved in an illicit relationship. This is clear from her response when asked to explain why, if she and Payne were holding themselves out as a married couple, her name was not placed on the 1982 deed to the property: Because Mr. Payne told me he would see that I was always taken care of, that I would always have a home as long as I didn't marry someone else. *5 This discussion between Plaintiff and Tony Payne shows the absence of an intent by Tony Payne to enter a marriage contract with Plaintiff as of 1982, when they moved to Tennessee. Rather, the uncontested proof is that Tony Payne wanted to provide Plaintiff a home as long as she didn't marry someone else. Further, as mentioned earlier in this Opinion, Plaintiff and Tony Payne had on several occasions obtained a marriage license but never followed through with a marriage ceremony. As found by the Trial Court, Plaintiff and Tony Payne would buy a marriage license, go through a partying stage and never get married. While this is not dispostive of whether there was or was not a common law marriage under Georgia law, it is relevant to whether they held themselves out to the world as already being married. Since the parties were still involved in an illicit relationship and had not contracted to be man and wife when they moved to Tennessee in 1982, they were not married according to Georgia common law at that time. There is no evidence that they ever resided or stayed overnight in Georgia after they moved to Tennessee in 1982. Accordingly, because Plaintiff has failed to prove that the illicit relationship ended and that the parties did actually enter a marriage contract in Georgia, we find the Plaintiff has failed to prove the existence of a common law marriage under the laws of Georgia. As shown in the record before us, Tony Payne was of sound mind up to the time of his death. He could have taken legally enforceable steps to provide a home for Plaintiff upon his death, but he did not do so. His trust in his sons' promise to provide a home for Plaintiff, if that promise was made, apparently was misplaced. Because we find that Plaintiff was not the common law wife of Tony Payne, we need not determine in this case whether the quitclaim deed to Defendants is valid. Plaintiff has no legally enforceable interest in the property regardless of the validity of that deed. Absent any legally enforceable interest in the property, Plaintiff has no standing to contest the validity of the quitclaim deed. CONCLUSION The judgment of the Trial Court is reversed and the case is remanded to the Trial Court for all appropriate purposes consistent with this Opinion and for collection of the costs below. The costs on appeal are assessed against Plaintiff.
Page 5 Not Reported in S.W.3d, 1999 WL 1212435 (Tenn.Ct.App.) (Cite as: 1999 WL 1212435 (Tenn.Ct.App.)) GODDARD, P.J., and FRANKS, J., concur. Tenn. Ct. App.,1999. Payne v. Payne Not Reported in S.W.3d, 1999 WL 1212435 (Tenn.Ct.App.) END OF DOCUMENT
Page 1 Not Reported in S.W.3d, 2008 WL 2600692 (Tenn.Ct.App.) (Cite as: 2008 WL 2600692 (Tenn.Ct.App.)) *1 This is an appeal from a declaratory judgment action concerning the validity of a marriage. Purported wife died intestate; deceased's son sought declaration that her marriage to defendant was void ab initio for purposes of administering decedent's estate. The proof showed that defendant and deceased participated in a wedding ceremony but that defendant forged the officiating minister's signature on the marriage license and certificate following the ceremony. The trial court declared the marriage void as a matter of law. We affirm. Appellee Newt Ochalek is the son of Patricia D. Gills who died intestate on September 29, 2005. Following her death, Mr. Ochalek filed a complaint for declaratory judgment seeking to have the purported marriage of Ms. Gills and Appellant Donnie L. Richmond declared void ab initio. According to Mr. Ochalek, Ms. Gills participated in a staged wedding ceremony on July 22, 1997, on a whim but never intended to marry Mr. Richmond and never held herself out to be married. Mr. Richmond challenged Mr. Ochalek's standing to contest the validity of the marriage arguing the marriage was, at most, voidable, which abated any right to challenge the marriage upon the death of Ms. Gills. The Chancery Court for Dickson County found that Mr. Ochalek had standing to bring the action and a bench trial was held on January 26, 2007. The evidence revealed that an application for a marriage license was submitted to the Dickson County Court Clerk on June 16, 1997. The application, entitled Marriage Record, was signed by Patricia D. Haley and Donnie Richmond. The signature Patricia D. Haley was alleged to be that of Mr. Ochalek's mother, whose divorce from her former husband, Robert Haley, was finalized months before in late 1996. Mr. Ochalek, however, noted that the name Patricia Gills was legally restored to her and was the name she used at the time the application was filed. Shortly after the application was filed, a cere-
Only the Westlaw citation is currently available. SEE COURT OF APPEALS RULES 11 AND 12 Court of Appeals of Tennessee. Newt OCHALEK v. Donnie L. RICHMOND. No. M2007-01628-COA-R3-CV. Assigned on Briefs Feb. 8, 2008. June 30, 2008. Appeal from the Chancery Court for Dickson County, No. 10156-06; Larry J. Wallace, Judge. Joseph Lee Johnson, Fulton, Kentucky, for the appellant, Donnie L. Richmond. Jack L. Garton, Dickson, Tennessee, for the appellee, Newt Ochalek. ANDY D. BENNETT, J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, P.J., M.S., and RICHARD H. DINKINS, J., joined. MEMORANDUM OPINIONFN1 FN1. Tenn. R. Ct.App. 10 states: This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated MEMORANDUM OPINION, shall not be published, and shall not be cited or relied on for any reason in any unrelated case. ANDY D. BENNETT, J.
Page 2 Not Reported in S.W.3d, 2008 WL 2600692 (Tenn.Ct.App.) (Cite as: 2008 WL 2600692 (Tenn.Ct.App.)) mony was held on June 22, 1997, at Montgomery Bell State Park in Dickson County. William E. Ingrum, an ordained minister and Mr. Richmond's brother, officiated the ceremony. Mr. Ingrum said he saw the marriage license before performing the wedding. However, Mr. Ingram did not sign the marriage record, marriage certificate, or tear-off slips. Mr. Richmond later forged Mr. Ingrum's signature on these documents as well as on the Tennessee Department of Health's Certificate of Marriage, or vital statistics form, and submitted them to the Dickson County clerk. Despite her alleged marriage to Mr. Richmond, the evidence showed that Ms. Gills continued to use the name Patricia Gills, filed tax returns as a single individual under the same name, applied for social security benefits in the name of her deceased ex-husband, and named only her four children as the primary beneficiaries of her life insurance policy in 2003. None of Ms. Gills' children were present at the wedding ceremony. *2 Based on the evidence presented, the court found as fact that Mr. Richmond signed the officiating minister's name to the tear-off portion of the marriage license and vital statistics form; Ms. Gills did not consider herself to be married and did not put herself forward in the community as a married woman; a valid marriage license was never issued to Ms. Gills or Mr. Richmond; and Ms. Gills and Mr. Richmond attempted to perpetrate a fraud on certain creditors as well as the state and federal government. The court held the marriage void as a matter of law by order entered March 26, 2007. Mr. Richmond appeals, taking issue with the court's determinations that standing was proper, a valid marriage license was never issued, the forgery invalidated the marriage even if solemnized by ceremony, and certain reputation and character evidence was relevant to the facts at issue. ANALYSIS We review a trial court's findings of fact de novo upon the record, accompanied by a presumption of correctness unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d). However, we review conclusions of law de novo with no presumption of correctness on appeal. Emmit v. Emmit, 174 S.W.3d 248, 251 (Tenn.Ct.App.2005) (citing Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993)). Because the trial court observes the witnesses as they testify, it is in the best position to assess witness credibility. Frazier v. Frazier, No.W2007-00039-COA-R3-CV, 2007 WL 2416098, *2 (Tenn.Ct.App. Aug. 27, 2007) (citing Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.1999)). Therefore, we give great deference to the court's determinations on matters of witness credibility. Id. Accordingly, we will not reevaluate a trial judge's credibility determinations unless they are contradicted by clear and convincing evidence. Id. In this case, the court expressly stated that it witnessed the demeanor of the witnesses and found that Mr. Richmond was not credible and discounted his testimony; the court found Mr. Ochalek to be a credible witness and gave great weight to his testimony. Standing We first address Mr. Richmond's argument that Mr. Ochalek lacked standing to contest his marriage to Ms. Gills. Mr. Richmond claims that any right to challenge the validity of the marriage abated upon her death because Mr. Ochalek failed to prove the marriage was void. We find this argument to be without merit.FN2 FN2. Mr. Richmond's argument is based on Tenn.Code Ann. 36-3-306 which forgives certain technical deficiencies to the extent that a [f]ailure to comply with the requirements of 36-3-104-36-3-111 shall not affect the validity of any marriage consummated by ceremony. Tenn.Code Ann. 36-3-306 does not apply to the issue of standing and is inapplicable in this case based on our determination that the marriage was void for failure to comply with Tenn.Code Ann. 36-3-303(a) as dis-
Page 3 Not Reported in S.W.3d, 2008 WL 2600692 (Tenn.Ct.App.) (Cite as: 2008 WL 2600692 (Tenn.Ct.App.)) cussed below. Our Supreme Court has recognized standing as a judge-made doctrine used to refuse to determine the merits of a legal controversy irrespective of its correctness where the party advancing it is not properly situated to prosecute the action. Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn.1976). This case was brought as a declaratory judgment action under Tenn.Code Ann. 29-14-101, et seq. The Declaratory Judgment Act explicitly provides: Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent ... may have a declaration of rights or legal relations in respect thereto to: (1) ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others [.] *3 Tenn.Code Ann. 29-14-105(1) (emphasis added). Mr. Ochalek is the son of Patricia Gills and a person entitled to inherit under the laws of intestacy. He testified that Ms. Gills wanted him to administer her estate and that she instructed Mr. Ochalek in the days before her death on how she wanted it divided. Ms. Gills' marital status is a viable legal issue affecting the administration of her estate, the resolution of which is necessary in order to ascertain the individuals entitled to take from her estate.FN3 We find that Mr. Ochalek is a proper person to challenge the marital status of Ms. Gills and affirm the trial court's ruling that he had standing to prosecute the action. FN3. The estate of Patricia Gills is to be administered in Graves County, Kentucky, where she resided. Validity of the Marriage In Tennessee, the law of marriage is controlled by statute and is not governed by common law rules. Coulter v. Hendricks, 918 S.W .2d 424, 427 (Tenn.Ct.App.1995). A marriage solemnized by ceremony is presumed valid; however, the presumption may be rebutted by cogent and convincing evidence. Guzman v. Alvares, 205 S.W.3d 375, 380 (Tenn.2006) (citing Aghili v. Saadatnejadi, 958 S.W.2d 784, 789 (Tenn.Ct.App.1997)); see also Huey Bros. Lumber Co., Inc. v. Anderson, 519 S.W.2d 588, 590 (Tenn.1975) (citing Gamble v. Rucker, 137 S.W. 499 (Tenn.1911)). Our courts have also recognized the mandatory nature of the marriage license requirement. Harlow v. Reliance Nat'l, 91 S.W.3d 243, 245 (Tenn.2002); Stovall v. City of Memphis, No.W2003-02036-COA-R3-CV, 2004 WL 1872896, *3 (Tenn.Ct.App. Aug. 20, 2004). Before being joined in marriage, the parties shall present to the minister or officer a license under the hand of a county clerk in this state, directed to such minister or officer, authorizing the solemnization of a marriage between the parties. Tenn.Code Ann. 36-3-103(a). Thus, obtaining a marriage license is a condition precedent to the solemnization of a valid marriage under Tennessee Law. Op. Tenn. Atty. Gen. No. 06-110, 2006 WL 2104254 (July 12, 2006) (citing Tenn.Code Ann. 36-3-103(a)). Additionally, the [o]ne authorized by 36-3-301 who solemnizes the rite of matrimony shall endorse on the license the fact and time of the marriage, and sign the license, and return it to the county clerk within three (3) days from the date of marriage. Every person who fails to make such return of the license commits a Class C misdemeanor. Tenn.Code Ann. 36-3-303(a) (emphasis added). The trial court found that an application for a marriage license was made in Dickson County.FN4 However, the court found that [a] valid license to marry was never issued by the Dickson County court clerk. The order does not clearly state what evidence the court based these findings on but does conclude that [t]he marriage license was not properly signed by the officiant pursuant to Tenn.Code Ann. 36-3-303 and further, that it was fraudulently signed as prohibited by Tenn.Code Ann. 36-3-112. FN5 As a result, the trial court declared
Page 4 Not Reported in S.W.3d, 2008 WL 2600692 (Tenn.Ct.App.) (Cite as: 2008 WL 2600692 (Tenn.Ct.App.)) the marriage between Ms. Gills and Mr. Richmond void. Because we find the evidence does not preponderate against the trial court's finding that there was no marriage license validly signed by the officiant, we must affirm the judgment of the trial court. FN4. The court made no finding regarding the validity of the signature Patricia D. Haley on the application. FN5. Fraudulently signing or knowingly using any false document purporting to be one provided for in 36-3-104(a) [marriage license] or 36-3-106 [signature of parents, guardian, next of kin, or custodian required when applicant is a minor] is a Class C misdemeanor. Tenn.Code Ann. 36-3-112. *4 Dickson County Clerk Phil Simons testified that when a couple applies for a marriage license, his office is to verify their identity, age, and social security numbers. A deputy clerk had apparently taken this information from Patricia Gills and Donnie Richmond. Mr. Simons's signature appears on the Marriage Record. There is no explanation in the record of the timing or procedure used for issuing a marriage license to the parties, but once issued, a license is only valid for thirty days. Tenn.Code Ann. 36-3-103(a). Mr. Simons provided the perforated tear-off portions of the Marriage Certificate and the vital statistics form that were filed with his office. Appearing on both sides of the tear-off portion to the Marriage Certificate is a disclaimer that reads: This Marriage License is VOID if not used within 30 days from date of issue. Below this disclaimer is where the authorized officiant is supposed to sign and verify the solemnization of the marriage. Mr. Simons testified that if a party had returned these documents to the clerk's office without the officiating minister's signature, there would be no valid marriage. Mr. Richmond admits to forging Mr. Ingram's signature on both the marriage certificate and vital statistics form submitted to the county clerk's office. He testified that he did not initially have his brother sign the marriage license after the ceremony because he and Patricia were not sure if they wanted to finalize the marriage due to his bad credit. Mr. Richmond claims that a couple days later, Ms. Gills said she wanted to be married, so he forged the minister's name only in an effort to comply with the three-day filing requirement. Mr. Richmond relies on Aghili v. Saadatnejadi, 958 S.W.2d 784 (Tenn.Ct.App.1997), to support his argument that a marriage solemnized by ceremony should not be invalidated solely because the marriage license was improperly endorsed. In Aghili, the officiant signed the marriage license following the ceremony but failed to return it to the court clerk within three days as prescribed by Tenn.Code Ann. 36-3-303(a). Aghili, 958 S.W.2d at 786. In upholding the validity of the marriage, the court noted [t]he purpose of the filing requirement in Tenn.Code Ann. 36-3-303 is to assure the preservation of a reliable, accurate record of a marriage. Id. at 788 (emphasis added). Requiring the signature of the individual who personally officiated the ceremony is the best way to fulfill the purpose of the statute and ensure that the record made is reliable. It has been suggested that the requirements of Tenn.Code Ann. 36-3-303(a) are directory, rather than mandatory. See Richards on Tennessee Family Law 3-1(a)(1) (2006). This argument rests on the fact that Tenn.Code Ann. 36-3-303(a) provides for a criminal penalty to be assessed against the officiant, not the couple, for failure to comply with the filing requirement. Id. Aghili certainly stands for the proposition that the three-day filing requirement is directory as to the bride and groom. No penalty for failure to timely file the license is prescribed for them. Tenn.Code Ann. 36-3-303(a) places the burden of returning the signed license to the county clerk within three days of the marriage on the one who solemnizes the marriage and the failure to do so is a misdemeanor. Tenn.Code Ann.
Page 5 Not Reported in S.W.3d, 2008 WL 2600692 (Tenn.Ct.App.) (Cite as: 2008 WL 2600692 (Tenn.Ct.App.)) 36-3-303(a). So, as to the officiant, the filing requirement is mandatory. *5 We do not believe the legislature intended to invalidate a marriage solely because the person who solemnized the marriage failed to return the license within three-days. We cannot, however, conclude that the legislature merely suggested that the officiant sign the license or that forging the officiant's name is permissible. Such a conclusion would contradict the plain, mandatory language used in the statute: the officiant shallFN6 endorse on the license the fact and time of the marriage, and sign the license.... Tenn.Code Ann. 36-3-303(a) (emphasis added). Only after the marriage license is returned and is properly signed by the officiant can the county clerk record the marriage and certify the license. Tenn.Code Ann. 36-3-103(c)(1).FN7 Thus, the statutory scheme suggests the legislature intended the signature requirement to be mandatory because the marriage license cannot be recorded and certified without the signature of the officiant. FN6. The word shall is ordinarily construed as being mandatory. Stubbs v. State, 393 S.W.2d 150, 154 (Tenn.1965) (citing Louisville & N.R. Co. v. Hammer, 236 S.W.2d 971, 973 (Tenn.1951)). FN7. Tenn.Code Ann. 36-3-103(c)(1) provides in part that [t]he county clerk issuing a marriage license is hereby authorized to record and certify any license used to solemnize a marriage that is properly signed by the officiant when such license is returned to the issuing county clerk. It is irrelevant whether or not Mr. Ingram would have signed the documents had he been asked. The fact is Mr. Ingram did not sign the marriage license or marriage records. Instead, Mr. Richmond knowingly signed Mr. Ingram's name and filed the forgeries with a county official of the State of Tennessee. It is well settled in Tennessee that the courts of our State will not be utilized to enforce a contract which is the product of fraud; indeed, fraud vitiates all that it touches. Shelby Elec. Co., Inc. v. Forbes, 205 S.W.3d 448, 455 (Tenn.Ct.App.2005). Fraud vitiates and avoids all human transactions, from the solemn judgment of a court to a private contract. It is as odious and as fatal in a court of law as in a court of equity. Id. (quoting New York Life Ins. Co. v. Nashville Trust Co., 292 S.W.2d 749, 754 (Tenn.1956)). Mr. Richmond will not be entitled to benefit from his wrongdoing. As such, we will treat the marriage license as unsigned and therefore incomplete and invalid. See Tenn.Code Ann. 36-3-103(c)(1). Because the proof in the record shows the requirements of Tenn.Code Ann. 36-3-303 and for validly recording and certifying the marriage license were never met, we affirm the trial court's determination that the marriage is void. We find Harlow v. Reliance Nat'l, 91 S.W.3d 243 (Tenn.2002), instructive to our analysis of the other issues raised on appeal. In Harlow, the plaintiff and putative widow sought worker's compensation benefits as the surviving spouse of the deceased. Harlow, 91 S.W.3d at 245. The plaintiff and deceased were divorced in 1994 but reconciled the following year and participated in a remarriage ceremony in 1997. Id. at 244. The couple lived together as husband and wife, were known in the community to be husband and wife, and represented they were husband and wife on a loan application and other documents. Id. at 244-45. However, the couple never obtained a marriage license either before or after the ceremony. Id. at 244. The couple knew that no license existed and, accordingly, filed separate individual tax returns as single or as head of household. Id. at 245. Despite their participation in a marriage ceremony and actions as spouses, the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court held that no legal marriage existed based upon the failure to comply with the licensing statute. Id. at 247. *6 Like the Harlows, Mr. Richmond and Ms. Gills participated in a marriage ceremony. Mr.
Page 6 Not Reported in S.W.3d, 2008 WL 2600692 (Tenn.Ct.App.) (Cite as: 2008 WL 2600692 (Tenn.Ct.App.)) Richmond, whose testimony the court discounted, claims the two cohabitated for eight years following the ceremony. However, Ms. Gills continued to file tax returns as a single individual and continued to go by the name of Patricia Gills in the community and on official documents.FN8 The court found that Ms. Gills never held herself out in the community to be married and never considered herself to be married. The court based its conclusion on evidence presented by Mr. Ochalek which it found credible, but Mr. Richmond's own testimony casts doubt on whether either party intended to be married even after they participated in the ceremony. FN8. Of course, this fact alone is not controlling since a woman is not required to adopt the surname of her husband. Dunn v. Palermo, 522 S.W.2d 679, 688 (Tenn.1975). Nonetheless, Mr. Richmond objected at trial and on appeal arguing the evidence of Ms. Gills' state of mind and reputation is irrelevant to whether or not a valid marriage contract existed. Although Mr. Richmond correctly states that Tennessee does not recognize common law marriage contracts which require an intent to be married,FN9 we agree with the trial court that evidence of Ms. Gills' actions and belief as to her own marital status were important and relevant considerations for the court. And, because we give great deference to the trial court's determinations on credibility, we cannot adopt Mr. Richmond's explanation that Patricia Gills did not assume Richmond as her surname in order to shield herself from Mr. Richmond's creditors as the court did not find him to be a credible witness. In addition, the evidence does not preponderate against the court's finding that Mr. Richmond and Ms. Gills attempted to perpetrate a fraud upon creditors, the state, and the federal government. FN9. Common law marriages are based on the parties' conduct and will be recognized in Tennessee if they are valid under the laws of another state where such marriages are sanctioned. Bowser v. Bowser, No. M2001-01215-COA-R3-CV, 2003 WL 1542148, *1 (Tenn.Ct.App. Mar. 26, 2003) (citing Shelby County v. Williams, 510 S.W.2d 73, 73-74 (Tenn.1974)). Kentucky does not recognize common law marriage. Murphy v. Bowen, 756 S.W.2d 149, 150 (Ky.Ct.App.1988) (citing Ky.Rev.Stat. Ann. 402.020(3)). CONCLUSION Tennessee presumes that regularly solemnized marriages are valid, but this presumption can be overcome. Aghili, 958 S.W.2d at 789. In this case, Mr. Ochalek has overcome the presumption with convincing evidence of the marriage's invalidity. The purported marriage between Mr. Richmond and Ms. Gills is void as a matter of law for failure to comply with Tenn.Code Ann. 36-3-303(a). The judgment of the chancery court for Dickson County is affirmed in all respects. Costs of appeal are assessed against Appellant Donnie L. Richmond for which execution, if necessary, may issue. Tenn.Ct.App.,2008. Ochalek v. Richmond Not Reported in S.W.3d, 2008 WL 2600692 (Tenn.Ct.App.) END OF DOCUMENT
Baker v. Nelson, 291 Minn. 310 (1971) 191 N.W.2d 185
291 Minn. 310 Supreme Court of Minnesota. Richard John BAKER et al., Appellants, v. Gerald NELSON, Clerk of Hennepin County District Court, Respondent. No. 43009. | Oct. 15, 1971.
Statute prohibiting marriage of persons of the same sex does not offend First, Eighth, Ninth or Fourteenth Amendments to the United States Constitution. M.S.A. 517.01 et seq., 517.08; U.S.C.A.Const. Amends. 1, 8, 9, 14. 57 Cases that cite this headnote
**185 Syllabus by the Court *310 Minn.St. c. 517, which prohibits the marriage of persons of the same sex, does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.
Mandamus proceeding by applicants for marriage license. The District Court, Hennepin County, Tom Bergin, J., ruled that clerk of county district court was not required to issue marriage license to applicants who were of the same sex and specifically directed that license not be issued to them, and appeal was taken. The Supreme Court, Peterson, J., held that statute governing marriage does not authorize marriage between persons of the same sex, and such marriages are accordingly prohibited, and that such statute does not offend the First, Eighth, Ninth or Fourteenth Amendments to the United States Constitution. Affirmed.
Attorneys and Law Firms R. Michael Wetherbee, Minneapolis, for appellants. George Scott, County Atty., David E. Mikkelson, Asst. County Atty., Minneapolis, for respondent. Heard and considered en banc. Opinion
West Headnotes (2) OPINION [1] Marriage Same-Sex and Other Non-Traditional Unions Statute governing marriage does not authorize marriage between persons of same sex, and such marriages are accordingly prohibited. M.S.A. 517.01 et seq., 517.08. 44 Cases that cite this headnote [2] Constitutional Law Marriage and Civil Unions Constitutional Law Same-Sex Marriage Marriage Same-Sex and Other Non-Traditional Unions Sentencing and Punishment Civil Matters PETERSON, Justice. The questions for decision are whether a marriage of two persons of the same sex is authorized by state statutes and, if not, whether state authorization is constitutionally compelled. Petitioners, Richard John Baker and James Michael McConnell, both adult male persons, made application to respondent, Gerald R. Nelson, clerk of Hennepin County District Court, for a marriage license, pursuant to Minn.St. 517.08. Respondent declined to issue the license on the sole ground that petitioners were of the same sex, it being undisputed that there were otherwise no statutory impediments to a heterosexual marriage by either petitioner. The trial court, quashing an alternative writ of mandamus, ruled that respondent was not required to issue a marriage license to petitioners and specifically directed that a marriage license not be issued to them. This appeal is from those orders. We affirm.
[1] 1. Petitioners contend, first, that the absence of an express statutory prohibition against same-sex marriages evinces a legislative intent to authorize such marriages. We think, however, that a sensible reading of the statute discloses a contrary intent. Minn.St. c. 517, which governs marriage, employs that term as one of common **186 usage, meaning the state of union between persons of the opposite sex. 1 It is unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days, would have used the term in any different sense. The term is of contemporary significance as well, for the present statute is replete with words of heterosexual import such *312 as husband and wife and bride and groom (the latter words inserted by L.1969, c. 1145, s 3, subd. 3). We hold, therefore, that Minn.St. c. 517 does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited. [2] 2. Petitioners contend, second, that Minn.St. c. 517, so interpreted, is unconstitutional. There is a dual aspect to this contention: The prohibition of a same-sex marriage denies petitioners a fundamental right guaranteed by the Ninth Amendment to the United States Constitution, arguably made applicable to the states by the Fourteenth Amendment, and petitioners are deprived of liberty and property without due process and are denied the equal protection of the laws, both guaranteed by the Fourteenth Amendment. 2 These constitutional challenges have in common the assertion that the right to marry without regard to the sex of the parties is a fundamental right of all persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory. We are not independently persuaded by these contentions and do not find support for them in any decisions of the United States Supreme Court. The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942), which invalidated Oklahoma's Habitual Criminal Sterilization Act on equal protection grounds, stated in part: Marriage and procreation are fundamental to the very existence and survival of the race. This historic institution manifestly is more deeply
founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth *313 Amendment is not a charter for restructuring it by judicial legislation. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), upon which petitioners rely, does not support a contrary conclusion. A Connecticut criminal statute prohibiting the use of contraceptives by married couples was held invalid, as violating the due process clause of the Fourteenth Amendment. The basic premise of that decision, however, was that the state, having authorized marriage, was without power to intrude upon the right of privacy inherent in the marital relationship. Mr. Justice Douglas, author of the majority opinion, wrote that this criminal statute operates directly on an intimate relation of husband and wife, 381 U.S. 482, 85 S.Ct. 1680, 14 L.Ed.2d 513, and that the very idea of its enforcement by police search of the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives * * * is repulsive to the notions of privacy surrounding the marriage relationship, **187 381 U.S. 485, 85 S.Ct. 1682, 14 L.Ed.2d 516. In a separate opinion for three justices, Mr. Justice Goldberg similarly abhorred this state disruption of the traditional relation of the family-a relation as old and as fundamental as our entire civilization. 381 U.S. 496, 85 S.Ct. 1688, 14 L.Ed.2d 522. 3 The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. *314 Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that abstract symmetry is not demanded by the Fourteenth Amendment. 4 Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia's antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination. As Mr. Chief Justice Warren wrote for the court (388 U.S. 12, 87 S.Ct. 1824, 18 L.Ed.2d 1018):
Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. 5
*315 Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex. We hold, therefore, that Minn.St. c. 517 does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution. Affirmed.
Parallel Citations 191 N.W.2d 185
Footnotes
2 3
Webster's Third New International Dictionary (1966) p. 1384 gives this primary meaning to marriage: 1a: the state of being united to a person of the opposite sex as husband or wife. Black, Law Dictionary (4 ed.) p. 1123 states this definition: Marriage * * * is the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex. We dismiss without discussion petitioners' additional contentions that the statute contravenes the First Amendment and Eighth Amendment of the United States Constitution. The difference between the majority opinion of Mr. Justice Douglas and the concurring opinion of Mr. Justice Goldberg was that the latter wrote extensively concerning this right of marital privacy as one preserved to the individual by the Ninth Amendment. He stopped short, however, of an implication that the Ninth Amendment was made applicable against the states by the Fourteenth Amendment. See, Patsone v. Pennsylvania, 232 U.S. 138, 144, 34 S.Ct. 281, 282, 58 L.Ed. 539, 543 (1914). As stated in Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124, 1128, 130 A.L.R. 1321, 1324 (1940), and reiterated in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 540, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1659, (t)he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. See, also, McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), in which the United States Supreme Court, for precisely the same reason of classification based only upon race, struck down a Florida criminal statute which proscribed and punished habitual cohabitation only if one of an unmarried couple was white and the other black.
End of Document
2013 Thomson Reuters. No claim to original U.S. Government Works.
United States of America v. Windsor, 2013 WL 267026 (2013)
2013 WL 267026 (U.S.) (Appellate Brief) Supreme Court of the United States. UNITED STATES OF AMERICA, Petitioner, v. Edith Schlain WINDSOR and BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Respondents. No. 12-307. January 22, 2013. On Writ of Certiorari to the United States Court of Appeals for the Second Circuit Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives Kerry W. Kircher General Counsel William Pittard Deputy General Counsel Christine Davenport Senior Assistant Counsel Todd B. Tatelman Mary Beth Walker Eleni M. Roumel Assistant Counsels Office of General Counsel United States House of Representatives 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700 Paul D. Clement Counsel of Record H. Christopher Bartolomucci Nicholas J. Nelson Michael H. McGinley Bancroft PLLC 1919 M Street, N.W. Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com Counsel for Respondent The Bipartisan Legal Advisory Group of the United States House of Representatives
Case 3:13-cv-01159 Document 47-8 Filed U.S. 12/20/13 Page 1 of 27 PageID #: 873 2013 Thomson Reuters. No claim to original Government Works.
*i QUESTION PRESENTED Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. 7, violates the equal protection component of the Due Process Clause of the Fifth Amendment.
*II PARTIES TO THE PROCEEDING The Bipartisan Legal Advisory Group of the United States House of Representatives intervened as a defendant in the district court and was an appellant and appellee in the court of appeals. * Edith Schlain Windsor was the plaintiff in the district court and an appellee in the court of appeals. The United States of America was a defendant in the district court and an appellant and appellee in the court of appeals.
West Headnotes (1)
Constitutional Law Marriage Marriage
Marriage and civil unions
Same-Sex and Other Non-Traditional Unions Same-sex and other non-traditional union
Does Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C.A. 7, which defines marriage under federal law as the legal union between one man and one woman as husband and wife, thereby excluding same-sex couples, violate the equal protection component of the Due Process Clause of the Fifth Amendment? U.S.C.A. Const.Amend. 5.
*iii TABLE OF CONTENTS QUESTION PRESENTED .............................................................................................................................. PARTIES TO THE PROCEEDING ............................................................................................................... TABLE OF AUTHORITIES ........................................................................................................................... OPINIONS BELOW ....................................................................................................................................... JURISDICTION ............................................................................................................................................... CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...................................................... STATEMENT OF THE CASE ....................................................................................................................... A. The Defense of Marriage Act .................................................................................................................... B. The Justice Department Stops Defending DOMA and Starts Attacking It ................................................ C. Ms. Windsor's Challenge to DOMA .......................................................................................................... SUMMARY OF THE ARGUMENT .............................................................................................................. ARGUMENT ................................................................................................................................................... I. Rational Basis Review Applies To DOMA ................................................................................................ II. Multiple Rational Bases Support DOMA And Its Decision To Retain The Traditional Definition Of Marriage For Federal-Law Purposes ............................................................................................................... A. DOMA Rationally Preserves Each Sovereign's Ability to Define Marriage for Itself at a Time When States Are Beginning to Experiment with the Traditional Definition ............................................................ *iv B. DOMA Ensures National Uniformity in Eligibility for Federal Benefits and Programs Based on Marital Status ................................................................................................................................................... C. DOMA Preserves Past Legislative Judgments, Conserves Financial Resources, and Avoids Uncertain and Unpredictable Effects on the Federal Fisc ...............................................................................................
i ii vi 1 1 1 2 2 12 14 19 22 24 28 30 33 37
D. Congress Rationally Proceeded with Caution When Faced with the Unknown Consequences of an Unprecedented Redefinition of Marriage, a Foundational Social Institution, by a Minority of States ........... E. The Federal Government Could Rationally Retain the Traditional Definition for the Same Reasons States Can Rationally Retain that Definition .................................................................................................. 1. Providing a Stable Structure to Raise Unintended and Unplanned Offspring ........................................... 2. Encouraging the Rearing of Children by Their Biological Parents ........................................................... 3. Promoting Childrearing by Both a Mother and a Father .......................................................................... III. The Longstanding List Of Suspect And Quasi-Suspect Classes Should Not Be Expanded To Include Sexual Orientation ........................................................................................................................................... *v A. Gays and Lesbians Are Far from Politically Powerless ..................................................................... B. Whether a Married Couple Is of the Opposite Sex Is Relevant to the Government's Interests in Recognizing Marriage ..................................................................................................................................... C. Sexual Orientation Is Not an Immutable Characteristic ......................................................................... D. The Histories of Discrimination Based on Race, Ethnicity, Sex, and Legitimacy Are Different ............... CONCLUSION ................................................................................................................................................ STATUTORY APPENDIX U.S. Const. amend. V ...................................................................................................................................... Defense of Marriage Act, 3, 1 U.S.C. 7 ................................................................................................... Defense of Marriage Act, 2, 28 U.S.C. 1738C ........................................................................................ *vi TABLE OF AUTHORITIES Cases Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980) ................... Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ........................... Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) ..................... Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) .......................................... Baker v. Nelson, 409 U.S. 810 (1972) ................................................ Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) .......................... Bowen v. Owens, 476 U.S. 340 (1986) ............................................... Bowers v. Hardwick, 478 U.S. 186 (1986) .......................................... Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ...... City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) .. City of Dallas v. Stanglin, 490 U.S. 19 (1989) ................................... Clark v. Jeter, 486 U.S. 456 (1988) .................................................... Conaway v. Deane, 932 A.2d 571 (Md. 2007) ................................... *vii Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ............................... Dandridge v. Williams, 397 U.S. 471 (1970) ...................................... Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012) .............. Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) ................... FCC v. Beach Commc'ns, Inc., 508 U.S. 307 (1993) .......................... Frontiero v. Richardson, 411 U.S. 677 (1973) .................................... Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009) ................................. Helvering v. Davis, 301 U.S. 619 (1937) ............................................ Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ................................ High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ..................................................................................... Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) .... Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005) ...................... In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ...................... Jimenez v. Weinberger, 417 U.S. 628 (1974) ...................................... *viii Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ................... Johnson v. Robison, 415 U.S. 361 (1974) ........................................... King v. Smith, 392 U.S. 309 (1968) .................................................... Lawrence v. Texas, 539 U.S. 558 (2003) ............................................ Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973) ........ Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ................................................................................... Lyng v. Castillo, 477 U.S. 635 (1986) ................................................
41 43 44 47 48 49 51 54 54 56 59 1a 2a 3a
5, 38 5 29 2 16, 25 13, 51, 55 41 27 13, 46, 54 passim 29 25 46 13 41 13 5 28, 29, 30, 49 56 14, 24 36 2, 46 13, 51, 55 56 12 12 24 13 49 45 27, 28, 57 29 13 50
Mandel v. Bradley, 432 U.S. 173 (1977) ............................................ Marsh v. Chambers, 463 U.S. 783 (1983) .......................................... Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) .............................. Massachusetts v. U.S. Dep't of HHS, 682 F.3d 1 (1st Cir. 2012) ......... Mathews v. Diaz, 426 U.S. 67 (1976) ................................................. Murphy v. Ramsey, 114 U.S. 15 (1885) .............................................. Nat'l Fed. Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) .................. New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ......................... *ix Nguyen v. INS, 533 U.S. 53 (2001) ............................................ Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) ............................... Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) .............. Regan v. Time, Inc., 468 U.S. 641 (1984) ........................................... Romer v. Evans, 517 U.S. 620 (1996) ................................................. Rostker v. Goldberg, 453 U.S. 57 (1981) ............................................ San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ........... Santosky v. Kramer, 455 U.S. 745 (1982) ........................................... Schweiker v. Wilson, 450 U.S. 221 (1981) .......................................... Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ........ Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006) ...................... Smelt v. Cnty. of Orange, 549 U.S. 959 (2006) .................................. Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816 (1977) ................................................................................................... Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ............................... U.S. Dep't of Agric. v. Moreno, 413 U.S. 528 (1973) ......................... *x U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ............ United States v. Carotene Prods. Co., 304 U.S. 144 (1938) ............... United States v. Five Gambling Devices, 346 U.S. 441 (1953) ........... United States v. Turley, 352 U.S. 407 (1957) ..................................... United States v. Virginia, 518 U.S. 515 (1996) ................................... Vance v. Bradley, 440 U.S. 93 (1979) ................................................ Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) ........................... Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305 (1985) .... Washington v. Glucksberg, 521 U.S. 702 (1997) ................................ Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ....................... Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) .............. Yarborough v. Yarborough, 290 U.S. 202 (1933) ............................... Zablocki v. Redhail, 434 U.S. 374 (1978) ........................................... Constitutional Provision U.S. Const. art. II, 3 ......................................................................... *xi Statutes & Regulations 5 U.S.C. 8101 ................................................................................... 5 U.S.C. 8341(a) .............................................................................. 8 U.S.C. 1186a(b)(1) ........................................................................ 22 U.S.C. 4081 ................................................................................. 26 U.S.C. 2(b)(2) .............................................................................. 26 U.S.C. 6013(a) ............................................................................. 26 U.S.C. 7703(b) ............................................................................ 38 U.S.C. 101(31) ............................................................................ 42 U.S.C. 416 ................................................................................... 42 U.S.C. 1382c(d)(2) ...................................................................... Don't Ask Don't Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515, 10 U.S.C. 654 note ........................................................ Revenue Act of 1921, 223(b), 42 Stat. 227 ...................................... Presidential Mem., Extension of Benefits to Same-Sex Domestic Partners of Federal Employees, 75 Fed. Reg. 32,247 (June 2, 2010) .. U.S. Dep't of Labor, Final Rule, The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180 (Jan. 6, 1995) ......................................... Other Authorities
26 42 50 passim 29 10 43 42 47 13 13 23 26, 27 23 50 47 29 12 3, 12 3 47 13 23, 24 37 58 23 36 48 28 30 22 59 12 13, 55 44 44 12 5 5 5 3 5 5 5 5 5 4 52 5 4 5
142 Cong. Rec. 10468 (1996) (Sen. Nickles) ...................................... 142 Cong. Rec. 16969 (1996) (Rep. Canady) ..................................... 142 Cong. Rec. 17079 (1996) (Rep. Bryant) ...................................... 142 Cong. Rec. 17089 (1996) (Rep. Hyde) ......................................... 142 Cong. Rec. 17094 (1996) ............................................................. *xii 142 Cong. Rec. 22262 (1996) (Sen. Lieberman) ....................... 142 Cong. Rec. 22438 (1996) (Sen. Lott) ........................................... 142 Cong. Rec. 22440 (1996) (Sen. Nickles) ...................................... 142 Cong. Rec. 22443 (1996) (Sen. Gramm) ...................................... 142 Cong. Rec. 22446 (1996) (Sen. Byrd) .......................................... 142 Cong. Rec. 22448 (1996) (Sen. Byrd) .......................................... 142 Cong. Rec. 22452 (1996) (Sen. Mikulski) ................................... 142 Cong. Rec. 22453 (1996) (Sen. Hatfield) ..................................... 142 Cong. Rec. 22453 (1996) (Sen. Murkowski) ................................ 142 Cong. Rec. 22454 (1996) (Sen. Burns) ........................................ 142 Cong. Rec. 22459 (1996) (Sen. Ashcroft) .................................... 142 Cong. Rec. 22463 (1996) (Sen. Bradley) ..................................... 142 Cong. Rec. 22467 (1996) ............................................................. Am. Psychological Ass'n, Answers to Your Questions: For a Better Understanding of Sexual Orientation & Homosexuality, http:// www.apa.org/topics/sexuality/orientation.aspx/ .................................. Bara Vaida and Neil Munro, Interest Groups - Reversal of Fortunes, Nat'l J., Nov. 11, 2006 ........................................................................ *xiii Charles Mahtesian, A Record Number of Gay Candidates, POLITICO.com (Oct. 2, 2012), http://www.politico.com/blogs/charlie-mahtesian/2012/10/arecord-number-of-gay-candidates-137289.html ................................... Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (2004), http:// www.cbo.gov/sites/ default/files/cbofiles/ftpdocs/55xx/doc5559/06-21samesexmarriage.pdf ............................................................................ Council on Families in America, Marriage in America: A Report to the Nation (1995) ................................................................................. Dan Eggen, The Influence Industry: Same-Sex Marriage Issue Shows Importance of Gay Fundraisers, Wash. Post (May 9, 2012), http:// www.washingtonpost.com/politics/same-sex-marriage-debatemany-of-obamas-top-fundraisers-are-gay/2012/05/09/ gIQASJYSDU_story.html .................................................................... Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, Gallup.com (May 20, 2011), http://www.gallup.com/poll/147662/first-time-majorityamericans-favor-legal-gay-marriage.aspx ............................................ George Chauncey, Why Marriage?: The History Shaping Today's Debate Over Gay Equality (2004) ...................................................... H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ............................................................................................................... *xiv Human Rights Campaign Lauds 2008 Election Results, HRC.org (Nov. 4, 2008), http://www.hrc.org/press-releases/entry/ human-rights-campaign-lauds-2008-election-results ........................... Kristin Anderson Moore et al., Marriage from a Child's Perspective: How Does Family Structure Affect Children and What Can We Do About It?, Child Trends Research Brief (2002), http:// www.childtrends.org/files/marriagerb602.pdf ..................................... Letter from Andrew Fois, Asst. Att'y Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ..............................................................................
34 6 7 7 2 11 7 7 9, 39 6, 11 9, 39 7 8 8 10 8, 34 10 2 56
53 52
40
10 53
51
57 passim 53
48
11
Letter from Andrew Fois, Asst. Att'y Gen., to Rep. Hyde (May 14, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 .............................................................................. Letter from Andrew Fois, Asst. Att'y Gen., to Sen. Hatch (July 9, 1996), reprinted in The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) ....... Letter from Att'y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http:// www.justice.gov/opa/pr/2011/February/11-ag-223.html ..................... *xv Linda D. Garnets & Letitia Anne Peplau, A New Paradigm for Women's Sexual Orientation: Implications for Therapy, 24 Women & Therapy 111 (2001) ......................................................................... Michael Falcone, Maine Vote Repeals Gay Marriage Law, POLITICO.com, (Nov. 4, 2009), http://www.politico.com/news/ stories/1109/29119.html ....................................................................... Michelle Garcia & Andrew Harmon, Obama's Power Gays, Advocate.com (Oct. 24, 2011), http://www.advocate.com/news/ daily-news/2011/10/24/obamas-power-gays ........................................ Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey, GLBTQ.com (2004), http:// www.glbtq.com/sfeatures/interviewgchauncey.html ........................... The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) ..................................... William Meezan & Jonathan Rauch, Gay Marriage, SameSex Parenting, and America's Children, 15 Future of Children 97 (2005), http:// futureofchildren.org/futureofchildren/publications/ docs/15_02_06.pdf ............................................................................... *1 OPINIONS BELOW
11
11
12, 13
56
52
53
57
7, 11 42
The opinion of the Court of Appeals for the Second Circuit is reported at 699 F.3d 169, and reproduced in the Appendix to the Supplemental Brief for the United States (Supp. App.) at 1a. The opinion of the District Court on the merits is reported at 833 F. Supp. 2d 394, and reproduced in the Appendix to the Petition for a Writ of Certiorari Before Judgment (App.) at 1a. The district court's opinion on intervention is reported at 797 F. Supp. 2d 320, and reproduced in the Joint Appendix (JA) at JA 218.
JURISDICTION The district court's judgment was entered on June 7, 2012. App. 23a. The Bipartisan Legal Advisory Group of the United States House of Representatives (the House) filed a notice of appeal on June 8, 2012. App. 27a-29a. The United States filed its own notice of appeal on June 14, 2012. App. 25a-26a. On September 11, 2011, while the case was pending in the court of appeals, the United States filed a petition for certiorari before judgment, invoking this Court's jurisdiction under 28 U.S.C. 1254(1) and 2101(e). The court of appeals rendered its judgment on October 18, 2012. Supp. App. 1a. On December 7, 2012, this Court granted the United States' petition.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The provisions of the Fifth Amendment to the Constitution and Sections 2 and 3 of the Defense of Marriage Act are reproduced in the Appendix to this brief at 1a.
*2 STATEMENT OF THE CASE A. The Defense of Marriage Act
For more than two centuries after our Nation's Founding, every state and the federal government defined marriage as the legal union of a woman and a man. Indeed, [u]ntil a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). By 1996, however, a Hawaii Supreme Court decision had called that uniform approach into question. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (indicating that same-sex marriage licenses may have been required by Hawaii's constitution). The Baehr decision raised the novel question of whether one state's redefinition of marriage should automatically extend to other states via full faith and credit principles or to the federal government when it came to federal programs linked to marriage. Congress addressed this question by passing the Defense of Marriage Act of 1996 (DOMA), which was enacted with strong majorities in both Houses [of Congress] and signed into law by President Clinton. Massachusetts v. U.S. Dep't of HHS, 682 F.3d 1, 6 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 & 12-15. DOMA passed in the House of Representatives by a vote of 342-67, see 142 Cong. Rec. 17094-95 (1996), and in the Senate by a vote of 85-14, see id. at 22467. In the Senate supporters included then-Senator Biden; then-Minority Leader *3 Daschle; current Majority Leader Reid; and current Judiciary Committee Chairman Leahy. In the House, Rep. Hoyer, the Current Minority Whip, supported DOMA. DOMA reflected Congress' determination that each sovereign should be able to determine for itself how to define marriage for purposes of its own law. DOMA does not override or invalidate any sovereign's decision to modify the definition of marriage, but it does preserve that prerogative for each sovereign. Section 2 of DOMA allows each state to decide for itself whether to retain the traditional definition without having another jurisdiction's decision imposed upon it via full faith and credit principles. And Section 3 preserves the federal government's ability to use the traditional definition of marriage for purposes of federal law and programs. It does so not by singling out any category of relationships for specific exclusion, but rather by clarifying what marriage means for purposes of federal law: It clarifies that, for purposes of federal law, marriage means the legal union of one man and one woman, and spouse means a person of the opposite sex who is a husband or wife. 1 U.S.C. 7. DOMA does not preclude Congress or anyone else in the federal system from extending benefits to those who are not included within [its] definition. Smelt v. Cnty. of Orange, 447 F.3d 673, 683 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006). Thus, some federal statutes provide benefits for families, see, e.g., 22 U.S.C. 4081 (extending certain financial benefits to Foreign Service members and their families), and the President has interpreted that *4 term, which is not defined by DOMA, to include same-sex couples. See Presidential Mem., Extension of Benefits to Same-Sex Domestic Partners of Federal Employees, 75 Fed. Reg. 32,247 (June 2, 2010) (directing the Office of Personnel Management to clarify that, for purposes of employee assistance programs, same-sex domestic partners and their children qualify as family members' ). DOMA's definitions apply for federal-law purposes only: DOMA does not bar or invalidate any state-law marriage, but leaves states free to decide whether they will recognize same-sex marriages. DOMA simply asserts the federal government's right as a separate sovereign to provide its own definition for purposes of its own federal programs and funding. Historically, the federal government often has found it convenient to accept the marital determinations made by the several states (which for the most part have varied only in the particulars) for purposes of federal law - just as the states typically recognize marriages licensed by other states for purposes of their own law. But Congress also has a long history, when it sees fit, of supplying its own definitions of marriage for various federal purposes. These longstanding federal definitions sometimes provide marital benefits to couples who a state may not recognize as married, 1 and sometimes decline to extend federal regulation or benefits to couples *5 despite a state-issued marriage certificate. 2 Similarly, even before DOMA was enacted, federal-law references to marriage employed the traditional definition, as Congress, the Executive Branch, and the courts have recognized. See, e.g., Revenue Act of 1921, 223(b), 42 Stat. 227 (permitting a husband and wife living together to file a joint tax return; cf. 26 U.S.C. 6013(a) (A husband and wife may make a single return jointly of income taxes)); 38 U.S.C. 101(31) (for purposes of veterans' benefits, spouse means a person of the
opposite sex); U.S. Dep't of Labor, Final Rule, The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180, 2,190-91 (Jan. 6, 1995) (rejecting, as inconsistent with congressional intent, proposed definition of spouse that would have included samesex relationships); Adams v. Howerton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (Congress, as a matter of federal law, did not intend that a person of one sex could be a spouse to a person of the same sex for immigration law purposes), aff'd, 673 F.2d 1036 (9th Cir. 1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting the District of Columbia's 1901 marriage statute, intended that *6 marriage is limited to opposite-sex couples). Congress explained that, in defining the terms marriage and spouse, Section 3 of DOMA merely restates the current understanding of what those terms mean for purposes of federal law. H.R. Rep. No. 104-664, at 30 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (House Rep.); see also id. at 10 ([I]t can be stated with certainty that none of the federal statutes or regulations that use the words marriage or spouse were thought by even a single Member of Congress to refer to same-sex couples.); 142 Cong. Rec. 16969 (1996) (Rep. Canady) (Section 3 changes nothing; it simply reaffirms existing law.); id. at 22446 (Sen. Byrd) ([A]ll this bill does is reaffirm for purposes of Federal law what is already understood by everyone.). Congress emphasized that [t]he most important aspect of Section 3 is that it applies to federal law only and does not have any effect whatsoever on the manner in which any State might choose to define these words. House Rep. 30 (parenthetical omitted). Section 3 defines these two words only insofar as they are used in federal law. Id. Congress thus reaffirmed the federal government's ability to make its own decision regarding whether to recognize same-sex relationships as marriages, without having its hand forced by a minority of the states or forcing any state to follow the federal definition for purposes of its own state law. In addition, Congress wanted to preserve the right of each state - like the federal government - to define marriage within its own sphere. DOMA Section 2 prevents a decision by one state to re-define marriage from trumping the decisions of other states *7 via full faith and credit principles. Section 3 similarly prevents such a state re-definition from being automatically picked up for federal-law purposes. See 142 Cong. Rec. 17079 (1996) (Rep. Bryant) (Certainly we should not allow one State, whether it be Hawaii or any other State, to, in effect, establish what the Federal law will be in regards to what a marriage is.); id. at 17089 (Rep. Hyde) ([A]s to defining marriage in the Federal code, who else should define it except this Congress, the Federal legislature.); The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong, at 2 (1996) (Senate Hrg.) (Sen. Hatch) (DOMA ensures that each State can define for itself the concept of marriage and not be bound by decisions made by other States. [DOMA] also makes clear that no Federal law should be read to treat a same-sex union as a marriage. ); id. at 41 (statement of Prof. Lynn Wardle) (Section 3 protects Congress' authority to control federal laws, programs and agencies. It prevents the imposition of same-sex marriage upon federal law without the approval of Congress. That, too, protects our federalism.); 142 Cong. Rec. 22438 (1996) (Sen. Lott) (DOMA will ensure that each State can reach its own decision about this extremely controversial matter: The legal status of same-sex unions. [DOMA], likewise, ensures that for the purposes of Federal programs, marriages will be defined by Federal law.); id. at 22440 (Sen. Nickles) (Without DOMA, if Hawaii, or any other State, gives new meaning to the words marriage and spouse, reverberations may be felt throughout the Federal Code.); id. at 22452 (Sen. Mikulski) ([This bill] puts in the Federal law books *8 what has always been the definition of a marriage and allows each State to determine for itself what is considered a marriage under that State's laws.); id. at 22453 (Sen. Hatfield) (The bill would restrict the effect of any state law that allows same-sex marriage to that state only.); id. (Sen. Murkowski) (By defining the term marriage, Congress is protecting the sovereignty of each State and avoiding the ramifications of the absence of a definition of marriage in Federal law.). Members of Congress also stressed that conflicting state definitions of marriage should not be permitted to create geographical disparities in the eligibility for federal benefits. As Senator Ashcroft stated, having a uniform federal definition of marriage is very important, because unless we have a Federal definition of what marriage is, a variety of States around the country could define marriage differently [and] people in different States would have different eligibility to receive Federal benefits, which would be inappropriate. 142 Cong. Rec. 22459 (1996). Federal benefits, he observed, should be uniform for people no matter where they come from in this country. People in one State should not have a higher claim on Federal benefits than people in
another State. Id. It would be irrational and inconsistent, he said, if citizens of one State [were given] higher benefits or different benefits than citizens of another State. Id. [I]t is entirely appropriate for us, as a Congress, to say that we want a Federal benefits structure that follows a uniform definition of marriage. Id.; see also id. at 22453 (Sen. Murkowski) (DOMA establishes uniformity in federal benefits, rights and privileges *9 for married persons.); id. at 22448 (Sen. Byrd) (Without a Federal definition every department and every agency of the Federal Government that administers public benefit programs would be left in the lurch.). Congress additionally noted that DOMA helped to preserve the public fisc and avoid the unpredictable effects of changing traditional federal definitions that governed eligibility for federal benefits and taxes. Government currently provides an array of material and other benefits to married couples, and those benefits impose certain fiscal obligations on the federal government. House Rep. 18. Congress believed that DOMA would preserve scarce government resources, surely a legitimate government purpose. Id. As Senator Gramm observed, without DOMA, state recognition of same-sex marriage will create a whole group of new beneficiaries - no one knows what the number would be - tens of thousands, hundreds of thousands, potentially more - who will be beneficiaries of newly created survivor benefits under Social Security, Federal retirement plans, and military retirement plans. [I]t will impose a whole new set of benefits and expenses which have not been planned or budgeted for under current law.
142 Cong. Rec. 22443 (1996). If the federal government were forced to recognize same-sex marriages, Sen. Byrd noted, it is [not] inconceivable that the costs associated with such a change could amount to hundreds of millions of dollars, if not billions of Federal taxpayer dollars. Id. at 22448; *10 see also id. at 22454 (Sen. Burns) (Given the budget difficulties we are currently facing, it would be an understatement to say that this [federal recognition of same-sex marriages] could have an enormous financial impact on our country.). In retaining the traditional definition for federal-law purposes, Congress also emphasized [t]he enormous importance of [traditional] marriage for civilized society. House Rep. 13 (quoting Council on Families in America, Marriage in America: A Report to the Nation 10 (1995)). The House Report quoted approvingly from this Court's decision in Murphy v. Ramsey, which referred to the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization. House Rep. 12 (quoting 114 U.S. 15, 45 (1885)) (emphasis in House Rep.). Congress recognized that the institution of marriage has traditionally been defined in American law as the union of one man and one woman, and was cognizant of the need for caution in changing such an important institution. See House Rep. 3 ([T]he uniform and unbroken rule has been that only opposite-sex couples can marry.); 142 Cong. Rec. 22463 (1996) (Sen. Bradley) ([W]hen we contemplate giving state sanction to same-sex marriages, we need to proceed cautiously.). Congress further explained that the institution of marriage is a response to the unique social concerns surrounding the inherently procreative nature of heterosexual relationships - specifically, that society recognizes the institution of marriage and grants married persons preferred legal status *11 because it has a deep and abiding interest in encouraging responsible procreation and childrearing. House Rep. 12, 13. Congress recognized the basic biological fact that only a man and a woman can beget a child together without advance planning, which means that opposite-sex couples have a unique tendency to produce unplanned and unintended offspring. Congress sought to encourage the raising of such children by both their biological parents in a stable family structure. See 142 Cong. Rec. 22446 (Sen. Byrd); id. at 22262 (Sen. Lieberman) (DOMA affirms another basic American mainstream value, marriage as an institution between a man and a woman, the best institution to raise children in our society.). While Congress was considering DOMA, it requested the opinion of the Department of Justice on the bill's constitutionality, and the Department three times reassured Congress that DOMA was constitutional. See Letters from Andrew Fois, Asst. Att'y Gen., to Rep. Canady (May 29, 1996), reprinted in House Rep. 34; to Rep. Hyde (May 14, 1996), reprinted in House Rep. 33-34; and to Sen. Hatch (July 9, 1996), reprinted in Senate Hrg. 2. Congress also received and considered other expert advice
and concluded that DOMA was plainly constitutional. House Rep. 33; see also Senate Hrg. 1, 2 (Sen. Hatch) (DOMA is a constitutional piece of legislation and a legitimate exercise of Congress' power); id. at 23-41 (testimony of Professor Wardle); id. at 44 n.1 (statement of Professor Cass Sunstein) (opining that DOMA Section 3 would be upheld as constitutional); id. at 56-59 (letter from Professor Michael McConnell).
*12 B. The Justice Department Stops Defending DOMA and Starts Attacking It Following DOMA's enactment, the Department of Justice discharged its constitutional duty to take Care that the Laws be faithfully executed, U.S. Const. art. II, 3, and successfully defended Section 3 of DOMA against several constitutional challenges, prevailing in every case to reach final judgment. 3 The Department continued to defend DOMA during the first two years of the current Administration. In February 2011, however, the Administration abruptly reversed course and abdicated its duty to defend DOMA's constitutionality. See Letter from Att'y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011) (Holder Letter), http:// www.justice.gov/opa/pr/2011/February/11-ag-223.html. Attorney General Holder announced that he and President Obama were now of the view that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3. Id. The Attorney General acknowledged that, in light of the respect appropriately due to a coequal branch of government, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be *13 made in their defense. Id. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every federal court of appeals to have considered the issue by that point in time (eleven of the thirteen circuits) had applied rational basis review to sexual orientation classifications and that a reasonable argument for Section 3 's constitutionality may be proffered under [the rational basis] standard. Id. 4 Although the Holder Letter had said only that the Department would cease defense of DOMA Section 3, the Department did not merely bow out of DOMA litigation. Instead, it affirmatively assailed DOMA in court - arguing that Section 3 violates equal protection and urging courts to render judgment in favor of plaintiffs challenging the law even in Circuits in which rational basis was binding circuit law. The Department even went so far as to accuse the Congress that enacted DOMA - many of whose Members still serve - of being motivated by animus. Br. for United States 25, Windsor, Nos. 12-2335 & 12-2435 (2d Cir. Aug. 10, 2012), ECF 120. *14 In response to the Department's remarkable about face on DOMA, Massachusetts, 682 F.3d at 7, the House intervened as a party-defendant in more than a dozen cases (fifteen to date), around the country, in which one or more plaintiffs challenged the constitutionality of DOMA Section 3; the House did so to ensure that a duly-enacted federal statute would have an adequate constitutional defense. No court denied intervention.
C. Ms. Windsor's Challenge to DOMA Respondent Edith Schlain Windsor and another woman, Thea Clara Spyer, obtained a certificate of marriage from the province of Ontario, Canada in 2007. At that time, their home state of New York did not issue marriage licenses to same-sex couples. Ms. Spyer died in 2009, naming Ms. Windsor the executor and sole beneficiary of her estate. Nine months after Ms. Spyer's passing, the New York Court of Appeals expressly reserved the question of whether New York law recognized foreign, samesex marriage certificates. See Godfrey v. Spano, 920 N.E.2d 328, 337 (N.Y. 2009). New York did not itself begin issuing marriage licenses to same-sex couples until 2011.
Case 3:13-cv-01159 Document 47-8 Filed 12/20/13 PageWorks. 10 of 27 PageID #: 882 10 2013 Thomson Reuters. No claim to original U.S. Government
After paying more than $363,000 in federal estate taxes, Ms. Windsor, as executor, sought a refund on the theory that the estate was entitled to the marital deduction, even though both Ms. Windsor and Ms. Spyer continued to file individual income tax returns after obtaining an Ontario marriage certificate in 2007. Recognizing that federal law offers this deduction only when the beneficiary of the estate is a spouse within the meaning of federal tax law and *15 DOMA, Ms. Windsor claimed that the failure to extend this favorable treatment to her violated her equal protection rights. The IRS denied the refund, and Ms. Windsor filed this suit in her capacity as executor of the estate. Ms. Windsor's constitutional challenge is premised on the notion that New York would have recognized the 2007 Canadian marriage certificate, even though New York did not issue marriage certificates to same-sex couples until after Ms. Spyer's death. After the Justice Department abandoned DOMA's defense in early 2011, the district court sua sponte invited Congress to intervene in the litigation, and the House did so. The district court followed the First Circuit's lead and invalidated DOMA under a variant of rational basis it labeled intensified scrutiny. 682 F.3d at 10. On appeal, the Second Circuit first found that the Department had appellate standing and then addressed Ms. Windsor's standing. It recognized that, [a]t the time of Spyer's death in 2009, New York did not yet license same-sex marriage itself and therefore decisive for standing in this case is whether in 2009 New York recognized same-sex marriages entered into in other jurisdictions. Supp. App. 5a. The Second Circuit declined to certify this sensitive question of state law, reasoning that the New York Court of Appeals had signaled its disinclination to decide this very question in Godfrey. Supp. App. 6a. Instead, the panel predict[ed] that Windsor's marriage would have been recognized under New York law at the time of Spyer's death, based on three New York lower court rulings, two of which pre-dated Godfrey. App. 6a-7a. *16 On the merits, the panel majority recognized that this Court's decision in Baker v. Nelson, 409 U.S. 810 (1972), held that the use of the traditional definition of marriage for a state's own regulation of marriage status did not violate equal protection. Supp. App. 3a. Yet the panel majority concluded that Baker does not control equal protection review of DOMA because DOMA is a federal law and there had been doctrinal changes in equal protection law since 1971. Supp. App. 8a, 10a. In its equal protection analysis, the panel majority explained that a party urging the absence of any rational basis takes up a heavy load and [t]hat would seem to be true in this case - the law was passed by overwhelming bipartisan majorities in both houses of Congress and the definition of marriage it affirms has been long-supported and encouraged. Supp. App. 12a-13a. Indeed, the panel majority did not dispute Judge Straub's conclusion that DOMA survives rational basis review. See Supp. App. 14a. It also declined to apply rational basis plus review, because this Court has not expressly sanctioned such modulation in the level of rational basis review. Supp. App. 13a. The panel majority ultimately determined - in conflict with eleven other circuits - that heightened scrutiny applies to classifications based on sexual orientation. Supp. App. 15a. The panel majority acknowledged that homosexuals clearly have attained political successes over the years, but deemed that they cannot adequately protect themselves from the discriminatory wishes of the majoritarian public. Supp. App. 21a-23a. Finally, the panel majority concluded that *17 Section 3 of DOMA could not survive heightened scrutiny. The Court recognized Congress' concern with ensuring uniform eligibility for federal marital benefits, but found it suspicious that Congress would attempt to define the word marriage when it had traditionally deferred to the states. Supp. App. 24a-25a. It also recognized the budgetary concerns motivating DOMA, but held them insufficient to satisfy intermediate scrutiny. Supp. App. 26a-28a. The panel majority agree [d] that promotion of procreation can be an important government objective, but held that DOMA does not further that objective because it affected only federal benefits. Supp. App. 30a. Thus, although it acknowledged that same-sex marriage is unknown to history and tradition, the panel majority nonetheless invalidated DOMA. Supp. App. 29a-31a. Judge Straub dissented on the merits, noting that DOMA reflects the understanding of marriage throughout our nation's history, and that, [i]f this understanding is to be changed, it is for the American people to do so. Supp. App. 31a-32a.
Judge Straub found that this Court's decision in Baker resolved the essentially identical challenge we have here, because although Baker involved a state law, the equal protection component of the Fifth Amendment is identical to and coextensive with the Fourteenth Amendment guarantee. Supp. App. 32a, 45a. Even apart from Baker, Judge Straub concluded that routine respect for extant precedent requires the application of rationalbasis review to sexual-orientation classifications. Supp. App. 81a. He observed that this Court has warned the lower *18 courts to be wary of creating new suspect or quasi-suspect classifications, that it has not itself recognized any such classifications in decades, and that this Court applied rational-basis review in Romer despite having the opportunity to apply heightened review. Supp. App. 33a, 78a, 81a. Applying rational basis review, Judge Straub found that DOMA centers on legitimate state interests that go beyond mere moral disapproval of an excluded group. Supp. App. 33a. He noted that DOMA promotes uniformity in federal marital benefits and does nothing to strip the status that states confer on couples they marry. Supp. App. 63a-64a. He concluded that it is rational for Congress to limit the national impact of state-level policy development and to take an approach that attempts to create uniformity across the states in matters governed by federal law. Supp. App. 67a-68a, 69a. Judge Straub also noted that this Court has continued to view the biological link of parents to children as deserving of special recognition and protection. Supp. App. 71a. He therefore concluded that DOMA furthers the legitimate government interest in encouraging heterosexual relationships, with their unique tendency to produce unintended offspring, to be channeled into an institution designed to facilitate the raising of such offspring. Supp. App. 55a-62a. Judge Straub therefore concluded that [w]hether connections between marriage, procreation, and biological offspring recognized by DOMA and the uniformity it imposes are to continue is an issue for the American people and their elected *19 representatives to settle through the democratic process. Supp. App. 83a. He noted the robust political debate on this topic and expressed regret that striking down DOMA poisons the political well by interven[ing] in this robust debate only to cut it short. Id.
SUMMARY OF THE ARGUMENT Although the passions that surround the issue of same-sex marriage undoubtedly run high, the issue before this Court is quite narrow. Assuming that states remain free either to recognize same-sex marriages or retain the traditional definition, the question here is whether the federal government retains the same latitude to choose a definition for federal-law purposes, or whether instead it must borrow state-law definitions as its own, recognizing same-sex marriages of U.S. citizens residing in Massachusetts (because Massachusetts does) but not same-sex relationships of U.S. citizens residing in Virginia (because Virginia does not). Bedrock principles of federalism make clear that the federal government has the same latitude as the states to adopt its own definition of marriage for federal-law purposes and has a unique interest in treating citizens across the nation the same. To be sure, the federal government also has the option of borrowing state-law definitions, as it did during the long period when the states uniformly employed the traditional definition. But in 1996 when it appeared that states soon would begin experimenting with changing the traditional definition, the federal government was under no obligation to follow suit. Congress could, and did, rationally decide to retain the traditional definition *20 as the uniform rule for federal-law purposes. Congress could, and someday may, adopt a different approach and either incorporate varying state approaches or uniformly extend rights to same-sex couples even in states that retain the traditional definition. But under our system of government those decisions are wisely left to Congress and the democratic process. In considering DOMA's constitutionality, the Court should apply rational basis review as it previously has done when considering classifications on the basis of sexual orientation. And under that deferential standard, there is little question that DOMA rationally furthers multiple legitimate government interests. In 1996, Congress confronted an unprecedented dynamic
with at least one state on the verge of experimenting with a fundamental change to the traditional definition of marriage. In DOMA, Congress acted to ensure that no one state's decision to adopt a new definition would dictate the result for other sovereigns either via full faith and credit principles or by federal law borrowing state definitions. In our federal system, there is certainly nothing irrational about allowing each sovereign - including the federal government - to make this important decision for itself. Indeed, the justly celebrated ability of states to act as laboratories of democracy necessarily assumes the ability of each sovereign to run its own experiments. And it was certainly rational for the federal government to retain the traditional definition as the governing definition for federallaw purposes. The federal government has a unique interest in ensuring that federal benefits and tax burdens are *21 distributed equally such that a same-sex couple in Virginia is treated no differently for federal-law purposes from one in Massachusetts. And if the federal government can rationally favor a uniform rule, it was eminently rational to choose the traditional definition, which was the uniform state-law rule in 1996 and remains the majority approach today. That decision also was rational because it accurately reflected the intent of the prior Congresses that created the multitude of programs that tie benefits and burdens to the institution of marriage as traditionally understood. It also avoided the uncertain and unpredictable fiscal impact of expanding the class of federal beneficiaries in unintended ways. And wholly apart from these unique federal interests that fully justify DOMA, Congress could rationally decide to retain the traditional definition for the same basic reasons that states adopted the traditional definition in the first place and that many continue to retain it: There is a unique relationship between marriage and procreation that stems from marriage's origins as a means to address the tendency of opposite-sex relationships to produce unintended and unplanned offspring. There is nothing irrational about declining to extend marriage to same-sex relationships that, whatever their other similarities to opposite-sex relationships, simply do not share that same tendency. Congress likewise could rationally decide to foster relationships in which children are raised by both of their biological parents. Finally, the Second Circuit erred when it became the first court of appeals to treat sexual orientation *22 as a quasi-suspect class. Creating new suspect classes takes issues away from the democratic process, and this Court has wisely refrained from recognizing new suspect classes over the last four decades. Homosexuality would be a particularly anomalous place to eschew that reluctance, as gays and lesbians have substantial political power, which has grown exponentially with each election cycle. Nor do the other factors this Court has looked to support recognizing a new suspect class here. To the contrary, with an issue as divisive and fast-moving as same-sex marriage, the correct answer is to leave this issue to the democratic process. In that process, there is a premium on persuading opponents, rather than labeling them as bigots motivated by animus. And the democratic process allows compromise and way-stations, whereas constitutionalizing an issue yields a one-size-fits-all-solution that tends to harden the views of those who lose out at the courthouse, rather than the ballot box. In the final analysis, the democratic process is at work on this issue; there is no sound reason to constitutionalize it.
ARGUMENT As a statute duly enacted by Congress and signed by the President, DOMA is entitled to a strong presumption of validity. Judging the constitutionality of an Act of Congress is properly considered the gravest and most delicate duty that this Court is called upon to perform. Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 319 (1985) (quotation marks omitted). The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States. *23 Rostker v. Goldberg, 453 U.S. 57, 64 (1981). Furthermore, [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people. Regan v. Time, Inc., 468 U.S. 641, 652 (1984). Therefore, [t]his Court does and should accord a strong presumption of constitutionality to Acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is constitutional. United States v. Five Gambling Devices, 346 U.S. 441, 449 (1953) (plurality). And [t]he customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress specifically considered the question of the Act's constitutionality. Rostker, 453 U.S. at 64; see supra at 11.
The deference owed to the coordinate branches of government is at its zenith when it comes to rational basis review. It is one thing to conclude that a coordinate branch has crossed one of the sometimes murky lines that delineate the protections of the Bill of Rights, but it is quite another thing for this Court to declare that the two coordinate branches of the national government have acted not just imprudently, but wholly without rational basis. For that reason, it is perhaps no surprise that this Court has on only one occasion (at most two) invalidated an Act of Congress while applying rational basis review. See U.S. Dep't of Agric. v. Moreno, 413 U.S. 528 (1973). 5 And even then, this Court invalidated only *24 a single obscure amendment added in conference. Id. at 534 n.6. Striking down as irrational a statute like DOMA that was debated in both chambers, viewed as constitutional by the Justice Department, passed by large bipartisan majorities and then signed into law by the President would be wholly unprecedented. 6
I. Rational Basis Review Applies To DOMA. Ms. Windsor and the Justice Department contend that Section 3 of DOMA classifies based on sexual orientation and that therefore heightened scrutiny applies. But this Court has never classified sexual *25 orientation as a suspect or quasi-suspect class, and indeed has gone out of its way to apply rational basis review. This Court should do the same here and apply rational basis review to DOMA. 7 Under this Court's equal protection cases, there are only three levels of scrutiny. Strict scrutiny is reserved for laws that classify based on race, alienage, or national origin. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Classifications based on sex or illegitimacy are quasi-suspect and receive intermediate scrutiny. Clark v. Jeter, 486 U.S. 456, 461 (1988). All other classifications trigger only rational basis review. This Court has never considered sexual orientation to be a suspect or quasi-suspect classification and instead has repeatedly applied rational basis review to such classifications. This Court considered a classification similar to DOMA in Baker v. Nelson, 409 U.S. 810 (1972). The Baker Court rejected for want of a substantial federal question an equal protection challenge to Minnesota's statute defining marriage as a union between persons of the opposite sex. Baker, 409 U.S. at 810. Although the Court's summary disposition *26 did not specify the level of scrutiny it applied, subsequent decisions, discussed in the paragraphs immediately below, make clear that the Court applied only rational basis review to the Minnesota statute's limitation of marriage to opposite-sex couples. Such a summary dismissal is, of course, a decision on the merits and, while it does not have the same force before this Court as a decision reached after plenary review, it carries precedential effect. Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam); see also Massachusetts, 682 F.3d at 8 (Baker is precedent binding on lower courts and thus forecloses arguments that presume or rest on a constitutional right to same-sex marriage). This Court subsequently considered an equal protection challenge to a sexual orientation classification on plenary review and applied rational basis review. See Romer v. Evans, 517 U.S. 620 (1996). Romer involved a voter-enacted referendum in Colorado known as Amendment 2, which prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect the named class of homosexual persons or gays and lesbians. Id. at 624. The Colorado Supreme Court applied strict scrutiny to invalidate Amendment 2. Id. at 625. Despite the Colorado Supreme Court's application of strict scrutiny, this Court reviewed Amendment 2 under the rational basis test, which applies when a law neither burdens a fundamental right nor targets a suspect class. Id. at 631. Under that test, *27 legislation is upheld so long as it bears a rational relation to some legitimate end. Id. This Court held that Amendment 2 fails, indeed defies, even this conventional inquiry. Id. at 632 (emphasis added). See also id. at 635 (concluding that a law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not. (citation omitted)). Thus, even in the face of the protestations of the dissent that it was applying something other than rational basis review, see id. at 651 (Scalia, J., dissenting), the Court made clear that it was applying conventional rational basis review, not any form of heightened scrutiny, to the sexual orientation classification before it in Romer.
In Lawrence v. Texas, 539 U.S. 558 (2003), this Court once again declined to apply heightened scrutiny. Lawrence struck down a Texas statute that criminalized intimate sexual conduct between two persons of the same sex, while not reaching oppositesex couples engaging in the same conduct. Rather than addressing that differential treatment under the Equal Protection Clause, the Court decided the case under the Due Process Clause and invalidated the Texas statute and overruled Bowers v. Hardwick, 478 U.S. 186 (1986). The Lawrence Court emphasized the limited nature of that due process holding and specified that it was not holding that the government must give formal recognition to any relationship that homosexual persons seek to enter. 539 U.S. at 578. Justice O'Connor preferred to decide the case under the Equal Protection Clause and, consistent with Romer, applied rational basis review. She explained that her analysis of the Texas law does *28 not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as preserving the traditional institution of marriage. Id. at 585 (O'Connor, J., concurring in the judgment) (emphasis added). Although the court of appeals here applied heightened scrutiny to DOMA, the traditional factors this Court looks to in ascertaining the appropriate level of equal protection scrutiny do not support that conclusion. See Part III, infra. Rather, the proper result under this Court's precedents and the law of every other Circuit to consider the question is that rational basis review applies. As shown next, multiple rational bases support Congress' decision to employ the traditional definition of marriage for federal-law purposes.
II. Multiple Rational Bases Support DOMA And Its Decision To Retain The Traditional Definition Of Marriage For Federal-Law Purposes. Rational basis review is a paradigm of judicial restraint. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313-14 (1993). [T]he Constitution presumes that even improvident decisions will eventually be rectified by the democratic process. Cleburne, 473 U.S. at 440. Thus, judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. Vance v. Bradley, 440 U.S. 93, 97 (1979). The judicial role is modest precisely because rational basis is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. *29 City of Dallas v. Stanglin, 490 U.S. 19, 26 (1989). The statute enjoys a strong presumption of validity, and the challenger bears the burden to negative every conceivable basis which might support it without regard to whether the conceived reason for the challenged distinction actually motivated the legislature. Beach, 508 U.S. at 314-15 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)); see also Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080-81 (2012). As noted, deference is particularly strong when it comes to reviewing the work of the two coordinate political branches of the federal government. And deference is at its zenith when it comes to statutory definitions and other line-drawing exercises such as DOMA Section 3. This Court has recognized that in formulating definitions or establishing categories of beneficiaries, Congress had to draw the line somewhere, Beach, 508 U.S. at 316, which inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line. Mathews v. Diaz, 426 U.S. 67, 83 (1976); see Schweiker v. Wilson, 450 U.S. 221, 238 (1981) (prescribing extra deference for statutory distinctions that inevitably involve[] the kind of line-drawing that will leave some comparably needy person outside the favored circle (footnote omitted)). The Court has applied this deferential approach not just to economic legislation, but also to benefits legislation, e.g., Schweiker, and even to government determinations of who or what constitutes a family, Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974) (upholding on rational basis review zoning regulation defining unmarried couples *30 as families permitted to live together, but prohibiting cohabitation by larger groups). In such cases, Congress' decision where to draw the line is virtually unreviewable. Beach, 508 U.S. at 316.
Applying this deferential review to DOMA, it is clear that Congress, when confronting the unprecedented phenomenon of states beginning to experiment with the traditional definition of marriage, had and maintains multiple rational bases to retain the traditional definition as the operative definition for purposes of federal law.
A. DOMA Rationally Preserves Each Sovereign's Ability to Define Marriage for Itself at a Time When States Are Beginning to Experiment with the Traditional Definition. When Congress enacted DOMA in 1996, it confronted a unique phenomenon. Up until that point, every state in the nation defined marriage in traditional terms as a union between a man and a woman. There was little doubt that when Congress used terms like marriage, married, and spouse in federal statutes, it too had the traditional definition in mind. But Congress did not even need to consider whether it preferred a uniform federal definition of marriage or instead preferred to defer to the states, because every state adopted the same, traditional approach. Only as that began to change did Congress consider DOMA. The Hawaii Supreme Court's decision in Baehr raised the prospect that some states would begin to experiment with the traditional definition and expand it to include same-sex couples. At least in *31 Hawaii, the impetus for this change came not from the democratic process, but from the state courts' interpretation of the state constitution. And in our federalist system, the prospect that one state would alter the traditional definition raised the distinct prospect that one state could effectively change the law for other states via full faith and credit principles - and for the federal government to the extent federal law simply borrowed the state's definition. DOMA's two operative provisions responded to this unprecedented dynamic in a manner that preserved each sovereign's ability to define marriage for itself. Section 2 preserved each state's ability to define marriage as it preferred by ensuring that any one state's definition would not trump another state's judgment by operation of full faith and credit principles. In a similar fashion, Section 3 ensured that federal law would not simply borrow whatever definition or redefinition a state chose to adopt, but instead that the federal government would distinctively define marriage for federal-law purposes only and would retain the traditional definition. Congress' approach in DOMA was a balanced one that fully reflects and respects our federalist system. Congress did not attempt to override any state's decision to experiment with the definition of marriage or deem any particular redefinition of marriage irrational. But at the same time Congress recognized that states could rationally decide to expand the traditional definition of marriage to include same-sex couples, it also recognized that other jurisdictions, including the federal government *32 for uniquely federal purposes, could rationally decide to retain the traditional definition. DOMA permitted states to perform their role as laboratories of democracy, while at the same time ensuring that no one state's experiment would be imposed on other states or on the federal government. DOMA thus reflects an interest in ensuring that, at a time of unprecedented reconsideration of the traditional definition of marriage, each sovereign in our federal system may decide this important issue for itself. That surely is a rational indeed an important and vital - basis for action in our system of dual federalism. And the federal government's decision to retain the traditional definition as its own also surely was a rational one. As shown in more detail below, at the time of DOMA's enactment every state retained the traditional definition and that remains the approach of the majority of the states. It plainly was rational for Congress to adopt the majority definition as its own, especially when that traditional definition was the underlying assumption of countless past federal legislative decisions, and when altering that definition would have unpredictable fiscal effects and would undermine uniquely federal interests in the uniformity of federal benefits and burdens. Further, Congress could rationally retain the traditional definition for all the reasons a state could rationally retain the traditional definition. While the federal definition of marriage does not have the same direct impact on the institution as a state decision, it has some effect. Assuming that states continue to have the flexibility to retain the *33 traditional definition, there is no reason why the federal government does not have the same latitude.
B. DOMA Ensures National Uniformity in Eligibility for Federal Benefits and Programs Based on Marital Status. As long as all the states retained the traditional definition of marriage, there was no need for the Congress to choose between having a uniform federal definition for federal benefits and burdens and simply borrowing the state definition of marriage. But when Hawaii was on the verge of becoming the first state to experiment with altering the traditional definition, Congress had to choose between retaining a uniform federal rule or continuing simply to borrow state definitions in a manner that would create the possibility of disparities in federal benefits across jurisdictions. Congress chose the former, and that decision was eminently rational. In a nation where some states would recognize same-sex marriage and other states would not, Congress rationally could desire to maintain uniformity in the federal approach to this question, rather than adopting a patchwork of disparate state-law rules. DOMA Section 3 accomplishes exactly that, ensuring that similarly-situated couples will have the same federal benefits regardless of the state in which they happen to reside. The uniform federal rule reaffirmed by DOMA also avoids a confusing situation in which same-sex couples would lose (or gain) federal marital status simply by moving between states with different policies on recognition of same-sex marriages. See, e.g., 142 Cong. Rec. 10468 (1996) (Sen. Nickles) (DOMA will eliminate legal uncertainty concerning Federal *34 benefits); id. at 22459 (Sen. Ashcroft) (finding it very important to prevent people in different States [from having] different eligibility to receive Federal benefits). Likewise, a uniform federal rule also avoids the prospect that a federal employee - military or civilian - would resist moving from one jurisdiction to another for fear it would affect his or her federal benefits or tax status. The adoption of a uniform federal rule also serves the government's rational interest in easing administrative burdens. While it may seem a simple matter to determine which jurisdictions have recognized same-sex marriage, this case illustrates that the issue is far more complicated. Ms. Windsor's claim to a marital exemption from the estate tax does not turn on New York's very public adoption of laws permitting same-sex marriage in 2011 but, rather, on obscure, and as-yet not definitively settled, choiceof-law principles concerning New York's recognition of foreign marriage certificates in 2009. Ms. Windsor filed her claim here before New York recognized same-sex marriage, and her success depends on whether New York courts would have recognized a Canadian marriage certificate issued to a same-sex couple at a time when New York would not issue such a certificate itself. If her claim is successful, the federal government would have to confront similar choice-of-law questions in all the jurisdictions that retain the traditional definition. It was certainly rational for the federal government to prefer a uniform federal rule to the vagaries and difficulties of undertaking a multitude of such complex choice-of-law determinations. *35 When Hawaii threatened to break up the uniformity of the states' definition of marriage, Congress essentially had two decisions to make. First, it had to decide between adopting a uniform federal rule or borrowing state definitions in a way that would produce a disparity in federal benefits. It was clearly rational for Congress, with its unique concern for treating citizens in Oklahoma the same as citizens in Hawaii, to choose the former. Second, once Congress decided to adopt a uniform rule, it had to decide whether to retain the traditional definition and the approach of all 50 states at the time, or to alter the traditional definition to include same-sex couples. While either choice would have been rational, adopting the overwhelming majority approach surely was a permissible option. By the same token, if at some future point all but a handful of jurisdictions recognize same-sex marriages, it would be entirely rational for Congress to change the law and adopt that majority approach as the uniform rule. In short, the rationality of the federal government interest in uniformity is independent of the rule adopted. Despite the rationality of preferring a uniform federal rule and adopting the majority approach as the federal rule, the courts below regarded Congress' interest in a uniform federal-law definition of marriage as at best suspicious, Supp. App. 24a, and at worst an illegitimate intrusion into state authority over marriage, Supp. App. 25a-26a. But such suspicions ignore both the unprecedented situation Congress confronted and basic tenets of federalism. Suspicion of Congress' adoption of a uniform definition seems to stem from Congress' *36 traditional willingness to borrow state law definitions. But when state definitions of marriage vary only in the details, it is understandable and commendable for federal law to borrow those definitions. On the other hand, when a state is on the verge of making a fundamental change to the definition, that creates a need for Congress to
choose between uniformity and borrowing (a need that simply did not exist before), and as demonstrated above, it is certainly rational to choose the former. The suggestion that states somehow have special constitutional authority to define what the words marriage and spouse mean for purposes of federal law runs entirely counter to our basic constitutional structure. Indeed, the presumption is the opposite. It is well established that, unless Congress plainly manifests an intent to incorporate diverse state laws into a federal statute, the meaning of [a] federal statute should not be dependent on state law. United States v. Turley, 352 U.S. 407, 411 (1957); see also Helvering v. Davis, 301 U.S. 619, 645 (1937) (When money is spent to promote the general welfare, the concept of welfare is shaped by Congress, not the states.); see also Massachusetts, 682 F.3d at 12 (Congress surely has an interest in who counts as married. The statutes and programs that section 3 governs are federal regimes and their benefit structure requires deciding who is married to whom. That Congress has traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so.). The genius of the framers was in establishing two orders of government, each with its own direct *37 relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). Thus, when it comes to defining marriage for purposes of state law, the states may well enjoy constitutional power to make such determinations without federal interference. But DOMA does not interfere with or override state law, and Section 2 affirmatively promotes each state's interest in deciding this important issue for itself. At the same time, nothing in our federalism prevents the federal sovereign from exercising its authority to independently determine the meaning of words in its own law. To be sure, Congress may choose to borrow state-law definitions as a matter of cooperative federalism - and it historically has done so in many, but far from all, contexts with respect to marriage definitions. See supra at 4-6. But the notion that Congress is somehow constitutionally required to do so - that state law can reverse preempt contrary federal statutes in this area, and eliminate what otherwise would be the legitimate federal interest in uniform federal legal rules of nationwide applicability - is wholly unprecedented and foreign to our constitutional tradition.
C. DOMA Preserves Past Legislative Judgments, Conserves Financial Resources, and Avoids Uncertain and Unpredictable Effects on the Federal Fisc. Congress' decision to retain the traditional federal definition as the uniform federal rule in 1996 was supported by a number of other rational bases that are uniquely federal in nature. First, retaining the *38 traditional definition preserved the legislative judgments of earlier Congresses. Congress recognized that whatever the future held for the definition of marriage, the multitude of federal statutes already on the books that used the terms marriage or spouse intended to incorporate the traditional definition of marriage. In some cases, that intent was explicit as statutes included references to husband and wife or other terms clearly incorporating the traditional definition. In other cases, the legislative judgment reflected the traditional definition implicitly, because the definition was uniformly applied. See, e.g., Adams, 486 F. Supp. at 1122 (The term marriage necessarily and exclusively involves a contract, a status, and a relationship between persons of different sexes. That is the way the term marriage is defined in every legal source that I have examined, starting with Black's Law Dictionary.). But in every case, the Congress that enacted DOMA in 1996 knew that each of the existing references to marriage in the United States Code, many of which were the product of legislative compromise, reflected the traditional definition. Against that backdrop, it certainly was rational for Congress to preserve those past legislative judgments and expressly adopt the traditional definition as an accurate reflection of past Congresses' intent when they used the defined terms in federal law. Congress' retention of the traditional definition of marriage also rationally avoided uncertain and unpredictable (but presumed negative) effects on the federal fisc. In enacting DOMA, Congress recognized that a great many financial benefits from *39 the government turn on whether one is married for purposes of federal law. See House Rep. 18. In DOMA, Congress made the conscious decision not to expand the category of beneficiaries just because a state chose to expand its definition of marriage. See id. (stating that DOMA will preserve scarce government resources, surely a legitimate government purpose); 142 Cong. Rec. 22443 (1996) (Sen. Gramm) (DOMA prevents a new set of benefits and expenses which have not been planned or budgeted for under current law).
Congress operated on the assumption that expanding the definition of marriage would have a substantial net negative effect on the federal fisc. See id. at 22448 (Sen. Byrd) (changing definition of marriage could cost federal government hundreds of millions of dollars, if not billions); see also supra at 9-10. The exact net effect is uncertain because although some benefits are extended exclusively to married couples, other laws operate as a marriage penalty or save the federal government funds if a marriage makes individuals ineligible for means-tested programs based on joint income. But Congress could rationally conclude that the net effect would be negative (if for no other reason than couples with a financial disincentive to do so might be less inclined to officially tie the knot), and in all events Congress could rationally decide to avoid a potentially large and uncertain effect that would have radically different impacts across federal agencies. See Massachusetts, 682 F.3d at 9 (explaining that under rational basis standard, challenge to DOMA cannot prevail because Congress could rationally have believed that DOMA *40 would reduce costs). 8 Since DOMA would preserve the status quo ante of providing federal benefits only to couples married under the traditional definition, Section 3 would avoid this uncertain and unpredictable effect. 9 This Court has recognized *41 that when Congress declines to extend benefits to those not previously eligible - as it did in DOMA such actions are supported by the government's rational interest in proceeding cautiously and protecting the fisc. Bowen v. Owens, 476 U.S. 340, 348 (1986). [T]he Constitution does not empower this Court to second-guess officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients. Dandridge v. Williams, 397 U.S. 471, 487 (1970). And here, there is no denying that a redefinition of marriage by a substantial number of states would have a significant, if not entirely predictable, effect on the federal budget. Thus, it is not surprising that the First Circuit recognized that DOMA satisfies traditional rational basis review because Congress could rationally have believed that DOMA would reduce costs. Massachusetts, 682 F.3d at 9.
D. Congress Rationally Proceeded with Caution When Faced with the Unknown Consequences of an Unprecedented Redefinition of Marriage, a Foundational Social Institution, by a Minority of States. In enacting DOMA and adopting the traditional definition as the uniform federal rule, Congress recognized that the institution of marriage as between a man and a woman is, to borrow this Court's words from another context, deeply embedded in the history and tradition of this country and has become part of the fabric of our society. Marsh v. Chambers, 463 U.S. 783, 786, 792 (1983). Congress rationally could have regarded any significant change in the definition of this bedrock *42 institution as having potentially significant consequences. Congress thus rationally could have concluded that any experimentation with such a longstanding institution should proceed first at the state level, while the federal government retains the traditional definition for its own purposes. See House Rep. 15. Virtually no society anywhere has had even a single generation's worth of experience with treating same-sex relationships as marriages. There thus is ample room for a wide range of rational predictions about the likely effects of such recognition - on the institution of marriage, on society as a whole, and on distinctly federal interests. As two supporters of same-sex marriage put it, whether same-sex marriage would prove socially beneficial, socially harmful, or trivial is an empirical question . There are plausible arguments on all sides of the issue, and as yet there is no evidence sufficient to settle them. William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and America's Children, 15 Future of Children 97, 110 (2005), http:// futureofchildren.org/futureofchildren/publications/docs/15_02_06.pdf (endorsing limited, localized experiment at state level). One of the great benefits of federalism is that it allows states to adopt novel social and economic experiments without risk to the rest of the country. New State Ice Co. v. Liebmann, 285 U.S. 262, 310 (1932) (Brandeis, J., dissenting). In light of the uncertainty about the consequences of changing such a long-established institution, it certainly was rational for Congress to decide to allow states to act as laboratories of democracy, while the federal government awaited the results of such state *43 experiments.
E. The Federal Government Could Rationally Retain the Traditional Definition for the Same Reasons States Can Rationally Retain that Definition. Given its role in our federalist system, the federal government has unique interests in adopting the traditional definition as the uniform national rule for federal-law purposes. The national government has a distinct interest in treating citizens in different states similarly for federal-law purposes, without regard to the vagaries of states' treatment of foreign judgments, and has a distinct interest in making a federal employee indifferent between working in Maryland or Virginia. But in addition to such uniquely national interests, Congress has the same reasons for retaining the traditional definition as the substantial majority of states that have done so. Although the federal government does not have the same direct effect on the institution of marriage as the sovereigns that directly issue marriage certificates, federal law and federal definitions can still effect such institutions at the margin. See Nat'l Fed. Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579 (2012) ([T]he Federal Government [has] considerable influence even in areas where it cannot directly regulate.). Thus, the federal government can retain the traditional definition based on a rational belief that doing so will rationally further the institution of marriage in the long run. Indeed, the burden on the challengers to DOMA is to explain why, if states can rationally choose either to expand the traditional definition to include same-sex couples or retain the traditional definition, the federal *44 government cannot rationally make the same choice.
1. Providing a Stable Structure to Raise Unintended and Unplanned Offspring Many states have chosen to retain the traditional definition because of the intrinsic connection between marriage and children. In enacting DOMA, Congress recognized that, [s]imply put, government has an interest in marriage because it has an interest in children. House Rep. 13. Similarly, this Court has repeatedly recognized that marriage's importance is derived from its intrinsic connection to procreation. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 386 (1978) ([A] decision to marry and raise the child in a traditional family setting must receive [constitutional] protection.). The link between procreation and marriage itself reflects a unique social difficulty with opposite-sex couples that is not present with same-sex couples - namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies. Government from time immemorial has had an interest in having such unintended and unplanned offspring raised in a stable structure that improves their chances of success in life and avoids having them become a burden on society. See Yarborough v. Yarborough, 290 U.S. 202, 221 (1933) (In order that children may not become public charges, the duty of maintenance is one imposed primarily upon the parents); King v. Smith, 392 U.S. 309, 330 (1968) (biological parents have legal duties of support that government fills when abdicated). Particularly in an earlier era when employment opportunities for women were at best limited, the prospect that *45 unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society was a substantial government concern. Thus, the core purpose and defining characteristic of the institution of marriage always has been the creation of a social structure to deal with the inherently procreative nature of the male-female relationship. Specifically, the institution of marriage represents society's and government's attempt to encourage current and potential mothers and fathers to establish and maintain close, interdependent, and permanent relationships, for the sake of their children, as well as society at large. It is no exaggeration to say that the institution of marriage was a direct response to the unique tendency of opposite-sex relationships to produce unplanned and unintended offspring. Although much has changed over the years, the biological fact that opposite-sex relationships have a unique tendency to produce unplanned and unintended offspring has not. While medical advances, and the amendment of adoption laws through the democratic process, have made it possible for same-sex couples to raise children, substantial advance planning is required. Only opposite-sex relationships have the tendency to produce children without such advance planning (indeed, especially without advance planning). Thus, the traditional definition of marriage remains society's rational response to this unique tendency of opposite-sex relationships. And in light of that understanding of marriage, it is perfectly rational not to define as marriage, or extend the benefits of marriage to, other relationships that, whatever their *46 other similarities, simply do not have the same tendency to produce unplanned and potentially unwanted children. Indeed, Congress recognized as much. See House Rep. 14
(Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship.). Court decisions upholding traditional marriage laws on the state level have employed similar reasoning. See, e.g., Hernandez, 855 N.E.2d at 7 ([The Legislature] could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement - in the form of marriage and its attendant benefits - to opposite-sex couples who [marry]. The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples.); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867-68 (8th Cir. 2006) (upholding Nebraska's marriage law based a government interest in steering procreation into marriage ; noting that the statute confer[s] the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot); Conaway v. Deane, 932 A.2d 571, 630-31 (Md. 2007). DOMA's definition of marriage as between a woman and a man is rational - and constitutional - because it is tailored to fit the social issue that the institution of marriage addresses. The equal protection guarantee is essentially a direction that *47 all persons similarly situated should be treated alike. Cleburne, 473 U.S. at 439. Opposite-sex couples and same-sex couples, whatever their other similarities, are not similarly situated with regard to their propensity to result in unplanned pregnancies. Principles of equal protection do not require Congress to ignore this reality. Nguyen v. INS, 533 U.S. 53, 66 (2001).
2. Encouraging the Rearing of Children by Their Biological Parents One of the strongest presumptions known to our culture and law is that a child's biological mother and father are the child's natural and most suitable guardians and caregivers, and that this family relationship should be encouraged. See Santosky v. Kramer, 455 U.S. 745, 760 n.11, 766 (1982); Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 843-47 (1977); Supp. App. 72a-73a & n.11. To be sure, our tradition offers the same protections for an adoptive parent-child relationship, once it is formed. But nonetheless when both biological parents want to raise their child, the law has long recognized a distinct preference for the child to be raised by those biological parents. Cf. Smith, 431 U.S. 816 at 823. And this bedrock assumption is grounded in common sense and human experience: Biological parents have a genetic stake in the success of their children that no one else does. See Kristin Anderson Moore et al., Marriage from a Child's Perspective: How Does Family Structure Affect Children and What Can We Do About It?, Child Trends Research Brief 1-2 (2002), http:// www.childtrends.org/files/ marriagerb602.pdf. Of course, only relationships between opposite-sex *48 couples can result in children being raised by both of their biological parents. Therefore, when government offers special encouragement and support for relationships that can result in mothers and fathers jointly raising their biological children, it rationally furthers its legitimate interest in promoting this type of family structure in a way that extending similar regulation to other relationships would not.
3. Promoting Childrearing by Both a Mother and a Father Finally, biological differentiation in the roles of mothers and fathers makes it rational to encourage situations in which children have one of each. As this Court has recognized, the two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both. United States v. Virginia, 518 U.S. 515, 533 (1996) (quotation marks omitted). Men and women are different. So are mothers and fathers. Common sense, and the experience of countless parents, informs us that children relate and often react differently to mothers and fathers. It is thus rational for governments to offer special encouragement for family structures in which these differing parental roles can complement each other. Moreover, the different challenges faced by boys and girls as they grow to adulthood make it at least rational to think that children benefit from having parental role models of both sexes. ***
The court of appeals concluded that reserving a special set of federal marital regulations and *49 incentives for opposite-sex couples has nothing to do with the government interests in procreation and childrearing, because extending the same regime to same-sex couples would not change the availability of benefits to opposite-sex couples. Supp. App. 29a-30a. But that is not obviously correct in a world of limited resources and, in any event, is not the proper inquiry under rational basis review. In an equal protection challenge, a classification is rational if the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not. Johnson v. Robison, 415 U.S. 361, 383 (1974). Even if extending the definition of marriage to same-sex couples would not harm opposite-sex couples in the least, the question remains whether it was rational for Congress to draw the line where it did. And because the institution of marriage arose in large measure in response to a unique social difficulty that opposite-sex couples, but not same-sex couples, posed, it was rational for Congress to draw the line where it did.
III. The Longstanding List Of Suspect And Quasi-Suspect Classes Should Not Be Expanded To Include Sexual Orientation. While rational basis review is a paradigm of judicial restraint, Beach, 508 U.S. at 314, the recognition of quasi-suspect and suspect classes has the opposite effect. It extracts certain issues from the normal democratic process and limits the ability of states and the federal government to address those issues through their political branches. Accordingly, this Court has cautioned that the judiciary must be very reluctant to establish new suspect (or quasi-suspect) classes given our federal *50 system and our respect for the separation of powers. Cleburne, 473 U.S. at 441. In keeping with that admonition, this Court has not added to the short list of suspect or quasi-suspect classes in the last forty years, and indeed has rejected every proposed such class during that span, including mental disability, id. at 442-47, kinship, Lyng v. Castillo, 477 U.S. 635, 638 (1986), age, Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976), and poverty, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). This Court has had opportunities to declare sexual orientation a suspect class and has declined to do so. See Massachusetts, 682 F.3d at 9 (noting that this Court conspicuously failed to do so in Romer - a case that could readily have been disposed by such a demarche); App. 31a. The Second Circuit's holding in this case that sexual orientation classifications are quasi-suspect is truly an outlier - it is contrary to the thrust of this Court's decisions and directly conflicts with the decisions of eleven other circuits holding that such classifications are not subject to any heightened scrutiny. See supra at 13 n.4. This Court has identified four relevant factors in determining whether a class is suited for suspect or quasi-suspect treatment. None of these factors adequately supports adding sexual orientation to the list, and perhaps the most important - the political power to participate in the democratic process - tips decisively against making sexual orientation the first new suspect or quasisuspect class in forty years.
*51 A. Gays and Lesbians Are Far from Politically Powerless. More than twenty years ago, the Seventh and Ninth Circuits recognized that homosexuals are not without growing political power, and that [a] political approach is open to them to pursue their objectives. Ben-Shalom, 881 F.2d at 466; accord High Tech Gays, 895 F.2d at 574. Whatever the limits of that conclusion two decades ago, there can be no serious doubt that the political power of gays and lesbians has increased exponentially since then. Today, same-sex marriage is supported by President Obama (who has called for DOMA's repeal), Vice President Biden (who voted for DOMA as a Senator in 1996 but has since changed his view), and the Senate majority leader, the House minority leader, and the Democratic Party's 2012 platform. One-third of the Members of the U.S. House of Representatives filed a brief in the court below attacking both the wisdom and constitutionality of DOMA.
Polling indicates that by 2011, the proportion of Americans supporting same-sex marriage had increased from 27% to 53% in a span of only 16 years. See Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, Gallup.com (May 20, 2011), http://www.gallup.com/poll/147662/first-time-majority-americans-favor-legal-gay-marriage.aspx. The November 2012 elections witnessed a record number of openly gay candidates for Congress, and the election of the first openly gay U.S. Senator. Charles Mahtesian, A Record Number of Gay Candidates, POLITICO.com (Oct. 2, 2012),http:// www.politico.com/ blogs/ charlie- *52 mahtesian/2012/10/a-record-number-of-gay-candidates-137289.html. In that same election cycle, voters in Maine, Maryland, and Washington state passed measures allowing same-sex marriage, and Minnesota voters defeated a proposed traditional marriage amendment to the state constitution. The Maine result demonstrates the capacity for the give and take of the political process to change voters' minds, as the Maine referendum effectively reversed the result of a 2009 referendum. See Michael Falcone, Maine Vote Repeals Gay Marriage Law, POLITICO.com (Nov. 4, 2009), http:// www.politico.com/news/stories/1109/29119.html. In all, nine states and the District of Columbia now permit same-sex marriage. Although the initial process of recognizing same-sex marriage was prompted by judicial decisions interpreting state constitutions (as Congress foresaw in 1996), more recent gains have come via legislatures and at the polls through referenda. Nor have the successes been limited to the marriage issue, as dramatically illustrated by the repeal of the military's Don't Ask Don't Tell policy. See Don't Ask Don't Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515, 10 U.S.C. 654 note. Even more broadly, the Human Rights Campaign, one of the nation's leading gay-rights organizations, has been ranked the second most successful political organization in the entire country by National Journal. Human Rights Campaign Lauds 2008 Election Results, HRC.org (Nov. 4, 2008), http://www.hrc.org/press-releases/entry/human-rights-campaign-lauds-2008election-results (citing Bara Vaida and Neil Munro, Interest Groups- *53 Reversal of Fortunes, Nat'l J., Nov. 11, 2006). And gays and lesbians represent nearly 20% of President Obama's top fundraisers. Michelle Garcia & Andrew Harmon, Obama's Power Gays, Advocate.com (Oct. 24, 2011), http:// www.advocate.com/news/dailynews/2011/10/24/obamas-powergays; Dan Eggen, The Influence Industry: Same-Sex Marriage Issue Shows Importance of Gay Fundraisers, Wash. Post (May 9, 2012), http:// www.washingtonpost.com/politics/same-sex-marriage-debate-many-of- obamas-top-fundraisers-aregay/2012/05/09/gIQASJYSDU_story.html. Last but not least, the decision of the President and Attorney General to stop defending and start attacking DOMA itself demonstrates the remarkable political clout of the same-sex marriage movement. As the Chief Judge of the Second Circuit remarked to the Department's representative at oral argument, your presence here is like an argument against your argument. Appendix to Response in Support of Writ of Certiorari Before Judgment, No. 12-307, 37a (Oct. 10, 2012). In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history. Characterizing such a group as politically powerless would be wholly inconsistent with this Court's admonition that a class should not be regarded as suspect when the group has some ability to attract the attention of the lawmakers. Cleburne, 473 U.S. at 445. Gays and lesbians not only have the *54 attention of lawmakers, they are winning many legislative battles. And the importance of this factor in the analysis cannot be gainsaid. This Court has never definitively determined which of the four factors is necessary or sufficient, but given that the ultimate inquiry focuses on whether a group needs the special intervention of the courts or whether issues should be left for the democratic process, the political strength of gays and lesbians in the political process should be outcome determinative here.
B. Whether a Married Couple Is of the Opposite Sex Is Relevant to the Government's Interests in Recognizing Marriage. This Court has also looked to the question whether a group has distinguishing characteristics relevant to the distinctions actually drawn. Whatever the relevance of homosexuality in any other context, the relevant distinguishing characteristic of same-sex couples is their propensity to engage in relationships that do not produce unplanned and unintended offspring. Citizens for Equal Prot., 455 F.3d at 866-67 (quoting Cleburne, 445 U.S. at 441). And, as explained supra, the evolution of marriage
as a response to the unique social concerns of the unintended and unplanned offspring of opposite-sex relationships makes this distinguishing characteristic of same-sex relationships highly relevant. Id. at 867; see supra at 44-47.
C. Sexual Orientation Is Not an Immutable Characteristic. Sexual orientation differs in multiple dimensions from any previously recognized suspect or quasi- *55 suspect class. It is defined by a propensity to engage in a certain kind of conduct; the cause of that propensity is not well understood by science; sexual orientation is not determinable at birth; for at least some, sexual orientation is a fluid characteristic capable of changing over a person's lifetime; and the proposed class is difficult to define. As courts have recognized, homosexuality differs fundamentally from those [characteristics] defining any of the recognized suspect or quasi-suspect classes . The conduct or behavior of the members of a recognized suspect or quasi-suspect class has no relevance to the identification of those groups. Woodward, 871 F.2d at 1076; Ben-Shalom, 881 F.2d at 464; accord High Tech Gays, 895 F.2d at 573-74. There is no precedent for creating a suspect class that is based on the class' propensity to engage in a certain kind of conduct. Not only is sexual orientation different from every recognized suspect class in that it is based on a propensity to engage in certain conduct, the cause of that propensity is not well understood. According to Ms. Windsor's own expert, Dr. Letitia Peplau: Currently, the factors that cause an individual to become heterosexual, homosexual, or bisexual are not well understood. Many theories have been proposed but no single theory has gained prominence or is definitively established by scientific research. Today, most social and behavioral scientists view sexual orientation as resulting from the interplay of biological, psychological, and social factors.
*56 JA 500. Thus, while sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality), the same cannot be said of sexual orientation. For some persons, sexual orientation is fluid. And, as Dr. Peplau admits, a person's sexual orientation often cannot be readily categorized as heterosexual, homosexual, or perhaps bisexual. In fact, human experience often defies such clear-cut categories. Linda D. Garnets & Letitia Anne Peplau, A New Paradigm for Women's Sexual Orientation: Implications for Therapy, 24 Women & Therapy 111, 113 (2001). Instead, according to the American Psychological Association, sexual orientations form a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex. Am. Psychological Ass'n, Answers to Your Questions: For a Better Understanding of Sexual Orientation & Homosexuality, http:// www.apa.org/topics/sexuality/ orientation.aspx/. Finally, when considering homosexuality as a potential suspect class, the complexities involved merely in defining the term would prohibit a determination of suspect classification. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663 (9th Cir. 1977) (declining to recognize transsexuals as a suspect class).
D. The Histories of Discrimination Based on Race, Ethnicity, Sex, and Legitimacy Are Different. Finally, each of the recognized suspect and quasi-suspect classes - racial minorities, aliens, women, and those born out of wedlock - have suffered *57 discrimination for longer than history has been recorded. In contrast, as this Court noted in Lawrence, there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. 539 U.S. at 568. Indeed, the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. Id. As Ms. Windsor's own expert, Dr. George Chauncey, has written, although antigay discrimination is popularly thought to have ancient roots, in fact it is a unique and relatively short-lived product of the twentieth century. George Chauncey, Why Marriage?: The History Shaping Today's Debate Over Gay Equality 14 (2004). According to Dr. Chauncey, [m]ost of the [discrimination] was put in place between the 1920s and 1950s, and most was dismantled between the 1960s and the 1990s.
Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey, GLBTQ.com (2004), http:// www.glbtq.com/sfeatures/interviewgchauncey.html. More important, unlike racial minorities and women, homosexuals as a class have never been politically disenfranchised - the kind of pervasive official discrimination that most clearly supports suspect class treatment by the courts. See United States v. Carotene Prods. Co., 304 U.S. 144, 152 n.4 (1938). 10 *58 *** In sum, the traditional factors this Court has assessed in determining whether to recognize a new quasi-suspect or suspect class are absent when it comes to gays and lesbians. Perhaps most critically, gays and lesbians have substantial political power, and that power is growing. Victories at the ballot box that would have been unthinkable a decade ago have become routine. To be sure, those victories have not been uniform and have come first in blue states rather than red ones, but that is the nature of the political process. There is absolutely no reason to think that gays and lesbians are shut out of the political process to a degree that would justify judicial intervention on an issue as divisive and fast-moving as same-sex marriage. As Judge Straub observed, the definition of marriage is an issue for the American people and their elected representatives to settle through the democratic process. Supp. App. 83a. Indeed, the democratic process has substantial advantages over constitutionalizing this issue. Same-sex marriage is being actively debated in legislatures, in the press, and at every level of government and society across the country. That is how it should be. These fora require participants on both sides to persuade those who disagree, rather than labeling them irrational or bigoted. By contrast, courts can intervene in this robust debate only to cut it short, Supp. App. 83a, and only *59 by denouncing the positions of hundreds of Members of Congress who voted for DOMA, of the President who signed it, and of a vast swath of the American people as not just mistaken or antiquated, but as wholly irrational. That conclusion is plainly unwarranted as a matter of constitutional law, and judicially constitutionalizing the issue of same-sex marriage is unwarranted as a matter of sound social and political policy while the American people are so actively engaged in working through this issue for themselves. This Court should permit[] this debate to continue, as it should in a democratic society. Washington v. Glucksberg, 521 U.S. 702, 735 (1997).
CONCLUSION For the foregoing reasons, the judgment of the court of appeals should be reversed.
*1A TABLE OF CONTENTS Relevant Constitutional and Statutory Provisions U.S. Const. amend. V ... 1a Defense of Marriage Act, 3, 1 U.S.C. 7 ... 2a Defense of Marriage Act, 2, 28 U.S.C. 1738C ... 3a
*2A RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
U.S. Const. amend V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
*3a Defense of Marriage Act, 3, 1 U.S.C. 7 In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife.
*4a Defense of Marriage Act, 2, 28 U.S.C. 1738C No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession or tribe, or a right or claim arising from such relationship.
Footnotes The United States House of Representatives has articulated its institutional position in litigation matters through a five-member *
bipartisan leadership group since at least the early 1980's (although the formulation of the group's name has changed somewhat over time). Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of the General Counsel. See, e.g., Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993); Rule II.8, Rules of the House of Representatives, 112th Cong. (2011). While the group seeks consensus whenever possible, it, like the institution it represents, functions on a majoritarian basis when consensus cannot be achieved. The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3's constitutionality in this and other cases. See, e.g., 42 U.S.C. 1382c(d)(2) (recognizing common-law marriage for purposes of social security benefits without regard to state recognition). See, e.g., 5 U.S.C. 8101(6), (11), 8341(a)(1)(A)-(a)(2)(A) (federal employee-benefits statutes defining widow and widower restrictively); 8 U.S.C. 1186a(b)(1) (denying recognition to some state-law marriages in immigration law context); 26 U.S.C. 2(b)(2) (tax law provision deeming persons unmarried who are separated from their spouse or whose spouse is a nonresident alien); 26 U.S.C. 7703(b) (excluding some couples living apart from federal marriage definition for tax purposes); 42 U.S.C. 416 (defining spouse, wife, husband, widow, widower, and divorce, for social-security purposes). See Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff'd in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004). See, e.g., Cook v. Gates, 528 F.3d 42, 61-62 (1st Cir. 2008); Thomasson v. Perry, 80 F.3d 915, 927-928 (4th Cir. 1996); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-867 (8th Cir. 2006); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573-574 (9th Cir. 1990); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008); Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989).
1 2
10
Moreno is readily distinguishable. The classification there could not further the interests identified by the government because the vast majority of individuals excluded could easily rearrange their affairs to become eligible, while only the neediest people could not. See Moreno, 413 U.S. at 538. There are no analogous difficulties with DOMA. The only other even arguable example is Jimenez v. Weinberger, 417 U.S. 628 (1974), in which the Court found a classification based on illegitimacy invalid under any standard of review when the Court was in the process of recognizing illegitimacy as a quasi-suspect classification. Before it can consider DOMA's constitutionality, this Court must resolve a threshold issue of Article III standing. New York law did not recognize same-sex marriage until after Ms. Spyer's passing. Thus, Ms. Windsor only has standing to challenge DOMA and the denial of a marital exemption from the estate tax if New York would have recognized her 2007 Ontario marriage certificate at a time when New York did not itself issue marriage certificates to same-sex couples. See Supp. App. 5a (recognizing that this question is decisive for standing in this case). That question is not free from doubt; the New York Court of Appeals expressly reserved that state-law question in its 2009 Godfrey decision, nine months after Ms. Spyer's passing. See Godfrey, 920 N.E.2d at 337. Both courts below predicted that New York would have recognized the Ontario marriage certificate, which presumably does not obviate the need for this Court to assure itself of its Article III jurisdiction. By its terms, DOMA does not classify based on a married couple's sexual orientation. Rather, DOMA classifies based on whether a marriage is (i) a legal union (ii) between two persons (iii) of the opposite sex. A marriage between a man and a woman would fall within DOMA's definition even if one or both spouses were homosexual. Similarly, the marriage of two men would fall outside the definition even if both were heterosexual. There is no question, however, that DOMA has a disproportionate impact on individuals with a homosexual orientation. Ms. Windsor disputes DOMA's cost savings, pointing to a Congressional Budget Office report published in 2004 (eight years after DOMA's enactment). See Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (2004), http:// www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/doc5559/06-21-samesexmarriage.pdf. But the Second Circuit correctly concluded that it was Congress' prerogative to find that DOMA will achieve a net benefit to the Treasury. App. 27a. The First Circuit likewise concluded that avoiding an uncertain impact on the federal fisc provides a rational basis for DOMA despite the CBO report. See Massachusetts, 682 F.3d at 9. Furthermore, the cursory ten-page CBO report - which acknowledged that its estimates are highly uncertain (at 3) - appears to make a critical analytical error: In claiming that many same-sex couples would become ineligible for federal means-tested benefits after their incomes were combined (as marriage would require), the report seemingly neglects to consider that many couples likely would avoid this financial hit simply by not marrying. Cf. id. (how many same-sex partners would marry if allowed is unknown). The Second Circuit viewed DOMA not as preserving the status quo, but as a benefit withdrawal because it functionally eliminated longstanding federal recognition of all marriages that are properly ratified under state law. Supp. App. 27a. But that plainly is wrong because it ignores the state of the world in which Congress acted in 1996 in which the federal government had never extended a federal marital benefit to a same-sex couple. It also largely begs the question (and ignores Congress' bipartisan judgment in DOMA) by assuming that Congress' dominant intent had always been to borrow state law whatever its content rather than employ the traditional definition, notwithstanding the numerous federal statutes that by their terms apply only to opposite-sex couples, see supra at 4-6. Although heightened scrutiny is clearly inappropriate, DOMA could survive even under that more demanding standard. In our federalist system, it is surely an important interest for each sovereign to be able to address an issue as divisive and fast-moving as same-sex marriage for itself. DOMA is narrowly tailored to accomplish this important government interest by preventing one state's decision from dictating the result for other states or the federal government.
End of Document
Varnum v. Brien, 763 N.W.2d 862 (2009)
763 N.W.2d 862 Supreme Court of Iowa. Katherine VARNUM, Patricia Hyde, Dawn Barbouroske, Jennifer Barbouroske, Jason Morgan, Charles Swaggerty, David Twombley, Lawrence Hoch, William M. Musser, Otter Dreaming, Ingrid Olson, and Reva Evans, Appellees, v. Timothy J. BRIEN, In His Official Capacities as the Polk County Recorder and Polk County Registrar, Appellant. No. 071499. | April 3, 2009.
[8] statute was not substantially related to government goal of conservation of state resources; [9] religious opposition to same-sex marriage could not be a government interest supporting statute; and [10] statutory language limiting civil marriage to a man and a woman was required to be stricken.
Affirmed.
West Headnotes (53)
Synopsis Background: Same-sex couples who had been denied marriage licenses by county recorder brought action challenging statute limiting civil marriage to a union between a man and a woman. The District Court, Polk County, Robert B. Hanson, J., entered summary judgment in favor of couples. County recorder appealed.
[1]
Judgment Absence of issue of fact An issue of fact is material, so as to preclude summary judgment, only when the dispute is over facts that might affect the outcome of the suit, given the applicable governing law. I.C.A. Rule 1.981(3). 1 Cases that cite this headnote
Holdings: The Supreme Court, Cady, J., held that: [1] same-sex couples were similarly situated as opposite-sex couples with respect to the subject and purposes of state's marriage laws; [2] statute classified on the basis of sexual orientation; [3] sexual orientation was a quasi-suspect classification, and thus Supreme Court would apply heightened scrutiny in analyzing it; [3] [4] protection of traditional marriage as between a man and a woman was not an important governmental objective; [5] statute was not substantially related to government goal of ensuring optimal environment for raising children; [6] statute was not substantially related to government goal of promoting procreation; [4] [7] statute was not substantially related to government goal of promoting stability in opposite sex relationships; [2] Judgment Presumptions and burden of proof The party requesting summary judgment shoulders the burden to demonstrate no genuine issue of material fact exists. I.C.A. Rule 1.981(3). 2 Cases that cite this headnote Appeal and Error Cases Triable in Appellate Court The Supreme Court reviews the legal issues necessary for resolution of constitutional claims presented within the context of a summary judgment proceeding de novo. 1 Cases that cite this headnote Constitutional Law Constitutionality of Statutory Provisions
The constitution controls any legislative act repugnant to it. [9] [5] Constitutional Law Equal Protection Purpose of limiting the power of the elected branches of government by constitutional provisions like the equal protection clause is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. U.S.C.A. Const.Amend. 14.; Const. Art. 1, 6.
4 Cases that cite this headnote Constitutional Law Equal protection Even in the zealous protection of the constitution's mandate of equal protection, courts must give respect to the legislative process and presume its enactments are constitutional. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[10]
Constitutional Law Equal protection Constitutional Law Statutes and other written regulations and rules Under a traditional rational basis review of a statute challenged on equal protection grounds, courts are required to accept generalized reasons to support the legislation, even if the fit between the means and end is far from perfect; moreover, the challengers bear the burden of negating every conceivable rational basis that might support the classification drawn in the statute. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[6]
Constitutional Law Judicial Authority and Duty in General When individuals invoke the state constitution's guarantees of freedom and equality, courts are bound to interpret those guarantees. Const. Art. 1, 6.
[7]
Constitutional Law Federal/state cognates Generally, the federal and state equal protection clauses are viewed as identical in scope, import, and purpose; at the same time, the Supreme Court has the right to employ a different analytical framework under the state equal protection clause as well as to independently apply the federally formulated principles. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 2 Cases that cite this headnote [11]
Constitutional Law Equal protection Constitutional Law Statutes and other written regulations and rules Under the rational basis test, a party challenging a statute on grounds that it violates equal protection has the heavy burden of showing the statute unconstitutional and must negate every reasonable basis upon which the classification may be sustained. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 1 Cases that cite this headnote
[8]
Constitutional Law Federal/state cognates Like the equal protection clause of the United States Constitution, state's constitutional promise of equal protection is essentially a direction that all persons similarly situated should be treated alike. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[12]
Constitutional Law Statutes and other written regulations and rules
In deference to the legislature, a statute will satisfy the requirements of the equal protection clause so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 2 Cases that cite this headnote [13] Constitutional Law Statutes and other written regulations and rules Although the rational basis test for determining whether a statute violates equal protection is deferential to legislative judgment, it is not a toothless one in Iowa. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[16]
Constitutional Law Strict scrutiny and compelling interest in general The constitutional guarantee of equal protection demands certain types of statutory classifications must be subjected to close scrutiny by courts; thus, courts apply a heightened level of scrutiny, known as strict scrutiny, under equal protection analysis when reasons exist to suspect prejudice against discrete and insular minorities which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[17]
Constitutional Law Strict scrutiny and compelling interest in general Constitutional Law Alien status Constitutional Law Race, national origin, or ethnicity Statutory classifications based on race, alienage, or national origin and those affecting fundamental rights are evaluated, in a challenge on equal protection grounds, according to a standard known as strict scrutiny; classifications subject to strict scrutiny are presumptively invalid and must be narrowly tailored to serve a compelling governmental interest. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 1 Cases that cite this headnote
[14]
Constitutional Law Statutes and other written regulations and rules The rational basis test for determining whether a statute violates equal protection defers to the legislature's prerogative to make policy decisions by requiring only a plausible policy justification, mere rationality of the facts underlying the decision, and a merely rational relationship between the classification and the policy justification. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 1 Cases that cite this headnote
[15]
Constitutional Law Statutes and other written regulations and rules The deference built into the rational basis test is not dispositive because the Supreme Court engages in a meaningful review of all legislation challenged on equal protection grounds by applying the rational basis test to the facts of each case. Const. Art. 1, 6.
[18]
Constitutional Law Illegitimacy Constitutional Law Sex or gender An intermediate level of scrutiny applies to statutes classifying on the basis of gender or illegitimacy, and requires the party seeking to uphold the statute against an equal protection challenge to demonstrate the
challenged classification is substantially related to the achievement of an important governmental objective; it is known as intermediate scrutiny or heightened scrutiny, and groups entitled to this tier of review are often called quasi-suspect groups. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
are not subject to the rules of evidence when presented by a party in the form of witness testimony.
[23]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Same-sex couples were similarly situated as opposite-sex couples, with respect to the subject and purposes of state's marriage laws, and thus same-sex couples could challenge, on equal protection grounds, statute limiting civil marriage to a union between a man and a woman; same-sex couples were in committed and loving relationships, many raising families, and official recognition of their status provided an institutional basis for defining their fundamental relational rights and responsibilities. Const. Art. 1. 6; I.C.A. 595.2(1). 8 Cases that cite this headnote
[19]
Constitutional Law Intermediate scrutiny in general To survive intermediate scrutiny in an equal protection challenge, a statute must not only further an important governmental interest and be substantially related to that interest, but the justification for the classification must be genuine and must not depend on broad generalizations. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[20]
Appeal and Error Matters or Evidence Considered in Determining Question In determining whether statute limiting civil marriage to a union between a man and a woman violated equal protection, Supreme Court would consider all evidence tendered by parties, as constitutional facts not subject to rules of evidence when presented by a party in the form of witness testimony. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. [24]
Constitutional Law Statutes and other written regulations and rules The constitutional pledge of equal protection does not prohibit laws that impose classifications. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[21]
Trial Admission of evidence in general Unlike adjudicative facts, legislative or constitutional facts, required to support judicial decision-making in crafting rules of law based on social, economic, political, or scientific facts, may be presented either formally or informally.
[25]
Constitutional Law Perfect, exact, or complete equality or uniformity Constitutional Law Statutes and other written regulations and rules Many statutes impose classifications by granting special benefits or declaring special burdens, and the equal protection clause does not require all laws to apply uniformly to all people; instead, equal protection demands that laws treat alike all people who are similarly situated with respect to the legitimate purposes of the law. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[22]
Trial Admission of evidence in general Constitutional facts, required to support judicial decision-making in crafting rules of law based on social, economic, political, or scientific facts,
1 Cases that cite this headnote [26] Constitutional Law Similarly situated persons; like circumstances Constitutional Law Statutes and other written regulations and rules Requirement of equal protection that the law must treat all similarly situated people the same has generated a narrow threshold test; under this threshold test, if plaintiffs cannot show as a preliminary matter that they are similarly situated, courts do not further consider whether their different treatment under a statute is permitted under the equal protection clause. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 4 Cases that cite this headnote [27] Constitutional Law Similarly situated persons; like circumstances Constitutional Law Statutes and other written regulations and rules Equal protection before the law demands more than the equal application of the classifications made by the law, but the law itself must be equal; in other words, to truly ensure equality before the law, the equal protection guarantee requires that laws treat all those who are similarly situated with respect to the purposes of the law alike. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 2 Cases that cite this headnote [28] Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Statute limiting civil marriage to a union between a man and a woman classified on the basis of sexual orientation, for purposes of determining level of scrutiny to be applied, in equal protection [29]
challenge to statute; even though statute did not expressly prohibit gay and lesbian persons from marrying, gay or lesbian persons could only gain the same rights under the statute as a heterosexual person by negating the very trait that defining them as a class, their sexual orientation. Const. Art. 1, 6.; I.C.A. 595.2.
Constitutional Law Marriage and civil unions Sexual orientation was a quasi-suspect classification, and thus Supreme Court would apply heightened scrutiny in determining whether statute limiting civil marriage to a union between a man and a woman violated equal protection rights of same-sex couples; history of discrimination existed against homosexuals, sexual orientation was irrelevant to a person's ability to contribute to society, sexual orientation was an immutable characteristic, and gay and lesbian people were not so politically powerful as to overcome the unfair and severe prejudice that history suggests produces discrimination based on sexual orientation. Const. Art. 1., 6; I.C.A. 595.2. 3 Cases that cite this headnote
[30]
Constitutional Law Particular Classes Classifications based on factors like race, alienage, national origin, sex, or illegitimacy are so seldom relevant to achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy, and thus must withstand more intense judicial scrutiny than other types of classifications in an equal protection challenge; rather than bearing some relationship to the burdened class's ability to contribute to society, such classifications often reflect irrelevant stereotypes. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[31]
Constitutional Law Heightened Levels of Scrutiny
To determine whether certain legislative classifications warrant more demanding constitutional analysis in an equal protection challenge, four factors are relevant: (1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society; (3) whether the distinguishing characteristic is immutable or beyond the class members' control; and (4) the political power of the subject class. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 1 Cases that cite this headnote [32] Constitutional Law Heightened Levels of Scrutiny Heightened scrutiny is applied, in an equal protection challenge to a statute, when a statutory classification bears no relationship to a person's ability to contribute to society; the existence of this factor indicates the classification is likely based on irrelevant stereotypes and prejudice. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
the accident of birth, or when the person with the trait has no ability to change it. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[35]
Constitutional Law Levels of Scrutiny Immutability of a human trait is a factor in determining, in an equal protection challenge, the level of scrutiny to be applied to a statutory classification based in the trait, because the inability of a person to change a characteristic that is used to justify different treatment makes the discrimination violative of the concept that legal burdens should bear some relationship to individual responsibility. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[36]
Constitutional Law Heightened Levels of Scrutiny Temporary barriers tend to be less burdensome on a group and more likely to actually advance a legitimate governmental interest, and consequently, such barriers normally do not warrant heightened scrutiny in an equal protection challenge. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[33]
Constitutional Law Heightened Levels of Scrutiny A classification unrelated to a person's ability to perform or contribute to society typically reflects prejudice and antipathy, a view that those in the burdened class are not as worthy or deserving as others or reflects outmoded notions of the relative capabilities of persons with the characteristic, and thus the classification must be subject to heightened scrutiny in an equal protection challenge. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. [37]
Constitutional Law Levels of Scrutiny The constitutional relevance of the immutability of a human trait, as a factor in determining, in an equal protection challenge, the level of scrutiny to be applied to a statutory classification based in the trait, is not reserved to those instances in which the trait defining the burdened class is absolutely impossible to change; the immutability prong of the suspectness inquiry is satisfied when the identifying trait is so central to a person's identity that it would be abhorrent for government to penalize a person for refusing to change it. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6. 1 Cases that cite this headnote
[34]
Constitutional Law Levels of Scrutiny A human trait that defines a group is immutable, for purposes of determining, in an equal protection challenge, the level of scrutiny to be applied to a statutory classification based in the trait, when the trait exists solely by
[38]
Constitutional Law Sexual orientation Because sexual orientation is central to personal identity and may be altered, if at all, only at the expense of significant damage to the individual's sense of self, classifications based on sexual orientation are entitled to consideration as a suspect or quasi-suspect class, for equal protection purposes, as is other group that has been deemed to exhibit an immutable characteristic. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
In determining whether governmental objectives for making a classification are important, as a step in an equal protection challenge of a statute under intermediate scrutiny, the burden of justification is demanding and it rests entirely on the state. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[43]
Constitutional Law Intermediate scrutiny in general Where proffered governmental interests are sufficiently weighty to be called important, as a step in an equal protection challenge of a statute under intermediate scrutiny, the critical inquiry is whether these governmental objectives can fairly be said to be advanced by the legislative classification. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[39]
Constitutional Law Levels of Scrutiny A group's current political powerlessness is not a prerequisite to enhanced judicial protection, for purposes of determining the level of scrutiny to use in an equal protection challenge to a statute burdening that group. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[44]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Protection of traditional marriage as between a man and a woman was not an important governmental objective, for purposes of determining, under intermediate scrutiny, whether statute limiting civil marriage to a union between a man and a woman violated the state constitutional equal protection rights of same sex couples seeking marriage licenses; purported objective merely justified quasisuspect classification for its own sake. Const. Art. 1, 6; I.C.A. 595.2.
[40]
Constitutional Law Sexual orientation Legislative classifications based on sexual orientation must be examined under a heightened level of scrutiny under equal protection guarantee of state constitution. Const. Art. 1, 6. 1 Cases that cite this headnote
[41]
Constitutional Law Intermediate scrutiny in general To withstand intermediate scrutiny in an equal protection challenge, a statutory classification must be substantially related to an important governmental objective. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
[45]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Statute limiting civil marriage to a union between a man and a woman was not substantially related to government goal of ensuring optimal environment for raising children, for purposes
[42]
Constitutional Law Equal protection Constitutional Law Intermediate scrutiny in general
of determining, under intermediate scrutiny, whether statute violated the state constitutional equal protection rights of same sex couples seeking marriage licenses; statute was overinclusive by denying civil marriage to all gay and lesbian people in order to discourage the limited number of same-sex couples who desired to raise children, and under-inclusive, since it did not prohibit same-sex couples from raising children. Const. Art. 1, 6; I.C.A. 595.2. 7 Cases that cite this headnote [46] Constitutional Law Intermediate scrutiny in general Under intermediate scrutiny in an equal protection challenge to a statute, the relationship between the government's goal and the classification employed to further that goal must be substantial; in order to evaluate that relationship, it is helpful to consider whether the legislation is over-inclusive or under-inclusive. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
sex couples seeking marriage licenses; statute was significantly under-inclusive, since it did not include a variety of groups that did not procreate for reasons such as age, physical disability, or choice. Const. Art. 1, 6; I.C.A. 595.2.
[49]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Statute limiting civil marriage to a union between a man and a woman was not substantially related to government goal of promoting stability in opposite sex relationships, for purposes of determining, under intermediate scrutiny, whether statute violated the state constitutional equal protection rights of same sex couples seeking marriage licenses. Const. Art. 1, 6.; I.C.A. 595.2. 1 Cases that cite this headnote
[50] [47] Constitutional Law Statutes and other written regulations and rules While a statute does not automatically violate equal protection merely by being under-inclusive, the degree of under-inclusion nonetheless indicates the substantiality of the relationship between the legislative means and end. U.S.C.A. Const.Amend. 14; Const. Art. 1, 6.
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Statute limiting civil marriage to a union between a man and a woman was not substantially related to government goal of conservation of state resources, for purposes of determining, under intermediate scrutiny, whether statute violated the state constitutional equal protection rights of same sex couples seeking marriage licenses; statute was over-inclusive, since many samesex couples, if allowed to marry, would not use more state resources than they currently consume as unmarried couples, and was under-inclusive, since purported goal would be better achieved by excluding groups more numerous than state's estimated 5,800 same-sex couples. Const. Art. 1, 6.; I.C.A. 595.2. 1 Cases that cite this headnote
[48]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Statute limiting civil marriage to a union between a man and a woman was not substantially related to government goal of promoting procreation, for purposes of determining, under intermediate scrutiny, whether statute violated the state constitutional equal protection rights of same
[51]
Constitutional Law
Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Religious opposition to same-sex marriage could not be a government interest supporting statute limiting civil marriage to a union between a man and a woman, for purposes of determining, under intermediate scrutiny, whether statute violated the state constitutional equal protection rights of same sex couples seeking marriage licenses; not all religious people opposed samesex marriage, and civil marriage was required to be judged under constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. Const. Art. 1, 6; I.C.A. 595.2. 7 Cases that cite this headnote [52] Constitutional Law Freedom of Religion and Conscience The mission to protect religious freedom is consistent with a court's task to prevent government from endorsing any religious view; state government can have no religious views, either directly or indirectly, expressed through its legislation. U.S.C.A. Const.Amend. 1; Const. Art. 1, 3. 2 Cases that cite this headnote
West Codenotes Held Unconstitutional I.C.A. 595.2 Attorneys and Law Firms *869 Roger J. Kuhle and Michael B. O'Meara, Assistant County Attorneys, for appellant. Dennis W. Johnson of Dorsey & Whitney, LLP, Des Moines, and Camilla B. Taylor and Kenneth D. Upton, Jr. of Lambda Legal Defense & Education Fund, Inc., Chicago, IL, for appellees. John M. Murray of Murray & Murray, PLC, Storm Lake; Paul Benjamin Linton, Special Counsel, Thomas More Society, Northbrook, IL; Paul R. Devin, Supreme Advocate, Knights of Columbus, New Haven, *870 CT; and Thomas Brejcha, President and Chief Counsel, Thomas More Society, Chicago, IL, for amicus curiae Knights of Columbus. Norman L. Springer, Jr. of McGinn McGinn Jennings & Springer, Council Bluffs, Mathew D. Staver, Stephen M. Crampton, Mary E. McAlister, and David M. Corry, Liberty Counsel, Lynchburg, VA, for amicus curiae Liberty Counsel. Michael J. Manno, West Des Moines, for amici curiae Jews Offering New Alternatives to Homosexuality, Parents and Friends of ExGays & Gays, and Evergreen International. Jason M. Steffens of Simmons Perrine, PLC, Cedar Rapids, and Roger T. Severino of The Becket Fund for Religious Liberty, Washington, DC, for amicus curiae The Becket Fund for Religious Liberty. Andrew J. Boettger of Hastings & Gartin, LLP, Ames, and Steven W. Fitschen, Barry C. Hodge, and Nathan A. Driscoll of The National Legal Foundation, Virginia Beach, VA, for amicus curiae The National Legal Foundation. David James Hanson of Hofmeyer & Hanson, P.C., Fayette, and Joshua K. Baker of Institute for Marriage and Public Policy, Manassas, VA, for amici curiae James Q. Wilson, et al., Legal and Family Scholars.
[53]
Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Statutes Families and children Statute limiting civil marriage to a union between a man and a woman violated equal protection rights of same sex couples seeking marriage licenses, and thus statutory language limiting civil marriage to a man and a woman was required to be stricken and the remaining statutory language interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage. Const. Art. 1. 6; I.C.A. 595.2.
Timm W. Reid of Galligan, Reid & Galligan, P.C. and Iowa Liberty and Justice Center, Des Moines, and Benjamin W. Bull, Brian W. Raum, and James A. Campbell of Alliance Defense Fund, Scottsdale, AZ, for amicus curiae Iowa Legislators. Robert R. Anderson, Vinton, Stuart J. Roth of American Center for Law & Justice, Washington, DC, Laura B. Hernandez of The American Center for Law & Justice, Virginia Beach, VA, and Vincent P. McCarthy of American Center for Law & Justice NE, Litchfield, CT, for amicus curiae The American Center for Law & Justice. Daniel DenBeste of Elderkin & Pirnie, PLC, Cedar Rapids, and Monte Neil Stewart of Marriage Law Foundation, Orem, UT, for amici curiae United Families International, Family Watch International, and Family Leader Foundation. Michael A. Giudicessi, Christian S. Walker, Karin A. Johnson, and Nicole Nayima of Faegre & Benson, LLP, Des Moines; Michael A. Ponto of Faegre & Benson, LLP, Minneapolis, MN; and Evan Wolfson, Executive Director of Freedom to Marry, New York City, for amicus curiae Freedom to Marry. Randall C. Wilson of Iowa Civil Liberties Union, Des Moines, and John A. Knight of American Civil Liberties Union Foundation, Chicago, IL, for amici curiae The Bazelon Center for Mental Health Law, Iowa Protection and Advocacy Services, Inc., National Council on Independent Living, and the National Senior Citizens Law Center. David H. Goldman, Brent A. Cashatt, and Kodi A. Petersen of Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, and Suzanne B. Goldberg, Clinical Professor of Law and Director of Sexuality and Gender Law Clinic Columbia Law School, New York City, for amici curiae Robert C. Hunter, Jean C. Love, and Maura Strassberg, Iowa Constitutional Law Scholars. Gordon R. Fischer of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, and Hugh S. Balsam and Kara J. Bruce of Locke Lord Bissell & Liddell, LLP, Chicago, IL, for amici curiae Certain Current and Former Iowa Elected Officials. Ivan T. Webber of Ahlers & Cooney, P.C., Des Moines, and Tobias Barrington Wolff of University of Pennsylvania Law School, Philadelphia, PA, for amici curiae *871 OneIowa; The Iowa Chapters of Parents, Families and Friends of Lesbians and Gays; The Equal Justice Society;
The National Black Justice Coalition; The Mexican American Legal Defense and Educational Fund; The Zuna Institute; The Asian American Justice Center; The Southern Poverty Law Center; People for the American Way Foundation; The Asian American Legal Defense and Education Fund; and The Immigrants' Rights Program of the American Friends Service Committee. Harvey L. Harrison of Harrison & DietzKilen, P.L.C., Des Moines, and Mary Bonauto, Bennett H. Klein, and Janson Wu of Gay & Lesbian Advocates & Defenders, Boston, MA, for amici curiae Massequality, Massachusetts Gay and Lesbian Political Caucus, Gay & Lesbian Advocates & Defenders, various Massachusetts Senators and Representatives, Equality Federation, Garden State Equality, Love Makes a Family, Vermont Freedom to Marry Task Force, Human Rights Campaign, Human Rights Campaign Foundation, and National Gay and Lesbian Task Force. Catherine C. DietzKilen of Harrison & DietzKilen, P.L.C., Des Moines, for amicus curiae Iowa and National Faith Leaders, Communities and Scholars. Charles E. Gribble and Matthew T. Oetker of Parrish, Kruidenier, Dunn, Boles, Gribble, Cook, Parrish, Gentry & Fisher, L.L.P., Des Moines, and Aderson B. Francois, Caroline Boucher, Amy E. Hatcher, and Damien G. Scott of Civil Rights Clinic, Howard University School of Law, for amicus curiae Howard University School of Law Civil Rights Clinic. Mark E. Schantz of College of Law University of Iowa, Iowa City, and Stephen Sanders and Jeffrey W. Sarles of Mayer Brown, LLP, Chicago, IL, for amici curiae Iowa Professors of Law and History. Jim Quilty of Crawford & Quilty, Des Moines, and Vivian L. Polak, Jonathan A. Damon, Spencer R. Wood, Suman Chakraborty and Emily A. Gianquinto of Dewey & LeBoeuf, LLP, New York City, for amici curiae The National Association of Social Workers, The National Association of Social WorkersIowa Chapter, Youth and Shelter Services, and Middleton Center for Children's Rights at Drake University Law School. Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., Des Moines, Jennifer K. Brown and Julie F. Kay of Legal Momentum, New York City, and Laura W. Brill, Elizabeth L. Rosenblatt, and Richard M. Simon of Irell & Manella, Los Angeles, CA, for amici curiae Women's Rights Organizations.
maintained and protecteda belief embraced by our state Joseph M. Barron, Des Moines; Richard T. Greenberg of McGuirewoods, LLP, Chicago, IL; and Shannon Price Minter of National Center for Lesbian Rights, Washington, DC, for amici curiae Professors of Family Law and Jurisprudence. Amy L. Reasner of Lynch Dallas, P.C., Cedar Rapids, and Carmine D. Boccuzzi of Cleary Gottlieb Steen & Hamilton, LLP, New York City, for amicus curiae Social Science Academics and Associations. Thomas A. Newkirk and Paige E. Fiedler of Fiedler & Newkirk, PLC, Urbandale; Paul M. Smith, William M. Hohengarten, and Anjan Choudhury of Jenner & Block, LLP, Washington, DC, and Nathalie F.P. Gilfoyle of American Psychological Association, Washington, DC, for amicus curiae The American Psychological Association. Daniel L. Bray of Bray & Klockau, P.L.C., Iowa City, and Diana E. Richmond of Sideman & Bancroft, LLP, San Francisco, CA, for amici curiae The American Academy of Matrimonial Lawyers, Joan *872 and Lyle Middleton Center for Children's Rights, Drake Legal Clinic, and Pediatricians and Family Physicians. Opinion CADY, Justice. In this case, we must decide if our state statute limiting civil marriage to a union between a man and a woman violates the Iowa Constitution, as the district court ruled. On our review, we hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution. Therefore, we affirm the decision of the district court. motto. 1 Despite the commonality shared with other Iowans, the twelve plaintiffs are different from most in one way. They are sexually and romantically attracted to members of their own sex. The twelve plaintiffs comprise six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa. Unlike opposite-sex couples in Iowa, same-sex couples are not permitted to marry in Iowa. The Iowa legislature amended the marriage statute in 1998 to define marriage as a union between only a man and a woman. 2 Despite this law, the six same-sex couples in this litigation asked the Polk County Recorder to issue marriage licenses to them. The recorder, following the law, refused to issue the licenses, and the six couples have been unable to be married in this state. Except for the statutory restriction that defines marriage as a union between a man and a woman, the twelve plaintiffs met the legal requirements to marry in Iowa. As other Iowans have done in the past when faced with the enforcement of a law that prohibits them from engaging in an activity or achieving a status enjoyed by other Iowans, the twelve plaintiffs turned to the courts to challenge the statute. They seek to declare the marriage statute unconstitutional so they can obtain the array of benefits of marriage enjoyed by heterosexual couples, protect themselves and their children, and demonstrate to one another and to society their mutual commitment. In turning to the courts, the twelve plaintiffs filed this lawsuit in the Polk County District Court. They claimed the *873 statutory same-sex marriage ban violates certain liberty and equality rights under the Iowa Constitution. The individual rights claimed by plaintiffs to be adversely affected (by the action of the legislative branch in enacting the samesex marriage ban and the action of the government officials of the executive branch in enforcing the ban) included the fundamental right to marry, as well as rights to privacy and familial association. Additionally, plaintiffs claimed the legislative and the executive actions unconstitutionally discriminated against them on several bases, including sexual orientation. The case was presented to the district court by means of a summary judgment motion. The record was developed
I. Background Facts and Proceedings. This lawsuit is a civil rights action by twelve individuals who reside in six communities across Iowa. Like most Iowans, they are responsible, caring, and productive individuals. They maintain important jobs, or are retired, and are contributing, benevolent members of their communities. They include a nurse, business manager, insurance analyst, bank agent, stayat-home parent, church organist and piano teacher, museum director, federal employee, social worker, teacher, and two retired teachers. Like many Iowans, some have children and others hope to have children. Some are foster parents. Like all Iowans, they prize their liberties and live within the borders of this state with the expectation that their rights will be
through witness affidavits and depositions. This record included an explanation by some of the plaintiffs of the disadvantages and fears they face each day due to the inability to obtain a civil marriage in Iowa. These disadvantages and problems include the legal inability to make many life and death decisions affecting their partner, including decisions related to health care, burial arrangements, autopsy, and disposition of remains following death. Various plaintiffs told of the inability to share in their partners' state-provided health insurance, public-employee pension benefits, and many private-employer-provided benefits and protections. They also explained how several tax benefits are denied. Adoption proceedings are also more cumbersome and expensive for unmarried partners. Other obstacles presented by the inability to enter into a civil marriage include numerous nongovernmental benefits of marriage that are so common in daily life they often go unnoticed, such as something so simple as spousal health club memberships. Yet, perhaps the ultimate disadvantage expressed in the testimony of the plaintiffs is the inability to obtain for themselves and for their children the personal and public affirmation that accompanies marriage. The parties also explored the reasons for defining marriage in a way that denies these benefits to same-sex couples. The County offered five primary interests of society in support of the legislature's exclusive definition of marriage. The first three interests are broadly related to the advancement of child rearing. Specifically, the objectives centered on promoting procreation, promoting child rearing by a mother and a father within a marriage, and promoting stability in an oppositesex relationship to raise and nurture children. The fourth interest raised by the County addressed the conservation of state resources, while the final reason concerned the governmental interest in promoting the concept and integrity of the traditional notion of marriage. Much of the testimony presented by the County was in the form of opinions by various individuals that samesex marriage would harm the institution of marriage and also harm children raised in same-sex marriages. Two college professors testified that a heterosexual marriage is, overall, the optimal forum in which to raise children. A retired pediatrician challenged the accuracy of some of the medical research that concludes there is no significant difference between children raised by same-sex couples and opposite-sex couples. A clinical psychologist testified sexual orientation is not as defined and stable as race and gender and can change over time. He acknowledged, however, it is
difficult to change a person's sexual orientation, and efforts to do so can be harmful to the person. The plaintiffs produced evidence to demonstrate sexual orientation and gender have no effect on children raised by same-sex couples, and same-sex couples *874 can raise children as well as opposite-sex couples. They also submitted evidence to show that most scientific research has repudiated the commonly assumed notion that children need opposite-sex parents or biological parents to grow into welladjusted adults. Many leading organizations, including the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, weighed the available research and supported the conclusion that gay and lesbian parents are as effective as heterosexual parents in raising children. For example, the official policy of the American Psychological Association declares, There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for children. 3 Almost every professional group that has studied the issue indicates children are not harmed when raised by same-sex couples, but to the contrary, benefit from them. In Iowa, agencies that license foster parents have found same-sex couples to be good and acceptable parents. It is estimated that more than 5800 samesex couples live throughout Iowa, and over one-third of these couples are raising children. The district court concluded the statute was unconstitutional under the due process and equal protection clauses of the Iowa Constitution and granted summary judgment to the plaintiffs. It initially ordered the county recorder to begin processing marriage licenses for same-sex couples, but stayed the order during the pendency of an appeal.
II. Standard of Review. [1] [2] [3] Summary judgment is appropriate only when there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 1.981(3). An issue of fact is material only when the dispute is over facts that might affect the outcome of the suit, given the applicable governing law. Junkins v. Branstad, 421 N.W.2d 130, 132 (Iowa 1988). The party requesting summary judgment shoulders the burden to demonstrate no genuine issue of material fact exists. Hunter
v. City of Des Moines Mun. Hous. Auth., 742 N.W.2d 578, 584 (Iowa 2007). We review the legal issues necessary for resolution of the constitutional claims presented within the context of the summary judgment proceeding de novo. Kistler v. City of Perry, 719 N.W.2d 804, 805 (Iowa 2006).
their grievance. This court, consistent with its role to interpret the law and resolve disputes, now has the responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates the Iowa Constitution. [4] A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion. Iowa Const. art. XII, 1 (providing any law inconsistent with the constitution is void). As Chief Justice John Marshall wrote over two centuries ago, It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it.... Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60, 73 (1803). [5] It is also well established that courts must, under all circumstances, protect the supremacy of the constitution as a means of protecting our republican form of government and our freedoms. As was observed by Justice Robert H. Jackson decades ago in reference to the United States Constitution, the very purpose of limiting the power of the elected branches of government by constitutional provisions like the Equal Protection Clause is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628, 1638 (1943). The same principle applies to the provisions of the Iowa Constitution that limit government power. The idea that courts, free from the political influences in the other two branches of government, are better suited to protect individual rights *876 was recognized at the time our Iowa Constitution was formed. See Koehler v. Hill, 60 Iowa 543, 667, 15 N.W. 609, 64041 (1883) (Beck, J., dissenting) (Judges ought not to be partisans, and be influenced by partisan control. Their duty is to interpret and apply the law, to the end that the liberty, and the rights and property, of the people may be secured.); 1 The Debates of the Constitutional Convention; of the State of Iowa 453 (W. Blair Lord rep.) (Davenport, Luse, Lane & Co. 1857) (containing expression of one delegate's desire to have one department of our State government in regard to which we can say, there is no political taint or bias, there is no partisan complexion to it; it is of such a character that when we go before it to have our dearest rights decided, we may rest assured that they will be decided upon
III. Constitutional Separation of Powers. We approach the resolution of this case with a keen and respectful understanding of our Iowa Constitution and the vital roles of the three branches of government, as well as the role of the people. It is important for these roles to be identified and expressed from time to time when individuals seek recognition of rights, if only to serve as a reminder of the process of governing that has served us so well as a state for over 150 years. *875 The Iowa Constitution is the cornerstone of governing in Iowa. Like the United States Constitution, the Iowa Constitution creates a remarkable blueprint for government. It establishes three separate, but equal, branches of government and delineates the limited roles and powers of each branch. See Iowa Const. art. III, 1 (The powers of the government of Iowa shall be divided into three separate departments the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.). Among other basic principles essential to our form of government, the constitution defines certain individual rights upon which the government may not infringe. See Iowa Const. art. I (Bill of Rights). Equal protection of the law is one of the guaranteed rights. See Iowa Const. art. I, 6. All these rights and principles are declared and undeniably accepted as the supreme law of this state, against which no contrary law can stand. See Iowa Const. art. XII, 1 (This constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be void.). This case, as with most other civil rights actions before it, implicates these broad constitutional principles of governing. The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage. The executive branch of government, in carrying out its role to execute the law, enforced this statute through a county official who refused to issue marriage licenses to six same-sex couples. These Iowans, believing that the law is inconsistent with certain constitutional mandates, exercised their constitutional right to petition the courts for redress of
principles of law and equity, and not upon political or party principles). In fulfilling this mandate under the Iowa Constitution, we look to the past and to precedent. We look backwards, not because citizens' rights are constrained to those previously recognized, but because historical constitutional principles provide the framework to define our future as we confront the challenges of today. Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress, and as our constitution endures, persons in every generation can invoke its principles in their own search for greater freedom and equality. See Lawrence v. Texas, 539 U.S. 558, 57879, 123 S.Ct. 2472, 2484, 156 L.Ed.2d 508, 526 (2003) (acknowledging intent of framers of Federal Constitution that Constitution endure and be interpreted by future generations); Callender v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999) (Our constitution is not merely tied to tradition, but recognizes the changing nature of society.). [6] When individuals invoke the Iowa Constitution's guarantees of freedom and equality, courts are bound to interpret those guarantees. In carrying out this fundamental and vital role, we must never forget that it is a constitution we are expounding. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579, 602 (1819). It speaks with principle, as we, in turn, must also. See State v. Wheeler, 145 Wash.2d 116, 34 P.3d 799, 807 (2001) (Sanders, J., dissenting). Finally, it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government. See Iowa Const. art. I, 2 (All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.). While the constitution is the supreme law and cannot be altered by the enactment of an ordinary statute, the power of the constitution flows from the people, and the people of Iowa retain the
ultimate power to shape it over time. See Iowa Const. art. X (Amendments to the Constitution).
IV. Equal Protection. A. Background Principles. The primary constitutional principle at the heart of this case is the doctrine of equal protection. The concept of equal protection is *877 deeply rooted in our national and state history, but that history reveals this concept is often expressed far more easily than it is practiced. For sure, our nation has struggled to achieve a broad national consensus on equal protection of the laws when it has been forced to apply that principle to some of the institutions, traditions, and norms woven into the fabric of our society. This observation is important today because it reveals equal protection can only be defined by the standards of each generation. See Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. Chi. L.Rev. 1161, 1163 (1988) ([T]he Equal Protection Clause looks forward, serving to invalidate practices that were widespread at the time of its ratification and that were expected to endure.). The process of defining equal protection, as shown by our history as captured and told in court decisions, begins by classifying people into groups. A classification persists until a new understanding of equal protection is achieved. The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society's understanding of equal protection resistant to change. As Justice Oliver Wendell Holmes poignantly said, It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. Oliver Wendell Holmes, Justice, Supreme Judicial Court of Massachusetts, The Path of the Law, address dedicating new hall at Boston University School of Law (January 8, 1897), in 10 Harv. L.Rev. 457, 469 (1897). This concept is evident in our past cases. In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph, 1 Morris 1 (Iowa 1839), we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. 1 Morris at 9. This decision was seventeen years before the United States
Supreme Court infamously decided Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1856), which upheld the rights of a slave owner to treat a person as property. Similarly, in Clark v. Board of Directors, 24 Iowa 266 (1868), and Coger v. North West. Union Packet Co., 37 Iowa 145 (1873), we struck blows to the concept of segregation long before the United States Supreme Court's decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869. Admission of Women to the Bar, 1 Chicago Law Times 76, 76 (1887). Her admission occurred three years before the United States Supreme Court affirmed the State of Illinois' decision to deny women admission to the practice of law, see Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139, 21 L.Ed. 442, 445 (1873), and twenty-five years before the United States Supreme Court affirmed the refusal of the Commonwealth of Virginia to admit women into the practice of law, see Ex parte Lockwood, 154 U.S. 116, 118, 14 S.Ct. 1082, 1083, 38 L.Ed. 929, 930 (1894). In each of those instances, our state approached a fork in the road toward fulfillment of our constitution's ideals and reaffirmed the absolute equality of all persons before the law as the very foundation principle of our government. 4 See Coger, 37 Iowa at 153. *878 So, today, this court again faces an important issue that hinges on our definition of equal protection. This issue comes to us with the same importance as our landmark cases of the past. The same-sex-marriage debate waged in this case is part of a strong national dialogue 5 centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans. This class of people asks a simple and direct question: How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage? [7] [8] B. Legal Tests to Gauge Equal Protection. The foundational principle of equal protection is expressed in article I, section 6 of the Iowa Constitution, which provides: All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens. See also Iowa Const. art. I, 1 (All men and women are, by nature, free and equal ....); id. art. I, 2 (recognizing [a]ll political power is inherent in the people and [g]overnment is instituted for the protection, security, and benefit of the people). Like the Federal Equal Protection Clause found in the Fourteenth Amendment to the United States Constitution,
Iowa's constitutional promise of equal protection is essentially a direction that all persons similarly situated should be treated alike. 6 Racing Ass'n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 7 (Iowa 2004) *879 [hereinafter RACI II] (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320 (1985)). [9] Even in the zealous protection of the constitution's mandate of equal protection, courts must give respect to the legislative process and presume its enactments are constitutional. We understand that Iowa's tripartite system of government requires the legislature to make difficult policy choices, including distributing benefits and burdens amongst the citizens of Iowa. In this process, some classifications and barriers are inevitable. As a result, courts pay deference to legislative decisions when called upon to determine whether the Iowa Constitution's mandate of equality has been violated by legislative action. More specifically, when evaluating challenges based on the equal protection clause, our deference to legislative policy-making is primarily manifested in the level of scrutiny we apply to review legislative action. [10] [11] [12] [13] [14] [15] In most cases, we apply a very deferential standard known as the rational basis test. Id. Under the rational basis test, [t]he plaintiff has the heavy burden of showing the statute unconstitutional and must negate every reasonable basis upon which the classification may be sustained. Bierkamp v. Rogers, 293 N.W.2d 577, 57980 (Iowa 1980). In deference to the legislature, a statute will satisfy the requirements of the equal protection clause so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational. RACI II, 675 N.W.2d at 7 (quoting Fitzgerald v. Racing Ass'n of Cent. Iowa, 539 U.S. 103, 107, 123 S.Ct. 2156, 2159, 156 L.Ed.2d 97, 103 (2003)). Although the rational basis test is deferential to legislative judgment, it is not a toothless one in Iowa. Id. at 9 (quoting Mathews v. de Castro, 429 U.S. 181, 185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389, 394 (1976)). The rational basis test defers to the legislature's prerogative
to make policy decisions by requiring only a plausible policy justification, mere rationality of the facts underlying the decision and, again, a merely rational relationship between the classification and the policy justification. Nonetheless, the deference built into the rational basis test is not dispositive because this court engages in a meaningful review of all legislation challenged on equal protection grounds by applying the rational basis test to the facts of each case. Id. (citing Bierkamp, 293 N.W.2d at 581). 7 *880 [16] The constitutional guarantee of equal protection, however, demands certain types of statutory classifications must be subjected to closer scrutiny by courts. See, e.g., Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786, 799 (1982) ([W]e would not be faithful to our obligations under the Fourteenth Amendment if we applied so deferential a standard to every classification.). Thus, courts apply a heightened level of scrutiny under equal protection analysis when reasons exist to suspect prejudice against discrete and insular minorities ... which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234, 1242 n. 4 (1938).
United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 2275, 135 L.Ed.2d 735, 751 (1996). [20] C. Determination of Constitutional Facts. The parties expended considerable effort developing a summary judgment record to assist the district court in deciding the legal issues presented in this case, including which level of scrutiny to apply. Before proceeding to determine these legal issues, we consider the role of the evidence offered by the parties to support their legal arguments. The district court excluded some of the offered testimony, *881 which the County has raised as an issue on appeal.
Our law recognizes a distinction between adjudicative and legislative facts. Greenwood Manor v. Iowa Dep't of Pub. Health, 641 N.W.2d 823, 836 (Iowa 2002). Most often, judicial decision-making is predicated solely on a finding of facts relating to the parties and their particular circumstances. Id. These facts are referred to as adjudicative facts, see id., and the resolution of a dispute over these facts is done within the framework of a set of rules to determine the admissibility of evidence tending to prove such facts. See generally Iowa Rs. Evid. At times, however, judicial decision-making involves crafting rules of law based on social, economic, political, or scientific facts. See 2 John [17] Under this approach, classifications based on race, W. Strong, McCormick on Evidence 328, at 369 (5th ed. 1999) [hereinafter McCormick on Evidence]. These alienage, or national origin and those affecting fundamental facts have been denominated as legislative facts and rights are evaluated according to a standard known as strict become relevant to judicial decision-making when courts scrutiny. Sherman v. Pella Corp., 576 N.W.2d 312, 317 are required to decide the constitutionality of a statute, (Iowa 1998). Classifications subject to strict scrutiny are among other occasions. Id. As a result, judicial decisionpresumptively invalid and must be narrowly tailored to making in the context of constitutional issues can involve serve a compelling governmental interest. In re S.A.J.B., 679 the process of adapting law to a volatile social-political N.W.2d 645, 649 (Iowa 2004). environment. Id. at 370. Legislative facts are relevant in [18] [19] A middle tier of analysis exists between deciding these constitutional issues because courts must normally analyze whether there exist circumstances which rational basis and strict scrutiny. This intermediate tier has constitutionally either legitimate the exercise of legislative been applied to statutes classifying on the basis of gender power or substantiate the rationality of the legislative or illegitimacy and requires the party seeking to uphold product. Id. In fact, the common role of legislative facts in the statute to demonstrate the challenged classification is constitutional cases has led to an alternative designation of substantially related to the achievement of an important legislative facts called constitutional facts to better describe governmental objective. Sherman, 576 N.W.2d at 317. It is those facts which assist a court in forming a judgment known as intermediate scrutiny or heightened scrutiny, 8 on a question of constitutional law. Kenneth C. Davis, An and groups entitled to this tier of review are often called Approach to Problems of Evidence in the Administrative quasi-suspect groups. See Cleburne Living Ctr., 473 U.S. Process, 55 Harv. L.Rev. 364, 403 (1942). at 445, 105 S.Ct. at 3258, 87 L.Ed.2d at 324. To survive intermediate scrutiny, the law must not only further an [21] [22] Unlike adjudicative facts, legislative or important governmental interest and be substantially related constitutional facts may be presented either formally or to that interest, but the justification for the classification must informally. Welsh v. Branstad, 470 N.W.2d 644, 648 (Iowa be genuine and must not depend on broad generalizations.
1991). There is no formalized set of rules governing a court's ability to consider legislative or constitutional facts. See Iowa R. Evid. 5.201 (applying rule governing judicial notice only to adjudicative facts); Fed.R.Evid. 201 advisory committee's note (No rule deals with judicial notice of legislative facts. ). See generally City of Council Bluffs v. Cain, 342 N.W.2d 810, 81617 (Iowa 1983) (McCormick, J., dissenting). Thus, constitutional facts are introduced into judicial decisions through independent research by judges and written briefs of the parties, as well as testimony of witnesses. See McCormick on Evidence at 38184. Importantly, constitutional facts are not subject to the rules of evidence when presented by a party in the form of witness testimony. Conceptually, testimony relating to constitutional facts is only presented as authority for the legal decision the court is required to make, and it would be inconsistent to apply formal rules of evidence to facts in the form of testimony that a court can independently obtain and consider in deciding the case. Nonetheless, courts consider the actual truth-content of constitutional facts. See id. at 38283. Such facts are generally disputable, and courts must rely on the most compelling data in order to give needed intellectual legitimacy to the law or rule crafted by the court. Id. at 383. Consequently, we review all of the material tendered by the parties in this case to assist us in our review of the constitutionality of the civil marriage statute. The error committed by the trial court in failing to do so is of no consequence under our de novo reviewing standard. *882 [23] D. Similarly Situated People. The County seeks to undercut the plaintiffs' equal protection claim by asserting the plaintiffs are not similarly situated to heterosexuals. We consider this threshold argument before proceeding to the application of our equal protection test.
similarly situated with respect to the legitimate purposes of the law. RACI II, 675 N.W.2d at 7 (quoting Coll. Area Renters & Landlord Ass'n v. City of San Diego, 43 Cal.App.4th 677, 50 Cal.Rptr.2d 515, 520 (1996)) (emphasis omitted). [26] This requirement of equal protectionthat the law must treat all similarly situated people the samehas generated a narrow threshold test. Under this threshold test, if plaintiffs cannot show as a preliminary matter that they are similarly situated, courts do not further consider whether their different treatment under a statute is permitted under the equal protection clause. See, e.g., Timberland Partners XXI, LLP v. Iowa Dep't of Revenue, 757 N.W.2d 172, 176 77 (Iowa 2008) (applying threshold analysis); In re Det. of Hennings, 744 N.W.2d 333, 33840 (Iowa 2008) (same); Grovijohn v. Virjon, Inc., 643 N.W.2d 200, 204 (Iowa 2002) (same). Not only have we utilized this test in the past, but courts from other jurisdictions have confronted it in cases involving equal protection challenges to statutes that restrict marriage to opposite-sex couples. See In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 435 n. 54 (2008) (analyzing and rejecting the government's threshold argument that same-sex couples are not similarly situated to opposite-sex couples); Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135, 957 A.2d 407, 42324 & n. 19 (2008) (same). The County references this threshold test in this case and asserts the plaintiffs are not similarly situated to oppositesex couples so as to necessitate further equal protection analysis because the plaintiffs cannot procreate naturally. In other words, the County argues the statute does not treat similarly situated persons differently, but merely treats dissimilar persons differently.
In considering whether two classes are similarly situated, a court cannot simply look at the trait used by the legislature to [24] [25] We begin by recognizing the constitutional define a classification under a statute and conclude a person pledge of equal protection does not prohibit laws that impose without that trait is not similarly situated to persons with classifications. Chicago & Nw. Ry. v. Fachman, 255 Iowa the trait. See Racing Ass'n of Cent. Iowa v. Fitzgerald, 648 989, 996, 125 N.W.2d 210, 214 (1963) (recognizing it is N.W.2d 555, 559 (Iowa 2002) (RACI I); Joseph Tussman often necessary in accomplishing efficient and beneficial & Jacobus tenBroek, The Equal Protection of the Laws, legislation to divide the subjects upon which it operates into 37 Cal. L.Rev. 341, 34447 (1949) [hereinafter Tussman classes). Many statutes impose classifications by granting & tenBroek]. The equal protection clause does not merely special benefits or declaring special burdens, and the equal ensure the challenged statute applies equally to all people in protection clause does not require all laws to apply uniformly the legislative classification. [S]imilarly situated cannot to all people. Nordlinger v. Hahn, 505 U.S. 1, 10, 112 mean simply similar in the possession of the classifying S.Ct. 2326, 2331, 120 L.Ed.2d 1, 12 (1992). Instead, equal trait. All members of any class are similarly situated in protection demands that laws treat alike all people who are this respect and consequently, any classification whatsoever
would be reasonable by this test. Tussman & tenBroek, 37 Cal. L.Rev. at 345. In the same way, the similarly situated *883 requirement cannot possibly be interpreted to require plaintiffs to be identical in every way to people treated more favorably by the law. No two people or groups of people are the same in every way, and nearly every equal protection claim could be run aground onto the shoals of a threshold analysis if the two groups needed to be a mirror image of one another. Such a threshold analysis would hollow out the constitution's promise of equal protection. [27] Thus, equal protection before the law demands more than the equal application of the classifications made by the law. The law itself must be equal. See Fachman, 255 Iowa at 998, 125 N.W.2d at 215 ( The equal protection of the laws is a pledge of the protection of equal laws .... (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220, 226 (1886))). In other words, to truly ensure equality before the law, the equal protection guarantee requires that laws treat all those who are similarly situated with respect to the purposes of the law alike. RACI II, 675 N.W.2d at 7. This requirement makes it impossible to pass judgment on the reasonableness of a [legislative] classification without taking into consideration, or identifying, the purpose of the law. Tussman & tenBroek, 37 Cal. L.Rev. at 347. The purposes of the law must be referenced in order to meaningfully evaluate whether the law equally protects all people similarly situated with respect to those purposes. For these reasons, the trait asserted by the County is insufficient to support its threshold argument. Nevertheless, we have said our marriage laws are rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society. Laws v. Griep, 332 N.W.2d 339, 341 (Iowa 1983); see also Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 58 (1993) (stating civil marriage is a partnership to which both partners bring their financial resources as well as their individual energies and efforts' (quoting Gussin v. Gussin, 73 Haw. 470, 836 P.2d 484, 491 (1992))). These laws also serve to recognize the status of the parties' committed relationship. See Madison v. Colby, 348 N.W.2d 202, 206 (Iowa 1984) (stating the marriage state is not one entered into for the purpose of labor and support alone, but also includes the comfort and happiness of the parties to the marriage contract (quoting Price v. Price, 91 Iowa 693, 69798, 60 N.W. 202, 203 (Iowa 1894)) (emphasis added)); Hamilton v. McNeill, 150 Iowa 470, 478, 129 N.W. 480, 482 (1911) (The marriage to be dissolved is not a mere
contract, but is a status.); Turner v. Hitchcock, 20 Iowa 310, 325 (1866) (Lowe, C.J., concurring) (observing that marriage changes the parties' legal and social status). Therefore, with respect to the subject and purposes of Iowa's marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples. Society benefits, for example, from providing same-sex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples. In short, for purposes of Iowa's marriage laws, which are designed to bring a sense of order to the legal relationships of *884 committed couples and their families in myriad ways, plaintiffs are similarly situated in every important respect, but for their sexual orientation. As indicated above, this distinction cannot defeat the application of equal protection analysis through the application of the similarly situated concept because, under this circular approach, all distinctions would evade equal protection review. Therefore, with respect to the government's purpose of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons, same-sex couples are similarly situated to opposite-sex couples. 9 [28] E. Classification Undertaken in Iowa Code Section 595.2. Plaintiffs believe Iowa Code section 595.2 classifies on the bases of gender and sexual orientation. The County argues the same-sex marriage ban does not discriminate on either basis. The district court held section 595.2 classifies according to gender. As we will explain, we believe the ban on civil marriages between two people of the same sex classifies on the basis of sexual orientation. The County initially points out that section 595.2 does not explicitly refer to sexual orientation and does not inquire into whether either member of a proposed civil marriage is sexually attracted to the other. Consequently, it seizes on these observations to support its claim that the statute does not establish a classification on the basis of sexual orientation because the same-sex civil marriage ban does not grant or withhold the benefits flowing from the statute based on sexual
preference. Instead, the County argues, section 595.2 only incidentally impacts disparately upon gay and lesbian people. The County's position reveals the importance of accurately and precisely defining the classification in analyzing all equal protection challenges. The manner in which a classification is defined impacts the utility of an equal protection analysis as a means of revealing discrimination. Therefore, it is critical that a court reviewing the statute *885 identify the true nature of the classification. It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all. Under such a law, gay or lesbian individuals cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their sexual orientation, and gain the civil status and attendant benefits granted by the statute. Instead, a gay or lesbian person can only gain the same rights under the statute as a heterosexual person by negating the very trait that defines gay and lesbian people as a classtheir sexual orientation. In re Marriage Cases, 183 P.3d at 441. The benefit denied by the marriage statutethe status of civil marriage for same-sex couplesis so closely correlated with being homosexual as to make it apparent the law is targeted at gay and lesbian people as a class. See Lawrence, 539 U.S. at 583, 123 S.Ct. at 2486, 156 L.Ed.2d at 529 (O'Connor, J., concurring) (reviewing criminalization of homosexual sodomy and concluding that [w]hile it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.). The Court's decision in Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), supports this conclusion. Romer can be read to imply that sexual orientation is a trait that defines an individual and is not merely a means to associate a group with a type of behavior. See Romer, 517 U.S. at 632, 116 S.Ct. at 1627, 134 L.Ed.2d at 86566 (holding an amendment to a state constitution pertaining to homosexual ... orientation expresses animus toward the class that it affects).
By purposefully placing civil marriage outside the realistic reach of gay and lesbian individuals, the ban on same-sex civil marriages differentiates implicitly on the basis of sexual orientation. See Kerrigan, 957 A.2d at 431 n. 24; Conaway v. Deane, 401 Md. 219, 932 A.2d 571, 605 (2007). Thus, we proceed to analyze the constitutionality of the statute based on sexual orientation discrimination. [29] F. Framework for Determining Appropriate Level of Judicial Scrutiny. Our determination that the marriage statute employs a sexual-orientation-based classification does not, of course, control the outcome of our equal protection inquiry. Most statutes, one way or the other, create classifications. Clements v. Fashing, 457 U.S. 957, 967, 102 S.Ct. 2836, 2845, 73 L.Ed.2d 508, 518 (1982) (Classification is the essence of all legislation, and only those classifications which are invidious, arbitrary, or irrational offend the Equal Protection Clause of the Constitution.). To determine if this particular classification violates constitutional principles of equal protection, we must next ask what level of scrutiny applies to classifications of this type. The County argues the more deferential rational basis test should apply, while plaintiffs argue closer scrutiny is appropriate. Although neither we nor the United States Supreme Court has decided which level of scrutiny applies to legislative classifications *886 based on sexual orientation, numerous Supreme Court equal protection cases provide a general framework to guide our analysis under the Iowa Constitution. 10 To say a general framework exists is not to say the Supreme Court has provided a precise formula for determining when legislative action is subject to a heightened form of scrutiny. See Cleburne Living Ctr., 473 U.S. at 472 n. 24, 105 S.Ct. at 3272 n. 24, 87 L.Ed.2d at 341 n. 24 (Marshall, J., concurring in part and dissenting in part) (No single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide.); Conaway, 932 A.2d at 606 (There is no brightline diagnostic, annunciated by ... the U.S. Supreme Court, by which a suspect or quasi-suspect class may be readily recognized.). Instead, the Supreme Court has expressed a number of general principles to assist in identifying the appropriate level of scrutiny. [30] Classifications based on factors like race, alienage, national origin, sex, or illegitimacy are so seldom relevant
to achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. Cleburne Living Ctr., 473 U.S. at 440, 105 S.Ct. at 3254, 87 L.Ed.2d at 320. Rather than bearing some relationship to the burdened class's ability to contribute to society, such classifications often reflect irrelevant stereotypes. Id. at 44041, 105 S.Ct. at 325455, 87 L.Ed.2d at 32021. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, laws based on these types of classifications must withstand more intense judicial scrutiny than other types of classifications. Id. [31] Instead of adopting a rigid formula to determine whether certain legislative classifications warrant more demanding constitutional analysis, the Supreme Court has looked to four factors. 11 *887 Conaway, 932 A.2d at 606 (discussing factors examined by Supreme Court in considering use of heightened scrutiny). The Supreme Court has considered: (1) the history of invidious discrimination against the class burdened by the legislation; 12 (2) whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society; 13 (3) whether the distinguishing characteristic is immutable or beyond the class members' control; 14 and (4) the political power of the *888 subject class. 15 In considering whether sexual orientation is a suspect class, a number of our sister jurisdictions have referenced similar factors. See In re Marriage Cases, 183 P.3d at 44243; Kerrigan, 957 A.2d at 426; Conaway, 932 A.2d at 60607; Andersen v. King County, 158 Wash.2d 1, 138 P.3d 963, 974 (2006). Both parties recognize the relevance of these factors. They disagree, however, over how the factors should be applied to decide whether sexual orientation is a suspect or quasisuspect class. The County essentially views the factors as elements, asserting each must be fulfilled before we may abandon our deferential level of scrutiny. To this end, the County argues the immutability and political powerlessness elements are not satisfied in this case. In its effort to treat the factors as essential elements, the County overlooks the flexible manner in which the Supreme Court has applied the four factors in the past. 16 For purposes of state constitutional *889 analysis, we likewise refuse to view all the factors as elements or as individually demanding a certain weight in every case. Instead, we analyze each of the four factors and assess how each bears on the
question of whether the Iowa Constitution requires a more searching scrutiny be applied to the specific classification at issue. We note the first two factorshistory of intentional discrimination and relationship of classifying characteristic to a person's ability to contributehave always been present when heightened scrutiny has been applied. They have been critical to the analysis and could be considered as prerequisites to concluding a group is a suspect or quasisuspect class. However, we consider the last two factors immutability of the characteristic and political powerlessness of the groupto supplement the analysis as a means to discern whether a need for heightened scrutiny exists. G. Determination of Appropriate Level of Scrutiny. Guided by the established framework, we next consider each of the four traditional factors and assess how each bears on the question of whether the constitution demands a more searching scrutiny be applied to the sexual-orientation-based classification in Iowa's marriage statute. 1. History of discrimination against gay and lesbian people. The first consideration is whether gay and lesbian people have suffered a history of purposeful unequal treatment because of their sexual orientation. The County does not, and could not in good faith, dispute the historical reality that gay and lesbian people as a group have long been the victim of purposeful and invidious discrimination because of their sexual orientation. The long and painful history of discrimination against gay and lesbian persons is epitomized by the criminalization of homosexual conduct in many parts of this country until very recently. See Lawrence, 539 U.S. at 57879, 123 S.Ct. at 248384, 156 L.Ed.2d at 520 (invalidating criminalization of homosexual sodomy in 2003). Additionally, only a few years ago persons identified as homosexual were dismissed from military service regardless of past dedication and demonstrated valor. Public employees identified as gay or lesbian have been thought to pose security risks due to a perceived risk of extortion resulting from a threat of public exposure. School-yard bullies have psychologically ground children with apparently gay or lesbian sexual orientation in the cruel mortar and pestle of school-yard prejudice. At the same time, lesbian and gay people continue to be frequent victims of hate crimes. See Criminal Justice Information Servs. Div., FBI, Hate Crime Statistics 2007, http://www.fbi. gov/ucr/hc2007/victims.htm (according to FBI-collected data, the only hate crimes occurring more frequently than sexual-orientation-motivated hate crimes are crimes based on race or religious bias).
The Iowa General Assembly has recognized the need to address sexual-orientation-based discrimination by including sexual orientation as a characteristic protected in the Iowa Civil Rights Act, by defining hate crimes to include certain offenses committed because of the victim's sexual orientation, and by prohibiting harassing or bullying behavior in schools based on sexual orientation. See Iowa Code 216.2.18A (Iowa Civil Rights Act) (sexualorientation-based discrimination); id. 280.28 (school harassment and *890 bullying); id. 729A.2 (hate crimes committed because of the victim's sexual orientation). These statutory enactments demonstrate a legislative recognition of the need to remedy historical sexual-orientation-based
17
institutions other than civil marriage. See Iowa Code 216.6 (employment); id. 216.7 (public accommodations); id. 216.8 (housing); id. 216.9 (education); id. 216.10 (credit practices). 19 Significantly, we do not construe Iowa Code chapter 216 to allow marriage between persons of the same sex, a construction expressly forbidden in the Iowa Code. See id. 216.18A ([Chapter 216] shall not be construed to allow marriage between persons of the same sex, in accordance with chapter 595.). Rather, we merely highlight the reality that chapter 216 and numerous other statutes and regulations demonstrate sexual orientation is broadly recognized in Iowa to be irrelevant to a person's ability
to contribute to society. 20 Those statutes and regulations discrimination. reflect at least some measure of legislative and executive awareness that discrimination based on sexual orientation In sum, this history of discrimination suggests any legislative is often predicated on prejudice and stereotype and further burdens placed on lesbian and gay people as a class are more express a desire to remove sexual orientation as an obstacle likely than others to reflect deep-seated prejudice rather than to the ability of gay and lesbian people to achieve their legislative rationality in pursuit of some legitimate objective. full potential. Therefore, we must scrutinize more *892 Plyler, 457 U.S. at 216 n. 14, 102 S.Ct. at 2394 n. 14, 72 closely those classifications that suggest a law may be based L.Ed.2d at 799 n. 14. This observation favors an elevated on prejudice and stereotype because laws of that nature are scrutiny to uncover any such prejudice. incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal [32] [33] 2. Sexual orientation and the ability to contribute justice under the law. Plyler, 457 U.S. at 217 n. 14, 102 to society. A second relevant consideration is whether the S.Ct. at 2394 n. 14, 72 L.Ed.2d at 799 n. 14. Thus, although characteristic at issuesexual orientationis related to the we do not interpret chapter 216 to allow same-sex marriage, person's ability to contribute to society. Heightened scrutiny we rely on the legislative judgment underlying chapter 216 is applied when the classification bears no relationship to to determine the appropriate level of scrutiny when sexual a person's ability to contribute to society. The existence orientation is the basis for a statutory classification. Based on of this factor indicates the classification is likely based on Iowa statutes and regulations, it is clear sexual orientation is irrelevant stereotypes and prejudice. Kerrigan, 957 A.2d no longer viewed in Iowa as an impediment to the ability of at 453. A classification unrelated to a person's ability to a person to contribute to society. perform or contribute to society typically reflects prejudice and antipathya view that those in the burdened class 3. Immutability of sexual orientation. The parties, are not as worthy or deserving as others or reflect[s] consistent with the same-sex-marriage scholarship, opinions, outmoded notions of the relative capabilities of persons with and jurisprudence, contest whether sexual orientation is the characteristic. Cleburne Living Ctr., 473 U.S. at 44041, immutable or unresponsive to attempted change. The County 105 S.Ct. at 325456, 87 L.Ed.2d at 32021. seizes on this debate to argue the summary judgment granted Not surprisingly, none of the same-sex marriage decisions from other state courts around the nation have found a person's sexual orientation to be indicative of the person's general ability to contribute to society. 18 See, e.g., In re Marriage Cases, 183 P.3d at 442; Kerrigan, 957 A.2d at 43436; Dean v. District of Columbia, 653 A.2d 307, 345 (D.C.1995); Conaway, 932 A.2d at 609. More importantly, the Iowa legislature has recently declared as the public policy of this state that sexual orientation *891 is not relevant to a person's ability to contribute to a number of societal by the district court in this case was improper because plaintiffs could not prove, as a matter of fact, that sexuality is immutable. This argument, however, essentially limits the constitutional relevance of mutability to those instances in which the trait defining the burdened class is absolutely impervious to change. To evaluate this argument, we must first consider the rationale for using immutability as a factor. [34] [35] [36] A human trait that defines a group is immutable when the trait exists solely by the accident of birth, Frontiero v. Richardson, 411 U.S. 677, 686, 93
S.Ct. 1764, 1770, 36 L.Ed.2d 583, 591 (1973) (Brennan, J., plurality opinion), or when the person with the trait has no ability to change it, Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 360, 98 S.Ct. 2733, 2784, 57 L.Ed.2d 750, 815 (1978). Immutability is a factor in determining the appropriate level of scrutiny because the inability of a person to change a characteristic that is used to justify different treatment makes the discrimination violative of the rather basic concept of our system that legal burdens should bear some relationship to individual responsibility. Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d at 591 (Brennan, J., plurality opinion) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1407, 31 L.Ed.2d 768, 779 (1972)); accord Plyler, 457 U.S. at 217 n. 14, 102 S.Ct. at 2394 n. 14, 72 L.Ed.2d at 799 n. 14 (Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of class or caste treatment that the Fourteenth Amendment was designed to abolish.). Put another way, when a characteristic is immutable, different treatment based on this characteristic seems all the more invidious and unfair. Nan D. Hunter, The Sex Discrimination Argument in Gay Rights Cases, 9 J.L. & Pol'y 397, 403 (2001). Additionally, immutability can relate to the scope and permanency of the barrier imposed on the group. Temporary barriers tend to be less burdensome on a group and more likely to actually advance a legitimate governmental interest. Consequently, such barriers normally do not warrant heightened scrutiny. See Sosna v. Iowa, 419 U.S. 393, 406, 95 S.Ct. 553, 561, 42 L.Ed.2d 532, 54445 (1975) (one-year residency requirement for divorce permitted in part because the constraint was only temporary); Vlandis v. Kline, 412 U.S. 441, 453, 93 S.Ct. 2230, 2236, 37 L.Ed.2d 63, 72 (1973) (bona fide state resident requirement for college tuition permissible when students are provided an opportunity to prove they have become residents). The permanency of the barrier also depends on the ability of the individual *893 to change the characteristic responsible for the discrimination. This aspect of immutability may separate truly victimized individuals from those who have invited discrimination by changing themselves so as to be identified with the group. As implied by Justice Ferren, in dissent, in Dean: The degree to which an individual controls, or cannot avoid, the acquisition of the defining trait, and the relative ease or difficulty with which a trait can be changed, are relevant to whether a classification is suspect or quasi-suspect because this inquiry is one way of asking
whether someone, rather than being victimized, has voluntarily joined a persecuted group and thereby invited the discrimination. 653 A.2d at 346 (Ferren, J., dissenting). [37] Importantly, this background reveals courts need not definitively resolve the nature-versus-nurture debate currently raging over the origin of sexual orientation in order to decide plaintiffs' equal protection claims. The constitutional relevance of the immutability factor is not reserved to those instances in which the trait defining the burdened class is absolutely impossible to change. Compare Sherman, 576 N.W.2d at 317 (suggesting heightened scrutiny is applicable to gender classifications), with Iowa Code 144.23 (providing legal procedure to obtain new birth certificate indicating change in gender). That is, we agree with those courts that have held the immutability prong of the suspectness inquiry surely is satisfied when ... the identifying trait is so central to a person's identity that it would be abhorrent for government to penalize a person for refusing to change [it]. Kerrigan, 957 A.2d at 438 (quoting Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir.1989) (Norris, J., concurring in the judgment)); see also In re Marriage Cases, 183 P.3d at 442 (Because a person's sexual orientation is so integral an aspect of one's identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.). [38] In this case, the County acknowledges sexual orientation is highly resistant to change. Additionally, sexual orientation forms a significant part of a person's identity. Kerrigan, 957 A.2d at 438 (quoting Able v. United States, 968 F.Supp. 850, 863 (E.D.N.Y.1997), rev'd on other grounds, 155 F.3d 628 (2d Cir.1998)). Sexual orientation influences the formation of personal relationships between all people heterosexual, gay, or lesbianto fulfill each person's fundamental needs for love and attachment. Accordingly, because sexual orientation is central to personal identity and may be altered [if at all] only at the expense of significant damage to the individual's sense of self, classifications based on sexual orientation are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic. Id. at 43839 (quoting Jantz v. Muci, 759 F.Supp. 1543, 1548 (D.Kan.1991), rev'd on other grounds, 976 F.2d 623 (10th Cir.1992)). Sexual orientation is not the type of human trait that allows courts to relax
their standard of review because the barrier is temporary or susceptible to self-help. 4. Political powerlessness of lesbian and gay people. As observed, the political power of the burdened class has been referenced repeatedly in Supreme Court cases determining the level of scrutiny to be applied to a given piece of legislation. Unfortunately, the Court has never defined what it means to be politically powerless for purposes of this analysis, nor has it quantified a maximum amount of political power a group may enjoy while still *894 receiving the protection from unfair discrimination accompanying heightened scrutiny. The County points to the numerous legal protections gay and lesbian people have secured against discrimination, and the County argues those protections demonstrate gay and lesbian people are not a politically powerless class. The County's argument implies gay and lesbian people must be characterized by a complete, or nearly complete, lack of political power before courts should subject sexual-orientation-based legislative burdens to a heightened scrutiny. Notwithstanding the lack of a mathematical equation to guide the analysis of this factor, a number of helpful general principles related to the political power of suspect classes can be culled from the Supreme Court's cases. First, these cases show absolute political powerlessness is not necessary to subject legislative burdens on a certain class to heightened scrutiny. For example, females enjoyed at least some measure of political power when the Supreme Court first heightened its scrutiny of gender classifications. See Frontiero, 411 U.S. at 68588 & n. 17, 93 S.Ct. at 176972 & n. 17, 36 L.Ed.2d at 59192 & n. 17 (Brennan, J., plurality opinion) (subjecting gender classifications to heightened scrutiny after observing Civil Rights Act of 1964 and Equal Pay Act of 1963 prohibited sex discrimination and noting the position of women in America [had] improved markedly by 1973 such that women [did] not constitute a small and powerless minority). [39] Second, Supreme Court jurisprudence establishes that a group's current political powerlessness is not a prerequisite to enhanced judicial protection. [I]f a group's current political powerlessness [was] a prerequisite to a characteristic's being considered a constitutionally suspect basis for differential treatment, it would be impossible to justify the numerous decisions that continue to treat sex, race, and religion as suspect classifications. In re Marriage Cases, 183 P.3d at 443. Race continues to be a suspect classification, Grutter
v. Bollinger, 539 U.S. 306, 326, 123 S.Ct. 2325, 2337, 156 L.Ed.2d 304, 331 (2003), even though racial minorities enjoy growing political power. 21 Likewise, gender classifications receive various forms of heightened scrutiny, even though women continue to gain political power. See, e.g., Virginia, 518 U.S. at 53233, 116 S.Ct. at 2275, 135 L.Ed.2d at 751 52 (applying intermediate scrutiny). While a more in-depth discussion of the history of the political-power factor is possible, see Kerrigan, 957 A.2d at 43944, we are satisfied, for the purpose of analyzing the Iowa Constitution, the political powerlessness factor of the level-of-scrutiny inquiry does not require a showing of absolute political powerlessness. Rather, the touchstone of the analysis should be whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means. Id. at 444. It is also important to observe that the political power of gays and lesbians, while responsible for greater acceptance and decreased discrimination, has done little to remove barriers to civil marriage. Although a small number of state legislatures have approved civil unions for gay and lesbian people without judicial intervention, no legislature has secured the right to civil marriage for gay and lesbian *895 people without court order. 22 The myriad statutes and regulatory protections against discrimination based on sexual orientation in such areas as employment, housing, public accommodations, and education have not only been absent in the area of marriage, but legislative bodies have taken affirmative steps to shore up the concept of traditional marriage by specifically excluding gays and lesbians. Like Iowa, over forty other states have passed statutes or constitutional amendments to ban same-sex marriages. See Ben Schuman, Note, Gods & Gays: Analyzing the SameSex Marriage Debate From a Religious Perspective, 96 Geo. L.J. 2103, 210708 (2008) (recognizing forty-two states with laws prohibiting same-sex marriage as of November 8, 2007) [hereinafter Schuman]; Human Rights Campaign, Statewide Marriage Prohibitions (2008), available at htt p://www.hrc.org/documents/ marriage_prohibitions.pdf (mapping states' enactment of marriage prohibitions). Thus, although equal rights for gays and lesbians have been increasingly recognized in the political arena, the right to civil marriage is a notable exception to this trend. Consequently, the specific right sought in this case has largely lacked any extensive political support and has actually experienced an affirmative backlash.
We are convinced gay and lesbian people are not so politically powerful as to overcome the unfair and severe prejudice that history suggests produces discrimination based on sexual orientation. Gays and lesbians certainly possess no more political power than women enjoyed four decades ago when the Supreme Court began subjecting gender-based legislation to closer scrutiny. Additionally, gay and lesbian people are, as a class, currently no more powerful than women or members of some racial minorities. These facts demonstrate, at the least, the political-power factor does not weigh against heightened judicial scrutiny of sexual-orientationbased legislation. [40] 5. Classifications based on sexual orientation demand closer scrutiny. In summarizing the rationale supporting heightened scrutiny of legislation classifying on the basis of sexual orientation, it would be difficult to improve upon the words of the Supreme Court of Connecticut: Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society. The characteristic that defines the members of this groupattraction to persons of the same sexbears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens. Because sexual orientation is such an essential component of personhood, even if there is some possibility that a person's sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so. Gay persons also represent a distinct minority of the population. It is true, of course, that gay persons recently have made significant *896 advances in obtaining equal treatment under the law. Nonetheless, we conclude that, as a minority group that continues to suffer the enduring effects of centuries of legally sanctioned discrimination, laws singling them out for disparate treatment are subject to heightened judicial scrutiny to ensure that those
laws are not the product of such historical prejudice and stereotyping. Kerrigan, 957 A.2d at 432. But see Conaway, 932 A.2d at 60914 (holding sexual-orientation-based legislation is not entitled to heightened scrutiny because lesbian and gay people are not politically powerless); Andersen, 138 P.3d at 974 (determining plaintiffs failed to satisfy burden to prove homosexuality is not an immutable trait and consequently holding sexual-orientation-based distinctions do not demand closer judicial scrutiny). We agree with the observations of the Connecticut Supreme Court. The factors established to guide our determination of the level of scrutiny to utilize in our examination of the equal protection claim in this case all point to an elevated level of scrutiny. Accordingly, we hold that legislative classifications based on sexual orientation must be examined under a heightened level of scrutiny under the Iowa Constitution. H. Application of Heightened Scrutiny. Plaintiffs argue sexual-orientation-based statutes should be subject to the most searching scrutiny. The County asserts Iowa's marriage statute, section 595.2, may be reviewed, at most, according to an intermediate level of scrutiny. Because we conclude Iowa's same-sex marriage statute cannot withstand intermediate scrutiny, we need not decide whether classifications based on sexual orientation are subject to a higher level of scrutiny. Thus, we turn to a discussion of the intermediate scrutiny standard. 23 [41] 1. Intermediate scrutiny standard. To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective. *897 Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914, 100 L.Ed.2d 465, 472 (1988). In applying an intermediate standard to review gender-based classifications, the Supreme Court has stated: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is exceedingly persuasive. Virginia, 518 U.S. at 53233, 116 S.Ct. at 2275, 135 L.Ed.2d at 751. To this end, courts evaluate whether the proffered governmental objectives are important and whether the statutory classification is substantially related to the achievement of those objectives. Id. at 533, 116 S.Ct. at 2275, 135 L.Ed.2d at 751 (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090, 1098 (1982)).
2. Statutory classification: exclusion of gay and lesbian people from civil marriage. To identify the statutory classification, we focus on the differential treatment or denial of opportunity for which relief is sought. Id. at 532 33, 116 S.Ct. at 2275, 135 L.Ed.2d at 751 (considering categorical exclusion of women from institution of higher education). Plaintiffs bring this lawsuit complaining of their exclusion from the institution of civil marriage. In response, the County offers support for the legislature's decision to statutorily establish heterosexual civil marriage. Because the relevant focal point is the opportunity sought by the plaintiffs, the issue presented by this lawsuit is whether the state has exceedingly persuasive reasons for denying civil marriage to same-sex couples, not whether state-sanctioned, heterosexual marriage is constitutional. See id. at 531, 116 S.Ct. at 2274, 135 L.Ed.2d at 751. Thus, the question we must answer is whether excluding gay and lesbian people from civil marriage is substantially related to any important governmental objective.
maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification. In other words, the equal protection clause is converted into a barren form of words' when discrimination ... is made an end in itself. Tussman & tenBroek, 37 Cal. L.Rev. at 357 (quoting Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131, 135 (1915)).
This precise situation is presented by the County's claim that the statute in this case exists to preserve the traditional understanding of marriage. The governmental objective identified by the Countyto maintain the traditional understanding of marriageis simply another way of saying 3. Governmental objectives. The County has proffered a the governmental objective is to limit civil marriage to number of objectives supporting the marriage statute. These opposite-sex couples. Opposite-sex marriage, however, is the objectives include support for the traditional institution of classification made under the statute, and this classification marriage, the optimal procreation and rearing of children, and must comply with our principles of equal protection. Thus, the use of traditional marriage as both the governmental financial considerations. 24 objective and the classification of the statute transforms [42] [43] The first step in scrutinizing a statutory the equal protection analysis into the question of whether restricting marriage to opposite-sex couples accomplishes classification can be to determine whether the objectives the governmental objective of maintaining opposite-sex purportedly advanced by the classification are important. marriage. The burden of justification is demanding and it rests entirely on the State. Id. at 533, 116 S.Ct. at 2275, This approach is, of course, an empty analysis. It permits 135 L.Ed.2d at 751. Where we find, or can assume, the a classification to be maintained for its own sake. proffered governmental interests are sufficiently weighty to Kerrigan, 957 A.2d at 478 (quoting Romer, 517 U.S. at be called important, the critical inquiry is whether these 635, 116 S.Ct. at 1629, 134 L.Ed.2d at 868). Moreover, it governmental objectives can fairly be said to be advanced can allow discrimination to become acceptable as tradition by the legislative classification. See, e.g., Fed. Land Bank and helps to explain how discrimination can exist for such v. Arnold, 426 N.W.2d 153, 156 (Iowa 1988) (First we a long time. If a simple showing that discrimination is must examine the legitimacy of the end to be achieved; we traditional satisfies equal protection, previous successful then scrutinize the means used to achieve that end.). In this equal protection challenges of invidious racial and gender analysis, we drill down to analyze the link *898 between classifications would have failed. Consequently, equal classification and objective. Romer, 517 U.S. at 632, 116 protection demands that the classification ([that is], S.Ct. at 1627, 134 L.Ed.2d at 866. the exclusion of gay [persons] from civil marriage) must [44] a. Maintaining traditional marriage. First, the County advance a state interest that is separate from the classification itself. Id. (quoting Hernandez v. Robles, 7 N.Y.3d 338, argues the same-sex marriage ban promotes the integrity 821 N.Y.S.2d 770, 855 N.E.2d 1, 33 (2006) (Kaye, C.J., of traditional marriage by maintaining the historical dissenting)); see also Romer, 517 U.S. at 635, 116 S.Ct. at and traditional marriage norm ( [as] one between a man 1629, 134 L.Ed.2d at 868 (rejecting classification of persons and a woman). This argument is straightforward and undertaken for its own sake). has superficial appeal. A specific tradition sought to be
[W]hen tradition is offered to justify preserving a statutory scheme that has been challenged on equal protection grounds, we must determine whether the reasons underlying that tradition are sufficient to satisfy constitutional requirements. Kerrigan, 957 A.2d at 47879 (emphasis added). Thus, we must analyze the legislature's objective in maintaining the traditional classification being challenged. The reasons underlying traditional marriage may include the other objectives asserted by the County, objectives we will separately address in this decision. However, some underlying reason other than *899 the preservation of tradition must be identified. 25 Because the County offers no particular governmental reason underlying the tradition of limiting civil marriage to heterosexual couples, we press forward to consider other plausible reasons for the legislative classification. [45] b. Promotion of optimal environment to raise children. Another governmental objective proffered by the County is the promotion of child rearing by a father and a mother in a marital relationship which social scientists say with confidence is the optimal milieu for child rearing. This objective implicates the broader governmental interest to promote the best interests of children. The best interests of children is, undeniably, an important governmental objective. Yet, we first examine the underlying premise proffered by the County that the optimal environment for children is to be raised within a marriage of both a mother and a father. Plaintiffs presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents. On the other hand, we acknowledge the existence of reasoned opinions that dualgender parenting is the optimal environment for children. These opinions, while thoughtful and sincere, were largely unsupported by reliable scientific studies. 26 [46] Even assuming there may be a rational basis at this time to believe the legislative classification advances a legitimate government interest, this assumed fact would not be sufficient to survive the equal protection analysis applicable in this case. In order to ensure this classification based on sexual orientation is not borne of prejudice and stereotype, intermediate scrutiny demands a closer relationship between the legislative classification and the purpose of the
classification than mere rationality. Under intermediate scrutiny, the relationship between the government's goal and the classification employed to further that goal must be substantial. Clark, 486 U.S. at 461, 108 S.Ct. at 1914, 100 L.Ed.2d at 472. In order to evaluate that relationship, it is helpful to consider whether the legislation is over-inclusive or under-inclusive. See RACI II, 675 N.W.2d at 10 (considering under-inclusion and over-inclusion even in the rational basis context). A statute is under-inclusive when the classification made in the statute does not include all who are similarly situated with respect to the purpose of the law. Tussman & tenBroek, 37 Cal. L.Rev. at 348. An under-inclusive statute means all people *900 included in the statutory classification have the trait that is relevant to the aim of the statute, but other people with the trait are not included in the classification. See id. A statute is over-inclusive when the classification made in the statute includes more persons than those who are similarly situated with respect to the purpose of the law. See id. at 351. An over-inclusive statute imposes a burden upon a wider range of individuals than are included in the class of those with the trait relevant to the aim of the law. Id. As the degree to which a statutory classification is shown to be overinclusive or under-inclusive increases, so does the difficulty in demonstrating the classification substantially furthers the legislative goal. We begin with the County's argument that the goal of the same-sex marriage ban is to ensure children will be raised only in the optimal milieu. In pursuit of this objective, the statutory exclusion of gay and lesbian people is both underinclusive and over-inclusive. The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parentssuch as child abusers, sexual predators, parents neglecting to provide child support, and violent felonsthat are undeniably less than optimal parents. Such under-inclusion tends to demonstrate that the sexualorientation-based classification is grounded in prejudice or overbroad generalizations about the different talents, capacities, or preferences of gay and lesbian people, rather than having a substantial relationship to some important objective. See Virginia, 518 U.S. at 533, 116 S.Ct. at 2275, 135 L.Ed.2d at 751 (rejecting use of overbroad generalizations to classify). If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people.
[47] Of course, [r]eform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Knepper v. Monticello State Bank, 450 N.W.2d 833, 837 (Iowa 1990) (citing Williamson v. Lee Optical of Okla., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563, 573 (1955)). Thus, [t]he legislature may select one phase of one field and apply a remedy there, neglecting the others. Williamson, 348 U.S. at 489, 75 S.Ct. at 465, 99 L.Ed. at 573. While a statute does not automatically violate equal protection merely by being underinclusive, the degree of under-inclusion nonetheless indicates the substantiality of the relationship between the legislative means and end. As applied to this case, it could be argued the same-sex marriage ban is just one legislative step toward ensuring the optimal environment for raising children. Under this argument, the governmental objective is slightly more modest. It seeks to reduce the number of same-sex parent households, nudging our state a step closer to providing the asserted optimal milieu for children. Even evaluated in light of this narrower objective, however, the ban on same-sex marriage is flawed. The ban on same-sex marriage is substantially over-inclusive because not all same-sex couples choose to raise children. Yet, the marriage statute denies civil marriage to all gay and lesbian people in order to discourage the limited number of same-sex couples who desire to raise children. In doing so, the legislature includes a consequential number of individuals within the statute's purview who are not afflicted with the evil the statute seeks to remedy. Conaway, 932 A.2d at 649 (Raker, J., concurring in part and dissenting). At the same time, the exclusion of gay and lesbian people from marriage is under-inclusive, even in relation to the narrower *901 goal of improving child rearing by limiting same-sex parenting. Quite obviously, the statute does not prohibit same-sex couples from raising children. Samesex couples currently raise children in Iowa, even while being excluded from civil marriage, and such couples will undoubtedly continue to do so. Recognition of this underinclusion puts in perspective just how minimally the samesex marriage ban actually advances the purported legislative goal. A law so simultaneously over-inclusive and underinclusive is not substantially related to the government's objective. In the end, a careful analysis of the over- and under-inclusiveness of the statute reveals it is less about using marriage to achieve an optimal environment for children and
more about merely precluding gay and lesbian people from civil marriage. If the statute was truly about the best interest of children, some benefit to children derived from the ban on same-sex civil marriages would be observable. Yet, the germane analysis does not show how the best interests of children of gay and lesbian parents, who are denied an environment supported by the benefits of marriage under the statute, are served by the ban. Likewise, the exclusion of gays and lesbians from marriage does not benefit the interests of those children of heterosexual parents, who are able to enjoy the environment supported by marriage with or without the inclusion of samesex couples. The ban on same-sex civil marriage can only logically be justified as a means to ensure the asserted optimal environment for raising children if fewer children will be raised within same-sex relationships 27 or more children will be raised in dual-gender marriages. Yet, the same-sexmarriage ban will accomplish these outcomes only when people in same-sex relationships choose not to raise children without the benefit of marriage or when children are adopted by dual-gender couples who would have been adopted by same-sex couples but for the same-sex civil marriage ban. We discern no substantial support for this proposition. These outcomes, at best, are minimally advanced by the classification. Consequently, a classification that limits civil marriage to opposite-sex couples is simply not substantially related to the objective of promoting the optimal environment to raise children. This conclusion suggests stereotype and prejudice, or some other unarticulated reason, could be present to explain the real objectives of the statute. [48] c. Promotion of procreation. The County also proposes that government endorsement of traditional civil marriage will result in more procreation. It points out that procreation is important to the continuation of the human race, and oppositesex couples accomplish this objective because procreation occurs naturally within this group. In contrast, the County points out, same-sex couples can procreate only through assisted reproductive techniques, and some same-sex couples may choose not to procreate. While heterosexual marriage does lead to procreation, the argument by the County fails to address the real issue in our required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation? If procreation is the true objective, *902 then the proffered classification must work to achieve that objective.
Conceptually, the promotion of procreation as an objective of marriage is compatible with the inclusion of gays and lesbians within the definition of marriage. Gay and lesbian persons are capable of procreation. Thus, the sole conceivable avenue by which exclusion of gay and lesbian people from civil marriage could promote more procreation is if the unavailability of civil marriage for same-sex partners caused homosexual individuals to become heterosexual in order to procreate within the present traditional institution of civil marriage. The briefs, the record, our research, and common sense do not suggest such an outcome. Even if possibly true, the link between exclusion of gay and lesbian people from marriage and increased procreation is far too tenuous to withstand heightened scrutiny. Specifically, the statute is significantly under-inclusive with respect to the objective of increasing procreation because it does not include a variety of groups that do not procreate for reasons such as age, physical disability, or choice. In other words, the classification is not substantially related to the asserted legislative purpose. [49] d. Promoting stability in opposite-sex relationships. A fourth suggested rationale supporting the marriage statute is promoting stability in opposite sex relationships. While the institution of civil marriage likely encourages stability in opposite-sex relationships, we must evaluate whether excluding gay and lesbian people from civil marriage encourages stability in opposite-sex relationships. The County offers no reasons that it does, and we can find none. The stability of opposite-sex relationships is an important governmental interest, but the exclusion of same-sex couples from marriage is not substantially related to that objective. [50] e. Conservation of resources. The conservation of state resources is another objective arguably furthered by excluding gay and lesbian persons from civil marriage. The argument is based on a simple premise: couples who are married enjoy numerous governmental benefits, so the state's fiscal burden associated with civil marriage is reduced if less people are allowed to marry. In the common sense of the word, then, it is rational for the legislature to seek to conserve state resources by limiting the number of couples allowed to form civil marriages. By way of example, the County hypothesizes that, due to our laws granting tax benefits to married couples, the State of Iowa would reap less tax revenue if individual taxpaying gay and lesbian people were allowed to obtain a civil marriage. Certainly, Iowa's marriage statute causes numerous government benefits, including tax benefits, to be withheld from plaintiffs. 28 Thus,
the ban *903 on same-sex marriages may conserve some state resources. Excluding any group from civil marriage African-Americans, illegitimates, aliens, even red-haired individualswould conserve state resources in an equally rational way. Yet, such classifications so obviously offend our society's collective sense of equality that courts have not hesitated to provide added protections against such inequalities. One primary requirement of the equal protection clause is a more substantial relationship between the legislative goal and the means used to attain the goal. When heightened scrutiny is applicable, the means must substantially further the legislative end. Consequently, in this case, the sexualorientation-based classification must substantially further the conservation-of-resources objective. As observed in our analysis of the other reasons offered in support of the marriage statute, significant degrees of over-inclusion and under-inclusion shed light on the true relationship between exclusion of gay and lesbian people from civil marriage and the goal of conserving governmental resources. Exclusion of all same-sex couples is an extremely blunt instrument for conserving state resources through limiting access to civil marriage. In other words, the exclusion of same-sex couples is over-inclusive because many samesex couples, if allowed to marry, would not use more state resources than they currently consume as unmarried couples. To reference the County's example, while many heterosexual couples who have obtained a civil marriage do not file joint tax returnsor experience any other tax benefit from marital statusmany same-sex couples may not file a joint tax return either. The two classes created by the statuteopposite-sex couples and same-sex couplesmay use the same amount of state resources. Thus, the two classes are similarly situated for the purpose of conserving state resources, yet the classes are treated differently by the law. In this way, sexual orientation is a flawed indicator of resource usage. Just as exclusion of same-sex couples from marriage is a blunt instrument, however, it is also significantly undersized if the true goal is to conserve state resources. That is to say, the classification is under-inclusive. The goal of conservation of state resources would be equally served by excluding any similar-sized group from civil marriage. Indeed, under the County's logic, more state resources would be conserved by excluding groups more numerous than Iowa's estimated 5800 same-sex couples (for example, persons marrying for a second or subsequent time). Importantly, there is also no
suggestion same-sex couples would use more state resources if allowed to obtain a civil marriage than heterosexual couples who obtain a civil marriage. Such over-inclusion and under-inclusion demonstrates the trait of sexual orientation is a poor proxy for regulating aspiring spouses' usage of state resources. This tenuous relationship between the classification and its purpose demonstrates many people who are similarly situated with respect to the purpose of the law are *904 treated differently. As a result, the sexual-orientation-based classification does not substantially further the suggested governmental interest, as required by intermediate scrutiny. 4. Conclusion. Having examined each proffered governmental objective through the appropriate lens of intermediate scrutiny, we conclude the sexual-orientationbased classification under the marriage statute does not substantially further any of the objectives. While the objectives asserted may be important (and many undoubtedly are important), none are furthered in a substantial way by the exclusion of same-sex couples from civil marriage. Our equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute. [51] I. Religious Opposition to SameSex Marriage. Now that we have addressed and rejected each specific interest advanced by the County to justify the classification drawn under the statute, we consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage. The County's silence reflects, we believe, its understanding this reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage. While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling. 29 Consequently, we address the religious undercurrent propelling the same-sex marriage debate as a means to fully explain our rationale for rejecting the dual-gender requirement of the marriage statute. It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are
supported by thousands of years of tradition and biblical interpretation. 30 The belief that the sanctity of marriage would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrainedeven fundamentalreligious belief. Yet, such views are not the only religious views of marriage. As demonstrated *905 by amicus groups, other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion. 31 This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa's same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them. See Iowa Const. art. I, 3 (The general assembly shall make no law respecting an establishment of religion....). The statute at issue in this case does not prescribe a definition of marriage for religious institutions. Instead, the statute declares, Marriage is a civil contract and then regulates that civil contract. Iowa Code 595A.1. Thus, in pursuing our task in this case, we proceed as civil judges, far removed from the theological debate of religious clerics, and focus only on the concept of civil marriage and the state licensing system that identifies a limited class of persons entitled to secular rights and benefits associated with civil marriage. [52] We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman. See Iowa Const. art. I, 3 (The general assembly shall make no law ... prohibiting the free exercise [of religion]....). This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. Knowlton v. Baumhover, 182 Iowa 691, 710, 166 N.W. 202, 208 (1918). This proposition is the essence of the separation of church and state.
As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more. The only legitimate inquiry we can make is whether [the statute] is constitutional. If it is not, its virtues ... cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned. Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 483, 54 S.Ct. 231, 256, 78 L.Ed. 413, 452 (1934) (Sutherland, J., dissenting). In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriagereligious or otherwiseby giving respect to our constitutional principles. These principles require *906 that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person's religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires. J. Constitutional Infirmity. We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient
justification. There is no material fact, genuinely in dispute, that can affect this determination. We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa's marriage statute, Iowa Code section 595.2, violates the Iowa Constitution. To decide otherwise would be an abdication of our constitutional duty. If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded. Iowa Code section 595.2 denies gay and lesbian people the equal protection of the law promised by the Iowa Constitution. 32
V. Remedy. [53] Because our civil marriage statute fails to provide equal protection of the law under the Iowa Constitution, we must decide how to best remedy the constitutional violation. The sole remedy requested by plaintiffs is admission into the institution of civil marriage. The County does not suggest an alternative remedy. The high courts of other jurisdictions have remedied constitutionally invalid bans on same-sex marriage in two ways. Some courts have ordered gay and lesbian people to be allowed to access the institution of civil marriage. See In re Marriage Cases, 183 P.3d at 453; Kerrigan, 957 A.2d at 480 (definition of marriage necessarily must be expanded to include same-sex couples); Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565, 571 (2004). Other courts have allowed their state legislatures to create parallel civil institutions for same-sex couples. See Lewis v. Harris, 188 N.J. 415, 908 A.2d 196, 221 (2006); Baker v. State, 170 Vt. 194, 744 A.2d 864, 887 (1999). Iowa Code section 595.2 is unconstitutional because the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage. A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution. This record, our independent research, and the appropriate equal protection analysis *907 do not suggest the existence of a justification for such a legislative classification that substantially furthers any governmental objective. Consequently, the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner
allowing gay and lesbian people full access to the institution of civil marriage.
protection provision of the Iowa Constitution. Our decision becomes effective upon issuance of procedendo. 33 AFFIRMED.
VI. Conclusion. The district court properly granted summary judgment to plaintiffs. Iowa Code section 595.2 violates the equal
All justices concur.
Footnotes
1 2 3
The state motto of Iowa is: Our liberties we prize and our rights we will maintain. It is inscribed on the Great Seal of Iowa and on our state flag. See Iowa Code 1A.1, 1B.1 (2009). Iowa Code section 595.2(1) provides [o]nly a marriage between a male and a female is valid. All statutory references are to the 2009 Code of Iowa. While some statutes referenced here have been amended since this lawsuit originated, none of the amendments dictate the outcome of this case. This statement is the official policy of the American Psychological Association regarding sexual orientation, parents, and children. See Am. Psychological Ass'n Council of Representatives, Am. Psychological Ass'n, Resolution on Sexual Orientation, Parents, and Children (2004), in Ruth Ullmann Paige, Proceedings of the American Psychological Association for the Legislative Year 2004: Minutes of the Annual Meeting of the Council of Representatives July 28 & 30, 2004, Honolulu, HI, 60 Am. Psychologist 436511 (JulyAugust 2005), available at http://www.apa. org/pi/lgbc/policy/parents.html (reporting adoption of resolution). The cases we have cited are not meant to imply this court has been at the forefront in recognizing civil rights in all areas and at all times. See, e.g., In re Carragher, 149 Iowa 225, 22930, 128 N.W. 352, 354 (1910) (upholding a law that effectively denied women pharmacists the right to sell alcohol, stating discrimination between the sexes is neither arbitrary nor capricious, and the fact that in many instances individuals of one sex are in general better fitted than those of the other sex for a given occupation or business is one of such common knowledge and observation that the Legislature may properly recognize it in enacting regulations therefor). These cases do, however, reflect this court has, for the most part, been at the forefront in recognizing individuals' civil rights. The path we have taken as a state has not been by accident, but has been navigated with the compass of equality firmly in hand, constructed with a pointer balanced carefully on the pivot of equal protection. One commentator has found that, since the same-sex-marriage debate started, twenty-seven states have passed constitutional amendments prohibiting same-sex marriage, and seventeen of those state amendments also ban other official forms of same-sex relationships, such as civil unions. Ben Schuman, Note, Gods & Gays: Analyzing the SameSex Marriage Debate from a Religious Perspective, 96 Geo. L.J. 2103, 210608 (2008). Only one state has recognized same-sex marriage, while several other states recognize civil unions or another form of same-sex relationship. Id. Elizabeth F. Emens, Intimate Discrimination: The State's Role in the Accidents of Sex and Love, 122 Harv. L. Rev. 1307, 1315 & n.18 (2009) (noting only Massachusetts and Connecticut allow same-sex marriage, while the legality of same-sex marriage in California is currently in flux). Plaintiffs' challenge to Iowa Code section 595.2 is based on the equal protection guarantee in the Iowa Constitution and does not implicate federal constitutional protections. Generally, we view the federal and state equal protection clauses as identical in scope, import, and purpose. Callender, 591 N.W.2d at 187. At the same time, we have jealously guarded our right to employ a different analytical framework under the state equal protection clause as well as to independently apply the federally formulated principles. Racing Ass'n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 47 (Iowa 2004). Here again, we find federal precedent instructive in interpreting the Iowa Constitution, but we refuse to follow it blindly. The United States Supreme Court has not resolved the broad question of whether an absolute ban of marriages between persons of the same sex violates the Federal Equal Protection Clause. See Lawrence, 539 U.S. at 578, 123 S.Ct. at 2484, 156 L.Ed.2d at 525 (noting that case does not decide whether the government must give formal recognition to any relationship that homosexual persons seek to enter). Nor has the Court resolved many of the narrower legal questions presented by this lawsuit. Nonetheless, the federal framework traditionally employed for resolution of equal protection cases provides a useful starting point for evaluation of Iowa's constitutional equal protection provision. Under a traditional rational basis review, courts are required to accept generalized reasons to support the legislation, even if the fit between the means and end is far from perfect. See McGowan v. Maryland, 366 U.S. 420, 42526, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399 (1961) ( [L]egislatures are presumed to have acted within their constitutional powers despite the fact that, in practice, their laws result in some inequality. (Citations omitted.)). Moreover, the challengers bear the burden of negating every conceivable rational basis that might support the classification drawn in the statute. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096,
8 9
10
11
2102, 124 L.Ed.2d 211, 221 (1993). Some legal commentators have suggested that the occasional practice of courts to examine the purpose of the law more closely under the rational basis test has actually created an additional category of equal protection analysis called rational basis with bite. See Gayle Lynn Pettinga, Rational Basis with Bite: Intermediate Scrutiny By Any Other Name, 62 Ind. L.J. 779, 780 (1987) ([R]ational basis with bite is simply intermediate scrutiny without an articulation of the factors that triggered it....); Jeremy B. Smith, Note, The Flaws of Rational Basis with Bite: Why the Supreme Court Should Acknowledge Its Application of Heightened Scrutiny to Classifications Based on Sexual Orientation, 73 Fordham L.Rev. 2769, 2774 (2005); Steven P. Wieland, Note, Gambling, Greyhounds, and Gay Marriage: How the Supreme Court Can Use the RationalBasis Test to Address Varnum v. Brien, 94 Iowa L.Rev. 413, 43842 (2008) (suggesting the Iowa Supreme Court apply rational basis with bite). References to heightened scrutiny in this opinion are meant to be general; heightened scrutiny includes any judicial inquiry more searching than the rational basis test. References to intermediate scrutiny discuss a specific level of scrutiny between the rational basis test and strict scrutiny. While we have applied the threshold analysis in previous cases, we have, at times, directly or indirectly infused that analysis with principles traditionally applied in the complete equal protection analysis. See, e.g., Hennings, 744 N.W.2d at 33839 (disposing of an equal protection claim with a threshold similarly situated analysis, but within that threshold analysis evaluating the relationship of the state's interest and the classification made by the statute); see also Timberland Partners XXI, LLP, 757 N.W.2d at 17677 (implicitly considering relationship between classifications and taxing interests of the state by focusing on distinctions in the use of commercial and residential property); Grovijohn, 643 N.W.2d at 204 (using threshold test to find the notice provisions of the dramshop statute treat all dramshop plaintiffs the same, but determining plaintiff failed to articulate how the adoption of the comparative fault statute altered prior case law finding the notice requirement did not violate equal protection). This approach is almost inevitable for the test to have any real value as an analytical tool to resolve equal protection claims. Consequently, we question the usefulness of the threshold test and express caution in the future use of the threshold analysis. See, e.g., Angie Baker, Note, Leapfrogging Over Equal Protection Analysis: The Eighth Circuit Sanctions Separate and Unequal Prison Facilities for Males and Females in Klinger v. Department of Corrections, 76 Neb. L.Rev. 371, 385 (1999) (noting United States Supreme Court has not applied similarly situated analysis as a threshold test); Donna Laddy, Can Women Prisoners Be Carpenters? A Proposed Analysis for Equal Protection Claims of Gender Discrimination in Educational and Vocational Programming at Women's Prisons, 5 Temple Pol. & Civ. Rts. L.Rev. 1, 2223 (1995) (same). Because the plaintiffs here satisfy the threshold test we have followed in the past, the outcome in this case would not be affected by abandoning that test now. Therefore, we leave to future parties the task of arguing the applicability of the threshold similarly situated analysis in future cases. In the past, when a dispute has required this court to choose which level of scrutiny to apply to a given classification, the United States Supreme Court has already determined the appropriate level of scrutiny under the Federal Equal Protection Clause. See, e.g., In re Det. of Williams, 628 N.W.2d 447, 45253 (Iowa 2001) (relying on Supreme Court's decision that the mentally ill do not comprise a suspect class); Bennett v. City of Redfield, 446 N.W.2d 467, 473 (Iowa 1989) (deferring to Supreme Court precedent to determine employees of city governments do not comprise a suspect class). We have routinely followed the Supreme Court's lead, and as a result we have not previously developed an independent analysis under the Iowa Constitution. See, e.g., Williams, 628 N.W.2d at 45253 (noting Supreme Court holding and containing no independent analysis); Gilleland v. Armstrong Rubber Co., 524 N.W.2d 404, 407 (Iowa 1994) (stating strict scrutiny analysis only required in few cases involving suspect classes and fundamental rights as defined by Supreme Court); Bennett, 446 N.W.2d at 473 (noting Supreme Court holding and containing no independent analysis); Stracke v. City of Council Bluffs, 341 N.W.2d 731, 734 (Iowa 1983) (Because no fundamental right or suspect class, as defined by the United States Supreme Court, is involved in this case, our task is to determine whether a rational basis existed....). While we again note our authority to develop independent analyses under the Iowa Constitution, we nonetheless view the Supreme Court's general framework for determining the constitutional suspectness of a class as a useful analytical starting point. Justice Brennan's opinion for the Supreme Court in Plyler suggests the significance of each of the four factors. Although Plyler does not formulate a specific test, nor even discuss factors per se, the case touches upon each of the four traditional factors: Several formulations might explain our treatment of certain classifications as suspect. Some classifications are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal. Finally, certain groups, indeed largely the same groups, have historically been relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. The experience of our Nation has shown that prejudice may manifest itself in the treatment of some groups. Our response to that experience is reflected in the Equal Protection Clause of the Fourteenth Amendment. Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of class or caste treatment that the Fourteenth Amendment was designed to abolish.
12
13
14
15
16
Plyler, 457 U.S. at 217 n. 14, 102 S.Ct. at 2395 n. 14, 72 L.Ed.2d at 799 n. 14 (citations omitted); see also Kerrigan, 957 A.2d at 426 (identifying two required factors and two additional considerations); Dean v. District of Columbia, 653 A.2d 307, 339 40 (D.C.1995) (Ferren, J., dissenting) (identifying four factors and explaining the Supreme Court has not applied all four factors in every case). See Virginia, 518 U.S. at 53132, 116 S.Ct. at 227475, 135 L.Ed.2d at 750 (observing long and unfortunate history of sex discrimination (quoting Frontiero v. Richardson, 411 U.S. 677, 684, 93 S.Ct. 1764, 1769, 36 L.Ed.2d 583, 590 (1973) (Brennan, J., plurality opinion))); Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 2729, 91 L.Ed.2d 527, 533 (1986) (noting subject class had not been subjected to discrimination); Cleburne Living Ctr., 473 U.S. at 443, 105 S.Ct. at 3256, 87 L.Ed.2d at 332 (mentally retarded not victims of continuing antipathy or prejudice); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520, 525 (1976) (considering history of purposeful unequal treatment (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16, 40 (1973))). See Cleburne Living Ctr., 473 U.S. at 440, 105 S.Ct. at 3254, 87 L.Ed.2d at 320 (certain classifications merely reflect prejudice and antipathy); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090, 1098 (1982) (Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions.); Murgia, 427 U.S. at 313, 96 S.Ct. at 2566, 49 L.Ed.2d at 525 (considering whether aged have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities); Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d at 591 (Brennan, J., plurality opinion) ([T]he sex characteristic frequently bears no relation to ability to perform or contribute to society.). Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close relatives do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group); Cleburne Living Ctr., 473 U.S. at 442, 105 S.Ct. at 325556, 87 L.Ed.2d at 322 (mentally retarded people are different from other classes of people, immutably so, in relevant respects); Plyler, 457 U.S. at 220, 102 S.Ct. at 2396, 72 L.Ed.2d at 801 (children of illegal aliens, unlike their parents, have legal characteristic[s] over which children can have little control); Mathews v. Lucas, 427 U.S. 495, 505, 96 S.Ct. 2755, 2762, 49 L.Ed.2d 651, 660 (1976) (status of illegitimacy is, like race or national origin, a characteristic determined by causes not within the control of the illegitimate individual); Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770, 36 L.Ed.2d at 591 (Brennan, J., plurality opinion) ([S]ex, like race and national origin, is an immutable characteristic determined solely by the accident of birth....). Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (close relatives of primary household are not a minority or politically powerless); Cleburne Living Ctr., 473 U.S. at 445, 105 S.Ct. at 3257, 87 L.Ed.2d at 324 (refusing to find that the mentally retarded are politically powerless); San Antonio Indep. Sch. Dist., 411 U.S. at 28, 93 S.Ct. at 1294, 36 L.Ed.2d at 40 (considering whether minority and poor school children were relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process). The Supreme Court has not required, nor even discussed, every factor in every case. See, e.g., Palmore v. Sidoti, 466 U.S. 429, 433 34, 104 S.Ct. 1879, 188283, 80 L.Ed.2d 421, 426 (1984) (foregoing analysis of political power); Nyquist v. Mauclet, 432 U.S. 1, 9 n. 11, 97 S.Ct. 2120, 2125 n. 11, 53 L.Ed.2d 63, 71 n. 11 (1977) (jettisoning immutability requirement and scrutinizing classification of resident aliens closely despite aliens' voluntary status as residents); Mathews, 427 U.S. at 50506, 96 S.Ct. at 276263, 49 L.Ed.2d at 66061 (according heightened scrutiny to classifications based on illegitimacy despite mutability and political power of illegitimates); Murgia, 427 U.S. at 31314, 96 S.Ct. at 2567, 49 L.Ed.2d at 525 (omitting any reference to immutability); San Antonio Indep. Sch. Dist., 411 U.S. at 25, 93 S.Ct. at 1292, 36 L.Ed.2d at 38 (omitting any reference to immutability); Frontiero, 411 U.S. at 68588, 93 S.Ct. at 177071, 36 L.Ed.2d at 59192 (Brennan, J., plurality opinion) (scrutinizing classification based on gender closely despite political power of women); Graham v. Richardson, 403 U.S. 365, 37172, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534, 54142 (1971) (foregoing analysis of immutability); see also Lyng, 477 U.S. at 638, 106 S.Ct. at 2729, 91 L.Ed.2d at 533 (referring to whether members of the class exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group (emphasis added)); Dean, 653 A.2d at 346 (Ferren, J., dissenting) (observing Supreme Court has never held that only classes with immutable traits can be deemed suspect (quoting Watkins v. U.S. Army, 875 F.2d 699, 725 (9th Cir.1989) (Norris, J., concurring))). Some courts view the Supreme Court's precedent as according greater weight to the first two factors, see, e.g., Kerrigan, 957 A.2d at 426 (It bears emphasis, however, that the United States Supreme Court has placed far greater weightindeed, it invariably has placed dispositive weighton the first two factors, that is, whether the group has been the subject of long-standing and invidious discrimination and whether the group's distinguishing characteristic bears no relation to the ability of the group members to perform or function in society.), or as suggesting the factors are alternative means to heightening scrutiny of a legislative classification, id. at 440 (noting a suspect class is one saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process' (quoting Murgia, 427 U.S. at 313, 96 S.Ct. at 2567, 49 L.Ed.2d at 525) (emphasis added)). But see Conaway, 932 A.2d at 60914 (holding sexual-orientation-based legislation is not entitled to heightened scrutiny because gay and lesbian people are not politically
17
18
19
20
21 22
powerless, even though other factors are satisfied); Andersen, 138 P.3d at 974 (determining plaintiffs failed to show homosexuality is an immutable trait and consequently holding sexual-orientation-based distinctions do not demand closer judicial scrutiny). Additional legal authority abounds demonstrating the history of discrimination. See, e.g., In re Marriage Cases, 183 P.3d at 442 (finding sexual orientation is a characteristic ... that is associated with a stigma of inferiority and second-class citizenship, manifested by the group's history of legal and social disabilities); Kerrigan, 957 A.2d at 43233 (concluding gay and lesbian people have been subjected to and stigmatized by a long history of purposeful and invidious discrimination, and recounting numerous legal and scientific authorities); Dean, 653 A.2d at 34445 (Discrimination against homosexuals has been pervasive in both the public and the private sectors.); Conaway, 932 A.2d at 609 (Homosexual persons have been the object of societal prejudice by private actors as well as by the judicial and legislative branches of federal and state governments.). The County references plaintiffs' inability to procreate naturally, presumably pointing out each couple's inability to procreate without assistance. Plaintiffs' inability to contribute children to society by procreation through sexual intercourse with each other does not dictate the outcome of our consideration under this factor. The inquiry into gay and lesbian people's ability to contribute to society is a general one, designed to signal whether such classifications routinely risk elevating stereotype over ability. A person's ability to procreate is merely one of many ways in which the person can contribute to society. While the narrower consideration of plaintiffs' procreative abilities may be relevant to whether section 595.2 ultimately passes judicial scrutiny, consideration of those abilities is less helpful in determining which level of scrutiny to apply. That is, the inability of gay and lesbian partners to contribute by procreation through sexual intercourse with each other does not indicate whether legislative classifications based on sexual preference which can conceivably occur in any legislative subject matter areawill generally be based on stereotyped characteristics not truly indicative of their abilities. Murgia, 427 U.S. at 313, 96 S.Ct. at 2566, 49 L.Ed.2d at 525. The legislature has further indicated the irrelevancy of sexual orientation by mandating sex education in the state's public schools be free of biases relating to sexual orientation, Iowa Code 279.50, and by securing personal freedom from violence and intimidation due to sexual orientation, id. 729A.1. Likewise, numerous state administrative regulations indicate sexual orientation is not relevant to a person's ability to contribute to society. See Iowa Admin. Code r. 19148.9 (prohibiting discrimination in making or solicitation of viatical settlement contracts on basis of sexual orientation); id. r. 28112 (preamble) (ensuring access to education meeting child's needs and abilities regardless of sexual orientation); id. r. 28112.1 (ordering equal opportunity in educational programs regardless of sexual orientation); id. r. 28112.3 (ordering school boards to consider the potential disparate impact of student responsibility and discipline policies on students because of students' sexual orientation); id. r. 28168.4 (prohibiting discrimination in admission process to public charter schools based on sexual orientation); id. r. 28225.3 (labeling denial of participation in benefits of educational program based on sexual orientation an unethical practice); id. r. 28226.3 (prohibiting licensed educators from discriminating based on sexual orientation); id. r. 641131.7 (allowing public health department to take numerous adverse actions against emergency medical care personnel who practice, condone, or facilitate discrimination against a patient on the basis of sexual orientation); id. r. 641131.8 (allowing public health department to take numerous adverse actions against training program or continuing education providers who practice, condone, or facilitate discrimination against a patient on the basis of sexual orientation); id. r. 641132.10 (allowing denial, probation, revocation, and suspension of authorized emergency medical service programs that discriminate on the basis of sexual orientation); id. r. 645282.2 (prohibiting licensed social workers from discriminating on the basis of sexual orientation); id. r. 645363.2 (providing that sexual-orientation-based discrimination by sign language interpreters or transliterators is unethical); id. r. 6573.28 (providing that sexual-orientation-based discrimination by pharmacy technicians is unethical); id. r. 6578.11 (same for licensed pharmacies, licensed pharmacists, and registered pharmacistinterns); id. r. 66181.2 (prohibiting entrance of information regarding sexual orientation into Iowa law enforcement intelligence network information system in most circumstances). Other federal and state authority supports such a conclusion. See Kerrigan, 957 A.2d at 435 (relying on Connecticut statutes banning discrimination based on sexual orientation in every important economic and social institution and activity that the government regulates); cf. Frontiero, 411 U.S. at 687, 93 S.Ct. at 1771, 36 L.Ed.2d at 592 (Brennan, J., plurality opinion) (interpreting congressional protections against gender discrimination as suggesting legislative determination such classifications are inherently invidious and implying significance of conclusion of coequal branch of Government in deciding whether to apply heightened scrutiny). By one measureoccupation of public officethe political power of racial minorities is unbounded in this country today. This fact was on display January 20, 2009, when Barack H. Obama, the AfricanAmerican son of a native Kenyan, was inaugurated as the forty-fourth President of the United States of America. See Misha Isaak, Comment, What's in a Name?: Civil Unions & the Constitutional Significance of Marriage, 10 U. Pa. J. Const. L. 607, 608 & n. 7 (2008) [hereinafter Isaak] (noting limited success in obtaining legal status for same-sex marriage, including passage of same-sex civil unions in only two states and same-sex civil marriage in only one); Justin Reinheimer, What Lawrence Should Have Said: Reconstructing an Equality Approach, 96 Cal. L.Rev. 505, 51617 & n. 46 (2008) (reviewing status of state laws relating to
23
24
25
26
27 28
legal recognition of same-sex relationships and noting only the California legislature has (twice) passed a law allowing same-sex civil marriage (which was twice vetoed by that state's governor)). Plaintiffs and some amici urge us to abandon the traditional tiered analysis. This view is supported by commentators, at least one of which points out no new suspect or quasi-suspect class has been identified since the 1970s and argues the notion of suspect classes is a dead letter in federal constitutional law. See Evan Gerstman, Same Sex Marriage & the Constitution 6163 (2004). The rigidified tiered approach has long had its detractors, see, e.g., San Antonio Indep. Sch. Dist., 411 U.S. at 98, 93 S.Ct. at 1330, 36 L.Ed.2d at 81 (Marshall, J., dissenting), and other states have exercised corresponding sovereign authority to adopt balancing tests in equal protection cases, see, e.g., State v. Ostrosky, 667 P.2d 1184, 119293 (Alaska 1983); Greenberg v. Kimmelman, 99 N.J. 552, 494 A.2d 294, 302 (1985); Baker v. State, 170 Vt. 194, 744 A.2d 864, 878 (1999). Although a more flexible analysis is arguably more reflective of Iowa's constitutional equality mandates and related jurisprudence, we recognize it is sometimes prudent to delay consideration of a new analysis to subsequent cases when the change can be more fully explored. See RACI II, 675 N.W.2d at 6 ([I]t is prudent to delay any consideration of whether a different analysis is appropriate to a case in which this issue was thoroughly briefed and explored. (citing In re Det. of Garren, 620 N.W.2d 275, 280 n. 1 (Iowa 2000))). And while plaintiffs have urged us to adopt a balancing standard, the parties' application of equal protection principles to the facts of this case has focused on the tiered approach. We also conclude we are able to adequately fulfill our constitutional obligation as the highest court of this sovereign state to determine whether the challenged classification violates Iowa's constitutional equality provision by using the traditional approach in this case. Id. at 4. While we once again reaffirm our sovereign authority to employ a different analytical framework under state constitutional provisions, RACI II, 675 N.W.2d at 5, we decline to adopt a new approach in this case. Other jurisdictions considering the validity of legislative exclusion of gay and lesbian people from civil marriage have considered alternative justifications. See, e.g., Kerrigan, 957 A.2d at 476 (uniformity with laws of other jurisdictions); id. at 518 (Zarella, J., dissenting) (regulation of heterosexual procreation); Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 3234 (2006) (Kaye, C.J., dissenting) (moral disapproval, uniformity with other jurisdictions); Andersen, 138 P.3d at 982 (avoid the need to resolve the sometimes conflicting rights and obligations of the same-sex couple and the necessary third party in relation to a child). We need not independently analyze these alternative justifications as they are not offered to support the Iowa statute. See Virginia, 518 U.S. at 533, 116 S.Ct. at 2275, 135 L.Ed.2d at 751 (The justification must be genuine, not hypothesized or invented post hoc in response to litigation.). The preservation of traditional marriage could only be a legitimate reason for the classification if expanding marriage to include others in its definition would undermine the traditional institution. The County has simply failed to explain how the traditional institution of civil marriage would suffer if same-sex civil marriage were allowed. There is no legitimate notion that a more inclusive definition of marriage will transform civil marriage into something less than it presently is for heterosexuals. Benjamin G. Ledsham, Note, Means to Legitimate Ends: SameSex Marriage through the Lens of IllegitimacyBased Discrimination, 28 Cardozo L.Rev. 2373, 2388 (2007). The research appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as oppositesex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else. In any event, we do not address whether there is a rational basis for the marriage statute, as the sexual-orientation classification made by the statute is subject to a heightened standard of scrutiny. The County does not specifically contend the goal of Iowa's marriage statute is to deter gay and lesbian couples from having children. Such a claim would raise serious due process concerns. See Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349, 362 (1972) (noting due process concern with governmental interference with decision to conceive children). Plaintiffs identify over two hundred Iowa statutes affected by civil-marriage status. See, e.g., Iowa Code 85.31 (dependent surviving spouse receives benefits when spouse death caused by work injury); id. 135J.1(4) (hospice patient's family includes spouse); id. 142C.4 (spouse has power to make decision concerning anatomical gifts); id. 144A.7 (patient's spouse determines application of life-sustaining procedures in absence of declaration); id. 144C.5 (surviving spouse controls disposition of decedent's remains in absence of declaration); id. 252A.3(1) (spouse liable for support of other spouse); id. 252A.3(4) (children of married parents legitimate); id. 422.7 (spouses may file joint tax return); id. 422.9(1) (optional standard deduction for married taxpayers); id. 422.12(1)(b) (spouses eligible for personal exemption credit); id. 450.3 (inheritance rights of surviving spouses); id. 450.9 (surviving spouse exempt from inheritance tax on property passed from decedent spouse); id. 450.10(6) (spousal allowance for surviving spouse); id. 523I.309 (surviving spouse must consent to decedent spouse's interment); id. 613.15 (spouse may recover value of services and support of decedent spouse for wrongful death or negligent injury); id. 622.9 (restriction of testimony of communication between husband and wife); id. 633.211(1) (surviving spouse receives decedent spouse's entire estate in intestacy); id. 633.236 (surviving spouse has right to elective share); id. 633.272 (surviving spouse takes under partial intestacy if elective share not exercised); id. 633.336 (damages for wrongful death). The Government Accounting Office, as of 2005, had identified more than 1000 federal legal rights and responsibilities derived from marriage. Isaak, 10 U. Pa. J. Const. L. at 607 n. 6.
29
30 31
32 33
A survey in the Des Moines Register in 2008 found 28.1% of individuals surveyed supported same-sex marriage, 30.2% opposed same-sex marriage but supported civil unions, and 32% of respondents opposed both same-sex marriage and civil unions. Erin Jordan, About 6 in 10 Iowans back same-sex unions, poll finds, Des Moines Register, Nov. 26, 2008, at 4B. The Des Moines Register survey is consistent with a national survey by the PEW Research Center in 2003. This PEW survey found that 59% of Americans oppose samesex marriage, and 32% favor same-sex marriage. Schuman, 96 Geo. L.J. at 2108. However, opposition to same-sex marriage jumped to 80% for people with a high level of religious commitment, with only 12% of such people in favor of same-sex marriage. Id. Schuman, 96 Geo. L.J. at 210912 (discussing the religious arguments against same-sex marriage found in both the Old and New Testaments of the Bible, supporting a conclusion that homosexuality is considered to be a sin and same-sex marriage to be an extension of that sin). Many religions recognize same-sex marriage, such as Buddhists, Quakers, Unitarians, and Reform and Reconstructionist Jews. Schuman, 96 Geo. L.J. at 2108. Amicus curiae Iowa and National Faith Leaders, Communities, and Scholars point out the United Church of Christ encourages, but does not require, its local congregations to adopt wedding policies that do not discriminate between heterosexual, gay, and lesbian couples, while the Episcopal Church permits priests to perform liturgies and blessings at same-sex weddings as a matter of pastoral care. Additionally, many groups and clergy within various religions are working to achieve inclusion of same-sex marriage. Id. at 210809. Our decision that the statute violates the equal protection clause of the Iowa Constitution makes it unnecessary to address the other bases for plaintiffs' challenge to Iowa's marriage statute. See Iowa R.App. P. 6.1208 (stating procedendo shall issue twenty-one days after the opinion is filed unless a petition for rehearing is filed).
End of Document
In re Marriage Cases, 43 Cal.4th 757 (2008) 183 P.3d 384, 76 Cal.Rptr.3d 683, 08 Cal. Daily Op. Serv. 5820...
43 Cal.4th 757 Supreme Court of California In re MARRIAGE CASES. [Six consolidated appeals.] 1 No. S147999. | | May 15, 2008.
analysis, discrimination based on sexual orientation is not encompassed within constitutional prohibition against discrimination based on sex; but [5] as issue of first impression, sexual orientation is a suspect classification for purposes of state equal protection clause, and thus statutes that treat persons differently based on their sexual orientation are subject to strict scrutiny analysis; [6] differential treatment accorded opposite-sex and samesex couples by state statutes impinges upon same-sex couples' fundamental privacy interest in having official family relationship accorded equal respect and dignity, and thus strict scrutiny analysis applies on this basis as well; [7] Family Code provisions limiting designation of marriage to opposite-sex couples are not necessary to serve compelling state interest, and thus those provisions violate state equal protection clause; [8] language in Family Code provision limiting marriage to a union between a man and a woman is unconstitutional, and must be stricken from the statute; and [9] Family Code provision stating that only marriage between a man and a woman is valid or recognized in California is unconstitutional, and cannot stand.
Rehearing Denied June 4, 2008. *
Synopsis Background: Opponents of same sex marriage filed writ petitions seeking to prohibit city mayor from issuing marriage licenses to lesbian and gay couples. Attorney General also filed original writ petition to resolve issue before Supreme Court, 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459, which stayed opponents' actions and issued a writ of mandate directing city officials to enforce Family Code provisions defining marriage as between a man and a woman, but expressed no opinion on the constitutional validity of those provisions. City and groups of same sex couples filed actions seeking declaratory judgment that the disputed Family Code provisions were unconstitutional, and those actions were coordinated with opponents' actions into a single proceeding. The Superior Court, City and County of San Francisco, JCCP No. 4365, Richard A. Kramer, J., ruled that the Family Code provisions violated equal protection under the state constitution. State and same sex marriage opponents appealed. The Court of Appeal affirmed in part and reversed in part, upholding the constitutionality of the Family Code provisions. The Supreme Court granted review, superseding the opinion of the Court of Appeal.
Court of Appeal judgment reversed. Opinion, 49 Cal.Rptr.3d 675, superseded. Kennard, J., filed concurring opinion.
Holdings: The Supreme Court, George, C.J., held that: [1] opponents of same sex marriage lacked standing to pursue claims for declaratory relief; but [2] they preserved ability to present their views through amicus curiae status; [3] privacy and due process provisions of state Constitution guarantee basic civil right of marriage to all individuals and couples, without regard to their sexual orientation; [4] for purposes of determining applicable standard of review under state Constitutional equal protection
Baxter, J., filed concurring and dissenting opinion, in which Chin, J., joined. Corrigan, J., filed concurring and dissenting opinion.
West Headnotes (23)
[1]
Declaratory Judgment Subjects of relief in general Opponents of same sex marriage who had obtained their goal of prohibiting city mayor from issuing marriage licenses to same-sex
couples, as result of Supreme Court's issuance of writ of mandate in response to Attorney General's petition seeking same result, lacked standing after stay of their actions was dissolved by Supreme Court to seek declaratory judgment of constitutionality of Family Code provisions restricting marriage to oppositesex couples, in proceeding consolidating opponents' actions with actions of same-sex marriage proponents who sought declaratory judgment invalidating those same provisions as unconstitutional; opponents acknowledged that they lacked injury-based standing, and their strong ideological views were insufficient to afford them standing to maintain declaratory judgment action, and thus their action was moot. West's Ann.Cal.C.C.P. 1060; West's Ann.Cal.Fam.Code 300, 308.5. 6 Cases that cite this headnote [2] Amicus Curiae Right to appear and act in general Although opponents of same sex marriage who had obtained their goal of prohibiting city mayor from issuing marriage licenses to same-sex couples, as result of Supreme Court's issuance of writ of mandate in response to Attorney General's petition seeking same result, lacked standing after stay of their actions was dissolved by Supreme Court to seek declaratory judgment of constitutionality of Family Code provisions restricting marriage to opposite-sex couples, in proceeding consolidating opponents' actions with actions of same-sex marriage proponents who sought declaratory judgment invalidating those same provisions as unconstitutional, they were entitled to present their views through amicus curiae status. West's Ann.Cal.C.C.P. 1060; West's Ann.Cal.Fam.Code 300, 308.5. 8 Cases that cite this headnote [3] Amicus Curiae Powers, functions, and proceedings Amicus curiae presentations assist the court by broadening its perspective on the issues raised by the parties; among other services, they facilitate
informed judicial consideration of a wide variety of information and points of view that may bear on important legal questions. 1 Cases that cite this headnote [4] Constitutional Law Avoidance of constitutional questions In assessing the merits of alternative interpretations of a statutory provision, it is appropriate to consider the potential constitutional problems that would be posed by each alternative construction of the statute, and to favor an interpretation that avoids such problems. 1 Cases that cite this headnote [5] Constitutional Law Class Legislation; Discrimination and Classification in General In analyzing whether a statutory distinction is constitutional, and when determining the scope of the class singled out for special burdens or benefits, a court cannot confine its view to the terms of the specific statute under attack, but must judge the enactment's operation against the background of other legislative, administrative, and judicial directives which govern the legal rights of similarly situated persons. 1 Cases that cite this headnote [6] Constitutional Law Sexual orientation Constitutional Law Same-sex marriage Marriage Same-Sex and Other Non-Traditional Unions Privacy and due process provisions of state Constitution guarantee basic civil right of marriage to all individuals and couples, without regard to their sexual orientation; in light of the fundamental nature of the substantive rights embodied in the right to marry, and their central importance to an individual's opportunity to live a happy, meaningful, and satisfying life as a
full member of society, the state Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation, and to accord same-sex couples the right to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships, despite traditional restriction of marriage to union between a man and a woman. West's Ann.Cal. Const. Art. 1, 1, 7; West's Ann.Cal.Fam.Code 300, 308.5. 4 Cases that cite this headnote
[10]
Constitutional Law Sexual Orientation For purposes of determining applicable standard of review under state Constitutional equal protection analysis, discrimination based on sexual orientation is not encompassed within constitutional prohibition against discrimination based on sex. West's Ann.Cal. Const. Art. 1, 7. 5 Cases that cite this headnote
[11] [7] Constitutional Law Family Law; Marriage Constitutional Law Marital Relationship Although the state Constitution does not contain any explicit reference to a right to marry, that right is a fundamental right whose protection is guaranteed to all persons by the privacy and due process clauses of the state Constitution. West's Ann.Cal. Const. Art. 1, 1, 7. 1 Cases that cite this headnote [8] Constitutional Law Family Law; Marriage Constitutional Law Marital Relationship The constitutional right to marry is an aspect of the fundamental substantive liberty protected by the due process and privacy guarantees of the federal Constitution. U.S.C.A. Const.Amends. 1, 14. [12]
Constitutional Law Economic or social regulation in general Under the rational basis standard applied in evaluating challenges made to legislation under the equal protection clause, which applies when reviewing economic and social welfare legislation in which there is a discrimination or differentiation of treatment between classes or individuals, courts invest the legislation involving such differentiated treatment with a presumption of constitutionality and ascertain whether the distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. West's Ann.Cal. Const. Art. 1, 7. 1 Cases that cite this headnote Constitutional Law Rational Basis Standard; Reasonableness Under the rational basis standard of equal protection analysis, the burden of demonstrating the invalidity of a statutory classification rests squarely upon the party who assails it. West's Ann.Cal. Const. Art. 1, 7.
[9]
Marriage Nature of the obligation The constitutional right to marry represents the right of an individual to establish a legally recognized family with the person of one's choice, and, as such, is of fundamental significance both to society and to the individual. West's Ann.Cal. Const. Art. 1, 1, 7.
[13]
Constitutional Law Strict scrutiny and compelling interest in general Under the strict scrutiny standard of equal protection review, which is applied in cases involving suspect classifications or touching on fundamental interests, the courts adopt an attitude of active and critical analysis, subjecting
the classifications to strict scrutiny. West's Ann.Cal. Const. Art. 1, 7.
[14]
Constitutional Law Strict scrutiny and compelling interest in general Under the strict scrutiny standard of equal protection review, the state bears the burden of establishing not only that it has a compelling interest which justifies the challenged statutory distinction, but also that the distinctions drawn by the law are necessary to further its purpose. West's Ann.Cal. Const. Art. 1, 7. 1 Cases that cite this headnote
In determining whether the strict scrutiny standard of review applies in analyzing an equal protection challenge to a statutory classification, the most important factors in deciding whether a characteristic should be considered a constitutionally suspect basis for classification are whether the class of persons who exhibit a certain characteristic historically has been subjected to invidious and prejudicial treatment, and whether society now recognizes that the characteristic in question generally bears no relationship to the individual's ability to perform or contribute to society. West's Ann.Cal. Const. Art. 1, 7. 2 Cases that cite this headnote [18] Constitutional Law Sex or gender Unlike decisions applying the federal equal protection clause, California cases continue to review, under strict scrutiny rather than intermediate scrutiny, those statutes that impose differential treatment on the basis of sex or gender. U.S.C.A. Const.Amend. 14; West's Ann.Cal. Const. Art. 1, 7.
[15]
Constitutional Law Sexual orientation Sexual orientation is a suspect classification for purposes of the state equal protection clause, and thus statutes that treat persons differently based on their sexual orientation are subject to strict scrutiny analysis; because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment, and that generally bears no relation to an individual's ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. West's Ann.Cal. Const. Art. 1, 7. 9 Cases that cite this headnote
[19]
Constitutional Law Marriage and civil unions Because differential treatment accorded opposite-sex and same-sex couples by state statutes defining and limiting marriage impinged upon same-sex couples' and individuals' fundamental privacy interest in having their official family relationships accorded equal respect and dignity, strict scrutiny analysis applied to same-sex couples' equal protection challenge to Family Code provisions limiting marriage to union between a man and a woman. West's Ann.Cal. Const. Art. 1, 1, 7; West's Ann.Cal.Fam.Code 300, 308.5. 16 Cases that cite this headnote
[16]
Constitutional Law Strict scrutiny and compelling interest in general Immutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes. West's Ann.Cal. Const. Art. 1, 7.
[17]
Constitutional Law Strict scrutiny and compelling interest in general
[20]
Constitutional Law Marriage and civil unions Marriage
Same-Sex and Other Non-Traditional Unions Family Code provisions limiting designation of marriage to opposite-sex couples, and excluding same-sex couples from access to that designation, were not necessary to serve compelling state interest, and thus those provisions violated state equal protection clause; limitation was not necessary to preserve rights and benefits of opposite-sex marriages, and it would not alter substantive nature of legal institution of marriage or impinge upon religious freedom, whereas exclusion of same-sex couples from designation of marriage worked real and appreciable harm upon same-sex couples and their children, and continuing validity of such provisions would be viewed as official statement that family relationships of same-sex couples were not of equal dignity to those of opposite-sex couples. West's Ann.Cal. Const. Art. 1, 1, 7; West's Ann.Cal.Fam.Code 300, 308.5. See 11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, 44; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) 19:6.5 (CAFAMILY Ch. 19-A); Annot., Marriage Between Persons of Same Sex-United States and Canadian Cases, 1 A.L.R.Fed.2d 1. 13 Cases that cite this headnote [21] Constitutional Law Rewriting to save from unconstitutionality When a statute's differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class; a court generally makes that determination by considering whether extending the benefit equally to both classes, or instead withholding it equally, would be most consistent with the likely intent of the Legislature, had that
body recognized that unequal treatment was constitutionally impermissible. West's Ann.Cal. Const. Art. 1, 7. 6 Cases that cite this headnote [22] Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Language of Family Code provision limiting the official designation of marriage to a union between a man and a woman was unconstitutional, as violating the equal protection clause of the state Constitution, and thus the offensive language had to be stricken from the statute, and the remaining statutory language had to be understood as making the official designation of marriage available both to opposite-sex and same-sex couples. West's Ann.Cal. Const. Art. 1, 7; West's Ann.Cal.Fam.Code 300. 4 Cases that cite this headnote [23] Constitutional Law Marriage and civil unions Marriage Same-Sex and Other Non-Traditional Unions Family Code provision stating that only marriage between a man and a woman is valid or recognized in California was unconstitutional, as violating the equal protection clause of the state Constitution, and thus the provision could not stand. West's Ann.Cal. Const. Art. 1, 7; West's Ann.Cal.Fam.Code 308.5. 2 Cases that cite this headnote
West Codenotes Held Unconstitutional West's Ann.Cal.Fam.Code 300, 308.5
Attorneys and Law Firms ***687 Alliance Defense Fund, Benjamin W. Bull, Glen Lavy, Scottsdale, AZ, Timothy Donald Chandler, Folsom, Christopher R. Stovall, Dale Schowengerdt; Advocates for Faith and Freedom, Robert Henry Tyler; Law Offices of Terry L. Thompson, Terry L. Thompson; Law Offices of Andrew P. Pugno and Andrew P. Pugno for Plaintiff and Appellant Proposition 22 Legal Defense and Education Fund. Jay Alan Sekulow, Stuart J. Roth, Laura B. Hernandez, Vincent P. McCarthy, Kristina J. Wenberg; Schuler and Brown and John D. Hardy for American Center for Law & Justice as Amicus Curiae on behalf of Plaintiff and Appellant Proposition ***688 22 Legal Defense and Education Fund. Stewart & Stewart and John Stewart for Jews Offering New Alternatives to Homosexuality, Parents and Friends of Ex Gays & Gays and Evergreen International as Amici Curiae on behalf of Plaintiff and Appellant Proposition 22 Legal Defense and Education Fund. Liberty Counsel, Mathew D. Staver, Maitland, FL, Rena M. Lindevaldsen and Mary E. McAlister for Plaintiff and Appellant Campaign for California Families. Kevin T. Snider, Sacramento, and Matthew B. McReynolds for Pacific Justice Institute and Capitol Resource Institute as Amici Curiae on behalf of Plaintiffs and Appellants Proposition 22 Legal Defense and Education Fund and Campaign for California Families. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General, David S. Chaney, Chief Assistant Attorney General, Louis R. Mauro, Stacy Boulware Eurie and Christopher E. Krueger, Assistant Attorneys General, James M. Humes, Douglas J. Woods, Kathleen A. Lynch, Hirem M. Patel and Zackery P. Morazzini, Deputy Attorneys General, for Defendant and Appellant State of California. Kenneth W. Starr, Los Angeles; Kirton & McConkie and Alexander Dushku for The Church of Jesus Christ of LatterDay Saints, California Catholic Conference, National Association of Evangelicals and Union of Orthodox Jewish Congregations of America as Amici Curiae on behalf of Defendant and Appellant State of California. Marriage Law Foundation and Monte N. Stewart for United Families International, Family Watch International and
Family Leader Foundation as Amici Curiae on behalf of Defendant and Appellant State of California. Natalie A. Panossian for Professors of Law Douglas W. Kmiec, Helen M. Alvare, George W. Dent, Jr., Stephen G. Calabresi, Steven B. Presser and Lynn D. Wardle as Amici Curiae on behalf of Defendant and Appellant State of California. Mazur & Mazur, Janice R. Mazur, El Cajon, and William E. Mazur, Jr., for Leland Traiman and Stewart Blandon as Amici Curiae on behalf of Defendant and Appellant State of California. The Western Center for Law & Policy, Dean R. Broyles, Escondido, and James M. Griffiths for California Ethnic Religious Organizations for Marriage, National Hispanic Christian Leadership Conference, AfricanAmerican High Impact Leadership Coalition, Korean Church Coalition for North Korea Freedom, Council of Korean Churches in Southern California, Traditional Family Coalition, Chinese Family Alliance, America Chinese Evangelical Seminary, The Lord's Grace Christian Church of Mountain View, Grace Gospel Christian Church at San Mateo, Mandarin Baptist Church, Home of Christ Church at Saratoga, Fremont Chinese Evangelical Free Church, West Valley Christian Alliance Church, Evangelical Free Church of San Francisco, San Francisco Agape Christian Church, HIS Foundation and Chinese Christians for Justice as Amici Curiae on behalf of Defendant and Appellant State of California. Jeffrey N. Daly, Novato, for Professors of Law John Coverdale, Scott Fitzgibbon, Martin R. Gardner, Kris W. Kobach, Earl M. Maltz, Laurence C. Nolan and John Randall Trahan as Amici Curiae on behalf of Defendant and Appellant State of California. Wild, Carter & Tipton, Patrick J. Gorman, Fresno; Thomas More Society, Thomas Brejcha and Paul Benjamin Linton for Knights of Columbus as Amicus ***689 Curiae on behalf of Defendant and Appellant State of California. The Claremont Institute Center for Constitutional Jurisprudence, John C. Eastman, Sacramento; Institute for Marriage and Public Policy and Joshua K. Baker for Legal and Family Scholars James Q. Wilson, Douglas Allen, Hadley P. Arkes, David Blankenhorn, Steven G. Calabresi, Lloyd R. Cohen, David K. DeWolf, Edward J. Erler, Robert P. George, Bernard E. Jacob, William H. Jeynes, Leon R. Kass, Charles Kesler, Douglas W. Kmiec, Daniel Hays Lowenstein, David Popenoe, Stephen B. Presser, Katherine Shaw Spaht
and Thomas G. West as Amici Curiae on behalf of Defendant and Appellant State of California. Brian ChavezOchoa, Valley Springs, and Steven W. Fitschen for The National Legal Foundation as Amicus Curiae on behalf of Defendant and Appellant State of California. Derek L. Gaubatz and Roger Severino for The Beckett Fund for Religious Liberty as Amicus Curiae on behalf of Defendant and Appellant State of California. Robert A. Destro and Lincoln C. Oliphant for African American Pastors in California Reverend Joshua Beckley, Pastor Dr. Timothy Winters, Pastor Chuck Singleton and Pastor Dr. Raymond W. Turner as Amici Curiae on behalf of Defendant and Appellant State of California. Mennemeier, Glassman & Stroud, Kenneth C. Mennemeier, Andrew W. Stroud, Sacramento, and Kelcie M. Gosling for Defendants and Appellants Governor Arnold Schwarzenegger and State Registrar of Vital Statistics Teresita Trinidad. Sterling E. Norris, Los Angeles, for Judicial Watch, Inc., as Amicus Curiae on behalf of Defendants and Appellants State of California and Governor Arnold Schwarzenegger. Dennis J. Herrera, City Attorney, Therese M. Stewart, Chief Deputy City Attorney, Danny Chou, Chief of Appellate Litigation, Julia M.C. Friedlander, Kathleen S. Morris, Sherri Sokeland Kaiser and Vince Chhabria, Deputy City Attorneys; Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Bobbie J. Wilson and Amy Margolin, San Francisco, for Plaintiff and Respondent City and County of San Francisco. R. Bradley Sears and Clifford J. Rosky for M.V. Lee Badgett and Gary J. Gates as Amici Curiae on behalf of Defendant and Respondent City and County of San Francisco. Aderson B. Francois; Altshuler Berzon, Michael Rubin and Barbara J. Chisholm, San Francisco, for Howard University School of Law Civil Rights Clinic as Amicus Curiae on behalf of Plaintiff and Respondent City and County of San Francisco. Nanci L. Clarence, San Francisco; Law Offices of Amitai Schwartz and Amitai Schwartz, Emeryville, for Bar Association of San Francisco as Amicus Curiae on behalf of Plaintiff and Respondent City and County of San Francisco.
Ronald A. Lindsay and Edward Tabash, Beverly Hills, for Council for Secular Humanism and Center for Inquiry as Amici Curiae on behalf of Plaintiff and Respondent City and County of San Francisco. Michael Jenkins, Manhattan Beach and J. Stephen Lewis, Los Angeles, for City of Los Angeles, City of San Diego, City of San Jose, City of Long Beach, City of Oakland, City of Santa Rosa, City of Berkeley, City of Santa Monica, City of Santa Cruz, City of Palm Springs, City of West Hollywood, City of Signal Hill, City of Sebastopol, Town of Fairfax, City of Cloverdale, County of Santa Clara, County of San Mateo, County of Santa Cruz and County of Marin as Amici Curiae on behalf of Plaintiff and Respondent City and County of San Francisco. Thomas J. KunaJacob as Amicus Curiae. ***690 Allred, Maroko & Goldberg, Gloria Allred, Michael Maroko and John Steven West, Los Angeles, for Plaintiffs and Respondents Robin Tyler, Diane Olson, Troy Perry and Phillip De Blieck. Heller Ehrman, Stephen V. Bomse, Richard DeNatale, Christopher F. Stoll, David J. Simon, San Francisco, Ryan R. Tacorda; National Center for Lesbian Rights, Shannon Minter, Vanessa H. Eisemann, Melanie Rowen, Catherine Sakimura, Courtney Joslin; Lambda Legal Defense and Education Fund, Inc., Jon W. Davidson, Jennifer C. Pizer; ACLU Foundation of Southern California, Christine P. Sun, Peter J. Eliasberg, Clare Pastore; ACLU Foundation of Northern California, Tamara Lange, Alan L. Schlosser, Alex M. Cleghorn; Steefel, Levitt & Weiss, Dena Narbaitz, Clyde J. Wadsworth; Law Office of David C. Codell and David C. Codell for Plaintiffs and Respondents Lancy Woo, Cristy Chung, Joshua Rymer, Tim Frazer, Jewelle Gomez, Diane Sabin, Myra Beals, Ida Matson, Arthur Frederick Adams, Devin Wayne Baker, Jeanne Rizzo, Pali Cooper, Karen Shain, Jody Sokolower, Janet Wallace, Deborah Hart, Corey Davis, Andre LeJeune, Rachel Lederman, Alexsis Beach, Stuart Gaffney, John Lewis, Phyllis Lyon, Del Martin, Sarah Conner, Gillian Smith, Margot McShane, Alexandra D'Amario, David Scott Chandler, Jeffery Wayne Chandler, Theresa Michelle Petry, Cristal RiveraMitchel, Our Family Coalition and Equality California. Law Offices of Waukeen Q. McCoy, Waukeen Q. McCoy, San Francisco, Aldon L. Bolanos, Woodland Hills; Paul, Hanley & Harley and Jason E. Hasley, Berkeley, for Plaintiffs and Respondents Gregory Clinton, Gregory Morris, Anthony
Bernan, Andrew Neugenbauer, Stephanie O'Brien, Janet Levy, Joseph Faulkner, Arthur Healey, Kristen Anderson, Michele Bettega, Derrik Anderson and Wayne Edfors II. Natalie F.P. Gilfoyle; Jenner & Block, Paul M. Smith, Los Angeles, William M. Hohengarten and Anjan Choudhury for American Psychological Association, California Psychological Association, American Psychiatric Association, National Association of Social Workers and National Association of Social Workers, California Chapter as Amici Curiae on behalf of Plaintiffs and Respondents. Keker & Van Nest and Jon B. Streeter, San Francisco, for Professor Jesse H. Choper as Amicus Curiae on behalf of Plaintiffs and Respondents. O'Melveny & Myers, Peter Obstler, San Francisco, Nikhil Shanbhag, Flora Vigo, Jee Young You; John D. Trasvina, Cynthia A. Valenzuela, Pasadena; Law Office of Ellen Forman Obstler and Ellen Forman Obstler for Asian American Justice Center, Asian Pacific American Bar Association, Asian Pacific American Legal Center, Asian and Pacific Islander Lesbian, Bisexual Women and Transgender Network, Asian Pacific Islander Pride Council, Disability Rights Education and Defense Fund, Equal Justice Society, Japanese American Bar Association, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, Multicultural Bar Alliance of Los Angeles, People for the American Way Foundation, United Lesbians of African Heritage, Ventura Black Attorneys Association, Mexican American Legal Defense and Educational Fund, Aguilas, Bienestar Human Services, Coalition for Humane Immigrant Rights, La Raza Centro Legal, National Black Justice Coalition, National Lawyers Guild of San Francisco and Zuna Institute as Amici Curiae on behalf of Plaintiffs and Respondents. Sideman & Bancroft and Diana E. Richmond, San Francisco, for American Academy of Matrimonial Lawyers, Northern California Chapter of the American Academy of Matrimonial Lawyers and California District of the American Academy of Pediatrics as Amici Curiae on behalf of Plaintiffs and Respondents. Covington & Burling, Sonya D. Winner, David M. Jolley and Erin C. Smith, San Francisco, for American Psychoanalytic ***691 Association, American Anthropological Association and Lawyers' Committee for Civil Rights of the San Francisco Bay Area as Amici Curiae on behalf of Plaintiffs and Respondents.
Proskauer Rose, Clifford S. Davidson, Scott P. Cooper, Bert H. Deixler, Gil N. Peles, Lary Alan Rappaport and Lois D. Thompson, Los Angeles, for AntiDefamation League, Los Angeles Gay and Lesbian Center, Sacramento Gay and Lesbian Center, San Diego Lesbian Gay, Bisexual and Transgender Community Center, San Francisco LGBT Community Center, Billy DeFrank Center, The Gay and Lesbian Center of Greater Long Beach, Desert Pride Center, Lighthouse Community Pride Center, The Pacific Center and Stanislaus Pride Center as Amici Curiae on behalf of Plaintiffs and Respondents. Pillsbury Winthrop Shaw Pittman, Kevin M. Fong, San Francisco; Daisy J. Hung, Victor M. Hwang; Karin H. Wang and Julie Su for Asian American Bar Association of the Greater Bay Area, Asian Pacific American Bar Association of Los Angeles County, Asian Pacific Bar Association of Silicon Valley, Japanese American Bar Association of Greater Los Angeles, Korean American Bar Association of Southern California, National Asian Pacific American Bar Association, Pan Asian Lawyers of San Diego, Philippine American Bar Association, South Asian Bar Association of Northern California, South Asian Bar Association of San Diego, South Asian Bar Association of Southern California, Southern California Chinese Lawyers Association, Vietnamese American Bar Association of Northern California, Asian Equality, Asian Pacific Islander Legal Outreach, API Equality, API EqualitySF, Asian Communities for Reproductive Justice, Asian Law Alliance, Asian Law Caucus, Asian Pacific American Labor Alliance Alameda, Asian Pacific Islander Family Pride, Asian Pacific Islander Wellness Center, Asian Women's Shelter, Chinese for Affirmative Action, Chinese Progressive Association, Filipinos for Affirmative Action, Gay Asian Pacific Alliance, Institute for Leadership Development and Study of Pacific Asian North American Religion, Korean Community Center of the East Bay, My Sister's House, Asian Pacific American Legal Center, Asian/ Pacific Bar of California, API Equality LA, Asian American Institute, Asian American Justice Center, Asian Pacific American Legal Center of Southern California, Asian American Legal Defense and Education Fund, Asian American Psychological Association, Asian American Queer Women Activists, Asian and Pacific Islander American Health Forum, Asian and Pacific Islander Lesbian, Bisexual Women and Transgender Network, Asian and Pacific Islander Parents and Friends of Lesbians and Gays, Asian Pacific AIDS Intervention Team, Asian Pacific American Labor AllianceLos Angeles, Asian Pacific Americans for ProgressLos Angeles, Asian Pacific Islander
Pride Council, Asian Pacific Policy & Planning Council, Asian Pacific Women's Center, Center for the Pacific Asian Family, Asian Youth Promoting Advocacy and Leadership, Conference of Asian Pacific American Law Faculty, Gay Asian Pacific Support Network, Japanese American Citizens League, Khmer Girls in Action, Korean Resource Center, Koreatown Immigrant Workers Alliance, National Asian Pacific American Law Student Association, National Asian Pacific American Women's Forum, National Korean American Service & Education Consortium, Orange County Asian Pacific Islander Community Alliance, Organization of Chinese Americans San Francisco Chapter, Satrang, South Asian American Leaders of Tomorrow, South Asian Network, Southeast Asian Community Alliance, Southeast Asian Community Center and Southeast Asia Resource Action Center as Amici Curiae on behalf of Plaintiffs and Respondents. ***692 Munger, Tolles & Olson, Jerome C. Roth and Daniel J. Powell, San Francisco, for Bay Area Lawyers for Individual Freedom, Children of Lesbians and Gays Everywhere, The Disability Rights Education and Defense Fund, Family Pride, Freedom to Marry, Human Rights Campaign, Human Rights Campaign Foundation, Legal Aid SocietyEmployment Law Center, Lesbian and Gay Lawyers Association of Los Angeles, Marriage Equality USA, The National Lesbian and Gay Law Association, Parents, Families & Friends of Lesbians and Gays, Inc., People for the American Way Foundation, Pride at Work, SacLEGAL and Tom Homann Law Association as Amici Curiae on behalf of Plaintiffs and Respondents. Greines, Martin, Stein & Richland, Irving Greines and Cynthia E. Tobisman, Los Angeles, for Beverly Hills Bar Association, Los Angeles County Bar Association, San Francisco Trial Lawyers Association, California Women Lawyers and Women Lawyers Association of Los Angeles as Amici Curiae on behalf of Plaintiffs and Respondents. Vicky Barker; Jennifer K. Brown, Costa Mesa, Deborah A. Widiss, Julie F. Kay; Irma D. Herrera; Irell & Manella, Laura W. Brill, Elizabeth L. Rosenblatt, Douglas NeJaime, Michael Bacchus, Richard M. Simon, Los Angeles; and Herma Hill Kay for California Women's Law Center, Legal Momentum, Equal Rights Advocates, The Legal Aid SocietyEmployment Law Center and Queen's Bench Bar Association of the San Francisco Bay Area as Amici Curiae on behalf of Plaintiffs and Respondents.
Remcho, Johansen & Purcell, San Leandro, James C. Harrison, Thomas A. Willis and Kari Krogseng for Senators Elaine Alquist, Ellen Corbett, Christine Kehoe, Sheila Kuehl, Carole Migden and Darrell Steinberg and Assemblymembers Noreen Evans, Loni Hancock, Jared W. Huffman, Dave Jones, John Laird, Mark Leno, Sally J. Lieber, Fiona Ma, Anthony J. Portantino and Lori Saldana as Amici Curiae on behalf of Plaintiffs and Respondents. Eva Paterson, San Francisco, Tobias Barrington Wolff; McDermott Will & Emery, Anthony de Alcuaz, Rory K. Little and Bijal V. Vakil, Palo Alto, for Equal Justice Society as Amicus Curiae on behalf of Plaintiffs and Respondents. Weixel Law Office, James V. Weixel, Jr.; Chapman, Popik & White, Susan M. Popik, Merri A. Baldwin, San Francisco; Mary L. Bonauto, Bennett H. Klein and Jamson Wu for Equality Federation and Gay and Lesbian Advocates & Defenders as Amici Curiae on behalf of Plaintiffs and Respondents. Joseph R. Grodin as Amicus Curiae on behalf of Plaintiffs and Respondents. Gibson, Dunn & Crutcher, Jeffrey F. Webb, Wendy L. Wallace, Sarah Piepmeier, San Francisco, Meghan Blanco and Douglas Champion, Los Angeles, for Children of Lesbians and Gays Everywhere, MassEquality, National Gay and Lesbian Task Force, Freedom to Marry, Out & Equal Workplace Advocates and Levi Strauss & Co., as Amici Curiae on behalf of Plaintiffs and Respondents. Paul Weiss Rifkind Wharton & Garrison, Walter Rieman, Roberta A. Kaplan, Andrew J. Ehrlich; Theodore M. Shaw and Victor A. Bolden for NAACP Legal Defense and Educational Fund Inc., as Amicus Curiae on behalf of Plaintiffs and Respondents. Eisenberg and Hancock, Jon B. Eisenberg, Oakland, and William N. Hancock, San Francisco, for California State Conference of the National Association for the Advancement of Colored People as Amicus Curiae on behalf of Plaintiffs and Respondents. ***693 Winston & Strawn, Michael S. Brophy, Peter E. Perkowski, Los Angeles; Sexuality and Gender Law Clinic and Suzanne B. Goldberg for The National Gay & Lesbian Task Force Foundation as Amicus Curiae on behalf of Plaintiffs and Respondents.
Stanford Constitutional Law Center and Kathleen M. Sullivan for Professors of Constitutional Law Pamela S. Karlan, Paul Brest, Alan E. Brownstein, William Cohen, David B. Cruz, Mary L. Dudziak, Susan R. Estrich, David Faigman, Philip B. Frickey, Ronald R. Garet, Kenneth L. Karst, Goodwin Liu, Lawrence C. Marshall, Radkiha Rao, Jonathan D. Varat and Adam Winkler as Amici Curiae on behalf of Plaintiffs and Respondents. Herma Hill Kay and Michael S. Wald for Professors of Family Law Scott Altman, R. Richard Banks, Grace Ganz Blumberg, Janet Bowermaster, Carol S. Bruch, Jan C. Costello, Barbara J. Cox, Jay Folberg, Deborah L. Forman, Joan H. Hollinger, Lisa Ikemoto, Courtney G. Joslin, Jan Kosel, Lawrence Levine, Maya Manian, Mary Ann Mason, John Myers, E. Gary Spitko, D. Kelly Weisberg, Lois Weithorn and Michael Zamperini as Amici Curiae on behalf of Plaintiffs and Respondents. Noah B. Novogrodsky; Cassel, Brock & Blackwell and Laurie J. Livingstone, Toronto, Canada, for The University of Toronto, Faculty of Law International Human Rights Clinic, Women's Institute For Leadership Development, Professors of International Law Mayo Moran, Brenda Cossman, Sujit Choudhry, Robert Wintemute, Paul Schiff Berman, Kenji Yoshino, Beth van Schaack, William Aceves, Margaret Satterthwaite and Barbara Cox as Amici Curiae on behalf of Plaintiffs and Respondents. Noah B. Novogrodsky, Toronto, Canada; Morrison & Foerster, Ruth N. Borenstein, Paul S. Marchegiani and Vincent J. Novak, San Francisco, for The University of Toronto, Faculty of Law International Human Rights Clinic, Professors of International Law William Aceves, Brenda Cossman, Sujit Choudhry, Chai Feldblum, Hari Osofsky, Jaya RamjiNogales and Beth van Schaack, as Amici Curiae on behalf of Plaintiffs and Respondents. McManis Faulkner & Morgan, James McManis and Christine Peek, San Jose, for Santa Clara County Bar Association as Amicus Curiae on behalf of Plaintiffs and Respondents. Caldwell Leslie & Proctor, Christopher G. Caldwell and Linda M. Burrow for Professor William N. Eskridge, Jr., as Amicus Curiae on behalf of Plaintiffs and Respondents. Manning & Marder, Kass, Ellrod, Ramirez, Scott Wm. Davenport, Irvine, Darin L. Wessel, Los Angeles and Jason J. Molnar, San Diego, for The Southern Poverty Law Center as Amicus Curiae on behalf of Plaintiffs and Respondents.
Raoul D. Kennedy, Elizabeth Harlan, San Francisco, Nelson R. Richards, Palo Alto, Joren S. Bass, Philip A. Leider, San Francisco, Michael D. Meuti, Stephen Lee, Los Angeles; HoenningerLaw, Jo Ann Hoenninger; Eric Alan Isaacson, San Diego; and Reverend Silvio Nardoni, Glendale, for Affirmation: Gay and Lesbian Mormons, AlFatiha Foundation, Dignity USA, Alliance of Baptists, Brethren Mennonite Council for Lesbian, Gay, Bisexual and Transgender Interests, Clergy United, Inc., Executive Committee of the American Friends Service Committee, Gay and Lesbian Vaishnava Association, General Synod of the United Church of Christ, Hebrew Union College Institute for Judaism and Sexual Orientation, Integrity USA, Jewish Reconstructionist Federation, Lutherans Concerned/ North America, More Light Presbyterians, Muslims for Progressive Values, National Coalition of American Nuns, Network of Spiritual Progressives, ***694 New Ways Ministry, ReligionOutsideTheBox, Religious Institute on Sexual Morality, Justice, and Healing, Seventh-day Adventist Kinship, International Inc., Soka Gakkai InternationalUSA, The Rabbinical Assembly, The Union for Reform Judaism, Unitarian Universalist Association of Congregations, Unitarian Universalist Ministers Association, United Centers of Spiritual Living, Universal Fellowship of Metropolitan Community Churches, Association of Welcoming & Affirming Baptists (Bay Area), California Church IMPACT, California Council of Churches, California Faith for Equality, Council of Churches of Santa Clara County, Friends Committee on Legislation of California, Jews for Marriage Equality (Southern California), Metropolitan Community Church (California/Region One), More Light Presbyterian Chapter of Pacific Presbytery, Pacific Central District Chapter of the Unitarian Universalist Ministers Association, Pacific Central West Council of the Union for Reform Judaism, Pacific Southwest Council of the Union for Reform Judaism, Pacific Southwest District Chapter of the Unitarian Universalist Ministers Association, Progressive Christians Uniting, Progressive Jewish AllianceCalifornia, Reconciling Ministries Clergy of the CaliforniaNevada Conference of the United Methodist Church, Unitarian Universalist Legislative MinistryCalifornia, United Church of ChristSouthern California /Nevada Conference, All Saints Episcopal Church, All Saints Independent Catholic Parish, All Saints Metropolitan Community Church, Bay Area American Indian TwoSpirits, Berkeley Fellowship of Unitarian Universalists, Buena Vista United Methodist Church, Chalice Unitarian Universalist
Case 3:13-cv-01159 Document 47-10 Filed U.S. 12/20/13 Page 10 of 76 PageID #: 945 10 2013 Thomson Reuters. No claim to original Government Works.
Congregation, Christ the Shepherd Lutheran Church, Church of the Brethren of San Diego, College Avenue Congregational Church United Church of Christ, Community Church of Atascadero United Church of Christ, Community Presbyterian Church, Conejo Valley Unitarian Universalist Fellowship, UCC Community Church of Atascadero, Congregation Beth Chayim Chadashim, Congregation Kol Ami, Congregation Shaar Za'hav, Congregation Shir Hadash, Conejo Valley Unitarian Universalist Fellowship Faith in Action Committee, Diamond Bar United Church of Christ, Dolores Street Baptist Church, Emerson Unitarian Universalist Church, First Christian Church of San Jose Disciples of Christ, First Congregational Church, First Congregational United Church of Christ, First Mennonite Church of San Francisco, First Presbyterian Church, First Unitarian Church of Oakland, First Unitarian Universalist Church of San Diego, First Unitarian Church of San Jose, First Unitarian Universalist Church of Stockton, First Unitarian Universalist Society of San Francisco, Humboldt Unitarian Universalist Fellowship, Inner Light Ministries, Kol Hadash Community for Humanistic Judaism, Lutherans Concerned/Los Angeles, Metropolitan Community Church in the Valley, Metropolitan Community Church of San Jose, Metropolitan Community Church Los Angeles, Monte Vista Unitarian Universalist Congregation Board of Trustees, Mt. Diablo Unitarian Universalist Church, Mt. Hollywood Congregational Church United Church of Christ, Neighborhood Unitarian Universalist Church Board of Trustees, Niles Congregational Church United Church of Christ, Pacific School of Religion, Pacific Unitarian Church, Parkside Community Church, United Church of Christ, Peninsula Metropolitan Community Church, ***695 Pilgrim United Church of Christ, Religious Society of Friends/ Quakers Pacific Yearly Meeting, San Leandro Community Church, Sierra Foothills Unitarian Universalist Congregation, Berkeley Unitarian Universalist Fellowship Social Justice Committee, Social Justice Ministry at First Church, St. Bede's Episcopal Church, St. Francis Lutheran Church, St. John Evangelist Episcopal Church, St. John's Presbyterian Church, St. Matthew's Lutheran Church, St. Paul's United Methodist Church, Starr King School for the Ministry, Starr King Unitarian Universalist Church, Temple Beth Hillel, The Center for Spiritual Awareness, The Church for the Fellowship of All Peoples, The Ecumenical Catholic Church, The Session (Governing Body) of West Hollywood Presbyterian Church, Trinity Lutheran Church, Unitarian Society of Santa Barbara, Unitarian Universalist Church
of Anaheim Board of Trustees, Unitarian Universalist Church of Berkeley Board of Trustees, Unitarian Universalist Church of Davis, Unitarian Universalist Church of the Desert, Unitarian Universalist Church of Fresno, Unitarian Universalist Church of Long Beach Board of Trustees, Unitarian Universalist Church of the Monterey Peninsula, Unitarian Universalist Church of Palo Alto, Universalist Unitarian Church of Riverside Board of Trustees, Unitarian Universalist Church of Ventura Board of Trustees, Unitarian Universalist Community of the Mountains, Unitarian Universalist Community Church of Sacramento, Unitarian Universalist Community Church of Santa Monica, Unitarian Universalist Community Church of South County, Unitarian Universalist Congregation of Marin, Unitarian Universalist Congregation of Santa Rosa, Unitarian Universalist Fellowship of Kern County, Unitarian Universalist Fellowship of Laguna Beach, Unitarian Universalist Fellowship of Redwood City, Unitarian Universalist Fellowship of San Dieguito Welcoming Congregation Committee, Unitarian Universalist Fellowship of San Luis Obispo County Board of Trustees, Unitarian Universalist Fellowship of Stanislaus County, Unitarian Universalist Fellowship of Visalia, Unitarian Universalists of San Mateo, Unitarian Universalists of Santa Clarita, Unitarian Universalist Society of Sacramento, United Church of Christ in Simi Valley, Unity in the Gold Country, Universalist Unitarian Church of Santa Paula, University Lutheran Chapel, Valley Ministries Metropolitan Community Church, Rabbi Mona Alfi, Reverend Dr. Pam Allen Thompson, Reverend Rachel Anderson, Reverend Sky Anderson, Rabbi Camille Angel, Rabbi Melanie Aron, Reverend Joy Atkinson, Reverend Dr. Brian Baker, Reverend Elizabeth O'Shaughnessy Banks, Reverend K.G. Banwart, Jr., Reverend Canon Michael Barlowe, William H. Bartosh, Rabbi Haim Dov Beliak, Reverend Chris Bell, Reverend JD Benson, Rabbi Linda Bertenthal, Pastor LeAnn Blackert, Reverend Dr. Dorsey O. Blake, Reverend James E. Boline, Pastor Kenny A. Bowen, Reverend Susan Brecht, Pastor Paul Brenner, Rabbi Rick Brody, Reverend Dr. Ken Brown, Reverend Kevin Bucy, Reverend Jim Burklo, Nancy Burns, Reverend Dr. R.A. Butziger, Reverend Becky Cameron, Reverend Canon Grant S. Carey, Reverend Matthew M. Conrad, Reverend Helen Carroll, Rabbi Ari Cartun, Reverend Lauren Chaffee, Reverend Craig B. Chapman, Reverend Barbara M. Cheatham, Reverend Jan Christian, Reverend Bea Chun, Reverend June M. Clark, Reverend Anne G. Cohen, Rabbi Helen T. Cohn, ***696 Reverend Carolyn Colbert, Reverend Kenneth W.
Collier, Reverend Dr. Gary B. Collins, Reverend Mary P. Conant, Rabbi Susan S. Conforti, Reverend Meghan Conrad, Rabbi Laurie Coskey, Reverend Lyn Cox, Reverend Sofia Craethnenn, Reverend Susan Craig, Reverend Robbie Cranch, Reverend Alexie Crane, Reverend Matthew Crary, Reverend Robert Crouch, Reverend Dr. Donald J. Dallmann, Reverend Cinnamon Daniel, Reverend Diann Davisson, Pastor Jerry De Jong, Rabbi Lavey Derby, Reverend Susan Wolfe Devol, Reverend Frances A. Dew, Reverend Brian K. Dixon, Rabbi Elliot Dorff, Reverend Terri Echelbarger, Rabbi Lisa A. Edwards, Reverend Leroy Egenberger, Rabbi Denise Eger, Reverend Michael Ellard, Diana Elrod, Reverend Stefanie EtzbachDale, Pastor Brenda Evans, Interim Minister Mark Evens, Reverend Renae Extrum Fernandez, Reverend John Fanestil, Reverend Jerry Farrell, Reverend Lydia FerranteRoseberry, Reverend Michelle Favreult, Reverend Jeanne FavreauSorville, Rabbi Joel Fleekop, Reverend Dr. Yvette Flunder, Reverend Dr. John Forney, Reverend Jerry Fox, Reverend Canon Winifred B. Gaines, Reverend Ronn Garton, Rabbi Laura Geller, Reverend Diana Gibson, Reverend Dr. Robert Goldstein, Reverend Dr. Robert Goss, Reverend Dr. June Goudey, Reverend Robert C. Grabowski, Reverend Constance L. Grant, Reverend James Grant, Rabbi Bruce DePriester Greenbaum, Reverend William Greer, Reverend Dr. Ron Griffen, Thomas Grogan, Reverend Clyde E. Grubbs, Reverend Sara HaldemanScarr, Reverend Caroline Hall, Reverend Dr. Susan Hamilton, Reverend Bill HamiltonHolway, Reverend Barbara HamiltonHolway, Reverend Bet Hannon, Reverend Dr. Andrew F. Headden, Reverend Dr. Kathy Hearn, Reverend Jane Heckles, Rabbi Alan Henkin, Reverend Erika Hewitt, Rabbi Jay Heyman, Reverend Carol C. Hilton, Reverend Anne Felton Hines, Reverend Katie Hines Shah, Reverend Martha Hodges, Reverend Jackie Holland, Reverend Marcia Hootman, Reverend Laura Horton Ludwig, Reverend Sherri Hostetler, Reverend Ricky Hoyt, Reverend Kathy Huff, Minister Victoria Ingram, Reverend Keith Inouye, Reverend Steve Islander, Reverend Alyson E. Jacks, Rabbi Steven B. Jacobs, Berget Jelane, Reverend Bryan D. Jessup, Reverend Jeff Johnson, Reverend Beth Johnson, Reverend Deborah L. Johnson, Reverend Nancy Palmer Jones, Reverend Alan H. Jones, Reverend Roger Jones, Reverend Julie Kain, Reverend Kathryn Kandarian, Rabbi Jim Kaufman, Reverend John M. Kauffman, Reverend Canon Kathleen Kelly, Rabbi Paul Kipnes, Reverend John Kirkley, Reverend Benjamin A. KocsMeyers, Rabbi Douglas Kohn,
Reverend Vicky Kolakowski, Reverend Douglas C.B. Kraft, Reverend Kurt Kuhwald, Joel L. Kushner, Reverend Richard Kuykendall, Reverend Peter Laarman, Rabbi Susan Laemmle, Rabbi Howard Laibson, Reverend Darcey Laine, Pastor Scott Landis, Rabbi Moshe Levin, Reverend Tom Lewis, Reverend Catherine Linesch, Rabbi Michael Lotker, Reverend Marguerite Lovett, Reverend Carol Lowe, Rabbi Barry Lutz, Reverend Max Lynn, Reverend Ken MacLean, Rabbi Tamar Malino, Dr. Anthony Manousos, Reverend Luther J. Martell, Reverend Elder Debbie Martin, Pastor MichaelRay Mathews, Reverend Russell Matteson, Rabbi Brian Zachary Mayer, Reverend Gregory W. McGonigle, ***697 Reverend Joseph McGowan, Reverend Janet Gollery McKeithen, Reverend Margo McKenna, Reverend William McKinney, Reverend Susan Meeter, Rabbi Norman Mendel, Pastor Ross D. Merkel, Reverend Eric H. Meter, Charles Metz, Reverend Judith Meyer, Reverend Barbara F. Meyers, Reverend Elisabeth Middleberg, Reverend Beth Miller, David Miller, Reverend Diane Miller, Reverend Terri Miller, Reverend John Millspaugh, Reverend Dr. Curt Miner, Rabbi Michelle Missaghieh, Reverend Sarah Moldenhauer Salazar, Reverend Douglas J. Monroe, Reverend John Morehouse, Reverend Amy Zucker Morgenstern, Reverend David Moss, Reverend James A. Nelson, Reverend Drew Nettinga, Reverend Canon James A. Newman, Reverend Julia Older, Reverend Dr. Claudene F. Oliva, Reverend Elaine O'Rourke, Reverend Donna Owen, Reverend Dr. Carolyn S. OwenTowle, Reverend Tom OwenTowle, Reverend Kathleen Owens, Reverend Nancy Palmer Jones, Reverend Dr. Rebecca Parker, Reverend Ken Pennings, Reverend John Perez, Reverend Hannah Petrie, Reverend Jay K. Pierce, Reverend Ernest Pipes, Reverend Mary Elizabeth PrattHorsley, Reverend Georgia Prescott, Reverend Dr. Lisa Presley, Reverend Carolyn Price, Reverend Sherry Prud'homme, Reverend Jane Quandt, Reverend Fred Rabidoux, Reverend Lindi Ramsden, Rabbi Lawrence Raphael, Reverend George F. Regas, Reverend Dr. Mark Richardson, Reverend Scott Richardson, Reverend Bear Ride, Philip Boo Riley, Cantor Aviva Rosenbloom, Reverend John Robinson, Reverend Carol Rudisill, Reverend Susan Russell, Reverend Gerald Sakamoto, Reverend David Sammons, Lee Marie Sanchez, Reverend William C. Sanford, Reverend Charles Schepel, Reverend Michael Schiefelbein, Reverend Dr. Rick Schlosser, Reverend Brian Scott, Reverend Thomas Schmidt, Reverend Craig Scott, Reverend Wayna Scovell, Reverend Michael Schuenemeyer, Reverend Dr. Steven Shepard, Dr. John M. Sherwood, Reverend Mark Shirilau, Reverend Robert Shively, Reverend
Madison Shockley II, Reverend Grace Simons, Reverend Bruce J. Simpson, Reverend Dan Smith, Reverend Linda Snyder, Reverend Jeffrey Spencer, Reverend June StanfordClark, Reverend Dr. Betty Stapleford, Reverend Stanley Stefancic, Rabbi Ron Stern, Reverend Gregory L. Stewart, Reverend Bob Stiles, Reverend Janine Stock, Reverend Arvid Straube, Reverend Dr. Archer Summers, Reverend Steven Swope, Reverend Paul Tellstrom, Reverend Margo Tenold, Reverend Byrd Tetzlaff, Reverend Neil Thomas, Reverend David Thompson, Reverend Mary Lynn Tobin, Mary A. Tolbert, Reverend Tarah Trueblood, Reverend Lynn Ungar, Reverend Nada Velimirovic, Reverend Jane E. Voigts, Reverend Canon Lynell Walker, Reverend Greg Ward, Rabbi Arthur Waskow, Reverend Theodore A. Webb, Reverend Dr. Petra Weldes, Reverend Vail Weller, Reverend Roger Wharton, Reverend Bets Wienecke, Reverend Lee Williamson, Reverend Elder Nancy Wilson, Rope Wolf, Reverend Ned Wright, Rabbi Bridget Wynne and Reverend Michael Yoshi as Amici Curiae on behalf of Plaintiffs and Respondents. Opinion GEORGE, C.J. *778 **397 In Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459 (Lockyer ), this court concluded that public officials of the City and County of San Francisco acted unlawfully by issuing marriage licenses to ***698 same-sex couples in the absence of a judicial determination that the California statutes limiting marriage to a union between a man and a woman are unconstitutional. Our decision in Lockyer emphasized, however, that the substantive question of the constitutional validity of the California marriage statutes was not before this court in that proceeding, and that our decision was not intended to reflect any view on that issue. (Id. at p. 1069, 17 Cal.Rptr.3d 225, 95 P.3d 459; see also id. at p. 1125, 17 Cal.Rptr.3d 225, 95 P.3d 459 (conc. opn. of Moreno, J.); id. at pp. 11321133, 17 Cal.Rptr.3d 225, 95 P.3d 459 (conc. & dis. opn. of Kennard, J.); id. at p. 1133, 17 Cal.Rptr.3d 225, 95 P.3d 459 (conc. & dis. opn. of Werdegar, J.).) The present proceeding, involving the consolidated appeal of six cases that were litigated in the superior court and the Court of Appeal in the wake of this court's decision in Lockyer, squarely presents the substantive constitutional question that was not addressed in Lockyer.
In considering this question, we note at the outset that the constitutional issue before us differs in a significant respect from the constitutional issue that has been addressed by a number of other state supreme courts and intermediate appellate courts that recently have had occasion, in interpreting the applicable provisions of their respective state constitutions, to determine the validity of statutory provisions or common law rules limiting marriage to a union of a man and a woman. (See, e.g., Conaway v. Deane (2007) 401 Md. 219, 932 A.2d 571; Goodridge v. Dept. of Pub. Health (2003) 440 Mass. 309, 798 N.E.2d 941; *779 Lewis v. Harris (2006) 188 N.J. 415, 908 A.2d 196; Hernandez v. Robles (2006) 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1; Baker v. State (1999) 170 Vt. 194, 744 A.2d 864; Andersen v. King County (2006) 158 Wash.2d 1, 138 P.3d 963; Standhardt v. Superior Court (Ct.App.2003) 206 Ariz. 276, 77 P.3d 451; Morrison v. Sadler (Ind.Ct.App.2005) 821 N.E.2d 15.) These courts, often by a one-vote margin (see, post, at p. 853, 76 Cal.Rptr.3d pp. 762, fn. 70, 183 P.3d pp. 450451, fn. 70), have ruled upon the validity of statutory schemes that contrast with that of California, which in recent years has enacted comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords **398 the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple. 2 Past ***699 California cases explain that the constitutional validity of a challenged statute or statutes must be evaluated by taking into consideration all of the relevant statutory provisions that bear upon how the state treats the affected persons with regard to the subject at issue. (See, e.g., Brown v. Merlo (1973) 8 Cal.3d 855, 862, 106 Cal.Rptr. 388, 506 P.2d 212.) Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a marriage whereas *780 the union of a same-sex couple is officially designated a domestic partnership. The question we must address is
whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution. 3 It also is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship **399 of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution. We are aware, of course, that very strongly held differences of opinion exist on the matter of policy, with those persons who support the inclusion of same-sex unions within the definition ***700 of marriage maintaining that it is unfair to same-sex couples and potentially detrimental to the fiscal interests of the state and its economic institutions to reserve the designation of marriage solely for oppositesex couples, and others asserting that it is vitally important to preserve the long-standing and traditional definition of marriage as a union between a man and a woman, even as the state extends comparable rights and responsibilities to committed same-sex couples. Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions. As explained hereafter, the determination whether the current California statutory scheme relating to marriage and to registered domestic partnership *781 is constitutionally valid implicates a number of distinct and significant issues under the California Constitution. First, we must determine the nature and scope of the right to marry a right that past cases establish as one of the fundamental constitutional rights embodied in the California Constitution. Although, as an historical matter, civil marriage and the rights associated with it traditionally have been afforded only to opposite-sex couples, this court's landmark decision 60 years ago in Perez v. Sharp (1948) 32 Cal.2d 711, 198 P.2d 17 4 which found that California's statutory provisions prohibiting interracial marriages were inconsistent with the fundamental constitutional right to marry, notwithstanding the circumstance that statutory prohibitions on interracial marriage had existed since the founding of the state makes clear that history alone is not invariably an appropriate guide for determining the meaning
and scope of this fundamental constitutional guarantee. The decision in Perez, although rendered by a deeply divided court, is a judicial opinion whose legitimacy and constitutional soundness are by now universally recognized. As discussed below, upon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), we conclude that, under this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish with the person with whom the individual has chosen to share his or her life an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of ***701 their own and, if the couple chooses, to raise children within that family constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society. *782 **400 Furthermore, in contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, that an individual's sexual orientation like a person's race or gender does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples. 5
In defending the constitutionality of the current statutory scheme, the Attorney General of California maintains that even if the constitutional right to marry under the California Constitution applies to same-sex couples as well as to opposite-sex couples, this right should not be understood as requiring the Legislature to designate a couple's official family relationship by the term marriage, as opposed to some other nomenclature. The Attorney General, observing that fundamental constitutional rights generally are defined by substance rather than by form, reasons that so long as the state affords a couple all of the constitutionally protected substantive incidents of marriage, the state does not violate the couple's constitutional right to marry simply by assigning their official relationship a name other than marriage. Because the Attorney General maintains that California's current domestic partnership legislation affords same-sex couples all of the core substantive rights that plausibly may be guaranteed to an individual or couple as elements of the fundamental state constitutional right to marry, the Attorney General concludes that the current California statutory scheme relating to marriage and domestic partnership does not violate the fundamental constitutional right to marry embodied in the California Constitution. We need not decide in this case whether the name marriage is invariably a core element of the state constitutional right to marry so that the state would violate a couple's constitutional right even if perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples. Under the current statutes, the state has not revised the name of the official family relationship for all couples, but rather has drawn a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership). One of the core *783 elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple's right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family ***702 relationship of same-sex couples while reserving the historic designation of marriage exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive
elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple's constitutional right to marry under the California Constitution. Furthermore, the circumstance that the current California statutes assign a different name for the official family relationship of same-sex couples as contrasted with the name for the official family relationship of opposite-sex couples raises constitutional concerns not only under the state constitutional right to marry, but also under the state constitutional equal protection clause. **401 In analyzing the validity of this differential treatment under the latter clause, we first must determine which standard of review should be applied to the statutory classification here at issue. Although in most instances the deferential rational basis standard of review is applicable in determining whether different treatment accorded by a statutory provision violates the state equal protection clause, a more exacting and rigorous standard of review strict scrutiny is applied when the distinction drawn by a statute rests upon a so-called suspect classification or impinges upon a fundamental right. As we shall explain, although we do not agree with the claim advanced by the parties challenging the validity of the current statutory scheme 6 that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender and should be subjected to strict scrutiny on that ground, we conclude that strict scrutiny nonetheless is applicable here because (1) the statutes in question properly *784 must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents like gender, race, and religion a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a samesex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple. Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally ***703 legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest. Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential
treatment of opposite-sex and same-sex couples embodied in California's current marriage statutes the interest in retaining the traditional and well-established definition of marriage cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest. A number of factors lead us to this conclusion. First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting samesex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording samesex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread **402 disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise now emphatically rejected by this state that gay individuals and same-sex couples are in some respects *785 second-class citizens who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or oppositesex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.
I On February 10, 2004, the Mayor of the City and County of San Francisco (City) sent a letter to the county clerk, directing that official to determine what changes should be made to the forms and documents used to apply for and issue marriage licenses, so that licenses could be provided to couples without regard to their gender or sexual orientation. In response, the county clerk designed revised forms for the marriage license application and for the license and certificate of marriage, and on February 12, 2004, the City began issuing marriage licenses to same-sex couples. The following day, two separate actions were filed in San Francisco Superior Court seeking an immediate stay as well as writ relief, to prohibit the City's issuance of marriage licenses to same-sex couples. (Proposition 22 Legal Defense and Education ***704 Fund v. City and County of San Francisco (Super. Ct. S.F. City & County, No. CPF04 503943) (hereafter Proposition 22 Legal Defense Fund ); Thomasson v. Newsom (Super. Ct. S.F. City & County, No. CGC04428794) (subsequently retitled as Campaign for California Families v. Newsom, and hereafter referred to as Campaign ).) As noted, the Proposition 22 Legal Defense Fund and the Campaign actions are two of the six cases whose consolidated appeals are before us in the present proceeding. (Ante, at p. 778, fn. 1, 76 Cal.Rptr.3d at p. 683, fn. 1, 183 P.3d at p. 385, fn. 1.) After the superior court declined to grant an immediate stay in the Proposition 22 Legal Defense Fund and the Campaign actions and the City continued to issue marriage licenses to, and solemnize and register marriages of, numerous same-sex couples, the California Attorney General and a number of taxpayers filed two separate petitions seeking to have this court issue an original writ of mandate, asserting that the City's actions were unlawful and warranted our immediate intervention. (Lockyer v. City and County of San Francisco, S122923, 2004 WL 473257; Lewis v. Alfaro, S122865, 2004 WL 473258.) On March 11, 2004, we issued an order to show cause in those original writ proceedings, and, pending our determination of both matters, directed City officials to enforce the existing marriage statutes and to refrain from issuing marriage licenses not authorized by such provisions. In addition, our March 11 order stayed all proceedings in the two cases then pending in San Francisco Superior Court (the Proposition 22 Legal Defense Fund and the Campaign *786 actions), but at the same time indicated that the stay
did not preclude the filing of a separate action in superior court raising a direct challenge to the constitutionality of California's current marriage statutes. (Lockyer, supra, 33 Cal.4th 1055, 10731074, 17 Cal.Rptr.3d 225, 95 P.3d 459.) Shortly after our March 11, 2004, order was issued, and while the consolidated Lockyer cases still were pending in this court, the City filed a writ petition and complaint for declaratory relief in superior court, seeking a declaration that (1) Family Code section 308.5 an initiative statute proposed by Proposition 22 and enacted by the voters does not apply to marriages solemnized in the State of California, and that (2) in any event, all California statutory provisions limiting **403 marriage to unions between a man and a woman violate the California Constitution. (City and County of San Francisco v. State of California (Super. Ct. S.F. City & County, No. CGC04429539) (CCSF ).) Thereafter, two similar actions challenging the constitutionality of California's current marriage statutes were filed by a number of same-sex couples who maintain either that they are involved in committed relationships but are not permitted to marry in California, or that their out-ofstate marriages are not recognized under California law. Several statewide organizations representing many thousands of same-sex couples joined as plaintiffs in these actions. (Woo v. Lockyer (Super. Ct. S.F. City & County, No. CPF04504038) (Woo ); Tyler v. County of Los Angeles (Super.Ct.L.A.County, No. BS088506) (Tyler ).) According to declarations filed in the trial court, the named same-sex couples who are parties to these actions embody a diverse group of individuals who range from 30 years of age to more than 80 years of age, who come from various racial and ethnic backgrounds, and who are employed in (or have retired from) a wide variety of occupations, including pharmacist, military serviceman, teacher, hospital administrator, and transportation manager. Many of ***705 the couples have been together for well over a decade and one couple, Phyllis Lyon and Del Martin, who are in their eighties, have resided together as a couple for more than 50 years. Many of the couples are raising children together. Subsequently, the CCSF, Woo, and Tyler actions, along with the previously filed Proposition 22 Legal Defense Fund and Campaign actions, were coordinated, by order of a judge appointed by the Chair of the Judicial Council, into a single proceeding entitled In re Marriage Cases (JCCP No. 4365, hereafter referred to as the Marriage Cases ). (Code Civ. Proc., 404 et seq.) That coordination proceeding was
assigned to San Francisco Superior Court Judge Richard A. Kramer. A sixth action (Clinton v. State of California (Super. Ct. S.F. City & County, No. CGC04429548) (Clinton )), filed by a separate group of same-sex couples who similarly challenged the *787 constitutionality of the current marriage statutes, later was added to the Marriage Cases coordination proceeding. On August 12, 2004, while the Marriage Cases coordination proceeding was pending in the superior court, our court rendered its decision in Lockyer, supra, 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459, concluding that the City officials had exceeded their authority in issuing marriage licenses to same-sex couples in the absence of a judicial determination that the statutory provisions limiting marriage to the union of a man and a woman are unconstitutional, and further concluding that the approximately 4,000 samesex marriages performed in San Francisco prior to our March 11, 2004, order were void and of no legal effect. In light of these conclusions, we issued a writ of mandate compelling the City officials to comply with the requirements and limitations of the current marriage statutes in performing their duties under these statutes, and directing the officials to notify all same-sex couples to whom the officials had issued marriage licenses or registered marriage certificates that these samesex marriages were void from their inception and a legal nullity. (Lockyer, supra, 33 Cal.4th at p. 1120, 17 Cal.Rptr.3d 225, 95 P.3d 459.) Although we concluded in Lockyer that the City officials had acted unlawfully and that the same-sex marriages they had authorized were void, as already noted our opinion made clear that the substantive question of the constitutionality of California's statutory provisions limiting marriage to a man and a woman was not before us in the Lockyer proceeding and that we were expressing no opinion on this issue. (Id., at p. 1069, 17 Cal.Rptr.3d 225, 95 P.3d 459; see also id. at p. 1125, 17 Cal.Rptr.3d 225, 95 P.3d 459 (conc. opn. of Moreno, J.); id. at pp. 11321133, 17 Cal.Rptr.3d 225, 95 P.3d 459 (conc. & dis. opn. of Kennard, J.); id. at p. 1133, 17 Cal.Rptr.3d 225, 95 P.3d 459 (conc. & dis. opn. of Werdegar, J.).) After the issuance of our decision in Lockyer, supra, 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459, the superior court in the coordination matter proceeded expeditiously to solicit briefing and conduct a hearing on the validity, under the California Constitution, of California's statutes limiting marriage **404 to a man and a woman. On April 13, 2005, the superior court issued its decision on this substantive constitutional question. Although plaintiffs
argued that the statutes limiting marriage to a union of a man and a woman violated a number of provisions of the California Constitution including the fundamental right to marry protected by the due process and privacy provisions of the California Constitution and the equal protection clause of that Constitution the superior court confined its decision to the challenge that was based upon the equal protection clause. In analyzing the equal protection claim, the superior court determined ***706 that the statutes limiting marriage in California to opposite-sex couples properly must be evaluated under the strict scrutiny equal protection standard, because those statutory enactments rest upon a suspect classification (sex) and impinge upon a fundamental constitutional right (the right to marry). The court considered the various state interests and justifications proffered in support of those enactments, ultimately concluding that the *788 statutory limitation of marriage to the union of a man and a woman not only does not satisfy the strict scrutiny standard, but also does not meet the more deferential rational basis test because, in the superior court's view, the differential treatment mandated by the statute does not further any legitimate state interest. In light of this conclusion, the court held that California's current marriage statutes are unconstitutional under the state Constitution insofar as they limit marriage to opposite-sex couples. The superior court entered judgment in favor of plaintiffs in each of the coordinated cases. On appeal, the Court of Appeal, in a two-to-one decision, reversed the superior court's ruling on the substantive constitutional issue, disagreeing in a number of significant respects with the lower court's analysis of the equal protection issue. (Maj. opn. of McGuiness, P.J., joined by Parrilli, J.) First, the majority opinion in the Court of Appeal concluded the superior court erred in finding that the statutory provisions at issue impinge upon the fundamental constitutional right to marry, determining that this right properly should be interpreted to encompass only the right to marry a person of the opposite sex and that the constitutional right that plaintiffs actually sought to enforce is a right to same-sex marriage a right that the Court of Appeal majority found lacking in any historical or precedential support. Second, the Court of Appeal majority rejected the superior court's conclusion that the California marriage statutes discriminate on the suspect basis of sex and for this reason are subject to strict scrutiny review, relying upon the circumstance that the statutes do not discriminate against either men or women or treat either of the genders differently from the other, but rather permit members of either gender to marry only a person of the opposite gender. Third, although the
Court of Appeal majority found that California's marriage statutes realistically must be viewed as providing differential treatment on the basis of sexual orientation, the majority went on to hold that sexual orientation does not constitute a suspect classification for purposes of the state equal protection clause. The majority thus concluded that, contrary to the superior court's determination, the marriage statutes are not subject to strict scrutiny review but rather must be evaluated only under the deferential rational basis standard. Finally, applying that standard, the majority disagreed with the superior court and found that the marriage statutes' limitation of marriage to opposite-sex couples survives rational basis review, reasoning that the state has a legitimate interest in preserving the traditional definition of marriage and that the statute's classifications are rationally related to that interest. Accordingly, the Court of Appeal majority concluded that the superior court erred in finding the marriage statutes unconstitutional. One of the appellate justices who joined the majority opinion also wrote a concurring opinion, addressing what her opinion described as more philosophical questions presented by the challenging issues before us. (Conc. opn. of Parrilli, J.) The concurring justice observed that in her view, *789 the domestic partnership legislation seems to recognize that at this stage, we do not know whether the state must name ***707 and privilege same-sex unions in exactly the same way traditional marriages are supported. The **405 nuance at this moment in history is that the institution (marriage) and emerging institution (same-sex partnerships) are distinct and, we hope, equal. We hope they are equal because of the great consequences attached to each. Childrearing and passing on culture and traditions are potential consequences of each. To the degree that any committed relationship provides love and security, encourages fidelity, and creates a supportive environment for children it is entitled to respect. Whether it must be called the same, or supported by the state as equal to the traditional model, only time and patient attention to the models at issue will tell. Agreeing with the majority opinion, the concurring justice concluded that [i]t is the legitimate business of the Legislature to attempt to close the distance between the parallel institutions (marriage and samesex committed domestic partnerships) as they develop, and to address such concerns. The third appellate court justice dissented from the majority's determination that the marriage statutes do not violate the California Constitution. (Conc. & dis. opn. of Kline, J.) The dissenting justice (1) disagreed with the majority's conclusion
that the same-sex couples challenging the marriage statutes are seeking recognition of a novel constitutional right to same-sex marriage rather than simply the application of an established fundamental constitutional right to marry a person of one's choice, (2) explained why, in his view, sexual orientation should be considered a suspect classification for purposes of equal protection principles, and (3) finally concluded that the challenged statutory restriction limiting marriage to opposite-sex couples has no rational basis, let alone a compelling justification. In light of the importance of the substantive constitutional issues presented, we granted review.
1060 the Fund can seek and obtain a declaratory judgment against the City with regard to that legal question. 7 Past California decisions establish, however, that notwithstanding an advocacy group's strong political or ideological support of a statute or ordinance and its disagreement with those who question or challenge the validity of the legislation such a disagreement does not **406 in itself afford the group the right to intervene formally in an action challenging the validity of the measure. (See, e.g., Socialist Workers etc. Committee v. Brown (1975) 53 Cal.App.3d 879, 891892, 125 Cal.Rptr. 915 [holding trial court did not err in rejecting Common Cause's request to intervene in action challenging statutes requiring disclosure of campaign contributions]; People ex rel. Rominger v. County of Trinity (1983) 147 Cal.App.3d 655, 662, 195 Cal.Rptr. 186 [rejecting Sierra Club's claim that its strong interest in the enforcement of county's environmental laws was itself sufficient to afford it standing to intervene in action challenging the validity of an ordinance prohibiting the spraying of a specified chemical].) For similar reasons, we agree with the Court of Appeal that, absent a showing by the Fund that it possesses a direct legal interest that will be injured or adversely affected (which the Fund acknowledges has not been established here), 8 the Fund's strong ideological disagreement with the City's views regarding the scope or constitutionality of Proposition 22 is not *791 sufficient to afford standing to the Fund to maintain a lawsuit to obtain a declaratory judgment regarding these legal issues. (See, e.g., Newland v. Kizer (1989) 209 Cal.App.3d 647, 657, 257 Cal.Rptr. 450; Zetterberg v. State Dept. of Public Health (1974) 43 Cal.App.3d 657, 662663, 118 Cal.Rptr. 100.) In this respect, the Fund is in a position no different from that of any other member of the public having a strong ideological or philosophical disagreement with a legal position advanced by a public entity that, through judicial compulsion or otherwise, continues to comply with a contested measure. 9 The Campaign argues alternatively that the superior court, in permitting these two actions to go forward notwithstanding this court's opinion in Lockyer, properly could view that decision as providing only interim ***709 mandamus relief against the City, leaving the question whether the City should be permanently enjoined from granting marriage licenses to same-sex couples for resolution in the Proposition 22 Legal Defense Fund and the Campaign actions. Our decision in Lockyer, however, does not support such an interpretation. We did not purport to afford only interim relief, but rather granted to the petitioners before us the same full and final mandamus relief to which the Fund and the Campaign
II [1] Before beginning our discussion of the significant constitutional issues presented by this case, we briefly address a much more limited procedural point relating only to the Proposition 22 Legal Defense Fund and the Campaign proceedings the two actions that were filed immediately after San Francisco officials began issuing marriage licenses to same-sex couples and that were stayed by our court during the pendency of the Lockyer proceeding. The Court of Appeal concluded that although these two cases presented justiciable actions when they were initially filed, once this court issued its decision in Lockyer, supra, 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459, these actions no longer presented justiciable controversies, because this court's decision in Lockyer *790 effectively granted all of the relief to which the parties in those actions were entitled (including the prohibition of any continued illegal expenditure of public funds). Accordingly, the Court of Appeal determined that the superior court erred in failing, at that juncture, to dismiss these two actions as moot. Although the Fund and the Campaign take issue with the Court of Appeal's conclusion on this point, we agree with that determination. In challenging this aspect of the Court of Appeal's ruling, the Fund maintains that notwithstanding this court's decision in Lockyer, the superior court properly could find that, because there is a continuing dispute between the Fund and the City over the scope and constitutionality of Family Code section 308.5 (the initiative statute adopted by the voters' approval of Proposition 22 in March 2000), the Proposition 22 Legal Defense Fund action constitutes ***708 a permissible vehicle by which under Code of Civil Procedure section
would have been entitled in the mandamus actions filed in superior court against City officials by each of those parties. (Lockyer, supra, 33 Cal.4th at p. 1120, 17 Cal.Rptr.3d 225, 95 P.3d 459.) Although our decision recognized that the constitutionality of the marriage statutes remained open for judicial resolution in the future, we clearly indicated that the relief ordered constituted a final resolution of the mandamus action rather than simply an interim order. (Id. at p. 1112, 17 Cal.Rptr.3d 225, 95 P.3d 459.) Thus, the decision of the superior court cannot be supported on the basis of the interimremedy theory advanced by the Campaign.
California's current marriage statutes derive in part from this state's Civil Code, enacted in 1872, which was based in large part upon Field's New York Draft Civil Code. As adopted in 1872, former section 55 of the Civil Code provided that marriage is a personal relation arising out of a civil contract, to which the consent of the parties capable
of making it is necessary, 13 and **408 former section 56 of that code, in turn, provided that [a]ny unmarried male of the age of eighteen years or upwards, and any unmarried female of the age of fifteen years or upwards, and not otherwise disqualified, are capable of consenting [2] [3] Accordingly, on this initial procedural point, we to and consummating marriage. Although these statutory agree with the Court of Appeal's conclusion that once this provisions did not expressly state that marriage could be court's decision in Lockyer granted the mandamus relief entered into only by a man and a woman, the statutes clearly sought by the Fund and the Campaign in their previously filed were intended to have that meaning and were so understood. lawsuits against the City and its officials, the superior court (See Code commrs. note foll., 1 Ann. Civ.Code (1st ed. 10 **407 should have dismissed those actions as moot. 1872, Haymond & Burch, commrs. annotators) p. 28.) Thus, this court's decisions of that era declared that the marriage relationship is one by which a man and woman reciprocally engage to live with each other during their joint lives, and to *792 III discharge toward each other the duties imposed by law on the relation of husband and wife (Mott v. Mott (1890) 82 Cal. We now turn to the significant substantive constitutional 413, 416, 22 P. 1140), and that the marriage contract is one issues before us. We begin by examining the relevant by which a man and woman capable of entering into such a California statutory provisions relating to marriage and contract mutually engage with each other to live their whole domestic partnership that lie at the heart of this controversy. lives together in the ***711 state of union which ought to exist between a husband and his wife. (Kilburn v. Kilburn (1891) 89 Cal. 46, 50, 26 P. 636.) A From the beginning of California statehood, the legal institution of civil marriage 11 has been understood to refer to a ***710 relationship between a man and a woman. Article XI, section 14 of the California Constitution of 1849 California's first Constitution provided explicit constitutional protection for a wife's separate property (italics added), 12 and the marriage statute adopted by the California Legislature during its first session clearly assumed that the marriage relationship necessarily involved persons of the opposite sex. (See Stats. 1850, ch. 140, 2, p. 424 [listing, as marriages that would be considered incestuous, and absolutely void, marriages between brothers and sisters of the one half as well as the whole blood and between uncles and nieces, [or] aunts and nephews]; id., 7, p. 424 [No Judge ..., or *793 other person, shall join in marriage any male under the age of twenty-one years, or female under the age of eighteen years, without the consent of the parent or guardian].) Although the California statutes governing marriage and family relations have undergone very significant changes in a host of areas since the late 19th century, the statutory designation of marriage as a relationship between a man and a woman has remained unchanged. In 1969, the Legislature adopted the Family Law Act (Stats. 1969, ch. 1608, 8, pp. 33143344) which, among other matters, substantially revised the *794 statutory provisions governing the dissolution of marriage, but retained and recodified former sections 55 and 56 of the Civil Code as Civil Code sections 4100 and 4101. 14 In 1971, following the adoption of the 26th Amendment to the federal Constitution, which lowered the voting age in federal elections to 18 years of age, our state Legislature passed a bill lowering most statutory minimum ages in California law to that age. (Stats. 1971, ch. 1748, 1, p. 3736 [Except for [limited, specified exceptions], whenever, in any provision of
law, the term 21 years of age or any similar phrase regarding such age appears, it shall be deemed to mean 18 years of age ].) As part of this legislation, the provisions of Civil Code section 4101, subdivision (a), which previously had set the age of consent for marriage for men at 21 years of age and for women at 18 years of age, were modified to provide a uniform age of consent of 18 years of age for both genders. In revising the language of section 4101 to equalize the minimum age for men and women, the 1971 legislation eliminated references to male and female, so that section 4101, subdivision (a), as amended in 1971, stated simply that [a]ny unmarried person of the age of 18 years or upwards, and not otherwise disqualified, is capable of consenting to and consummating marriage. (Stats. 1971, ch. 1748, 26, p. 3747.) There is no indication in the legislative history of the 1971 enactment, however, that the change in section 4101 was intended to authorize marriage of two persons of the same sex, and numerous other marriage statutes, reflecting the long-standing understanding that marriage under California law refers to a union between a man and a woman, remained unchanged. (See, e.g., Civ.Code, former 4213 (now Fam.Code, 500) [when unmarried persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergymember]; **409 Civ.Code, former 4400 (now Fam.Code, 2200) [Marriages between ... brothers and sisters ..., ... between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning]; Civ.Code, former 4425 (now Fam.Code, 2210) [a marriage is voidable if [e]ither party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband and wife].) In the mid1970's, several same-sex couples sought marriage licenses from county clerks in a number of California counties, relying in part upon the 1971 change in the language of Civil Code section 4101, subdivision (a), noted above. All of the county clerks who were approached by these *795 same-sex couples denied the applications, but in order to eliminate any uncertainty as to whether the then existing ***712 California statutes authorized marriage between two persons of the same sex, legislation was introduced in 1977 at the request of the County Clerks' Association of California to amend the provisions of sections 4100 and 4101 to clarify that the applicable California statutes authorized marriage only between a man and a woman. (Stats. 1977, ch. 339, 1, p. 1295, introduced as Assem. Bill No. 607 (19771978 Reg. Sess.); see Sen. Com. on Judiciary, Analysis of Assem. Bill No. 607 (19771978 Reg. Sess.) as amended May 23, 1977,
p. 1; Governor's Legal Affairs Off., Enrolled Bill Rep. on Assem. Bill No. 607 (19771978 Reg. Sess.) Aug. 18, 1977, p. 1.) The 1977 legislation added the phrase between a man and a woman to the first sentence of former section 4100, so that the sentence 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 capable of making that contract is necessary. The measure also revised the language of former section 4101 to reintroduce the references to gender that had been eliminated in 1971. As we explained in Lockyer, supra, 33 Cal.4th 1055, 1076, footnote 11, 17 Cal.Rptr.3d 225, 95 P.3d 459: The legislative history of the [1977] measure makes its objective clear. (See Sen. Com. on Judiciary, Analysis of Assem. Bill No. 607 (19771978 Reg. Sess.) as amended May 23, 1977, p. 1 [The purpose of the bill is to prohibit persons of the same sex from entering lawful marriage].) In 1992, when the Family Code was enacted, the provisions of former sections 4100 and 4101 of the Civil Code, as amended in 1977, were reenacted without change as Family Code sections 300 and 301, respectively. (Stats. 1992, ch. 162, 10, p. 474.) Accordingly, Family Code section 300 currently provides in relevant part: Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. 15 In light of its language and legislative history, all parties before us agree that section 300 limits marriages that lawfully may be performed in California to marriages of opposite-sex couples. There is no similar agreement between the parties, however, as to the meaning and scope of a second provision of the Family Code section 308.5 that also contains language limiting marriage to a union between a *796 man and a woman. Section 308.5, an initiative statute submitted to the voters of California as Proposition 22 at the March 7, 2000, primary election and approved by the voters at that election, provides in full: Only marriage between a man and a woman is valid or recognized in California. Plaintiffs maintain that section 308.5 should not be interpreted to apply to or to limit marriages entered into in California, but instead to apply only to marriages entered into in another jurisdiction; plaintiffs take the position that although this provision prohibits California from recognizing out-of-state marriages of same-sex couples, it should not be interpreted to speak to or control the question **410 of the validity of
marriages performed in California. The Proposition 22 Legal Defense Fund and ***713 the Campaign contest plaintiffs' proposed interpretation of section 308.5, maintaining that the statute properly must be interpreted to apply to and to limit both out-of-state marriages and marriages performed in California. As already noted, it is clear that section 300 in itself limits marriages performed in California to opposite-sex couples, but the proper interpretation of section 308.5 nonetheless is quite significant because, unlike section 300, section 308.5 is an initiative statute a measure that, under the provisions of article II, section 10, subdivision (c) of the California Constitution, cannot be modified by the Legislature without submitting the proposed modification to a vote of the people. 16 Accordingly, if section 308.5 applies to marriages performed in California as well as to out-of-state marriages, any measure passed by the Legislature that purports to authorize marriages of same-sex couples in California would have to be submitted to and approved by the voters before it could become effective. Although the Court of Appeal thought it unnecessary to determine the proper scope of section 308.5 in the present proceeding, in our view it is both appropriate and prudent to address the meaning of that statute at this juncture, both to ensure that our resolution of the constitutional issue before us is rendered with a full and accurate understanding of the source of California's current limitation of marriage to a union between a man and a woman, and to eliminate any uncertainty and confusion regarding the Legislature's ability or inability to authorize the marriage of same-sex couples in California without a confirming vote of the electorate, as the Legislature recently has attempted to do. 17 *797 For the reasons discussed below, we conclude that in light of both the language and the purpose of section 308.5, this provision reasonably must be interpreted to apply both to marriages performed in California ***714 and those performed in other jurisdictions. First, as already noted, section 308.5 provides in full: Only marriage between a man and a woman is valid or recognized in California. This statutory language does not purport to limit the statute's application to out-of-state marriages or to draw any distinction between in-state and out-of-state marriages. On the contrary, the language of the statute at least on its face suggests that the statute was intended to apply not only to the recognition of out-of-state marriages,
but also to specify more broadly that only marriage between a man and a woman is valid in California. **411 Although plaintiffs acknowledge the wording of section 308.5 could be interpreted to apply to both in-state and out-of-state marriages, they maintain this language is ambiguous when one takes into account the location of the provision in the Family Code its sequence in immediately following section 308, which relates specifically to outof-state marriages. 18 Plaintiffs point out that section 308 employs the term valid with specific reference to out-ofstate marriages, and they maintain that, as a consequence, the use of the word valid (along with the word recognized) in section 308.5 is not inconsistent with an interpretation of the statute that limits its application to out-of-state marriages. *798 In view of the asserted ambiguity of the statute, plaintiffs urge this court to consider the measure's purpose as reflected in the initiative's legislative history. In this regard, plaintiffs maintain that the arguments relating to Proposition 22 set forth in the voter information guide indicate that this initiative measure was prompted by the proponents' concern that other states and nations might authorize marriages of same-sex couples, and by the proponents' desire to ensure that California would not recognize such marriages. (See Voter Information Guide, Primary Elec. (Mar. 7, 2000) arguments in favor of and against Prop. 22, pp. 5253; see also Armijo v. Miles (2005) 127 Cal.App.4th 1405, 1422 1424, 26 Cal.Rptr.3d 623.) Plaintiffs assert that in light of this objective, and the circumstance that when Proposition 22 was submitted to the electorate the provisions of section 308.5 were not needed to establish a limitation on marriages performed in California because section 300 already specified that marriage in California is limited to opposite-sex couples, section 308.5 should be interpreted to apply only to out-ofstate marriages and not to marriages solemnized in California. Although we agree with plaintiffs that the principal motivating factor underlying Proposition 22 appears to have been to ensure that California would not recognize marriages of same-sex couples that might be validly entered into in another jurisdiction, we conclude the statutory provision proposed by this initiative measure and adopted by the voters which, we note again, provides in full that [o]nly marriage between a man and a woman is valid or recognized in California cannot properly be interpreted to apply only to marriages performed outside of California. Unlike section 308, section 308.5 itself contains no language indicating that the statute is directed at and applies only to marriages
performed outside of California. Further, because section 308.5 states both that only a marriage between a man and a woman is recognized in California and also that only a marriage between a man and a woman is valid in California, the average voter is likely to have understood ***715 the proposed statute to apply to marriages performed in California as well as to out-of-state marriages. 19 Nothing in the ballot materials or other background of the initiative indicates that its proponents intended to limit its scope to out-of-state marriages of same-sex couples and leave the California Legislature free to *799 adopt a different rule validating the marriages of same-sex couples in California. Indeed, in view of the thrust of the measure as explained in the ballot arguments supporting the proposed initiative and rebutting the argument against it, it would be unreasonable to conclude that the measure was intended (and should be interpreted) to leave the Legislature **412 free to revise California law to authorize the marriage of same-sex couples. (See Voter Information Guide, Primary Elec. (Mar. 7, 2000) argument in favor of Prop. 22, p. 52 [Proposition 22 is exactly 14 words long: Only marriage between a man and a woman is valid or recognized in California. [] That's it! No legal doubletalk, no hidden agenda. Just common sense. Marriage should be between a man and a woman. [] ... [] It's tough enough for families to stay together these days. Why make it harder by telling children that marriage is just a word anyone can re-define again and again until it no longer has any meaning? (original italics) ]; id., rebuttal to argument against Prop. 22, p. 53 [Opponents say anybody supporting traditional marriage is guilty of extremism, bigotry, hatred and discrimination towards gays, lesbians and their families. [] That's unfair and divisive nonsense. [] THE TRUTH IS, we respect EVERYONE'S freedom to make lifestyle choices, but draw the line at re-defining marriage for the rest of society. [] ... [] ... YES' on 22 sends a clear, positive message to children that marriage between a man and a woman is a valuable and respected institution, now and forever (capitalization in original) ].) Accordingly, we agree with the conclusion of the Court of Appeal in Knight v. Superior Court, supra, 128 Cal.App.4th 14, 2324, 26 Cal.Rptr.3d 687, that section 308.5 was intended to ensure that California will not legitimize or recognize same-sex marriages from other jurisdictions ... and that California will not permit same-sex partners to validly marry within the state. (Italics added.) 20 [4] Second, not only does this appear to be the most reasonable interpretation of ***716 section 308.5 in
light of the statute's language and purpose, but serious constitutional problems under the privileges and immunities clause and *800 the full faith and credit clause of the federal Constitution would be presented were section 308.5 to be interpreted as creating a distinct rule for outof-state marriages as contrasted with in-state marriages. Under plaintiffs' proposed interpretation, section 308.5 would prohibit the state from recognizing the marriages of samesex couples lawfully solemnized in other states without resubmitting the question to the voters and obtaining a confirming vote of the electorate, but would permit the state to recognize the validity of marriages of same-sex couples performed in California by legislative action alone without a vote of the electorate, raising the very real possibility that the state could approve the validity of marriages of same-sex couples that are performed in California while continuing to deny recognition to marriages of same-sex couples that are lawfully performed in another state. (See, ante, at pp. 796797, fn. 17, 76 Cal.Rptr.3d at p. 713, fn. 17, 183 P.3d at p. 410, fn. 17.) Imposing such discriminatory treatment against out-of-state marriages of same-sex couples, as contrasted with marriages of same-sex couples performed within the state, would be difficult to square with governing federal constitutional precedents. (See, e.g., Hicklin v. Orbeck (1978) 437 U.S. 518, 523526, 98 S.Ct. 2482, 57 L.Ed.2d 397; Toomer v. Witsell (1948) 334 U.S. 385, 398399, 68 S.Ct. 1156, 92 L.Ed. 1460.) Accordingly, it is appropriate to interpret the limitations imposed by section 308.5 as applicable to marriages performed in **413 California as well as to out-of-state marriages, in order to avoid the serious federal constitutional questions that would be posed by a contrary interpretation. (Accord, NBC Subsidiary (KNBC TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1216, 86 Cal.Rptr.2d 778, 980 P.2d 337.) 21 In sum, we conclude that California's current statutory restriction of marriage to ***717 a couple consisting of a man and a woman rests upon the provisions of both section 300 and section 308.5. Plaintiffs' constitutional *801 challenge thus must be viewed as relating to the limitation embodied in each of these statutory provisions.
B Although California statutes always have limited and continue to limit marriage to opposite-sex couples, as noted at the outset of this opinion California recently has enacted comprehensive domestic partnership legislation that affords
same-sex couples the opportunity, by entering into a domestic partnership, to obtain virtually all of the legal benefits, privileges, responsibilities, and duties that California law affords to and imposes upon married couples. The recent comprehensive domestic partnership legislation constitutes the culmination of a gradual expansion of rights that have been made available in this state to same-sex couples who choose to register as domestic partners. We briefly review the history of domestic partnership legislation in California. In 1999, the Legislature enacted the initial legislation creating a statewide domestic partnership registry. (Stats. 1999, ch. 588, 2 [adding Fam.Code, 297299.6].) In adopting this legislation, California became one of the first states to allow cohabitating adults of the same sex to establish a domestic partnership in lieu of the right to marry. (Holguin v. Flores (2004) 122 Cal.App.4th 428, 433, 18 Cal.Rptr.3d 749.) The 1999 legislation defined domestic partners as two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring. ( 297, subd. (a).) In addition to other requirements for registration as domestic partners, the legislation provided that a couple must share a common residence and agree to be jointly responsible for each other's basic living expenses incurred during the domestic partnership, be at least 18 years of age and unrelated by blood in a way that would prevent them from being married to each other, not be married or a member of another domestic partnership, and either be persons of the same sex or at least one of the persons must be more than 62 years of age. ( 297, subd. (b).) The 1999 legislation, however, afforded those couples who register as domestic partners only limited substantive benefits, granting domestic partners specified hospital visitation privileges (Stats. 1999, ch. 588, 4 [adding Health & Saf.Code, 1261] ), and authorizing the state to provide health benefits to the domestic partners of some state employees (Stats. 1999, ch. 588, 3 [adding Gov.Code, 2286722877] ). The following year, the Legislature included domestic partners within the category of persons granted access to specially designed housing reserved for senior **414 citizens. (Stats. 2000, ch. 1004, 3, 3.5 [amending Civ.Code, 51.3].) In 2001, the Legislature expanded the scope of the benefits afforded to couples who register as domestic partners, providing a number of additional *802 significant rights, including the right to sue for wrongful death, to use employee sick leave to care for an ill partner or an ill child of one's partner, to make medical decisions on behalf of an incapacitated partner, to receive unemployment benefits if
forced to relocate because of a partner's job, and to employ stepparent adoption procedures to adopt a partner's child. (Stats. 2001, ch. 893, 160.) In 2002, the Legislature equalized the treatment of registered domestic partners and married spouses in a few additional areas. (See Stats. 2002, ch. 447, 13 [amending Prob.Code, 6401 to provide automatic inheritance of a portion of a deceased partner's separate property]; ***718 id., ch. 412, 1 [amending Prob.Code, 21351 to add domestic partners to the list of relationships exempted from the prohibition against being a beneficiary of a will that the beneficiary helped draft]; id., ch. 901, 16 [amending various provisions of the Unemp. Ins.Code to provide employees six weeks of paid family leave to care for a sick spouse or domestic partner].) Thereafter, in 2003, the Legislature dramatically expanded the scope of the rights of domestic partners in California by enacting comprehensive domestic partnership legislation: the California Domestic Partner Rights and Responsibilities Act of 2003 (hereafter Domestic Partner Act). (Stats. 2003, ch. 421, introduced as Assem. Bill No. 205 (20032004 Reg. Sess.).) The Legislature set forth the purpose of this act in section 1 (an uncodified provision) of the legislation, declaring: This act is intended to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality contained in Sections 1 and 7 of Article 1 of the California Constitution by providing all caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties and to further the state's interests in promoting stable and lasting family relationships, and protecting Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises. (Stats. 2003, ch. 421, 1, subd. (a).) Finding that many lesbian, gay, and bisexual Californians have formed lasting, committed, and caring relationships with persons of the same sex, the Legislature concluded that [e]xpanding the rights and creating responsibilities of registered domestic partners would further California's interests in promoting family relationships and protecting family members during life crises, and would reduce discrimination on the bases of sex and sexual orientation in a manner consistent with the requirements of the California Constitution. (Stats. 2003, ch. 421, 1, subd. (b).) The Legislature further specified that the provisions of the Domestic Partner Act shall be construed liberally in order to secure to eligible couples who register as domestic partners the full range of legal rights, protections
and benefits, as well as all of the responsibilities, obligations, and duties to each other, to their children, to third parties and to the *803 state, as the laws of California extend to and impose upon spouses. (Italics added.) (Stats. 2003, ch. 421, 15.) To effectuate this legislative purpose, the 2003 Domestic Partner Act amended the existing statutory provisions relating to domestic partnership by adding several entirely new provisions to the Family Code, most significantly section 297.5, which the legislation provided would become operative on January 1, 2005. (Stats. 2003, ch. 421, 14.) Section 297.5, subdivision (a), provides in broad and sweeping terms: 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. (Italics added.) 22 ***719 **415 Further, as we noted in Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 838839, 31 Cal.Rptr.3d 565, 115 P.3d 1212 (Koebke ), other subdivisions of section 297.5 similarly effectuate the Legislature's intent by using the broadest terms possible to grant to, and impose upon, registered domestic partners the same rights and responsibilities as spouses in specified areas of laws whether they are current, former or surviving domestic partners. For example, pursuant to section 297.5, subdivision (c), a surviving registered domestic partner, [upon] the death of the other partner, is granted all the same rights and is subject to all the same responsibilities, from whatever source in the law, as those granted to and imposed upon a widow or a widower. Similarly, section 297.5, subdivision (d) states: The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses. The rights and obligations of former or surviving registered domestic partners with respect to a child of either of them shall be the same as those of former or surviving spouses. Subdivision (e) requires that, [t]o the extent that provisions of California law adopt, refer to, or rely upon ... federal law and that this reliance on federal law would require domestic partners to be treated differently than spouses, registered domestic partners shall be treated by California law as if federal law recognized a domestic partnership in the same manner as California law. ( 297.5, subd. (e).)
*804 We concluded in Koebke, supra, 36 Cal.4th 824, 839, 31 Cal.Rptr.3d 565, 115 P.3d 1212, that [i]t is clear from both the language of section 297.5 and the Legislature's explicit statements of intent that a chief goal of the Domestic Partner Act is to equalize the status of registered domestic partners and married couples. Although the Domestic Partner Act generally equalized the treatment under California law of registered domestic partners and married couples, there was one significant area state income taxes in which the 2003 enactment did not provide for equal treatment. Section 297.5, former subdivision (g) a part of the 2003 act provided in this regard: Notwithstanding this section, in filing their state income tax returns, domestic partners shall use the same filing status as is used on their federal income tax returns, or that would have been used had they filed federal income tax returns. Earned income may not be treated as community property for state income tax purposes. In 2006, the Legislature eliminated this disparity in the treatment of registered domestic partners and married couples with regard to state income taxes by amending section 297.5 to delete the provisions of former subdivision (g) of section 297.5 (and to renumber the subsequent subdivisions of section 297.5). (Stats. 2006, ch. 802, 2.) The 2006 legislation specifically declared that [i]t is the intent of the Legislature in enacting this bill that the inconsistency between registered domestic partners and spouses with respect to state income taxation be removed, registered domestic partners be permitted to file their income tax returns jointly or separately on terms similar to those governing spouses, and the earned income of registered domestic partners be recognized appropriately as community property. As a result of this bill, registered domestic partners who file separate income tax returns each shall report one-half ***720 of the combined income earned by both domestic partners, as spouses do, rather than their respective individual incomes for the taxable year. (Stats. 2006, ch. 802, 1, subd. (d).) Most recently, the Legislature passed and the Governor signed into law a bill requiring the Declaration of Domestic Partnership form to contain a section affording either party or both parties the option of a change of name as part of the registration process. (Stats. 2007, ch. 567, introduced as Assem. **416 Bill No. 102 (Reg.Sess.20072008) signed Oct. 12, 2007.)
Although the preamble to the 2003 Domestic Partner Act suggests that the proponents of this legislation did not view the enactment as the final or ultimate legislative step with regard to the official status available to same-sex couples (see Stats. 2003, ch. 421, 1, subd. (a) [This act is intended to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality contained in Sections 1 and 7 of Article 1 of the California *805 Constitution ... (italics added) ] ), 23 nonetheless (by virtue of the explicit provisions of the Domestic Partner Act) under the current governing California statute, registered domestic partners generally have the same rights, protections, and benefits, and [are] subject to the same responsibilities, obligations, and duties under law ... as are granted to and imposed upon spouses. ( 297.5, subd. (a).) 24 ***721 *806 **417 Of course, although the Domestic Partner Act generally affords registered domestic partners the same substantive benefits and privileges and imposes upon them the same responsibilities and duties that California law affords to and imposes upon married spouses, the act does not purport to (and lawfully could not) modify the applicable provisions of federal law, which currently do not provide for domestic partnerships and which define marriage, for purposes of federal law, as the union of a man and a woman. (See 1 U.S.C. 7.) 25 In light of the current provisions ***722 of federal law, the many federal benefits (and the amount of those benefits) granted to a married person or to a married couple on the basis of their married status are not available to registered domestic partners. Included within this category are significant benefits such as those relating to Social Security, Medicare, federal housing, food stamps, federal military and veterans' programs, federal employment programs, and filing status for federal income tax purposes. All of these *807 important federal benefits, however, also would be denied to same-sex couples even if California designated the official union of such couples a marriage rather than a domestic partnership, because, as noted, federal law defines marriage for purposes of federal law as only a legal union between one man and one woman. (1 U.S.C. 7.) 26 Thus, in sum, the current California statutory provisions generally afford same-sex **418 couples the opportunity to enter into a domestic partnership and thereby obtain virtually all of the benefits and responsibilities afforded by California law to married opposite-sex couples.
While acknowledging that the Domestic Partner Act affords substantial benefits to same-sex couples, plaintiffs repeatedly characterize that legislation as granting same-sex couples only the material or tangible benefits of marriage. At least in some respects, this characterization inaccurately minimizes the scope and nature of the benefits and responsibilities afforded by California's domestic partnership law. The broad reach of this legislation extends to the extremely wide network of statutory provisions, common law rules, and administrative practices that give substance to the legal institution of civil marriage, including, among many others, various rules and policies concerning parental rights and responsibilities affecting the raising of children, mutual duties of respect, fidelity and support, the fiduciary relationship between partners, the privileged nature of confidential communications between partners, and a partner's authority to make health care decisions when his or her partner is unable to act for himself or herself. These legal rights and responsibilities embody more than merely the material or tangible financial benefits that are extended by government to married couples. As we explained in Koebke, supra, 36 Cal.4th 824, 843, 31 Cal.Rptr.3d 565, 115 P.3d 1212: [T]he ***723 decision ... to enter into a domestic partnership is more than a change in the legal status of individuals.... [T]he consequence[ ] of the decision is the creation of a new *808 family unit with all of its implications in terms of personal commitment as well as legal rights and obligations. [5] The nature and breadth of the rights afforded samesex couples under the Domestic Partner Act is significant, because under California law the scope of that enactment is directly relevant to the question of the constitutional validity of the provisions in California's marriage statutes limiting marriage to opposite-sex couples. As this court explained in Brown v. Merlo, supra, 8 Cal.3d 855, 862, 106 Cal.Rptr. 388, 506 P.2d 212: In determining the scope of the class singled out for special burdens or benefits, a court cannot confine its view to the terms of the specific statute under attack, but must judge the enactment's operation against the background of other legislative, administrative and judicial directives which govern the legal rights of similarly situated persons. As the United States Supreme Court recognized long ago: The question of constitutional validity is not to be determined by artificial standards [confining review within the four corners of a statute]. What is required is that state action, whether through one agency or another, or through one enactment or more than one, shall be consistent with the restrictions of the Federal Constitution. [Citations.]
Accordingly, the provisions of both the current marriage statutes and the current domestic partnership statutes must be considered in determining whether the challenged provisions of the marriage statutes violate the constitutional rights of same-sex couples guaranteed by the California Constitution. 27
***724 *809 **419 IV [6] Plaintiffs contend that by limiting marriage to oppositesex couples, California's marriage statutes violate a number of provisions of the California Constitution. 28 In particular, plaintiffs contend that the challenged statutes violate a samesex couple's fundamental right to marry as guaranteed by the privacy, free speech, and due process clauses of the California Constitution (Cal. Const., art. I, 1, 2, 7), and additionally violate the equal protection clause of the California Constitution (Cal. Const., art. I, 7). 29 Because the question whether the challenged aspect of the marriage statutes violates or impinges upon the fundamental right to marry may be determinative in deciding the appropriate standard of review to be applied in evaluating plaintiffs' equal protection challenge, we first address the question whether the challenged statutes independently infringe a fundamental constitutional right guaranteed by the California Constitution.
liberty protected by the state due process clause, 30 now also [7] [8] Although our state Constitution does not contain clearly falls within the reach of the constitutional protection any explicit reference to a right to marry, past California afforded to an individual's interest in personal autonomy cases establish beyond question that the right to marry by California's explicit state constitutional privacy clause. is a fundamental right whose protection is guaranteed (See, e.g., Hill v. National Collegiate Athletic Assn., supra, 7 to all persons by the California Constitution. (See, e.g., Cal.4th at p. 34, 26 Cal.Rptr.2d 834, 865 P.2d 633 [the interest Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 161, in personal autonomy protected by the state constitutional 219 Cal.Rptr. 387, 707 P.2d 760 (Valerie N.) [The right to privacy clause includes the freedom to pursue consensual marriage and procreation are now recognized as fundamental, familial relationships]; Valerie N., supra, 40 Cal.3d 143, constitutionally protected interests. [Citations.] ... These 161, 219 Cal.Rptr. 387, 707 P.2d 760.) 31 rights are aspects of the right of privacy which ... is express in section 1 of article I of the California Constitution which *811 Although all parties in this proceeding agree that the includes among the inalienable rights *810 possessed by right to marry constitutes a fundamental right protected by the all persons in this state, that of privacy ]; Williams v. state Constitution, there is considerable disagreement as to Garcetti (1993) 5 Cal.4th 561, 577, 20 Cal.Rptr.2d 341, the scope and content of this fundamental state constitutional 853 P.2d 507 [we have ... recognized that [t]he concept right. The Court of Appeal concluded that because marriage of personal liberties and fundamental human rights entitled in California (and elsewhere) historically has been limited to to protection against overbroad intrusion or regulation by opposite-sex couples, the constitutional right to marry under government ... extends to ... such basic civil liberties and the California Constitution properly should be interpreted to
rights not explicitly listed in the Constitution [as] the right to marry, establish a home and bring up children ]; Ortiz v. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, 1303, 120 Cal.Rptr.2d 670 [under the state Constitution, the right to marry and the right of intimate association are virtually synonymous.... [W]e will refer to the privacy right in this case as the right to marry]; In re Carrafa (1978) 77 Cal.App.3d 788, 791, 143 Cal.Rptr. 848 [[t]he right to marry is a fundamental constitutional right].) The United States Supreme Court initially discussed the constitutional right to marry as an aspect of the fundamental substantive liberty protected ***725 **420 by the due process clause of the federal Constitution (see Meyer v. Nebraska (1923) 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042), but thereafter in Griswold v. Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (Griswold ), the federal high court additionally identified the right to marry as a component of a right of privacy protected by the federal Constitution. (Griswold, at p. 486, 85 S.Ct. 1678.) With California's adoption in 1972 of a constitutional amendment explicitly adding privacy to the inalienable rights of all Californians protected by article I, section 1 of the California Constitution an amendment whose history demonstrates that it was intended, among other purposes, to encompass the federal constitutional right of privacy, particularly as it developed beginning with Griswold v. Connecticut [, supra,] 381 U.S. 479 [85 S.Ct. 1678] (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 28, 26 Cal.Rptr.2d 834, 865 P.2d 633) the state constitutional right to marry, while presumably still embodied as a component of the
afford only a right to marry a person of the opposite sex, and that the constitutional right that plaintiffs actually are asking the court to recognize is a constitutional right to same-sex marriage. In the absence of any historical or precedential support for such a right in this state, the Court of Appeal determined that plaintiffs' claim of the denial of a fundamental right under the California Constitution must be rejected. Plaintiffs challenge the Court of Appeal's characterization of the constitutional right they seek to invoke as the right to same-sex marriage, and on this point we agree with plaintiffs' position. In Perez v. Sharp, supra, 32 Cal.2d 711, 198 P.2d 17 this court's 1948 decision holding that the California statutory provisions prohibiting interracial marriage were unconstitutional the court did ***726 not characterize the constitutional right that the plaintiffs in that case sought to obtain as a right to interracial marriage and did not dismiss the plaintiffs' constitutional challenge on the ground that such marriages never had been permitted in California. 32 Instead, the Perez decision focused on the substance of the constitutional right at issue that is, the importance to an individual of the freedom to join in marriage with the person of one's choice in determining whether the statute impinged upon the plaintiffs' fundamental constitutional right. ( **421 32 Cal.2d at pp. 715, 717, 198 P.2d 17, italics added.) Similarly, in Valerie N., supra, 40 Cal.3d 143, 219 Cal.Rptr. 387, 707 P.2d 760 which involved a challenge to a statute limiting the reproductive freedom of a developmentally disabled woman our court did not analyze the scope of the constitutional right at issue by examining whether developmentally disabled women historically had enjoyed a constitutional right of reproductive freedom, but rather considered the substance of that constitutional right in determining whether the right was one that properly should be interpreted as extending to a developmentally disabled woman. (40 Cal.3d at pp. 160 164, 219 Cal.Rptr. 387, 707 P.2d 760.) And, in addressing a somewhat analogous point, the United States Supreme Court in Lawrence v. Texas (2003) 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 concluded that its prior decision in Bowers v. Hardwick (1986) 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 had erred in narrowly characterizing the constitutional right *812 sought to be invoked in that case as the right to engage in intimate homosexual conduct, determining instead that the constitutional right there at issue properly should be understood in a broader and more neutral fashion so as to focus upon the substance of the interests that the constitutional right is intended to protect. (Lawrence, supra, 539 U.S. at pp. 565577, 123 S.Ct. 2472.) 33
The flaw in characterizing the constitutional right at issue as the right to same-sex marriage rather than the right to marry goes beyond mere semantics. It is important both analytically and from the standpoint of fairness to plaintiffs' argument that we recognize they are not seeking to create a new constitutional right the right to same-sex marriage or to change, modify, or (as some have suggested) deinstitutionalize the existing institution of marriage. Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits accompanied by the same mutual responsibilities and obligations as this constitutional right affords to opposite-sex couples. 34 For this reason, in evaluating ***727 the constitutional issue before us, we consider it appropriate to direct our focus to the meaning and substance of the constitutional right to marry, and to avoid the potentially misleading implications inherent in analyzing the issue in terms of same-sex marriage. Accordingly, in deciding whether the constitutional right to marry protected by the California Constitution applies to same-sex couples as well as to opposite-sex couples and, further, whether the current California marriage and domestic partnership statutes deny same-sex couples this fundamental constitutional right, we shall examine the nature and substance of the interests protected by the constitutional right to marry. In undertaking this inquiry, we put to the side for the moment the question whether the substantive rights embodied within the constitutional right to marry include the right to have the couple's official relationship designated by the name marriage rather than by some other term, such as domestic partnership. The latter issue is addressed below. (See, post, at pp. 830831, 76 Cal.Rptr.3d at pp. 742743, 183 P.3d at pp. 434435.) *813 In discussing the constitutional right to marry in Perez v. Sharp, supra, 32 Cal.2d 711, 198 P.2d 17 (Perez ), then Justice Traynor in the lead opinion quoted the seminal passage from the United States Supreme Court's decision in Meyer v. Nebraska, supra, 262 U.S. 390, 43 S.Ct. 625. There the high court, in describing the scope of the **422 liberty protected by the due process clause of the federal Constitution, stated that [w]ithout doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of one's own conscience,
and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. (Perez, supra, 32 Cal.2d at p. 714, 198 P.2d 17, italics added [to marry italicized by Perez ], quoting Meyer, supra, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042.) The Perez decision continued: Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. (Perez, supra, 32 Cal.2d at p. 714, 198 P.2d 17, italics added.) Like Perez, subsequent California decisions discussing the nature of marriage and the right to marry have recognized repeatedly the linkage between marriage, establishing a home, and raising children in identifying civil marriage as the means available to an individual to establish, with a loved one of his or her choice, an officially recognized family relationship. In De Burgh v. De Burgh (1952) 39 Cal.2d 858, 250 P.2d 598, for example, in explaining the public interest in the institution of marriage (id. at p. 863, 250 P.2d 598), this court stated: The family is the basic unit of our society, the center of the personal affections that ennoble and enrich human life. It channels biological drives that might otherwise become socially destructive; it ensures the care and education of children in a stable environment; it establishes continuity from one generation to another; it nurtures and develops the individual initiative that distinguishes a free people. Since the family is the core of our society, the law seeks to foster and preserve marriage. (Id. at pp. 863864, 250 P.2d 598.) ***728 In Elden v. Sheldon, supra, 46 Cal.3d 267, 250 Cal.Rptr. 254, 758 P.2d 582, in rejecting the claim that persons in an unmarried cohabitant relationship that allegedly was akin to a marital relationship should be treated similarly to married persons for purposes of bringing an action for negligent infliction of emotional distress, this court explained that [m]arriage is accorded [a special] degree of dignity in recognition that [t]he joining of the man and woman in marriage is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime. (46 Cal.3d at pp. 274275, 250 Cal.Rptr. 254, 758 P.2d 582, italics added, quoting Nieto v. City of Los Angeles (1982) 138 Cal.App.3d 464, 188 Cal.Rptr. 31, quoting Marvin v. Marvin (1976) 18 Cal.3d 660, 684, 134 Cal.Rptr. 815, 557 P.2d 106.) The court in Elden v. Sheldon further explained: Our emphasis on the state's interest in promoting the marriage relationship is not based on anachronistic notions of morality. The policy *814 favoring marriage is rooted in the necessity of providing an institutional basis for defining the fundamental relational
rights and responsibilities in organized society. [Citation.] Formally married couples are granted significant rights and bear important responsibilities toward one another which are not shared by those who cohabit without marriage.... Plaintiff does not suggest a convincing reason why cohabiting unmarried couples, who do not bear such legal obligations toward one another, should be permitted to recover for injuries to their partners to the same extent as those who undertake these responsibilities. (46 Cal.3d at p. 275, 250 Cal.Rptr. 254, 758 P.2d 582, italics added.) In Williams v. Garcetti, supra, 5 Cal.4th 561, 20 Cal.Rptr.2d 341, 853 P.2d 507, a case in which a criminal statute that prohibited contributing to the delinquency of a minor was challenged on the ground the statute was unconstitutionally vague, this court stated: Plaintiffs emphasize the fundamental nature of the rights at stake in matters of child rearing. We need no convincing of their significance; we have already recognized that [t]he concept of personal liberties and fundamental human rights entitled to protection against overbroad intrusion or regulation by government ... extends to ... such basic civil liberties and rights not listed in the Constitution [as] the right to marry, establish a home and bring up children ...; the right to educate one's children as one **423 chooses ...; ... and the right to privacy and to be let alone by the government in the private realm of family life. (5 Cal.3d at p. 577, 96 Cal.Rptr. 697, 488 P.2d 1.) And in Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 42 Cal.Rptr.2d 50, 896 P.2d 776, in discussing the types of relationship that fall within the scope of the constitutionally protected right of intimate association (one component of our state constitutional right of privacy (id. at pp. 629630, 42 Cal.Rptr.2d 50, 896 P.2d 776)), we explained that the highly personal relationships that are sheltered by this constitutional guaranty are exemplified by those that attend the creation and sustenance of a family marriage ..., childbirth ..., the raising and education of children ... and cohabitation with one's relatives....' ... Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctly personal aspects of one's life. (10 Cal.4th at p. 624, 42 Cal.Rptr.2d 50, 896 P.2d 776, italics added, quoting Roberts v. United States Jaycees (1984) 468 U.S. 609, 619620, 104 S.Ct. 3244, 82 L.Ed.2d 462.) The constitutional right to ***729 marry thus may be understood as constituting a subset of the right of intimate association
a subset possessing its own substantive content and affording a distinct set of constitutional protections and guarantees. [9] As these and many other California decisions make clear, the right to marry represents the right of an individual to establish a legally recognized *815 family with the person of one's choice, and, as such, is of fundamental significance both to society and to the individual. 35 Society is served by the institution of civil marriage in many ways. Society, of course, has an overriding interest in the welfare of children, and the role marriage plays in facilitating a stable family setting in which children may be raised by two loving parents unquestionably furthers the welfare of children and society. In addition, the role of the family in educating and socializing children serves society's interest by perpetuating the social and political culture and providing continuing support for society over generations. 36 It is these features that the California authorities have in mind in describing marriage as the basic unit or building block of society. (See, e.g., De Burgh v. De Burgh, supra, 39 Cal.2d 858, 863, 250 P.2d 598 [[t]he family is the basic unit of our society]; Baker v. Baker (1859) 13 Cal. 87, 94[[t]he public is interested in the marriage relation and the maintenance of its integrity, as it is the foundation of the social system]; **424 Elden v. Sheldon, supra, 46 Cal.3d 267, 281, fn. 1, 250 Cal.Rptr. 254, 758 P.2d 582 (dis. opn. of Broussard, J.) [referring to the well-accepted maxim that marriage serves as the building block of society]; Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 968, 72 Cal.Rptr.2d 871, 952 P.2d 1139 (dis. opn. of Chin, J.) [ the family provides the foundation upon which our society is built and through which its most cherished values are best transmitted ].) Furthermore, the legal obligations of support that are an integral ***730 part of marital and family relationships relieve society of the *816 obligation of caring for individuals who may become incapacitated or who are otherwise unable to support themselves. (See, e.g., Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 123, 33 Cal.Rptr.3d 46, 117 P.3d 660.) 37 In view of the public's significant interest in marriage, California decisions have recognized that the Legislature has broad authority in seeking to protect and regulate this relationship by creating incentives to marry and adopting measures to protect the marital relationship. (See, e.g., McClure v. Donovan (1949) 33 Cal.2d 717, 728, 205 P.2d 17 [the Legislature has full control of the subject of marriage and may fix the conditions under which the marital state may be created or terminated].)
Although past California cases emphasize that marriage is an institution in which society as a whole has a vital interest, our decisions at the same time recognize that the legal right and opportunity to enter into such an officially recognized relationship also is of overriding importance to the individual and to the affected couple. As noted above, past California decisions have described marriage as the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime. (Marvin v. Marvin, supra, 18 Cal.3d 660, 684, 134 Cal.Rptr. 815, 557 P.2d 106; accord, Maynard v. Hill, supra, 125 U.S. 190, 205, 8 S.Ct. 723 [describing marriage as the most important relation in life].) The ability of an individual to join in a committed, long-term, officially recognized family relationship with the person of his or her choice is often of crucial significance to the individual's happiness and wellbeing. The legal commitment to long-term mutual emotional and economic support that is an integral part of an officially recognized marriage relationship provides an individual with the ability to invest in and rely upon a loving relationship with another adult in a way that may be crucial to the individual's development as a person and achievement of his or her full potential. 38 *817 Further, entry into a formal, officially recognized family relationship provides an individual with the opportunity to become a part of one's partner's family, providing a wider and often critical network of economic and emotional security. (Accord, ***731 e.g., Moore v. City of East Cleveland (1977) 431 U.S. 494, 504505, 97 S.Ct. 1932, 52 L.Ed.2d 531 [Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family.... Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw **425 together and participate in the duties and the satisfactions of a common home.... Especially in times of adversity ... the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life].) The opportunity of a couple to establish an officially recognized family of their own not only grants access to an extended family but also permits the couple to join the broader family social structure that is a significant feature of community life. 39 Moreover, the opportunity to publicly and officially express one's love for and longterm commitment to another person by establishing a family together with that person also is an important element of selfexpression that can give special meaning to one's life. Finally, of course, the ability to have children and raise them with a loved one who can share the joys and challenges of that
endeavor is without doubt a most valuable component of one's liberty and personal autonomy. Although persons can have children and raise them outside of marriage, the institution of civil marriage affords official governmental sanction and sanctuary to the family unit, granting a parent the ability to afford his or her children the substantial benefits that flow from a stable two-parent family environment, 40 a ready and public means of establishing to others the legal basis of one's parental relationship to one's *818 children (cf. Koebke, supra, 36 Cal.4th 824, 844845, 31 Cal.Rptr.3d 565, 115 P.3d 1212; Elden v. Sheldon, supra, 46 Cal.3d 267, 275, 250 Cal.Rptr. 254, 758 P.2d 582), and the additional security that comes from the knowledge that his or her parental relationship with a child will be afforded protection by the government against the adverse actions or claims of others. (Cf., e.g., Dawn D. v. Superior Court, supra, 17 Cal.4th 932, 72 Cal.Rptr.2d 871, 952 P.2d 1139 [when biological mother was married at the time of a child's conception and ***732 birth, husband is the presumed father of the child, and another man who claims to be the child's biological father has no constitutional right to bring an action to establish a legal relationship with the child].) There are, of course, many persons and couples who choose not to enter into such a relationship and who prefer to live their lives without the formal, officially recognized and sanctioned, long-term legal commitment to another person signified by marriage or an equivalent relationship. Nonetheless, our cases recognize that the opportunity to establish an officially recognized family with a loved one and to obtain the substantial benefits such a relationship may offer is of the deepest and utmost importance to any individual and couple who wish to make such a choice. If civil marriage were an institution whose only role was to serve the interests of society, it reasonably could be asserted that the state should have full authority to decide whether to establish or abolish the institution of marriage (and any similar institution, such **426 as domestic partnership). In recognizing, however, that the right to marry is a basic, constitutionally protected civil right a fundamental right of free men [and women] (Perez, supra, 32 Cal.2d 711, 714, 198 P.2d 17) the governing California cases establish that this right embodies fundamental interests of an individual that are protected from abrogation or elimination by the state. 41 Because our cases make clear 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, *819 and of the liberty interest protected by
the due process clause of article I, section 7, it is apparent under the California Constitution that the right to marry like the right to establish a home and raise children has independent substantive content, and cannot properly be understood as simply the right to enter into such a relationship if (but only if) the Legislature chooses to establish and retain it. (Accord, Poe v. Ullman (1961) 367 U.S. 497, 553, 81 S.Ct. 1752, 6 L.Ed.2d 989 (dis. opn. of Harlan, J.) [the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected (italics added) ].) 42 ***733 One very important aspect of the substantive protection afforded by the California constitutional right to marry is, of course, an individual's right to be free from undue governmental intrusion into (or interference with) integral features of this relationship that is, the right of marital or familial privacy. (See, e.g., In re Marriage of Wellman (1980) 104 Cal.App.3d 992, 996, 164 Cal.Rptr. 148 [manner of raising one's child]; accord, e.g., Griswold, supra, 381 U.S. 479, 85 S.Ct. 1678 [use of contraception]; Moore v. City of East Cleveland, supra, 431 U.S. 494, 97 S.Ct. 1932 [cohabitation with extended family].) The substantive protection embodied in the constitutional right to marry, however, goes beyond what is sometimes characterized as simply a negative right insulating the couple's relationship from overreaching governmental intrusion or interference, and includes a positive right to have the state take at least some affirmative action to acknowledge and support the family unit. Although the constitutional right to marry clearly does not obligate the state to afford specific tax or other governmental benefits on the basis of a couple's family relationship, **427 the right to marry does obligate the state to take *820 affirmative action to grant official, public recognition to the couple's relationship as a family (Perez, supra, 32 Cal.2d 711, 198 P.2d 17; In re Carrafa, supra, 77 Cal.App.3d 788, 791, 143 Cal.Rptr. 848), 43 as well as to protect the core elements of the family relationship from at least some types of improper interference by others. (Cf. Sesler v. Montgomery (1889) 78 Cal. 486, 488489, 21 P. 185 [in holding that a confidential conversation between husband and wife, allegedly overheard by an eavesdropper, does not constitute a publication within the meaning of the law of slander, the court explained that every sound consideration of public policy, every just regard for the integrity and inviolability of the marriage relation[ ] the most confidential relation known to the
law dictated that conclusion].) This constitutional right ***734 also has the additional affirmative substantive effect of providing assurance to each member of the relationship that the government will enforce the mutual obligations between the partners (and to their children) that are an important aspect of the commitments upon which the relationship rests. (Cf. In re Marriage of Bonds (2000) 24 Cal.4th 1, 2729, 99 Cal.Rptr.2d 252, 5 P.3d 815 [contrasting fiduciary relationship during marriage with relationship prior to marriage].) In light of the fundamental nature of the substantive rights embodied in the right to marry and their central importance to an individual's opportunity to live a happy, meaningful, and satisfying life as a full member of society the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation. 44 It is true, of course, that as an historical matter in this state marriage always has been limited to a union between a man and a woman. Tradition alone, however, generally has not been viewed as a sufficient justification for *821 perpetuating, without examination, the restriction or denial of a fundamental constitutional right. (Cf. Perez, supra, 32 Cal.2d 711, 727, 198 P.2d 17; Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 1719, 95 Cal.Rptr. 329, 485 P.2d 529 (Sail'er Inn ).) 45 **428 As this court observed in People v. Belous, supra, 71 Cal.2d 954, 967, 80 Cal.Rptr. 354, 458 P.2d 194, [c]onstitutional concepts are not static.... In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. (See, e.g., ***735 In re Antazo (1970) 3 Cal.3d 100, 109, 89 Cal.Rptr. 255, 473 P.2d 999 [the long-standing recognition of this practice does not foreclose its reassessment in the light of the continued evolution of fundamental precepts of our constitutional system].) There can be no question but that, in recent decades, there has been a fundamental and dramatic transformation in this state's understanding and legal treatment of gay individuals and gay couples. California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized homosexuality as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity. This state's current
policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect *822 and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation, 46 and, more specifically, recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children. 47 Contrary to the assertions in Justice Baxter's concurring and dissenting opinion (see post, at pp. 861, 864, 867 869, 76 Cal.Rptr.3d at pp. 768769, 771772, 774775, 183 P.3d at pp. 456, 458, 460462), our reference to numerous statutes demonstrating California's current recognition that gay individuals are entitled to equal and nondiscriminatory legal treatment (ante, fns. 46, 47) does not suggest that an individual's entitlement to equal treatment under the law regardless of his or her sexual orientation is grounded upon the Legislature's recent enactment of the Domestic Partner Act or any other legislative measure. The capability of gay individuals to enter into loving and enduring relationships comparable to those entered into by heterosexuals is in no way dependent upon the enactment of the Domestic Partner Act; the adoption of that legislation simply constitutes an explicit official recognition of that capacity. Similarly, the numerous recent legislative enactments prohibiting discrimination on the basis of sexual orientation were not required in order to confer upon gay individuals a legal status equal to that enjoyed by heterosexuals; these measures simply provide explicit official recognition of, and affirmative support for, that equal legal status. Indeed, the **429 change in this state's past treatment of gay individuals and homosexual conduct is reflected in scores of legislative, administrative, and judicial actions that have occurred over the past 30 or more years. (See, e.g., Stats. 1975, ch. 71, 7, 10, pp. 133, 134 [revising statutes criminalizing consensual sodomy and oral copulation]; ***736 Governor's Exec. Order No. B5479 (Apr. 4, 1979) [barring sexual-orientation discrimination against state employees]; Morrison v. State Board of Education (1969) 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375 [homosexual conduct does not in itself necessarily constitute immoral conduct or demonstrate unfitness to teach].) Thus, just as this court recognized in Perez that it was not constitutionally permissible to continue to treat racial or ethnic minorities as inferior (Perez, supra, 32 Cal.2d at pp. 720727, 198 P.2d 17), and in Sail'er Inn that it was not constitutionally acceptable to continue to treat *823 women as less capable than and unequal to men (Sail'er
Inn, supra, 5 Cal.3d at pp. 1720 & fn. 15, 95 Cal.Rptr. 329, 485 P.2d 529), we now similarly recognize that an individual's homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual's legal rights. In light of this recognition, sections 1 and 7 of article I of the California Constitution cannot properly be interpreted to withhold from gay individuals the same basic civil right of personal autonomy and liberty (including the right to establish, with the person of one's choice, an officially recognized and sanctioned family) that the California Constitution affords to heterosexual individuals. The privacy and due process provisions of our state Constitution in declaring that [a]ll people ... have [the] inalienable right[ ] [of] privacy (art. I, 1) and that no person may be deprived of liberty without due process of law (art. I, 7) do not purport to reserve to persons of a particular sexual orientation the substantive protection afforded by those provisions. In light of the evolution of our state's understanding concerning the equal dignity and respect to which all persons are entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights. (Cf. Valerie N., supra, 40 Cal.3d 143, 154, 160165, 219 Cal.Rptr. 387, 707 P.2d 760 [holding that the state constitutional right of personal autonomy in matters of reproductive choice must be interpreted to afford incompetent developmentally disabled women the benefits accorded by that constitutional right].) In reaching the contrary conclusion that the right to marry guaranteed by the California Constitution should be understood as protecting only an individual's right to enter into an officially recognized family relationship with a person of the opposite sex, the Court of Appeal relied upon a number of decisions that have cautioned against defining at too high a level of generality those constitutional rights that are protected as part of the substantive due process doctrine. (See, e.g., Washington v. Glucksberg (1997) 521 U.S. 702, 723, 117 S.Ct. 2258, 138 L.Ed.2d 772 [holding, in case challenging constitutional validity of statute forbidding assisted suicide, that liberty interest at issue should not be defined as an interest in choosing how to die or the time and manner of one's death; instead the issue was whether the liberty interest protected by the due process clause includes a right to commit suicide which itself includes a right to assistance in doing so]; Reno v. Flores (1993) 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 [holding, in case
challenging federal policy of placing deportable juveniles in custodial child care rather than releasing them to unrelated adults, that the right at issue should not be viewed as freedom from physical restraint but rather the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a *824 government-operated or governmentselectedddddddd ***737 d child-care institution]; Dawn D. v. Superior Court, supra, 17 Cal.4th 932, 941, 72 Cal.Rptr.2d 871, 952 P.2d 1139 [holding, in case in which an alleged biological father sought an opportunity to establish a relationship with a child whose biological mother was married to another man at the time of the child's conception and birth, that the appropriate question was not **430 whether a biological father generally has a liberty interest in establishing a relationship with his biological child but rather whether the federal Constitution protects a biological father's interest in establishing a relationship with his child born to a woman married to another man at the time of the child's conception and birth].) None of the foregoing decisions in emphasizing the importance of undertaking a careful description of the asserted fundamental liberty interest (Washington v. Glucksberg, supra, 521 U.S. 702, 721, 117 S.Ct. 2258) suggests, however, that it is appropriate to define a fundamental constitutional right or interest in so narrow a fashion that the basic protections afforded by the right are withheld from a class of persons composed of individuals sharing a personal characteristic such as a particular sexual orientation who historically have been denied the benefit of such rights. As noted above, our decision in Perez, supra, 32 Cal.2d 711, 198 P.2d 17, declining to define narrowly the right to marry, did not consider the fact that discrimination against interracial marriage was sanctioned by the state for many years to be a reason to reject the plaintiffs' claim in that case. (Id., at p. 727, 198 P.2d 17.) Instead the court looked to the essence and substance of the right to marry, a right itself deeply rooted in the history and tradition of our state and nation, to determine whether the challenged statute impinged upon the plaintiffs' constitutional right. For similar reasons, it is apparent that history alone does not provide a justification for interpreting the constitutional right to marry as protecting only one's ability to enter into an officially recognized family relationship with a person of the opposite sex. In this regard, we agree with the view expressed by Chief Judge Kaye of the New York Court of Appeals in her dissenting opinion in Hernandez v. Robles, supra, 7 N.Y.3d 338, 821 N.Y.S.2d 770,
855 N.E.2d 1, 23: [F]undamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. (Cf. Taylor v. Louisiana (1975) 419 U.S. 522, 537, 95 S.Ct. 692, 42 L.Ed.2d 690 [it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male.... If it was ever the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed].) Furthermore, unlike the situation presented in several prior decisions of this court in which recognition of a party's claim of a constitutional right necessarily and invariably would have had the effect of reducing or diminishing the rights of other persons (see, e.g., *825 Johnson v. Calvert (1993) 5 Cal.4th 84, 92, fn. 8, 100, 19 Cal.Rptr.2d 494, 851 P.2d 776 [noting, in rejecting surrogate mother's claim of a liberty interest in the companionship of a child, that recognition of such an interest would impinge upon the liberty interests of the child's legal parents]; Dawn D. v. Superior Court, supra, 17 Cal.4th 932, 72 Cal.Rptr.2d 871, 952 P.2d 1139 [rejecting asserted biological father's claim of a liberty interest in establishing relationship with a child whose biological mother was married to another man when the child was ***738 conceived and born] ), in the present context our recognition that the constitutional right to marry applies to same-sex couples as well as to opposite-sex couples does not diminish any other person's constitutional rights. Opposite-sex couples will continue to enjoy precisely the same constitutional rights they traditionally have possessed, unimpaired by our recognition that this basic civil right is applicable, as well, to gay individuals and same-sex couples. The Proposition 22 Legal Defense Fund and the Campaign agree that the constitutional right to marry is integrally related to the right of two persons to join together to establish an officially recognized family, but they contend that the only family that possibly can be encompassed by the constitutional right to marry is a family headed by a man and a woman. Pointing out that past cases often have linked marriage and procreation, these parties argue that because only a man and a woman can produce children biologically with one another, the constitutional right to marry necessarily is limited to opposite-sex couples. **431 This contention is fundamentally flawed for a number of reasons. To begin with, although the legal institution of
civil marriage may well have originated in large part to promote a stable relationship for the procreation and raising of children (see, e.g., Baker v. Baker, supra, 13 Cal. 87, 103 [the first purpose of matrimony, by the laws of nature and society, is procreation]; see generally Blankenhorn, The Future of Marriage (2007) pp. 23125), and although the right to marry and to procreate often are treated as closely related aspects of the privacy and liberty interests protected by the state and federal Constitutions (see, e.g., Valerie N., supra, 40 Cal.3d 143, 161, 219 Cal.Rptr. 387, 707 P.2d 760; Skinner v. Oklahoma (1942) 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655), the constitutional right to marry never has been viewed as the sole preserve of individuals who are physically capable of having children. Men and women who desire to raise children with a loved one in a recognized family but who are physically unable to conceive a child with their loved one never have been excluded from the right to marry. Although the Proposition 22 Legal Defense Fund and the Campaign assert that the circumstance that marriage has not been limited to those who can bear children can be explained and justified by reference to the state's reluctance to intrude upon the privacy of individuals by inquiring into their fertility, if that were an accurate and adequate explanation for the absence of such a limitation it would follow that in instances in which the state is able to make *826 a determination of an individual's fertility without such an inquiry, it would be constitutionally permissible for the state to preclude an individual who is incapable of bearing children from entering into marriage. There is, however, no authority whatsoever to support the proposition that an individual who is physically incapable of bearing children does not possess a fundamental constitutional right to marry. Such a proposition clearly is untenable. A person who is physically incapable of bearing children still has the potential to become a parent and raise a child through adoption or through means of assisted reproduction, and the constitutional right to marry ensures the individual the opportunity to raise children in an officially recognized family with the person with whom the individual has chosen to share his or her life. Thus, although an important purpose underlying marriage may be to channel procreation into a stable family relationship, that purpose cannot be viewed as limiting the constitutional right to marry to couples who are capable of biologically producing a child together. 48 ***739 A variant of the contention that the right to marry is limited to couples who are capable of procreation is that the purpose of marriage is to promote responsible procreation and that a restriction limiting this right exclusively to opposite-sex couples follows from this purpose. A number
of recent state court decisions, applying the rational basis equal protection standard, have relied upon this purpose as a reasonably conceivable justification for a statutory limitation of marriage to opposite-sex couples. These decisions have explained that although same-sex couples can have or obtain children through assisted reproduction or adoption, resort to such methods demonstrates, in the case of a same-sex couple, that parenthood necessarily is an intended consequence because each of these two methods requires considerable planning and expense, whereas in the case of an oppositesex couple a child often is the unintended consequence of the couple's sexual intercourse. These courts reason that a state plausibly could conclude that although affording the benefits of marriage to opposite-sex couples is an incentive needed to ensure that accidental procreation is channeled into a stable family relationship, a similar incentive is not required for same-sex couples because they cannot produce children accidentally. (See, e.g., Morrison v. Sadler, supra, 821 N.E.2d 15, 2329; Hernandez v. **432 Robles, supra, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 7.) Whether or not the state's interest in encouraging responsible procreation properly can be viewed as a reasonably conceivable justification for the *827 statutory limitation of marriage to a man and a woman for purposes of the rational basis equal protection standard, this interest clearly does not provide an appropriate basis for defining or limiting the scope of the constitutional right to marry. None of the past cases discussing the right to marry and identifying this right as one of the fundamental elements of personal autonomy and liberty protected by our Constitution contains any suggestion that the constitutional right to marry is possessed only by individuals who are at risk of producing children accidentally, or implies that this constitutional right is not equally important for and guaranteed to responsible individuals who can be counted upon to take appropriate precautions in planning for parenthood. Thus, although the state undeniably has a legitimate interest in promoting responsible procreation, that interest cannot be viewed as a valid basis for defining or limiting the class of persons who may claim the protection of the fundamental constitutional right to marry. Furthermore, although promoting and facilitating a stable environment for the procreation and raising of children is unquestionably one of the vitally important purposes underlying the institution of marriage and the constitutional right to marry, past cases make clear that this right is not confined to, or restrictively defined by, that purpose alone.
(See, e.g., Baker v. Baker, supra, 13 Cal. 87, 103[[t]he second purpose of matrimony is the promotion of the happiness of the parties by the society of each other].) As noted above, our past ***740 cases have recognized that the right to marry is the right to enter into a relationship that is the center of the personal affections that ennoble and enrich human life (De Burgh v. De Burgh, supra, 39 Cal.2d 858, 863864, 250 P.2d 598) a relationship that is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime. (Marvin v. Marvin, supra, 18 Cal.3d 660, 684, 134 Cal.Rptr. 815, 557 P.2d 106; see also Elden v. Sheldon, supra, 46 Cal.3d 267, 274, 250 Cal.Rptr. 254, 758 P.2d 582.) The personal enrichment afforded by the right to marry may be obtained by a couple whether or not they choose to have children, and the right to marry never has been limited to those who plan or desire to have children. Indeed, in Griswold v. Connecticut, supra, 381 U.S. 479, 85 S.Ct. 1678 one of the seminal federal cases striking down a state law as violative of the federal constitutional right of privacy the high court upheld a married couple's right to use contraception to prevent procreation, demonstrating quite clearly that the promotion of procreation is not the sole or defining purpose of marriage. Similarly, in Turner v. Safley, supra, 482 U.S. 78, 107 S.Ct. 2254, the court held that the constitutional right to marry extends to an individual confined in state prison even a prisoner who has no right to conjugal visits with his would-be spouse emphasizing that [m]any important attributes of marriage remain ... after taking into account the limitations imposed by prison life ... [including the] expressions of emotional support and public commitment [that] are an important and significant aspect of the marital relationship. (482 U.S. at pp. 9596, 107 S.Ct. 2254.) Although Griswold and Turner *828 relate to the right to marry under the federal Constitution, they accurately reflect the scope of the state constitutional right to marry as well. Accordingly, this right cannot properly be defined by or limited to the state's interest in fostering a favorable environment for the procreation and raising of children. The Proposition 22 Legal Defense Fund and the Campaign also rely upon several academic commentators who maintain that the constitutional right to marry should be viewed as inapplicable to same-sex couples because a contrary interpretation assertedly would sever the link that marriage provides between procreation and child rearing and would send a message to the public that it is immaterial to the state whether children are raised by their biological mother and father. (See, e.g., Blankenhorn, The Future of
Marriage, supra, at pp. 201212; Wardle, Multiply and Replenish: Considering **433 SameSex Marriage in Light of State Interests in Marital Procreation (2001) 24 Harv. J.L. & Pub. Pol'y 771, 797799; Gallaher, What Is Marriage For? The Public Purposes of Marriage Law (2002) 62 La. L.Rev. 773, 779780, 790791.) Although we appreciate the genuine concern for the well-being of children underlying that position, we conclude this claim lacks merit. Our recognition that the core substantive rights encompassed by the constitutional right to marry apply to same-sex as well as opposite-sex couples does not imply in any way that it is unimportant or immaterial to the state whether a child is raised by his or her biological mother and father. By recognizing this circumstance we do not alter or diminish either the legal responsibilities that biological parents owe to their children or the substantial incentives that the state provides to a child's biological parents to enter into and raise their child in a stable, long-term committed relationship. 49 Instead, such an interpretation of ***741 the constitutional right to marry simply confirms that a stable two-parent family relationship, supported by the state's official recognition and protection, is equally as important for the numerous children in California who are being raised by same-sex couples as for those children being raised by opposite-sex couples (whether they are biological parents or adoptive parents). 50 This interpretation *829 also guarantees individuals who are in a same-sex relationship, and who are raising children, the opportunity to obtain from the state the official recognition and support accorded a family by agreeing to take on the substantial and long-term mutual obligations and responsibilities that are an essential and inseparable part of a family relationship. 51 Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive 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 **434 enjoys all of the constitutionally based incidents of marriage. 52
opposite-sex couples, the current California statutes do not violate the fundamental rights of same-sex couples, because all of the personal and dignity interests that have traditionally informed the right to marry have been given to same-sex couples through the Domestic Partner Act. Maintaining that under the domestic partnership system, the word marriage is all that the state is denying to registered domestic partners, the Attorney General asserts that [t]he fundamental right to marry can no more be the basis for same-sex couples to compel the state to denominate their committed relationships marriage than it could be the basis for anyone to prevent the state legislature from changing the name of the marital institution itself to civil unions. Accordingly, the Attorney General argues that in light of the rights afforded to same-sex couples by the Domestic Partner Act, the current California statutes cannot be found to violate the right of same-sex couples to marry. We have no occasion in this case to determine whether the state constitutional right to marry necessarily affords all couples the constitutional right to require the state to designate their official family relationship a marriage, or whether, as the Attorney General suggests, the Legislature would not violate a couple's constitutional right to marry if perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage it were to assign a name other than marriage as the official designation of the family relationship for all couples. The current California statutes, of course, do not assign a name other than marriage for all couples, but instead reserve exclusively to opposite-sex couples the traditional designation of marriage, and assign a different designation domestic partnership to the only official family relationship available to same-sex couples. Whether or not the name marriage, in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental ***743 right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes by drawing a distinction between the name assigned to *831 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 serious risk of
***742 *830 B The Attorney General, in briefing before this court, argues that even if, as we have concluded, the state constitutional right to marry extends to same-sex couples as well as to
denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of **435 the constitutional right to marry. As observed by the City at oral argument, this court's conclusion in Perez, supra, 32 Cal.2d 711, 198 P.2d 17, that the statutory provision barring interracial marriage was unconstitutional, undoubtedly would have been the same even if alternative nomenclature, such as transracial union, had been made available to interracial couples. Accordingly, although we agree with the Attorney General that the provisions of the Domestic Partner Act afford samesex couples most of the substantive attributes to which they are constitutionally entitled under the state constitutional right to marry, we conclude that the current statutory assignment of different designations to the official family relationship of opposite-sex couples and of same-sex couples properly must be viewed as potentially impinging upon the state constitutional right of same-sex couples to marry.
discrimination or differentiation of treatment between classes or individuals.... [That standard] invests legislation involving such differentiated treatment with a presumption of constitutionality and requir [es] merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose.... [T]he burden of demonstrating the invalidity of a classification under this standard rests squarely upon the party who assails it. ' [Citation.] This first basic equal protection **436 standard generally is referred to as the rational relationship or rational basis' standard. (41 Cal.4th at pp. 298299, 59 Cal.Rptr.3d 442, 159 P.3d 33.) [13] [14] Our decision in Hernandez, supra, 41 Cal.4th 279, 59 Cal.Rptr.3d 442, 159 P.3d 33, further explained: [T]he second equal protection standard is [a] more stringent test [that] is applied ... in cases involving suspect classifications' or touching on fundamental interests. Here the courts adopt an attitude of active and critical analysis, subjecting the classifications to strict scrutiny.... Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose. [Citation.] ' ... This second standard generally is referred to as the strict scrutiny standard. (41 Cal.4th at p. 299, 59 Cal.Rptr.3d 442, 159 P.3d 33.) 55 *833 Plaintiffs maintain, on three separate grounds, that strict scrutiny is the standard that should be applied in this case, contending the distinctions drawn by the statutes between opposite-sex and same-sex couples (1) discriminate on the basis of sex (that is, gender), (2) discriminate on the basis of sexual orientation, and (3) impinge upon a fundamental right. We discuss each of these three claims in turn.
V [10] The current statutory assignment of different names for the official family relationships of opposite-sex couples on the one hand, and of same-sex couples on the other, raises constitutional concerns not only in the context of the state constitutional right to marry, but also under the state constitutional equal protection clause. Plaintiffs contend that by permitting only opposite-sex couples to enter into a relationship designated as a marriage, and by designating as a domestic partnership the parallel relationship into which same-sex couples may enter, 53 the statutory scheme impermissibly denies same-sex couples the equal protection of the laws, guaranteed by article I, section 7, of the California Constitution. The relevant California statutes clearly treat opposite-sex and same-sex couples differently in this respect, and the initial question we must consider in addressing the equal protection issue is the standard of review that should be applied in evaluating this distinction.
54
***745 A
Plaintiffs initially contend that the relevant California ***744 [11] [12] *832 There are two different statutes, by drawing a distinction between couples consisting of a man and a woman and couples consisting of two persons standards traditionally applied by California courts in of the same sex or gender, discriminate on the basis of sex evaluating challenges made to legislation under the equal and for that reason should be subjected to strict scrutiny under protection clause. As we recently explained in Hernandez the state equal protection clause. Although the governing v. City of Hanford (2007) 41 Cal.4th 279, 59 Cal.Rptr.3d California cases long have established that statutes that 442, 159 P.3d 33 (Hernandez ), [t]he first is the discriminate on the basis of sex or gender are subject to strict basic and conventional standard for reviewing economic scrutiny under the California Constitution (see, e.g., Catholic and social welfare legislation in which there is a
Charities of Sacramento, Inc. v. Superior Court, supra, 32 Cal.4th 527, 564, 10 Cal.Rptr.3d 283, 85 P.3d 67; Sail'er Inn, supra, 5 Cal.3d 1, 1720, 95 Cal.Rptr. 329, 485 P.2d 529), we conclude that the challenged statutes cannot properly be viewed as discriminating on the basis of sex or gender for purposes of the California equal protection clause. In drawing a distinction between opposite-sex couples and same-sex couples, the challenged marriage statutes do not treat men and women differently. Persons of either gender are treated equally and are permitted to marry only a person of the opposite gender. In light of the equality of treatment between genders, the distinction prescribed by the relevant statutes plainly does not constitute discrimination on the basis of sex as that concept is commonly understood. Plaintiffs contend, however, that the statutory distinction nonetheless should be viewed as sex or gender discrimination because the statutory limitation upon marriage in a particular case is dependent upon an individual person's sex or gender. Plaintiffs argue that because a woman who wishes to marry another woman would be permitted to do so if she were a man rather than a woman, and a man who wishes to marry another man would be permitted to do so if he were a woman rather than a man, the statutes must be seen as embodying discrimination on the basis of sex. Plaintiffs rely on the decisions in Perez, supra, 32 Cal.2d 711, 198 P.2d 17, and **437 Loving v. Virginia, supra, 388 U.S. 1, 87 S.Ct. 1817, in which this court and subsequently the United States Supreme Court found that the antimiscegenation statutes at issue in those cases *834 discriminated on the basis of race, even though the statutes prohibited White persons from marrying Black persons and Black persons from marrying White persons. The decisions in Perez, supra, 32 Cal.2d 711, 198 P.2d 17, and Loving v. Virginia, supra, 388 U.S. 1, 87 S.Ct. 1817, however, are clearly distinguishable from this case, because the antimiscegenation statutes at issue in those cases plainly treated members of minority races differently from White persons, prohibiting only intermarriage that involved White persons in order to prevent (in the undisguised words of the defenders of the statute in Perez ) the Caucasian race from being contaminated by races whose members are by nature physically and mentally inferior to Caucasians. (Perez, supra, 32 Cal.2d at p. 722, 198 P.2d 17; see also Loving, supra, 388 U.S. at p. 11, 87 S.Ct. 1817 [The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand
on their own justification, as measures designed to maintain White Supremacy].) Under these circumstances, there can be no doubt that the reference to race in the statutes at issue in Perez and Loving unquestionably reflected the kind of racial discrimination that always has been recognized as calling for strict scrutiny under equal protection analysis. In Perez, Loving, and a number of other decisions (see, e.g., ***746 McLaughlin v. Florida (1964) 379 U.S. 184, 192, 85 S.Ct. 283, 13 L.Ed.2d 222), courts have recognized that a statute that treats a couple differently based upon whether the couple consists of persons of the same race or of different races generally reflects a policy disapproving of the integration or close relationship of individuals of different races in the setting in question, and as such properly is viewed as embodying an instance of racial discrimination with respect to the interracial couple and both of its members. By contrast, past judicial decisions, in California and elsewhere, virtually uniformly hold that a statute or policy that treats men and women equally but that accords differential treatment either to a couple based upon whether it consists of persons of the same sex rather than opposite sexes, or to an individual based upon whether he or she generally is sexually attracted to persons of the same gender rather than the opposite gender, is more accurately characterized as involving differential treatment on the basis of sexual orientation rather than an instance of sex discrimination, and properly should be analyzed on the former ground. These cases recognize that, in realistic terms, a statute or policy that treats same-sex couples differently from opposite-sex couples, or that treats individuals who are sexually attracted to persons of the same gender differently from individuals who are sexually attracted to persons of the opposite gender, does not treat an individual man or an individual woman differently because of his or her gender but rather accords differential treatment because of the individual's sexual orientation. *835 In Gay Law Students, supra, 24 Cal.3d 458, 490491, 156 Cal.Rptr. 14, 595 P.2d 592, for example, the plaintiffs contended that an employer's alleged policy of discriminating against homosexuals constituted discrimination on the basis of sex within the meaning of California's fair employment practice statute. 56 In support of this contention, the plaintiffs argued that discrimination against homosexuals is in effect discrimination based on the gender of the homosexual's partner (24 Cal.3d. at p. 490, 156 Cal.Rptr. 14, 595 P.2d 592), and analogizing to a series of racial discrimination cases including Loving v. Virginia, supra, 388 U.S. 1, 87 S.Ct. 1817 (24 Cal.3d at p. 490 & fn. 18, 156 Cal.Rptr. 14, 595
P.2d 592), the plaintiffs asserted that such discrimination is discrimination on the basis of sex. **438 (Id. at p. 490, 156 Cal.Rptr. 14, 595 P.2d 592.) Although this court recognized in Gay Law Students that as a semantic argument the plaintiffs' contention might have some appeal (ibid.), we nonetheless squarely rejected the claim, explaining that the statute proscribing discrimination on the basis of sex, did not contemplate discrimination against homosexuals. (Ibid.) In reaching this conclusion, we relied not only on the circumstance that the identical statutory prohibition against sex discrimination in employment set forth in title VII of the 1964 federal Civil Rights Act uniformly had been interpreted as not encompassing discrimination on the basis of sexual orientation or homosexuality, but also on the circumstance that the agency charged with administering the California statute consistently had interpreted the prohibition of sex discrimination as inapplicable to claims ***747 of discrimination based upon sexual orientation. (Gay Law Students, supra, at pp. 490491, 156 Cal.Rptr. 14, 595 P.2d 592; accord, e.g., In re Maki (1943) 56 Cal.App.2d 635, 639 640, 133 P.2d 64 [ordinance forbidding administration of massage to a person of the opposite sex did not violate state constitutional provision mandating that no person shall be disqualified from pursuing any lawful vocation on account of sex ].) In the three decades that have elapsed since our decision in Gay Law Students, supra, 24 Cal.3d 458, 156 Cal.Rptr. 14, 595 P.2d 592, judicial decisions in a variety of contexts similarly have concluded that statutes, policies, or public or private actions that treat the genders equally but that accord differential treatment either to a couple based upon whether they are persons of the same sex or of opposite sexes, or to a person based upon whether he or she generally is sexually attracted to persons of the same gender rather than the opposite gender, do not constitute instances of sex discrimination (either within the meaning of statutory prohibitions on sex discrimination or for purposes of the equal protection clauses or equal rights amendments contained within the federal *836 and various state constitutions), but rather are more properly viewed as instances of differential treatment on the basis of sexual orientation and accordingly should be evaluated on that ground. (See, e.g., Medina v. Income Support Div., New Mexico (10th Cir.2005) 413 F.3d 1131, 11341135 [workplace harassment]; DeSantis v. Pacific Tel. & Tel. Co. (9th Cir.1979) 608 F.2d 327, 329 330 [termination of employment]; Commonwealth v. Wasson (Ky.1992) 842 S.W.2d 487, 499502 [statute prohibiting deviate sexual intercourse with another person of the same
sex]; State v. Walsh (Mo.1986) 713 S.W.2d 508, 510511 [same]; Conaway v. Deane, supra, 401 Md. 219, 932 A.2d 571, 585602, 605616 [marriage]; Lewis v. Harris, supra, 188 N.J. 415, 908 A.2d 196, 212215 [marriage]; Hernandez v. Robles, supra, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 1011 [marriage]; Baker v. State, supra, 170 Vt. 194, 744 A.2d 864, 880, fn. 13 [marriage]; Andersen v. King County, supra, 158 Wash.2d 1, 138 P.3d 963, 974 976, 988990 (lead opn. of Madsen, J.); id. at pp. 997 998, 1010 (conc. opn. of Johnson (J.M.), J.) [marriage]; In re Kandu (Bankr.W.D.Wn.2004) 315 B.R. 123, 142144 [marriage]; accord, Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 [in determining whether same-sex harassment in the workplace constitutes discrimination because of sex within the meaning of title VII, [t]he critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed ]; Lawrence v. Texas, supra, 539 U.S. 558, 581, 123 S.Ct. 2472, 156 L.Ed.2d 508 (conc. opn. of O'Connor, J.) [statute that makes sodomy a crime only if a person engages in such conduct with another individual of the same sex treats persons differently on the basis of their same-sex sexual orientation and, for equal protection purposes, is appropriately analyzed on that ground]; see also C249/96, Grant v. SouthWest Trains (Eur. Ct. of Justice) 1998 E.C.R. I261, pars. 2428, 3747 [discrimination on the basis of sex prohibited by art. 119 of the Treaty establishing the European Economic Community does not cover discrimination based on sexual orientation].) 57 ***748 *837 **439 Although plaintiffs further contend that the difference in treatment prescribed by the relevant statutes should be treated as sex discrimination for equal protection purposes because the differential treatment reflects illegitimate gender-related stereotyping based on the view that men are attracted to women and women are attracted to men, this argument again improperly conflates two concepts discrimination on the basis of sex, and discrimination on the basis of sexual orientation that traditionally have been viewed as distinct phenomena. (See, e.g., Gov.Code, 12940, subds. (a)(d), (j) [prohibiting, separately, employment discrimination (or harassment) on the basis of sex and on the basis of sexual orientation]; Civ.Code, 51, subd. (b) [guaranteeing [a]ll persons ... no matter what their sex ... or sexual orientation ... the full and equal accommodations ... in all business establishments].) Under plaintiffs' argument, discrimination on the basis of sexual orientation always would constitute a subset of discrimination on the basis of sex.
For purposes of determining the applicable standard of judicial review under the California equal protection clause, we conclude that discrimination on the basis of sexual orientation cannot appropriately be viewed as a subset of, or subsumed within, discrimination on the basis of sex. The seminal California decisions that address the question of which equal protection standard should apply to statutory classifications that discriminate on the basis of sex or gender, and that explain why under the California Constitution the strict scrutiny standard is applicable to such classifications, look to (1) whether a person's gender (rather than sexual orientation) ***749 does or does not bear a relation to one's ability to perform or contribute to society, and (2) the long history of societal and legal discrimination against women (rather than against gay individuals). (See, e.g., Sail'er Inn, supra, 5 Cal.3d 1, 1820, 95 Cal.Rptr. 329, 485 P.2d 529; Arp v. Workers' Comp. Appeals Bd., supra, 19 Cal.3d 395, 404405, 138 Cal.Rptr. 293, 563 P.2d 849.) Each of these seminal California decisions addressed instances in which the applicable statutes favored one gender over another, or prescribed different treatment for one gender as compared to the other based upon a stereotype *838 relating to one particular gender, rather than instances in which a statute treated the genders equally but imposed differential treatment based upon whether or not an individual was of the **440 same gender as his or her sexual partner. (See, e.g., Sail'er Inn, supra, 5 Cal.3d 1, 21, 95 Cal.Rptr. 329, 485 P.2d 529 [statute restricting women's access to the occupation of bartender appears to be based upon notions of what is a ladylike or proper pursuit for a woman in our society rather than any ascertainable evil effects of permitting women to labor behind ... bars]; Arp, supra, 19 Cal.3d 395, 405406, 138 Cal.Rptr. 293, 563 P.2d 849 [conclusive statutory presumption that all widows were totally economically dependent upon their deceased husband was the product of ... archaic and overbroad role stereotypes and clearly ... is outmoded in a society where more often than not a family's standard of living depends upon the financial contributions of both marital partners].) In light of the reasoning underlying these rulings, we conclude that the type of discrimination or differential treatment between same-sex and opposite-sex couples reflected in the challenged marriage statutes cannot fairly be viewed as embodying the same type of discrimination at issue in the California decisions establishing that the strict scrutiny standard applies to statutes that discriminate on the basis of sex. 58
Accordingly, we conclude that in the context of California's equal protection clause, the differential treatment prescribed by the relevant statutes cannot properly be found to constitute discrimination on the basis of sex, and thus that the statutory classification embodied in the marriage statutes is not subject to strict scrutiny on that ground.
***750 *839 B [15] Plaintiffs next maintain that even if the applicable California statutes do not discriminate on the basis of sex or gender, they do so on the basis of sexual orientation, and that statutes that discriminate on the basis of sexual orientation should be subject to strict scrutiny under the California Constitution. In response, defendants assert the marriage statutes do not discriminate on the basis of sexual orientation, and, even if they do, discrimination on the basis of sexual orientation should not trigger strict scrutiny. In arguing that the marriage statutes do not discriminate on the basis of sexual orientation, defendants rely upon the circumstance that these statutes, on their face, do not refer explicitly to sexual orientation and do not prohibit gay individuals from marrying a person of the opposite sex. Defendants contend that under these circumstances, the marriage statutes should not be viewed as directly classifying or discriminating on the basis of sexual orientation but at most should be viewed as having a disparate impact on gay persons. In our view, the statutory provisions restricting marriage to a man and a woman cannot be understood as having merely a disparate impact on gay persons, but instead properly must be viewed as directly classifying and prescribing distinct treatment on the basis of sexual orientation. By limiting marriage to opposite-sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on **441 gay individuals because of their sexual orientation. By definition, gay individuals are persons who are sexually attracted to persons of the same sex and thus, if inclined to enter into a marriage relationship, would choose to marry a person of their own sex or gender. 59 A statute that limits marriage to a union of persons of *840 opposite sexes, thereby placing marriage outside the reach of couples of the same sex, unquestionably imposes different treatment on the basis of sexual orientation. In our view, it is sophistic to suggest that this conclusion is avoidable by reason of the circumstance that the marriage statutes permit a
gay man or a lesbian to marry someone of the opposite sex, because making such a choice would require the negation of the person's sexual orientation. Just as a statute that restricted marriage only to couples of the same sex would discriminate against heterosexual persons on the basis of their heterosexual orientation, the current California statutes realistically must be viewed as ***751 discriminating against gay persons on the basis of their homosexual orientation. (Accord, Johnson Controls, Inc. v. Fair Employment and Housing Com. (1990) 218 Cal.App.3d 517, 533, 541, fn. 7, 267 Cal.Rptr. 158.) Having concluded that the California marriage statutes treat persons differently on the basis of sexual orientation, we must determine whether sexual orientation should be considered a suspect classification under the California equal protection clause, so that statutes drawing a distinction on this basis are subject to strict scrutiny. As pointed out by the parties defending the marriage statutes, the great majority of out-ofstate decisions that have addressed this issue have concluded that, unlike statutes that impose differential treatment on the basis of an individual's race, sex, religion, or national origin, statutes that treat persons differently because of their sexual orientation should not be viewed as constitutionally suspect and thus should not be subjected to strict scrutiny. 60 The issue is one of first impression in California, 61 however, and for the reasons **442 discussed below we conclude that sexual orientation should be viewed as a suspect classification for purposes of *841 the California Constitution's equal protection clause and that statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny under this constitutional provision. In addressing this issue, the majority in the Court of Appeal stated: For a statutory classification to be considered suspect for equal protection purposes, generally three requirements must be met. The defining characteristic must (1) be based upon an immutable trait; (2) bear[ ] no relation to [a person's] ability to perform or contribute to society; and (3) be associated with a stigma of inferiority and second class citizenship, manifested by the group's history of legal and social disabilities. ***752 (Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d at pp. 1819, 95 Cal.Rptr. 329, 485 P.2d 529.) While the latter two requirements would seem to be readily satisfied in the case of gays and lesbians, the first is more controversial. Concluding that whether sexual orientation is immutable presents a factual question as to which an adequate record had not been presented in the trial court, the Court of Appeal ultimately held that [l]acking guidance from
our Supreme Court or decisions from our sister Courts of Appeal, the court would review the marriage statutes under the rational basis, rather than the strict scrutiny, standard. Past California cases fully support the Court of Appeal's conclusion that sexual orientation is a characteristic (1) that bears no relation to a person's ability to perform or contribute to society (see, e.g., Gay Law Students, supra, 24 Cal.3d 458, 488, 156 Cal.Rptr. 14, 595 P.2d 592), and (2) that is associated with a stigma of inferiority and second-class citizenship, manifested by the group's history of legal and social disabilities. (See, e.g., People v. Garcia (2000) 77 Cal.App.4th 1269, 92 Cal.Rptr.2d 339 [Lesbians and gay men ... share a history of persecution comparable to that of Blacks and women (id., at p. 1276, 92 Cal.Rptr.2d 339); Outside of racial and religious minorities, we can think of no group which has suffered such pernicious and sustained hostility [citation], and such immediate and severe opprobrium [citation], as homosexuals (id., at p. 1276, 92 Cal.Rptr.2d 339) ].) [16] We disagree, however, with the Court of Appeal's conclusion that it is appropriate to reject sexual orientation as a suspect classification, in applying the California Constitution's equal protection clause, on the ground that there is a question as to whether this characteristic is or is not immutable. Although we noted in Sail'er Inn, supra, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529, that generally a person's gender is viewed as an immutable trait (id. at p. 18, 95 Cal.Rptr. 329, 485 P.2d 529), immutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes. California cases establish that a person's religion is a suspect classification for equal protection purposes (see, e.g., *842 Owens v. City of Signal Hill (1984) 154 Cal.App.3d 123, 128, 201 Cal.Rptr. 70; Williams v. Kapilow & Son, Inc. (1980) 105 Cal.App.3d 156, 161162, 164 Cal.Rptr. 176), and one's religion, of course, is not immutable but is a matter over which an individual has control. (See also Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 292, 101 Cal.Rptr. 896, 496 P.2d 1264 [alienage treated as a suspect classification notwithstanding circumstance that alien can become a citizen].) Because a person's sexual orientation is so integral an aspect of one's identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment. (Accord, HernandezMontiel v. I.N.S. (9th Cir.2000) 225 F.3d 1084, 1093[[s]exual orientation and sexual identity ... are so fundamental to one's identity that a person should not be
required to abandon them]; Egan v. Canada, supra, 2 S.C.R. **443 513, 528 [whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs].) In his briefing before this court, the Attorney General does not maintain that sexual orientation fails to satisfy the three requirements for a suspect classification discussed by the Court of Appeal, but instead argues that a fourth requirement should be imposed before a characteristic is considered a constitutionally suspect basis ***753 for classification for equal protection purposes namely, that a suspect classification is appropriately recognized only for minorities who are unable to use the political process to address their needs. The Attorney General's brief asserts that [s]ince the gay and lesbian community in California is obviously able to wield political power in defense of its interests, this Court should not hold that sexual orientation constitutes a suspect classification. [17] Although some California decisions in discussing suspect classifications have referred to a group's political powerlessness (see, e.g. Raffaelli v. Committee of Bar Examiners, supra, 7 Cal.3d 288, 292, 101 Cal.Rptr. 896, 496 P.2d 1264), our cases have not identified a group's current political powerlessness as a necessary prerequisite for treatment as a suspect class. 62 Indeed, if a group's current political powerlessness were a prerequisite to a characteristic's being considered a *843 constitutionally suspect basis for differential treatment, it would be impossible to justify the numerous decisions that continue to treat sex, race, and religion as suspect classifications. 63 Instead, our decisions make clear that the most important factors in deciding whether a characteristic should be considered a constitutionally suspect basis for classification are whether the class of persons who exhibit a certain characteristic historically has been subjected to invidious and prejudicial treatment, and whether society now recognizes that the characteristic in question generally bears no relationship to the individual's ability to perform or contribute to society. Thus, courts must look closely at classifications based on that characteristic lest outdated social stereotypes result in invidious laws or practices. (Sail'er Inn, supra, 5 Cal.3d 1, 18, 95 Cal.Rptr. 329, 485 P.2d 529, italics added; see, e.g., Arp v. Workers' Comp. Appeals Bd., supra, 19 Cal.3d 395, 404406, 138 Cal.Rptr. 293, 563 P.2d 849.) This rationale
clearly applies to statutory classifications that mandate differential treatment on the basis of sexual orientation. In sum, we conclude that statutes imposing differential treatment on the basis of sexual orientation should be viewed as constitutionally suspect under the California Constitution's equal protection clause. [18] The Attorney General argues that even if sexual orientation is viewed as a suspect classification and statutes that classify persons on such a basis are subject to heightened review, this court should apply an intermediate scrutiny standard of review (comparable to the standard applied by the United States Supreme Court to discriminatory classifications based on ***754 sex or illegitimacy (see Clark v. Jeter, supra, 486 U.S. 456, 461, 108 S.Ct. 1910)), rather than strict scrutiny, to statutes that draw distinctions between **444 persons on the basis of their sexual orientation. 64 In enforcing the California Constitution's equal protection clause, however, past California cases have not applied an intermediate scrutiny standard of review to classifications involving any suspect (or quasi-suspect) characteristic. Unlike decisions applying the federal equal protection clause, California cases continue to review, under strict scrutiny rather than intermediate scrutiny, those statutes that impose differential treatment on the basis of sex or gender. (See, e.g., Catholic Charities of Sacramento, Inc. v. Superior Court, supra, 32 Cal.4th 527, 564, 10 Cal.Rptr.3d 283, 85 P.3d 67; see also *844 Darces v. Woods (1984) 35 Cal.3d 871, 888 893, 201 Cal.Rptr. 807, 679 P.2d 458 [applying strict scrutiny rather than the intermediate scrutiny standard that was applied in a related federal decision].) There is no persuasive basis for applying to statutes that classify persons on the basis of the suspect classification of sexual orientation a standard less rigorous than that applied to statutes that classify on the basis of the suspect classifications of gender, race, or religion. Because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual's ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.
C [19] Plaintiffs additionally contend that the strict scrutiny standard applies here not only because the statutes in question impose differential treatment between individuals on the basis of the suspect classification of sexual orientation, but also because the classification drawn by the statutes impinges upon a same-sex couple's fundamental, constitutionally protected privacy interest, creating unequal and detrimental consequences for same-sex couples and their children. As discussed above (ante, 76 Cal.Rptr.3d pp. 742743, 183 P.3d pp. 434435), one of the core elements embodied in the state constitutional right to marry is the right of an individual and a couple to have their own official family relationship accorded respect and dignity equal to that accorded the family relationship of other couples. Even when the state affords substantive legal rights and benefits to a couple's family relationship that are comparable to the rights and benefits afforded to other couples, the state's assignment of a different name to the couple's relationship poses a risk that the different name itself will have the effect of denying such couple's relationship the equal respect and dignity to which the couple is constitutionally entitled. Plaintiffs contend that in the present context, the different nomenclature prescribed ***755 by the current California statutes properly must be understood as having just such a constitutionally suspect effect. We agree with plaintiffs' contention in this regard. Although in some contexts the establishment of separate institutions or structures to remedy the past denial of rights or benefits has been found to be constitutionally *845 permissible, 65 and although it may be possible **445 to conceive of some circumstances in which assignment of the name marriage to one category of family relationship and of a name other than marriage to another category of family relationship would not likely be stigmatizing or raise special constitutional concerns, 66 for a number of reasons we conclude that in the present context, affording same-sex couples access only to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.
First, because of the long and celebrated history of the term marriage and the widespread understanding that this term describes a union unreservedly approved and favored by the community, there clearly is a considerable and undeniable symbolic importance to this designation. Thus, it is apparent that affording access to this designation exclusively to opposite-sex couples, while providing samesex couples access to only a novel alternative designation, realistically must be viewed as constituting significantly unequal treatment to same-sex couples. In this regard, plaintiffs persuasively invoke by analogy the decisions of the United States Supreme Court finding inadequate a state's creation of a separate law school for Black students rather than granting such students access to the University of Texas Law School (Sweatt v. Painter (1950) 339 U.S. 629, 634, 70 S.Ct. 848, 94 L.Ed. 1114), 67 and a state's founding of a separate ***756 military program for women rather than admitting women to the Virginia Military Institute (United *846 States v. Virginia (1996) 518 U.S. 515, 555556, 116 S.Ct. 2264, 135 L.Ed.2d 735). As plaintiffs maintain, these high court decisions demonstrate that even when the state grants ostensibly equal benefits to a previously excluded class through the creation of a new institution, the intangible symbolic differences that remain often are constitutionally significant. Second, particularly in light of the historic disparagement of and discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships whereby the term marriage is denied only to same-sex couples inevitably will cause the new parallel institution that has been made available to those couples to be viewed as of a lesser stature than marriage and, in effect, as a mark of secondclass citizenship. As the Canada Supreme Court observed in an analogous context: One factor which may demonstrate that legislation that treats a claimant differently has the effect of demeaning the claimant's dignity is the existence of pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue.... ... It is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will have a more severe impact upon them, since they are already vulnerable. (M. v. H. [1999] 2 S.C.R. 3, 5455 [ 68].) Third, it also is significant that although the meaning of the term marriage is well **446 understood by the public generally, the status of domestic partnership is not. While
it is true that this circumstance may change over time, it is difficult to deny that the unfamiliarity of the term domestic partnership is likely, for a considerable period of time, to pose significant difficulties and complications for same-sex couples, and perhaps most poignantly for their children, that would not be presented if, like opposite-sex couples, samesex couples were permitted access to the established and wellunderstood family relationship of marriage. (See generally N.J. Civil Union Review Com., First Interim Rep. (Feb. 19, 2008) pp. 618 <http://www.nj. gov/oag/dcr/downloads/1stInterimReport-CURC.pdf> [as of May 15, 2008].) Under these circumstances, we conclude that the distinction drawn by the current California statutes between the designation of the family relationship available to oppositesex couples and the designation available to same-sex couples impinges upon the fundamental interest of same-sex *847 couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples. In addition, plaintiffs' briefs disclose a further way in which the different designations established by the current statutes impinge upon the constitutionally protected privacy interest of same-sex couples. Plaintiffs point out that one consequence of the coexistence of two parallel types of familial relationship is that in the numerous everyday social, employment, and governmental settings in which an individual is asked whether he or she is married or single an individual who is a domestic partner and who accurately responds to the question by disclosing that status will (as a realistic matter) be disclosing his or her homosexual orientation, even if he or she would rather not do so under the circumstances and even if that information is totally irrelevant in the setting in question. 68 Because the constitutional right of ***757 privacy ordinarily would protect an individual from having to disclose his or her sexual orientation under circumstances in which that information is irrelevant (see, e.g., People v. Garcia, supra, 77 Cal.App.4th 1269, 1280, 92 Cal.Rptr.2d 339; Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 11401141, 277 Cal.Rptr. 354), the existence of two separate family designations one available only to opposite-sex couples and the other to same-sex couples impinges upon this privacy interest, and may expose gay individuals to detrimental treatment by those who continue to harbor prejudices that have been rejected by California society at large.
For all of these reasons, we conclude that the classifications and differential treatment embodied in the relevant statutes significantly impinge upon the fundamental interests of same-sex couples, and accordingly provide a further reason requiring that the statutory provisions properly be evaluated under the strict scrutiny standard of review.
D As already explained, in circumstances, as here, in which the strict scrutiny standard of review applies, the state bears a heavy burden of justification. In order to satisfy that standard, the state must demonstrate not simply that there is a rational, constitutionally legitimate interest that supports the differential treatment at issue, but instead that the state interest is a constitutionally compelling one that justifies the disparate treatment prescribed by the statute in question. (See, e.g., *848 Darces v. Woods, supra, 35 Cal.3d 871, 893 895, 201 Cal.Rptr. 807, 679 P.2d 458.) Furthermore, unlike instances in which the rational basis test applies, the state does not meet its burden of justification under the strict scrutiny standard merely by showing that the classification established by the statute is rationally or reasonably related to such a compelling state interest. Instead, the state must demonstrate that the distinctions drawn by the statute (or statutory scheme) are necessary to further that interest. **447 (See, e.g., Ramirez v. Brown (1973) 9 Cal.3d 199, 207212, 107 Cal.Rptr. 137, 507 P.2d 1345.) [20] In the present case, the question before us is whether the state has a constitutionally compelling interest in reserving the designation of marriage only for opposite-sex couples and excluding same-sex couples from access to that designation, and whether this statutory restriction is necessary to serve a compelling state interest. In their briefing before this court, various defendants have advanced different contentions in support of the current statutes, and we discuss each of these arguments. The Proposition 22 Legal Defense Fund and the Campaign initially contend that retention of the traditional definition of marriage not only constitutes a compelling state interest, but that the Legislature (and the people in adopting an initiative statute) had no choice but to retain this definition, because according to these defendants the California Constitution itself mandates this limitation on the meaning of the term marriage. The Fund and the Campaign assert that the common law definition of marriage as the union of a
man and a woman is constitutionally enshrined in the California Constitution by virtue of language in the 1849 and 1879 Constitutions that employed the terms marriage, ***758 wife, and husband in providing constitutional protection for separate-property rights, 69 thereby precluding the Legislature or the people through the statutory initiative power from modifying the current statutes to permit same-sex couples to marry. There is no indication, however, that the constitutional provisions were intended to place the common law understanding of marriage beyond legislative control (see Dow v. Gould & Curry Silver Mining Co. (1867) 31 Cal. 629, 640 [the laws in force at the *849 time of the adoption of the Constitution were continued in force until altered or repealed by the Legislature] ), and throughout this state's history the Legislature, of course, has effected numerous fundamental changes in the institution of marriage, dramatically altering its nature from how it existed at common law. As discussed above, because section 308.5 is an initiative statute, any action by the Legislature redefining marriage to include samesex couples would require a confirming vote of approval by the electorate (see, ante, 76 Cal.Rptr.3d pp. 713717, 183 P.3d pp. 410413), but the California Constitution imposes no constitutional bar to a legislative revision of the marriage statutes consistent with the requirement of voter approval. (Accord, In re Mana (1918) 178 Cal. 213, 214216, 172 P. 986 [holding that a statute authorizing women to sit as jurors did not violate the defendant's constitutional right to trial by jury, even though, at common law, a jury was composed only of men].) In contrast to the position advanced by the Proposition 22 Legal Defense Fund and the Campaign, the Attorney General and the Governor recognize that the California Constitution does not define or limit the marriage relationship to a union of a man and a woman. These officials acknowledge that the Legislature (consistent with the constitutional limitations imposed by the initiative provisions) or the people (through the exercise of the initiative power) have the authority to revise the current marriage statutes to permit same-sex couples to marry. The Attorney General and the Governor maintain, however, that because the institution of marriage **448 traditionally (both in California and throughout most of the world) has been limited to a union between a man and a woman, any change in that status necessarily is a matter solely for the legislative process. Thus, they suggest that the separation-of-powers doctrine precludes a court from modifying the traditional definition of marriage.
Although, as noted at the outset of this opinion (ante, at p. 780, 76 Cal.Rptr.3d at pp. 699700, 183 P.3d at pp. 398399), we agree with the Attorney General and the Governor that the separation-of-powers doctrine precludes a court from redefining ***759 marriage on the basis of the court's view that public policy or the public interest would be better served by such a revision, we disagree with the Attorney General and the Governor to the extent they suggest that the traditional or long-standing nature of the current statutory definition of marriage exempts the statutory provisions embodying that definition from the constraints imposed by the California Constitution, or that the separation-of-powers doctrine precludes a court from determining that constitutional question. On the contrary, under the constitutional theory of checks and balances' that the separation-of-powers doctrine is intended to serve (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53, 51 Cal.Rptr.2d 837, 913 P.2d 1046), a court has an obligation to enforce the limitations that the California Constitution imposes upon legislative measures, and a court would shirk the *850 responsibility it owes to each member of the public were it to consider such statutory provisions to be insulated from judicial review. As Chief Justice Poritz of the New Jersey Supreme Court observed in her concurring and dissenting opinion in Lewis v. Harris, supra, 188 N.J. 415, 908 A.2d 196: Perhaps the political branches will right the wrong presented in this case by amending the marriage statutes to recognize fully the fundamental right of same-sex couples to marry. That possibility does not relieve this Court of its responsibility to decide constitutional questions, no matter how difficult.... [] The question of access to civil marriage by same-sex couples is not a matter of social policy but of constitutional interpretation. [Citation.] It is a question for this Court to decide. (Id. at pp. 230231 (conc. & dis. opn. of Poritz, C.J.).) As noted generally by Professor Jesse Choper, the Court should review individual rights questions, unabated by its judgment about whether a particular result will be subject to criticism, hostility, or disobedience. (Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (1980) p. 167.) The circumstance that in the present instance the statutory limitation upon who may enter into the marriage relationship is contained in statutory provisions that may be viewed as defining the marriage relationship, rather than, for example, in a separate statutory provision stating that a marriage
between persons of the same sex is void, does not render this aspect of the statutory scheme immune from constitutional constraints. The statutory provisions prohibiting interracial marriage at issue in Perez, supra, 32 Cal.2d 711, 198 P.2d 17, would not have been exempt from, or subject to a more deferential, constitutional scrutiny had the relevant statutes in that case defined marriage as a union between two persons of the same race, rather than providing that an interracial marriage was void. The form in which a statutory limitation or prohibition on marriage is set forth does not justify different constitutional treatment or preclude judicial review. Furthermore, history belies the notion that any element that traditionally has been viewed as an integral or definitional feature of marriage constitutes an impermissible subject of judicial scrutiny. Many examples exist of legal doctrines that once were viewed as central components of the civil institution of marriage such as the doctrine of coverture under which the wife's legal identity was treated as merged into that of her husband, whose property she became, or the doctrine of recrimination which significantly limited the circumstances under which a marriage could be legally terminated, or the numerous legal rules based upon the differing roles ***760 historically occupied by a man and by a woman in the marriage relationship and in family life generally. Courts have not hesitated **449 to subject such legal doctrines to judicial scrutiny when the fairness or continuing validity of the doctrine or rule was challenged, on occasion ultimately modifying or invalidating it as a result of such *851 judicial scrutiny. (See, e.g., Stone, The Family, Sex and Marriage in England, 15001800 (1979) p. 221 [coverture]; De Burgh v. De Burgh, supra, 39 Cal.2d 858, 250 P.2d 598 [recrimination]; Arp v. Workers' Comp. Appeals Bd., supra, 19 Cal.3d 395, 138 Cal.Rptr. 293, 563 P.2d 849 [assumption of dependent nature of wife but not husband]; Kirchberg v. Feenstra (1981) 450 U.S. 455, 101 S.Ct. 1195, 67 L.Ed.2d 428 [control over community property].) Accordingly, we reject the contention that the separation-ofpowers doctrine renders judicial scrutiny improper because the statutory provisions in question embody an integral aspect of the definition of marriage. By the same token, the circumstance that the limitation of marriage to a union between a man and a woman embodied in section 308.5 was enacted as an initiative measure by a vote of the electorate similarly neither exempts the statutory provision from constitutional scrutiny nor justifies a more deferential standard of review. Although California decisions consistently and vigorously have safeguarded the right of
voters to exercise the authority afforded by the initiative process (see, e.g., Associated Home Builders, etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591, 135 Cal.Rptr. 41, 557 P.2d 473), our past cases at the same time uniformly establish that initiative measures adopted by the electorate are subject to the same constitutional limitations that apply to statutes adopted by the Legislature, and our courts have not hesitated to invalidate measures enacted through the initiative process when they run afoul of constitutional guarantees provided by either the federal or California Constitution. For example, in Mulkey v. Reitman (1966) 64 Cal.2d 529, 50 Cal.Rptr. 881, 413 P.2d 825, affd. sub nom. Reitman v. Mulkey (1967) 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830, this court invalidated, as violative of federal equal protection principles, a state initiative measure that purported to overturn recently enacted state laws prohibiting racial discrimination in housing. Although the dissenting justices in that case referred repeatedly to the circumstance that the measure at issue had been adopted by a vote of the people under the initiative power (see 64 Cal.2d at pp. 546, 553, 559, 50 Cal.Rptr. 881, 413 P.2d 825 (dis. opn. of White, J.); id. at p. 559, 50 Cal.Rptr. 881, 413 P.2d 825 (dis. opn. of McComb, J.)) and, indeed, noted that the electorate's approval had been by an overwhelming margin of popular votes (id. at p. 553, 50 Cal.Rptr. 881, 413 P.2d 825 (dis. opn. of White, J.)) the majority nonetheless clearly explained that the governing constitutional principles require that an initiative measure like any other state law, conform to federal constitutional standards before it may be enforced against persons who are entitled to protection under that Constitution. (Id. at p. 533, 50 Cal.Rptr. 881, 413 P.2d 825; see also Romer v. Evans (1996) 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 [invalidating, as violative of the federal equal protection clause, a provision of the Colorado Constitution, adopted in a statewide referendum, that barred any municipality from enacting or enforcing any policy prohibiting discrimination on the basis of sexual orientation].) Similarly, in *852 Legislature v. Deukmejian (1983) 34 Cal.3d 658, 194 Cal.Rptr. 781, 669 P.2d 17, this court held that a proposed reapportionment initiative measure was invalid under ***761 a state constitutional provision limiting legislative reapportionment to a single, valid, once-adecade redistricting, emphasizing the elementary principle that [a] statutory initiative is subject to the same state and federal constitutional limitations as are the Legislature and the statutes which it enacts. (Id. at p. 674, 194 Cal.Rptr. 781, 669 P.2d 17.) (See also, e.g., Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 831837, 258 Cal.Rptr. 161, 771
P.2d 1247 [invalidating, as violative of state constitutional provision prohibiting the designation of a named private corporation to perform any function, a section of an insurance reform initiative that created a nonprofit consumer advocacy corporation]; Hays v. Wood (1979) 25 Cal.3d 772, 786795, 160 Cal.Rptr. 102, 603 P.2d 19 [invalidating, under federal and state equal protection principles, portions of the **450 Political Reform Act of 1974, an initiative statute adopted by the voters]; Weaver v. Jordan (1966) 64 Cal.2d 235, 238249, 49 Cal.Rptr. 537, 411 P.2d 289 [invalidating, as violative of the free speech provisions of the state and federal Constitutions, an initiative measure imposing a statewide ban on the business of home subscription television].) Although defendants maintain that this court has an obligation to defer to the statutory definition of marriage contained in section 308.5 because that statute having been adopted through the initiative process represents the expression of the people's will, this argument fails to take into account the very basic point that the provisions of the California Constitution itself constitute the ultimate expression of the people's will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints that the people themselves have imposed upon the statutory enactments that may be adopted either by their elected representatives or by the voters through the initiative process. As the United States Supreme Court explained in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. Indeed, Chief Justice Burger made the same point for a majority of the United States Supreme Court in Citizens Against Rent Control v. Berkeley (1981) 454 U.S. 290, 102 S.Ct. 434, 70 L.Ed.2d 492, observing emphatically that [i]t is irrelevant that the voters rather than a legislative body enacted [the challenged law], because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation. (Id. at p. 295, 102 S.Ct. 434, italics added.) Accordingly, the circumstance that *853 the electorate voted in favor of retaining the traditional definition of marriage does not
exempt the statutory limitation from constitutional review, nor does it demonstrate that the voters' objective represents a constitutionally compelling state interest for purposes of equal protection principles. In defending the state's proffered interest in retaining the traditional definition of marriage as limited to a union between a man and a woman, the Attorney General and the Governor rely primarily upon the historic and wellestablished nature of this limitation and the circumstance that the designation of marriage continues to apply only to a relationship between opposite-sexxxxxxxx ***762 x couples in the overwhelming majority of jurisdictions in the United States and around the world. 70 Because, **451 until recently, there has been widespread societal disapproval and disparagement of homosexuality in many cultures, it is hardly surprising that the institution of civil marriage generally has been limited to opposite-sex couples and that many persons have considered the designation of marriage to be appropriately applied only to a relationship of an oppositesex couple. Although the understanding of marriage as limited to a union of a man and a woman is undeniably the predominant one, if we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally accepted *854 of social practices and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions. It is instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage, 71 (2) upheld the routine exclusion of women from many occupations and official duties, and (3) considered the relegation of racial minorities to separate and assertedly equivalent public facilities and institutions as constitutionally equal treatment. As the United States Supreme Court observed in its decision in Lawrence v. Texas, supra, 539 U.S. 558, 579, 123 S.Ct. 2472, the expansive and protective provisions of our constitutions, such as the ***763 due process clause, were drafted with the knowledge that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. For this reason, the interest in retaining a tradition that excludes an historically disfavored minority group from a status that is extended to all others even when the tradition is long-standing and widely shared does not
necessarily represent a compelling state interest for purposes of equal protection analysis. After carefully evaluating the pertinent considerations in the present case, we conclude that the state interest in limiting the designation of marriage exclusively to opposite-sex couples, and in excluding same-sex couples from access to that designation, cannot properly be considered a compelling state interest for equal protection purposes. To begin with, the limitation clearly is not necessary to preserve the rights and benefits of marriage currently enjoyed by opposite-sex couples. Extending access to the designation of marriage to same-sex couples will not deprive any opposite-sex couple or their children of any of the rights and benefits conferred by the marriage statutes, but simply will make the benefit of the marriage designation available to same-sex couples and their children. As Chief Judge Kaye of the New York Court of Appeals succinctly observed in her dissenting opinion in Hernandez v. Robles, supra, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 30 (dis. opn. of Kaye, C.J.): There are enough marriage licenses to go around for everyone. Further, permitting same-sex couples access to the designation of marriage will not alter the substantive nature of the legal institution of marriage; same-sex couples who choose to enter into the relationship with that designation will be subject to the same duties and obligations to each other, to their children, and to third parties that the law currently imposes upon opposite-sex couples who marry. Finally, affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious *855 organization, official, or any other person; no religion will be **452 required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. (Cal. Const., art. I, 4.) 72 While retention of the limitation of marriage to oppositesex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term marriage and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to oppositesex couples while providing only a novel, alternative institution for same-sex couples likely will be ***764
viewed as 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. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term marriage is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of secondclass citizenship. Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples. In light of all of these circumstances, we conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples. Accordingly, insofar as *856 the provisions of sections 300 and 308.5 draw a distinction between opposite-sex couples and samesex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional. 73
VI Having concluded that sections 300 and 308.5 are unconstitutional to the extent each statute reserves the designation of marriage exclusively to opposite-sex couples and denies same-sex couples access to that designation, we must determine the proper remedy. [21] When a statute's differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class **453 the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class.
A court generally makes that determination by considering whether extending the benefit equally to both classes, or instead withholding it equally, would be most consistent with the likely intent of the Legislature, had that body recognized that unequal treatment was constitutionally impermissible. (See, e.g., Kopp v. Fair Political Practices Com. (1995) 11 Cal.4th 607, 626662, 47 Cal.Rptr.2d 108, 905 P.2d 1248; Arp v. Workers' Comp. Appeals Bd., supra, 19 Cal.3d 395, 407410, 138 Cal.Rptr. 293, 563 P.2d 849.) ***765 In the present case, it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation. In view of the lengthy history of the use of the term marriage to describe the family relationship here at issue, and the importance that both the supporters of the 1977 amendment to the marriage statutes and the electors who voted in favor of Proposition 22 unquestionably attached to the designation of marriage, there can be no doubt that extending the designation of marriage to same-sex couples, rather than denying it to all couples, is the equal protection remedy that is most consistent with our state's general legislative policy and preference.
The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further action consistent with this opinion.
WE CONCUR: KENNARD, WERDEGAR and MORENO, JJ. Concurring Opinion by KENNARD, J. I write separately to explain how the court's decision here is consistent with Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459 (Lockyer ), to note Lockyer 's effect on marriages of same-sex couples previously performed in this state, and to emphasize my agreement with the Chief Justice that the constitutionality of the marriage laws' exclusion of same-sex couples is an issue particularly appropriate for decision by this court.
As the opening words of the Chief Justice's majority opinion indicate, this case is a continuation of Lockyer. There, this court held that local officials had acted unlawfully by issuing gender-neutral marriage licenses to same-sex couples after the officials made a legal determination that depriving samesex couples of the right to marry was unconstitutional. (Lockyer, supra, 33 Cal.4th at pp. 1069, 11041105, 17 Cal.Rptr.3d 225, 95 P.3d 459.) Here, this court holds that [22] [23] *857 Accordingly, in light of the conclusions under the state Constitution's equal protection guarantee, we reach concerning the constitutional questions brought same-sex couples have a right to marry, and that state officials to us for resolution, we determine that the language of should take all necessary and appropriate steps so that local section 300 limiting the designation of marriage to a union officials may begin issuing marriage licenses to same-sex between a man and a woman is unconstitutional and must couples. (Maj. ***766 opn., ante, 76 Cal.Rptr.3d at pp. 764 be stricken from the statute, and that the remaining statutory 765, 183 P.3d at pp. 452453.) language must be understood as making the designation of marriage available both to opposite-sex and same-sex **454 From such brief descriptions, these two decisions couples. In addition, because the limitation of marriage may appear inconsistent. What this court determined to be to opposite-sex couples imposed by section 308.5 can unlawful in Lockyer, and ordered city *858 officials to have no constitutionally permissible effect in light of the immediately stop doing, is the same action that must now, constitutional conclusions set forth in this opinion, that by virtue of this court's decision here, be recommenced provision cannot stand. issuing marriage licenses to couples consisting of either two Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court. Further, as the prevailing parties, plaintiffs are entitled to their costs. women or two men. There is no inconsistency, however, in these two decisions. In Lockyer, this court did not decide whether the California Constitution's equal protection guarantee affords a right of marriage to same-sex couples. (Lockyer, supra, 33 Cal.4th at p. 1069, 17 Cal.Rptr.3d 225, 95 P.3d 459.) Rather, this court decided only that local officials lacked authority to decide the constitutional validity of the state marriage statutes and instead should have submitted that question to the judiciary for resolution. (Ibid.) Now that this court has authoritatively and conclusively resolved
the underlying constitutional question by holding that state marriage laws are constitutionally invalid insofar as they discriminate on the basis of sexual orientation, the issuance of marriage licenses to same-sex couples is lawful, and indeed constitutionally required. In Lockyer, this court declared void all of the approximately 4,000 marriages performed in San Francisco under the licenses issued to same-sex couples (Lockyer, supra, 33 Cal.4th at pp. 11171118, 17 Cal.Rptr.3d 225, 95 P.3d 459), and the court here does not undertake any reconsideration of the validity of those marriages. I disagreed with Lockyer 's nullification of those marriages. Recognizing that many of the individuals to whom those licenses had been issued had waited years, sometimes several decades, for a chance to wed, yearning to obtain the public validation that only marriage can give (Lockyer, supra, at p. 1132, 17 Cal.Rptr.3d 225, 95 P.3d 459 (conc. & dis. opn. of Kennard, J.)), I took the position that the validity of those marriages should be determined after the constitutionality of California laws restricting marriage to opposite-sex couples has been authoritatively resolved through judicial proceedings now pending in the courts of California (id. at p. 1125, 17 Cal.Rptr.3d 225, 95 P.3d 459). I explained my position in these words: Whether the issuance of a gender-neutral license to a same-sex couple, in violation of state laws restricting marriage to opposite-sex couples, is a defect that precludes any possibility of a valid marriage may well depend upon resolution of the constitutional validity of that statutory restriction. If the restriction is constitutional, then a marriage between persons of the same sex would be a legal impossibility, and no marriage would ever have existed. But if the restriction violates a fundamental constitutional right, the situation could be quite different. A court might then be required to determine the validity of same-sex marriages that had been performed before the laws prohibiting those marriages had been invalidated on constitutional grounds. [] When a court has declared a law unconstitutional, questions about the effect of that determination on prior actions, events, and transactions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. *859 (Chicot County Dist. v. Bank (1940) 308 U.S. 371, 374 [60 S.Ct. 317, 84 L.Ed. 329]; accord, Lemon v. Kurtzman [ (1973) 411 U.S. 192,] 198 [93 S.Ct. 1463, 36 L.Ed.2d 151].) This court has acknowledged that, in appropriate circumstances, an unconstitutional statute
may be judicially reformed to retroactively extend its benefits to a class that the statute expressly but improperly excluded. (Kopp v. Fair ***767 Pol. Practices Com. (1995) 11 Cal.4th 607, 624625 [47 Cal.Rptr.2d 108, 905 P.2d 1248] (lead opn. of Lucas, C. J.), 685 [47 Cal.Rptr.2d 108, 905 P.2d 1248] (conc. & dis. opn. of Baxter, J.) [joining in pt. III of lead opn.].) Thus, it is possible, though by no means certain, that if the state marriage laws prohibiting same-sex marriage were held to violate the state Constitution, same-sex marriages performed before that determination could then be recognized as valid. (Lockyer, supra, 33 Cal.4th at pp. 11311132, 17 Cal.Rptr.3d 225, 95 P.3d 459 (conc. & dis. opn. of Kennard, J.).) Recognizing that this court's decision in Lockyer finally and conclusively invalidated the marriages of same-sex couples performed **455 in San Francisco in 2004, the parties have not asked this court to again address that issue here, and this court has not done so. Nevertheless, in my view, it is important to recognize how today's holding could have affected a decision on the validity of those marriages. In light of our determination here that same-sex couples are entitled under the state Constitution to the same marriage rights as opposite-sex couples, this court had it in Lockyer deferred until now a decision on the validity of the previously performed marriages of same-sex couples necessarily would have recognized that the defects in those marriages were not substantive (in other words, no valid law prohibited the marriages) but rather procedural (the marriages were premature in the sense that they were performed before rather than after a judicial determination of the couples' right to marry), and that the parties to these marriages were attempting in good faith to exercise their rights under the state Constitution. Because of Lockyer, however, those marriage ceremonies, performed with great joy and celebration, must remain empty and meaningless ... in the eyes of the law. (Lockyer, supra, 33 Cal.4th at p. 1132, 17 Cal.Rptr.3d 225, 95 P.3d 459 (conc. & dis. opn. of Kennard, J.).) The court's opinion, authored by the Chief Justice, carefully and fully explains why the constitutionality of the marriage laws' exclusion of same-sex couples is an issue particularly appropriate for decision by this court, rather than a social or political issue inappropriate for judicial consideration. (See maj. opn., ante, 76 Cal.Rptr.3d at pp. 758762, 183 P.3d at pp. 448450.) Because of its importance, this point deserves special emphasis.
In holding today that the right to marry guaranteed by the state Constitution may not be withheld from anyone on the ground of sexual orientation, this court discharges its gravest and most important responsibility under our *860 constitutional form of government. There is a reason why the words Equal Justice Under Law are inscribed above the entrance to the courthouse of the United States Supreme Court. Both the federal and the state Constitutions guarantee to all the equal protection of the laws (U.S. Const., 14th Amend.; Cal. Const., art. I, 7), and it is the particular responsibility of the judiciary to enforce those guarantees. The architects of our federal and state Constitutions understood that widespread and deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular minority groups, and that the most effective remedy for this form of oppression is an independent judiciary charged with the solemn responsibility to interpret and enforce the constitutional provisions guaranteeing fundamental freedoms and equal protection. (See Davis v. Passman (1979) 442 U.S. 228, 241, 99 S.Ct. 2264, 60 L.Ed.2d 846 [describing the judiciary as the primary means for enforcement of constitutional rights]; Bixby v. Pierno (1971) 4 Cal.3d 130, 141, 93 Cal.Rptr. 234, 481 P.2d 242 [stating that, under ***768 our constitutional system of checks and balances, probably the most fundamental [protection] lies in the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority].) Here, we decide only the scope of the equal protection guarantee under the state Constitution, which operates independently of the federal Constitution. (See Cal. Const., art I, 24 [Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution].) Absent a compelling justification, our state government may not deny a right as fundamental as marriage to any segment of society. Whether an unconstitutional denial of a fundamental right has occurred is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law for resolution by the judicial branch of state government. Indeed, this court's decision in Lockyer made it clear that the courts alone must decide whether excluding individuals from marriage because of sexual orientation can be reconciled with our state Constitution's equal protection guarantee. (Lockyer, supra, 33 Cal.4th at pp. 10681069, 17 Cal.Rptr.3d 225, 95 P.3d 459.)
The court today discharges its constitutional obligation by resolving that issue. **456 With these observations, I concur fully in the court's opinion authored by the Chief Justice.
Concurring and Dissenting by BAXTER, J. The majority opinion reflects considerable research, thought, and effort on a significant and sensitive case, and I actually agree with several of the majority's conclusions. However, I cannot join the majority's holding that the California Constitution gives *861 same-sex couples a right to marry. In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error. Only one other American state recognizes the right the majority announces today. So far, Congress, and virtually every court to consider the issue, has rejected it. Nothing in our Constitution, express or implicit, compels the majority's startling conclusion that the age-old understanding of marriage an understanding recently confirmed by an initiative law is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority. The majority's mode of analysis is particularly troubling. The majority relies heavily on the Legislature's adoption of progressive civil rights protections for gays and lesbians to find a constitutional right to same-sex marriage. In effect, the majority gives the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative statute. I cannot subscribe to the majority's reasoning, or to its result. As noted above, I do not dispute everything the majority says. At the outset, I join the majority's observation that [f]rom the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman. (Maj. opn., ante, 76 Cal.Rptr.3d at pp. 709710, 183 P.3d at p. 407, fn. omitted.) ***769 Moreover, I endorse the majority's interpretation of California's Domestic Partnership Act (DPA; Fam.Code, 297 et seq.). As the majority makes clear, the DPA
now allows same-sex partners to enter legal unions which afford ... virtually all of the [substantive] benefits and responsibilities afforded by California law to married opposite-sex couples. (Maj. opn., ante, at p. 722, 183 P.3d at p. 417418; see also Fam.Code, 297.5.) As the majority further correctly observes, California has done all it can do with regard to providing these substantive rights, benefits, and responsibilities to same-sex partners. (Maj. opn., ante, at pp. 721722, 183 P.3d at pp. 417418.) 1 *862 I also agree with the majority's construction of Family Code section 308.5. As the majority explains, this initiative statute, adopted by a popular vote of 61.4 percent and thus immune from unilateral repeal by the Legislature (Cal. Const., art. II, 10, subdivision (c)), does not merely preclude California's recognition of same-sex marriage[s] consummated elsewhere, but also invalidates same-sex marriage[s] contracted under that name in this state. 2 **457 In addition, I am fully in accord with the majority's conclusion that Family Code sections 300 and 308.5, insofar as they recognize only legal relationships between oppositesex partners as marriage[s], do not discriminate on the basis of gender. Finally, I concur that the actions in Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco (Super. Ct. S.F. City & County No. CPF04 503943) and Campaign for California Families v. Newsom (Super. Ct. S.F. City & County No. CGC04428794) should have been dismissed as moot in the wake of this court's decision in Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459. However, I respectfully disagree with the remainder of the conclusions reached by the majority. The question presented by this case is simple and stark. It comes down to this: Even though California's progressive laws, recently adopted through the democratic process, have pioneered the rights of same-sex partners to enter legal unions with all the substantive benefits of opposite-sex legal unions, do those laws nonetheless violate the California Constitution because at present, in deference to long and universal tradition, by a convincing ***770 popular vote, and in accord with express national policy (see fns. 1, 2, ante ), they reserve the label marriage for opposite-sex legal unions? 3 I must conclude that the answer is no.
*863 The People, directly or through their elected representatives, have every right to adopt laws abrogating the historic understanding that civil marriage is between a man and a woman. The rapid growth in California of statutory protections for the rights of gays and lesbians, as individuals, as parents, and as committed partners, suggests a quickening evolution of community attitudes on these issues. Recent years have seen the development of an intense debate about same-sex marriage. Advocates of this cause have had real success in the marketplace of ideas, gaining attention and considerable public support. Left to its own devices, the ordinary democratic process might well produce, ere long, a consensus among most Californians that the term marriage should, in civil parlance, include the legal unions of same-sex partners. But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves. Undeterred by the strong **458 weight of state and federal law and authority, 4 the majority invents a new ***771 constitutional right, immune from the ordinary *864 process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will. In doing so, the majority holds, in effect, that the Legislature has done indirectly what the Constitution prohibits it from doing directly. Under article II, section 10, subdivision (c), that body cannot unilaterally repeal an initiative statute, such as Family Code section 308.5, unless the initiative measure itself so provides. Section 308.5 contains no such provision. Yet the majority suggests that, by enacting other statutes which do provide substantial rights to gays and lesbians including domestic partnership rights which, under section 308.5, the Legislature could not call marriage the Legislature has given explicit official recognition (maj. opn., ante, 76 Cal.Rptr.3d at p. 735, 183 P.3d at p. 428) to a California right of equal treatment which, because it includes the right to marry, thereby invalidates section 308.5. 5 I cannot join this exercise in legal jujitsu, by which the Legislature's own weight is used against it to create a constitutional right from whole cloth, defeat the People's will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power. The
majority purports to apply certain fundamental provisions of the state Constitution, but it runs afoul of another just as fundamental article III, section 3, the separation of powers clause. This clause declares that [t]he powers of state government are legislative, executive, and judicial, and that [p]ersons charged with the exercise of one power may not exercise either of the others except as the Constitution itself specifically provides. (Italics added.) *865 History confirms the importance of the judiciary's constitutional role as a check against majoritarian abuse. Still, ***772 courts must use caution when exercising the potentially transformative authority to articulate **459 constitutional rights. Otherwise, judges with limited accountability risk infringing upon our society's most basic shared premise the People's general right, directly or through their chosen legislators, to decide fundamental issues of public policy for themselves. Judicial restraint is particularly appropriate where, as here, the claimed constitutional entitlement is of recent conception and challenges the most fundamental assumption about a basic social institution. The majority has violated these principles. It simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice. The California Constitution says nothing about the rights of same-sex couples to marry. On the contrary, as the majority concedes, our original Constitution, effective from the moment of statehood, evidenced an assumption that marriage was between partners of the opposite sex. Statutes enacted at the state's first legislative session confirmed this assumption, which has continued to the present day. When the Legislature realized that 1971 amendments to the Civil Code, enacted for other reasons, had created an ambiguity on the point, the oversight was quickly corrected, and the definition of marriage as between a man and a woman was made explicit. (Maj. opn., ante, 76 Cal.Rptr.3d at pp. 709711, 183 P.3d at pp. 407409.) The People themselves reaffirmed this definition when, in the year 2000, they adopted Proposition 22 by a 61.4 percent majority. Despite this history, plaintiffs first insist they have a fundamental right, protected by the California Constitution's due process and privacy clauses (Cal. Const., art. I, 1, 7, subd. (a)), to marry the adult consenting partners
of their choice, regardless of gender. The majority largely accepts this contention. It holds that the right to marry, as embodied in article I, sections 1 and 7, of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to ... enter with [one's chosen life partner] into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage. (Maj. opn., ante, 76 Cal.Rptr.3d at p. 741, 183 P.3d at pp. 433434, fn. omitted.) Further, the majority declares, a core element [ ] of this fundamental right is the right of samesex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. (Id., at pp. 742743, 183 P.3d at p. 434.) To the extent this means same-sex couples have a fundamental right to enter legally recognized family unions called marriage (or, as the majority *866 unrealistically suggests, by another name common to both same-sex and opposite-sex unions), I cannot agree. I find no persuasive basis in our Constitution or our jurisprudence to justify such a cataclysmic transformation of this venerable institution. Fundamental rights entitled to the Constitution's protection are those which are, objectively, deeply rooted in this [society's] history and tradition, [citations], and implicit in the concept of ordered liberty, such that neither liberty nor justice could exist if they were sacrificed, [citation]. (Washington v. Glucksberg (1997) 521 U.S. 702, 720721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (Glucksberg ); see, e.g., Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 940, 72 Cal.Rptr.2d 871, 952 P.2d 1139.) Moreover, ***773 an assessment whether a fundamental right or interest is at stake requires a careful description of the asserted fundamental ... interest. [Citations.] (Glucksberg, supra, at p. 721, 117 S.Ct. 2258; Dawn D., supra, at p. 941, 72 Cal.Rptr.2d 871, 952 P.2d 1139.) These principles are crucial restraints upon the overreaching exercise of judicial authority in violation of the separation of powers. Courts have always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. [Citation.] By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, placethe matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care **460 whenever we
are asked to break new ground in this field, [citation], lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of judges. (Glucksberg, supra, 521 U.S. 702, 720, 117 S.Ct. 2258.) It is beyond dispute, as the Court of Appeal majority in this case persuasively indicated, that there is no deeply rooted tradition of same-sex marriage, in the nation or in this state. Precisely the opposite is true. The concept of same-sex marriage was unknown in our distant past, and is novel in our recent history, because the universally understood definition of marriage has been the legal or religious union of a man and a woman. 6 *867 One state, Massachusetts, has within the past five years recognized same-sex marriage. (Goodridge, supra, 798 N.E.2d 941; see fn. 4, ante.) However, as the Court of Appeal majority in our case observed, the Massachusetts Supreme Judicial Court's decision establishing this right has been controversial. (See, e.g., Note, Civil Partnership in the United Kingdom and a Moderate Proposal for Change in the United States (2005) 22 Ariz. J. Internat. & Comparative L. 613, 630631 [describing the controversy engendered by Goodridge ]; see also Lewis v. Harris [ (Ct.App.Div.2005) 378 N.J.Super. 168, 875 A.2d 259, 274] [concluding from the strongly negative public reactions' to Goodridge, and similar decisions from lower courts of other states, that there is not yet ***774 any public consensus favoring recognition of same-sex marriage].) Several other states have reacted negatively by, for example, amending their constitutions to prohibit same-sex marriage. (See Stein, Symposium on Abolishing Civil Marriage: An Introduction (2006) 27 Cardozo L.Rev. 1155, 1157, fn. 12 [noting, as of January 2006, '39 states [had] either passed laws or amended their constitutions (or done both) to prohibit samesex marriages, to deny recognition of same-sex marriages from other jurisdictions, and/or to deny recognition to other types of same-sex relationships'].) California's history falls squarely along this nationwide spectrum, though at its more progressive end. As the majority itself explains, despite the Legislature's passage of the DPA and other statutes pioneering gay and lesbian rights, California law has always assumed that marriage itself is between a man and a woman. In recent years, both the Legislature and the People themselves have enacted measures to make that assumption explicit. Under these circumstances, there is no basis for a conclusion that samesex marriage is a deeply rooted California tradition.
Undaunted, the majority nonetheless claims California's legal history as evidence of the constitutional right it espouses. According to the majority, the very fact that the Legislature has, over time, adopted progressive laws such as the DPA, thereby granting many substantial rights to gays and lesbians, constitutes explicit official recognition (maj. opn., ante, 76 Cal.Rptr.3d at p. 735, 183 P.3d at p. 428) of this state's current **461 policies and conduct regarding homosexuality, i.e., *868 that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation. (Maj. opn., ante, at p. 735, 183 P.3d at p. 428, fn. omitted.) In light of this recognition, the majority concludes, sections 1 and 7 of article I of the California Constitution cannot properly be interpreted to withhold from gay individuals full equality of rights with heterosexual persons, including the right to samesex legal unions that are fully equivalent including in name to those of opposite-sex partners. (id., at p. 736, 183 P.3d at p. 429; see also id., at pp. 742743, 754764, 183 P.3d at pp. 434, 444452.) This analysis is seriously flawed. At the outset, it overlooks the most salient facts. The Legislature has indeed granted many rights to gay and lesbian individuals, including the right to enter same-sex legal unions with all the substantive rights and benefits of civil marriage. As the majority elsewhere acknowledges, however, our current statutory scheme, which includes an initiative measure enacted by the People, specifically reserves marriage itself for opposite-sex unions. (Fam.Code, 300, 308.5.) Under these circumstances, it is difficult to see how our legislative history reflects a current community value in favor of same-sex marriage that must now be enshrined in the Constitution. 7 ***775 Of even greater concern is the majority's mode of analysis, which places heavy reliance on statutory law to establish a constitutional right. When a pattern of legislation makes current community values clear, the majority seems to say, those values can become locked into the Constitution itself. 8 Of course, only the People can amend the Constitution; the Legislature has no unilateral power to do so. (Cal. Const., art. XVIII.) However, the effect of the majority's reasoning is to suggest that the Legislature can accomplish such amendment indirectly, whether it intends to do so or not, by reflecting current community attitudes in the laws it enacts.
*869 The notion that legislation can become constitutionalized is mischievous for several reasons. As indicated above, it violates the constitutional scheme by which only the People can amend the state's charter of government. It abrogates the legislative power to reconsider what the law should be as public debate on an issue ebbs and flows. And, for that very reason, it may discourage efforts to pass progressive laws, out of fear that such efforts will ultimately, and inadvertently, place the issue beyond the power of legislation to affect. As applied in this case, the majority's analysis has also given the Legislature, indirectly, a power it does not otherwise possess to thwart the People's express legislative will. As noted above, under article II, section 10, subdivision (c) of the California Constitution, [t]he Legislature may amend or repeal ... an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval. (Italics added.) **462 Family Code section 308.5, adopted by Proposition 22, includes no provision allowing its unilateral repeal or amendment by the Legislature. According to the majority, however, the Legislature's adoption of progressive laws on the subject of gay and lesbian rights, including the DPA, makes it impossible not to recognize a constitutional right to same-sex legal unions with full equivalency to opposite-sex legal unions. This development, the majority ultimately concludes, requires the invalidation of Family Code section 308.5. In other words, in the majority's view, the Legislature's own actions have, by indirection, caused this initiative statute to be erased from the books. To say the least, I find such a constitutional approach troubling. 9 ***776 *870 Other grounds advanced by the majority for its claim of a fundamental right are equally unpersuasive. The majority accepts plaintiffs' unconvincing claim that they seek no new right to same-sex marriage (maj. opn., ante, 76 Cal.Rptr.3d at p. 725, 183 P.3d at p. 420), but simply a recognition that the well-established right to marry one's chosen partner is not limited to those who wish to marry persons of the opposite sex. However, by framing the issue simply as whether the undoubted right to marry is confined to opposite-sex couples, the majority mischaracterizes the entitlement plaintiffs actually claim. The majority thus begs the question and violates the requirement of careful
description that properly applies when a court is asked to break new ground in the area of substantive due process. (Glucksberg, supra, 521 U.S. 702, 721722, 117 S.Ct. 2258.) Though the majority insists otherwise, plaintiffs seek, and the majority grants, a new right to same-sex marriage that only recently has been urged upon our social and legal system. Because civil marriage is an institution historically defined as the legal union of a man and a woman, plaintiffs could not succeed except by convincing this court to insert in our Constitution an altered and expanded definition of marriage one that includes same-sex partnerships for the first time. By accepting that invitation, the majority places this controversial issue beyond the realm of legislative debate and substitutes its own judgment in the matter for the considered wisdom of the People and their elected representatives. The majority advances no persuasive reason for taking that step. In support of its view that marriage is a constitutional entitlement without regard for the genders of the respective partners, the majority cites the many California and federal decisions broadly describing the basic rights of personal autonomy and family intimacy, including the right to marry, procreate, establish a home, and bring up children. (See maj. opn., ante, 76 Cal.Rptr.3d at pp. 724734, 183 P.3d at pp. 419427.) However, none of the cited decisions holds, or remotely suggests, that any right to marry recognized by the Constitution extends beyond the traditional definition of marriage to include same-sex partnerships. Certainly Perez v. Sharp (1948) 32 Cal.2d 711, 198 P.2d 17 (Perez ) does not support the **463 majority's expansive view. There we struck down racial restrictions on the right of a man and a woman to marry. But nothing in Perez suggests an intent to alter the definition of marriage as a union of opposite-sex partners. In sum, there is no convincing basis in federal or California jurisprudence for the majority's claim that same-sex couples have a fundamental constitutional right to marry. 10 ***777 *871 In a footnote, the majority insists that, though same-sex couples are included within the fundamental constitutional right to marry, the state's absolute bans on marriages that are incestuous (Fam.Code, 2200; see Pen.Code, 285), or nonmonogamous (Pen.Code, 281 et seq.; Fam.Code, 2201) are not in danger. Vaguely the majority declares that [p]ast judicial decisions explain why our nation's culture has considered [incestuous and polygamous] relationships inimical to the mutually
supportive and healthy family relationships promoted by the constitutional right to marry. [Citations.] (Maj. opn., ante, 76 Cal.Rptr.3d at p. 742, fn. 52, 183 P.3d at p. 434, fn. 52.) Thus, the majority asserts, though a denial of samesex marriage is no longer justified, the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment. [Citations.] (Id, at p. 742, 183 P.3d at p. 434.) The bans on incestuous and polygamous marriages are ancient and deep-rooted, and, as the majority suggests, they are supported by strong considerations of social policy. Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous. Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deep-rooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law. That approach creates the opportunity for further judicial extension of this perceived constitutional right into dangerous territory. Who can say that, in ten, fifteen, or twenty years, an activist court might not rely on the majority's analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified? *872 In no way do I equate same-sex unions with incestuous and polygamous relationships as a matter of social policy or social acceptance. California's adoption of the DPA makes clear that our citizens find merit in the desires of gay and lesbian couples for legal recognition of their committed partnerships. Moreover, as I have said, I can foresee a time when the People ***778 might agree to assign the label marriage itself to such unions. It is unlikely, to say the least, that our society would ever confer such favor on incest and polygamy. My point is that the majority's approach has removed the sensitive issues surrounding **464 same-sex marriage from their proper forum the arena of legislative resolution and risks opening the door to similar treatment of other, less deserving, claims of a right to marry. By thus moving the policy debate from the legislative process to the court, the
majority engages in faulty constitutional analysis and violates the separation of powers. I would avoid these difficulties by confirming clearly that there is no constitutional right to same-sex marriage. That is because marriage is, as it always has been, the right of a woman and an unrelated man to marry each other. From this conclusion, it follows, for substantive due process purposes, that the marriage statutes are valid unless unreasonable or arbitrary (see, e.g., Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 771, 66 Cal.Rptr.2d 672, 941 P.2d 851), and are not subject to the strict scrutiny that applies when a statute infringes a fundamental right or interest. As I discuss below, California's preservation of the traditional definition of marriage is entirely reasonable. Accordingly, I would reject plaintiffs' due process claim. Besides concluding that Family Code sections 300 and 308.5 are subject to strict scrutiny as an infringement on the fundamental state constitutional right to marry, the majority also independently holds that such scrutiny is required under the equal protection clause of the California Constitution. This is so, the majority declares, because by withholding from same-sex legal unions the label that is applied to opposite-sex legal unions, the scheme discriminates on the basis of sexual orientation, which the majority now deems to be a suspect classification. I find this analysis flawed at several levels. For two reasons, I would reject plaintiffs' equal protection claim at the threshold. And even if that were not appropriate, I disagree that sexual orientation is a suspect classification. *873 Hence, as with the majority's due process theory, I would not apply strict scrutiny, and would uphold the statutory scheme as reasonable. I explain my conclusions. The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. [Citations.] When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, [citations], and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes. (Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313, italics added (Cleburne ).)
The initial inquiry in any equal protection analysis is whether persons are similarly situated for purposes of the law challenged. [Citation.] (In re Lemanuel C. (2007) 41 Cal.4th 33, 47, 58 Cal.Rptr.3d 597, 158 P.3d 148.) A statute does not violate equal protection when it recognizes real distinctions that are pertinent to the law's legitimate aims. (E.g., People v. Smith (2007) 40 Cal.4th 483, 527, 54 Cal.Rptr.3d 245, 150 P.3d 1224; Cooley v. Superior Court (2002) 29 Cal.4th 228, 253, 127 Cal.Rptr.2d 177, 57 P.3d 654; Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1125, 278 Cal.Rptr. 346, 805 P.2d 300; Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 456 P.2d 645; see ***779 Cleburne, supra, 473 U.S. 432, 441, 105 S.Ct. 3249, 87 L.Ed.2d 313.) In such cases, judicial deference to legislative choices is consistent with our respect for the separation of powers. (Cleburne, supra, at p. 441, 105 S.Ct. 3249.) Though the majority insists otherwise (see maj. opn., ante, 76 Cal.Rptr.3d at pp. 743744, fn. 54, 183 P.3d at p. 434, fn. 54), I agree with Justice Corrigan that same-sex couples and opposite-sex couples are not similarly situated with respect to the valid purposes of Family Code sections 300 and 308.5. As Justice Corrigan indicates, the state has a legitimate interest in enforcing the express legislative and popular will that the traditional definition of marriage be preserved. Same-sex and opposite-sex couples cannot be similarly situated for that limited purpose, precisely because the traditional definition of marriage is a union of partners of the opposite sex. **465 Of course, statutory classifications do not serve legitimate state interests when adopted for their own sake, out of animus toward a disfavored group. (E.g., *874 Romer v. Evans (1996) 517 U.S. 620, 633635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (Romer ); U.S. Dept. of Agriculture v. Moreno (1973) 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782; see Lawrence, supra, 539 U.S. 558, 582583, 123 S.Ct. 2472 (conc. opn. of O'Connor, J.); see also Cleburne, supra, 473 U.S. 432, 441, 105 S.Ct. 3249.) Here, however, the majority itself expressly disclaims any suggestion that the current marriage provisions were enacted with an invidious intent or purpose. (Maj. opn., ante, 76 Cal.Rptr.3d at p. 764, fn. 73, 183 P.3d at p. 452, fn. 73.) I therefore concur fully in Justice Corrigan's conclusion that plaintiffs' equal protection challenge fails for this reason alone. I also disagree with the majority's premise that, by assigning different labels to same-sex and opposite-sex legal unions, the state discriminates directly on the basis of sexual orientation.
The marriage statutes are facially neutral on that subject. They allow all persons, whether homosexual or heterosexual, to enter into the relationship called marriage, and they do not, by their terms, prohibit any two persons from marrying each other on the ground that one or both of the partners is gay. (Cf. Perez, supra, 32 Cal.2d 711, 712713, 198 P.2d 17 [statutes prohibited marriage between certain partners on the basis of their respective races].) The marriage statutes may have a disparate impact on gay and lesbian individuals, insofar as these laws prevent such persons from marrying, by that name, the partners they would actually choose. But, as we explained in Baluyut v. Superior Court (1996) 12 Cal.4th 826, 50 Cal.Rptr.2d 101, 911 P.2d 1 (Baluyut), a facially neutral statute that merely has a disparate effect on a particular class of persons does not violate equal protection absent a showing the law was adopted for a discriminatory purpose. In this regard, discriminatory purpose implies more than intent as volition or intent as awareness of consequences. See United Jewish Organizations v. Carey [ (1977) ] 430 U.S. 144, 179 [97 S.Ct. 996, 51 L.Ed.2d 229] (concurring opinion). It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. [Citation.] (Baluyut, supra, at p. 837, 50 Cal.Rptr.2d 101, 911 P.2d 1.) There is no evidence that when the Legislature adopted Family Code section 300, and the People adopted Family Code section 308.5, they did so because of (Baluyut, supra, 12 Cal.4th at p. 837, 50 Cal.Rptr.2d 101, 911 P.2d 1) its consequent adverse effect on gays and lesbians as a group. On the contrary, it appears the ***780 legislation was simply intended to maintain an age-old understanding of the meaning of marriage. Indeed, California's adoption of *875 pioneering legislation that grants gay and lesbian couples all the substantive incidents of marriage further dispels the notion that an invidious intent lurks in our statutory scheme. As indicated above, the majority itself expressly disclaims any suggestion that the laws defining marriage were passed for the purpose of discrimination. For this reason as well, I believe our equal protection analysis need go no further. Even if the distinction were subject to further examination under the equal protection clause, I disagree that strict scrutiny is the applicable standard of review. This is because I do not agree with the majority's decision to hold, under current circumstances, that sexual orientation is a suspect classification.
The United States Supreme Court has never declared, for federal constitutional purposes, that a classification based on sexual orientation is entitled to any form of scrutiny beyond rational basis review. (See Cleburne, supra, 473 U.S. 432, 440441, 105 S.Ct. 3249, 87 L.Ed.2d 313 [recognizing race, alienage, and national origin as suspect classifications requiring strict scrutiny review, and gender and illegitimacy as quasi-suspect classifications requiring somewhat heightened review].) Moreover, as the majority concedes, **466 its conclusion that sexual orientation is a suspect classification subject to strict scrutiny contravenes the great majority of out-of-state decisions indeed, all but one of those cited by the majority. (Maj. opn., ante, 76 Cal.Rptr.3d at p. 751, & fn. 60, 183 P.3d at p. 449, & fn. 60.) 12 *876 As the majority also notes, the issue is one of first impression in California. I find that circumstance highly significant. Considering the current status of gays and ***781 lesbians as citizens of 21st-century California, the majority fails to persuade me we should now hold that they qualify, under our state Constitution, for the extraordinary protection accorded to suspect classes. The concept that certain identifiable groups are entitled to extra protection under the equal protection clause stems, most basically, from the premise that because these groups are unpopular minorities, or otherwise share a history of insularity, persecution, and discrimination, and are politically powerless, they are especially susceptible to continuing abuse by the majority. Laws that single out groups in this category for different treatment are presumed to reflect prejudice and antipathy a view that those in the burdened class are not as worthy or deserving as others. For these reasons, and because such discrimination is unlikely to be soon rectified by legislative means, the deference normally accorded to legislative choices does not apply. (Cleburne, supra, 473 U.S. 432, 440, 105 S.Ct. 3249, italics added; see also San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 [noting relevance, for purposes of identification as suspect class, that group is relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process].) Recognizing that the need for special constitutional protection arises from the political impotence of an insular and disfavored group, several courts holding that sexual
11
orientation is not a suspect class have focused particularly on a determination that, in contemporary times at least, the gay and lesbian community does not lack political power. (High Tech Gays, supra, 895 F.2d 563, 574; Conaway v. Deane, supra, 401 Md. 219, 932 A.2d 571, 609614 [samesex marriage]; Andersen v. State, supra, 158 Wash.2d 1, 138 P.3d 963, 974975 [same].) In California, the political emergence of the gay and lesbian community is particularly apparent. In this state, the progress achieved through democratic means progress described in detail by the majority demonstrates that, despite undeniable past **467 injustice and discrimination, this group now is obviously able to wield political power in defense of its interests. (Maj. opn., ante, 76 Cal.Rptr.3d at p. 753, 183 P.3d at p. 443, quoting the Attorney General's brief.). Nor are these gains so fragile and fortuitous as to require extraordinary state constitutional protection. On the contrary, the majority itself declares that recent decades have seen a fundamental and dramatic transformation in this state's understanding and legal treatment of gay individuals and gay couples (maj. opn., ante, at p. 735, 183 P.3d at p. 428), whereby California has repudiated past *877 practices and policies that denigrated the general character and morals of gay individuals and now recognizes homosexuality as simply one of the numerous variables of our common and diverse humanity (ibid.). Under these circumstances, I submit, gays and lesbians in this state currently lack the insularity, unpopularity, and consequent political vulnerability upon which the notion of suspect classifications is founded. The majority insists that a determination whether a historically disfavored group is a suspect class should not depend on the group's current political power. Otherwise, the majority posits, it would be impossible to justify the numerous decisions that continue to treat sex, race, and religion as suspect classifications. (Maj. opn., ante, at p. 753, 183 P.3d at p. 443. fn. omitted.) ***782 I do not quarrel with those decisions. At the times suspect-class status was first assigned to race, and in California to sex and religion, there were ample grounds for doing so. They may well still exist in some or all of those cases. Moreover, I do not suggest that once a group is properly found in need of extraordinary protection, it should later be declassified when circumstances change.
I only propose that, when, as here, the issue is before us as a matter of first impression, we cannot ignore current reality. In such a case, we should consider whether, despite a history of discrimination, a particular group remains so unpopular, disfavored, and susceptible to majoritarian abuse that suspectclass status is necessary to safeguard its rights. I would not draw that conclusion here. Accordingly, I would apply the normal rational basis test to determine whether, by granting same-sex couples all the substantive rights and benefits of marriage, but reserving the marriage label for opposite-sex unions, California's laws violate the equal protection guarantee of the state Constitution. By that standard, I find ample grounds for the balance currently struck on this issue by both the Legislature and the People. First, it is certainly reasonable for the Legislature, having granted same-sex couples all substantive marital rights within its power, to assign those rights a name other than marriage. After all, an initiative statute adopted by a 61.4 percent popular vote, and constitutionally immune from repeal by the Legislature, defines marriage as a union of partners of the opposite sex. Moreover, in light of the provisions of federal law that, for purposes of federal benefits, limit the definition of marriage to opposite-sex couples (1 U.S.C. 7), California must distinguish same-sex from opposite-sex couples in administering the numerous federal-state programs that are governed by *878 federal law. A separate nomenclature applicable to the family relationship of same-sex couples undoubtedly facilitates the administration of such programs. Most fundamentally, the People themselves cannot be considered irrational in deciding, for the time being, that the fundamental definition of marriage, as it has universally existed until very recently, should be preserved. As the New Jersey Supreme Court observed, We cannot escape the reality that the shared societal meaning of marriage passed down through the common law into our statutory law has always been the union of a man and a woman. To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin. (Lewis v. Harris, supra, 188 N.J. 415, 908 A.2d 196, 222.) If such a profound change in this ancient social institution is to occur, the People and their representatives, who represent
the public **468 conscience, should have the right, and the responsibility, to control the pace of that change through the democratic process. Family Code sections 300 and 308.5 serve this salutary purpose. The majority's decision erroneously usurps it. For all these reasons, I would affirm the judgment of the Court of Appeal.
I CONCUR: CHIN, J. Concurring and Dissenting Opinion by CORRIGAN, J. In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if ***783 the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent. It is important to be clear. Under California law, domestic partners have virtually all of the benefits and responsibilities available to traditional spouses. (Maj. opn., ante, 76 Cal.Rptr.3d at p. 722, 183 P.3d at p. 418.) I believe the Constitution requires this as a matter of equal protection. However, the single question in this case is whether domestic partners have a constitutional right to the name of marriage. 1 *879 Proposition 22 was enacted only eight years ago. By a substantial majority the people voted to recognize, as marriage, only those unions between a man and a woman. (Fam.Code, 308.5.) The majority concludes that the voters' decision to retain the traditional definition of marriage is unconstitutional. I disagree. The majority correctly notes that it is not for this court to set social policy based on our individual views. Rather, this is a question of constitutional law. (Maj. opn., ante, at pp. 699, 758, 183 P.3d at pp. 398399, 413.) I also agree with the majority that we must consider both the statutes defining marriage and the domestic partnership statutes. (Id. at pp. 698699, 717, 183 P.3d at pp. 398, 413.) The California Domestic Partner Rights and Responsibilities Act of 2003(DPA), and other recent legislative changes, represent a dramatic and fundamental transformation of the rights of gay and lesbian Californians. It is a remarkable achievement of the legislative process that the law now
expressly recognizes that domestic partners have the same substantive rights and obligations as spouses. The majority, however, fails to give full and fair consideration to the DPA. Indeed, the majority says its conclusion that California's current recognition that gay individuals are entitled to equal and nondiscriminatory legal treatment is not grounded on the DPA. (Maj. opn., ante, at p. 735, 183 P.3d at p. 428.) Surely greater consideration is due to legislation broadly proclaiming that [r]egistered 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. (Fam.Code, 297.5, subd. (a).) As the majority acknowledges, the Legislature intended that the DPA be liberally applied, to secure for domestic partners the full range of legal rights and responsibilities enjoyed by spouses. (Maj. opn., ante, at p. 718, 183 P.3d at p. 414.) This court has previously held that the chief goal of the DPA is to equalize the status of registered domestic partners and married couples. (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 839, 31 Cal.Rptr.3d 565, 115 P.3d 1212.) In this case, however, the majority fails to honor **469 that goal. Instead of recognizing the equality conferred by the Legislature, the majority denigrates domestic partnership as only a novel alternative ***784 designation ... constituting significantly unequal treatment, and a mark of second-class citizenship. (Maj. opn., ante, at pp. 845846, 76 Cal.Rptr.3d at pp. 755, 756, 183 P.3d at p. 445.) Without foundation, the majority claims that to hold the domestic partnership laws constitutional would be a statement that it is permissible, under the law, for society *880 to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples. (Maj. opn., ante, at p. 764, 183 P.3d at p. 452.) This is simply not so. The majority's narrow and inaccurate assertions are just the opposite of what the Legislature intended. To make its case for a constitutional violation, the majority distorts and diminishes the historic achievements of the DPA, and the efforts of those who worked so diligently to pass it into law. Domestic partnerships and marriages have the same legal standing, granting to both heterosexual and homosexual couples a societal recognition of their lifelong commitment. This parity does not violate the Constitution, it is in keeping
with it. Requiring the same substantive legal rights is, in my view, a matter of equal protection. But this does not mean the traditional definition of marriage is unconstitutional. The majority refers to the race cases, from which our equal protection jurisprudence has evolved. The analogy does not hold. The civil rights cases banning racial discrimination were based on duly enacted amendments to the United States Constitution, proposed by Congress and ratified by the people through the states. To our nation's great shame, many individuals and governmental entities obdurately refused to follow these constitutional imperatives for nearly a century. By overturning Jim Crow and other segregation laws, the courts properly and courageously held the people accountable to their own constitutional mandates. Here the situation is quite different. In less than a decade, through the democratic process, same-sex couples have been given the equal legal rights to which they are entitled. In Perez v. Sharp (1948) 32 Cal.2d 711, 198 P.2d 17, we struck down a law prohibiting interracial marriages. The majority places great reliance on the Perez court's statement that the right to marry is the right to join in marriage with the person of one's choice. (Id. at p. 715, 198 P.2d 17.) However, Perez and the many other cases establishing the fundamental right to marry were all based on the common understanding of marriage as the union of a man and a woman. (See maj. opn., ante, 76 Cal.Rptr.3d at pp. 727732, 183 P.3d at p. 421.) The majority recognizes this, as it must. (Id. at p. 734, 183 P.3d at p. 427428.) Because those cases involved the traditional definition of marriage, they do not support the majority's analysis. The question here is whether the meaning of the term as it was used in those cases must be changed. What is unique about this case is that plaintiffs seek both to join the institution of marriage and at the same time to alter its definition. The majority maintains that plaintiffs are not attempting to change the existing institution of marriage. (Maj. opn., ante, at p. 726, 183 P.3d at p. 421.) This claim is irreconcilable with the majority's declaration that [f]rom the beginning of California *881 statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman. (Id. at p. 709710, 183 P.3d at p. 407, fn. omitted.) The people are entitled to preserve this traditional understanding in the terminology of the law, recognizing that same-sex and opposite-sex unions are different. What they ***785 are not entitled to do is treat them differently under the law.
The distinction between substance and nomenclature makes this case different from other civil rights cases. The definition of the rights to education, to vote, to pursue an office or occupation, and the other celebrated civil rights vindicated by the courts, were not altered by extending them to all races and both genders. The institution of marriage was not fundamentally changed by removing the racial restrictions that formerly encumbered it. Plaintiffs, however, seek to change the definition of the marital relationship, as it has consistently been understood, into something **470 quite new. They could certainly accomplish such a redefinition through the initiative process. As a voter, I might agree. But that change is for the people to adopt, not for judges to dictate. My view on this question of terminology rests on both an equal protection analysis and a recognition of the appropriate scope of judicial authority. As a matter of equal protection, while plaintiffs are in the same position as married couples when it comes to the substantive legal rights and responsibilities of family members, they are not in the same position with regard to the title of marriage. The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. [Citation.] The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. [Citation.] (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253, 127 Cal.Rptr.2d 177, 57 P.3d 654; see also Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313.) The legitimate purpose of the statutes defining marriage is to preserve the traditional understanding of the institution. 2 For that purpose, plaintiffs are *882 not similarly situated with spouses. While their unions are of equal legal dignity, they are different because they join partners of the same gender. Plaintiffs are in the process of founding a new tradition, unfettered by the boundaries of the old one. The majority relegates the threshold question of similar situation to a footnote, observing that [b]oth groups at issue consist of pairs of individuals who wish to enter into a formal, legally binding and officially recognized, long-term family relationship that affords the same rights and privileges
and imposes the same obligations and responsibilities. (Maj. opn., ante, 76 Cal.Rptr.3d at pp. 743744, fn. 54, 183 P.3d at p. 435, fn. 54.) The majority ignores the fact that plaintiffs already have those rights and privileges under the DPA. The majority aptly articulates how domestic partnerships and marriages are the same. But it fails to recognize that this case involves only the names of those unions. The fact that plaintiffs enjoy equal substantive rights does not situate them similarly with married couples in terms of ***786 the traditional designation of marriage. Society may, if it chooses, recognize that some legally authorized familial relationships unite partners of the same gender while others join partners of opposite sexes. There is nothing pernicious or constitutionally defective in this approach. 3 The voters who passed Proposition 22 not long ago decided to keep the meaning of marriage as it has always been understood in California. The majority improperly infringes on the prerogative of the voters by overriding their decision. It does that which it acknowledges it should not do: it redefines marriage because it believes marriage should be redefined. (See maj. opn., ante, at pp. 699700, 758759, 183 P.3d at p. 398399, 447448.) It justifies its decision by finding a constitutional **471 infirmity where none exists. Plaintiffs are free to take their case to the people, to let them vote on whether they are now ready to accept such a redefinition. Californians have legalized domestic partnership, but decided not to call it marriage. Four votes on this court should not disturb the balance reached by the democratic process, a balance that is still being tested in the political arena. 4 *883 Certainly initiative measures are not immune from constitutional review. However, we should hesitate to use our authority to take one side in an ongoing political debate. The accommodation of disparate views is democracy's essential challenge. Democracy is never more tested than when its citizens honestly disagree, based on deeply held beliefs. In such circumstances, the legislative process should be given leeway to work out the differences. It is inappropriate for the judiciary to interrupt that process and impose the views of its individual members, while the opinions of the people are still evolving. Restraint is the hallmark of constitutional review. [I]f the judiciary is to fulfill its role in our tripartite system of government as the final arbiter of constitutional issues, it cannot hope to escape the tension between legislative policy determinations and the challenges raised by those who would seek exceptions thereto. We can, however, while entertaining
such challenges, seek to hold the tension in check by always presuming the constitutional validity of legislative acts and resolving doubts in favor of the statute. (Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 939, 72 Cal.Rptr.2d 871, 952 P.2d 1139, italics added.) The majority abandons this judicious approach. Instead of presuming the validity of the statutes defining marriage and establishing domestic partnership, in effect the majority presumes them to be constitutionally invalid by characterizing domestic partnership as a mark of secondclass citizenship. (Maj. opn., ante, 76 Cal.Rptr.3d at p. 764, 183 P.3d at p. 452.) This judicial presumption contravenes the express intent of the Legislature to equalize ***787 the rights of spouses and domestic partners. The principle of judicial restraint is a covenant between judges and the people from whom their power derives. It protects the people against judicial overreaching. It is no answer to say that judges can break the covenant so long as they are enlightened or well-meaning.
The process of reform and familiarization should go forward in the legislative sphere and in society at large. We are in the midst of a major social change. Societies seldom make such changes smoothly. For some the process is frustratingly slow. For others it is jarringly fast. In a democracy, the people should be given a fair chance to set the pace of change without judicial interference. That is the way democracies work. Ideas are proposed, debated, tested. Often new ideas are initially resisted, only to be ultimately embraced. But when ideas are imposed, opposition hardens and progress may be hampered. *884 We should allow the significant achievements embodied in the domestic partnership statutes to continue to take root. If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.
Parallel Citations 43 Cal.4th 757, 183 P.3d 384, 08 Cal. Daily Op. Serv. 5820, 2008 Daily Journal D.A.R. 7079
Footnotes
* 2
City and County of San Francisco v. State of California (A110449 [Super. Ct. S.F. City & County, No. CGC04429539] ); Tyler v. State of California (A110450 [Super. Ct. L.A. County, No. BS088506] ); Woo v. Lockyer (A110451 [Super. Ct. S.F. City & County, No. CPF04504038] ); Clinton v. State of California (A110463 [Super. Ct. S.F. City & County, No. CGC04429548] ); Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco (A110651 [Super. Ct. S.F. City & County, No. CPF 04503943] ); Campaign for California Families v. Newsom (A110652 [Super. Ct. S.F. City & County, No. CGC04428794] ). Baxter, Chin, and Corrigan, JJ., are of the opinion rehearing should be granted. We note that although much of the academic literature discussing the legal recognition of same-sex relationships frequently uses the term domestic partnership to describe a legal status that accords only comparatively few legal rights or obligations to samesex couples, the current California statutes grant same-sex couples who choose to become domestic partners virtually all of the legal rights and responsibilities accorded married couples under California law. (The few relatively minor differences that remain are described below (post, at pp. 805806, fn. 24, 76 Cal.Rptr.3d pp. 720721, fn. 24, 183 P.3d pp. 416417, fn. 24).) In light of the comprehensive nature of the rights afforded by California's domestic partnership legislation, the status of such partnership in California is comparable to the status designated as a civil union in statutes enacted in recent years in Connecticut, New Hampshire, New Jersey, and Vermont. (See, e.g., Conn. Gen.Stat. 46b38nn (2006); N.H.Rev.Stat. Ann. 457A (2007); N.J. Stat. Ann. 37:129 (2006); 15 Vt. Stat. Ann. 1201 (1999).) We note that recently Oregon also enacted domestic partnership legislation under which same-sex couples may obtain rights comparable to those conferred upon married couples (2007 Or. Laws ch. 99.) The District of Columbia, Hawaii, Maine, and Washington have adopted domestic partnership or reciprocal beneficiaries legislation that affords same-sex couples the opportunity to obtain some of the benefits available to married opposite-sex couples. (See 2006 D.C. Law 16 79 (Act 16265) [Domestic Partnership Equality Amendment Act of 2006]; Haw.Rev.Stat. 572C2; 2004 Me. Legis. Serv. ch. 672 (H.P. 1152; L.D. 1579) [financial security of families and children]; 2001 Me. Legis. Serv. ch. 347 (H.P. 1256; L.D. 1703) [access to health insurance]; Wash. Rev.Code ch. 26.60.) The only out-of-state high court decision to address a comparable issue is the decision in Opinions of the Justices to the Senate (2004) 440 Mass. 1201, 802 N.E.2d 565. In that proceeding, brought under a provision of the Massachusetts Constitution that permits a branch of the state legislature to seek an advisory opinion on an important question of law, the Massachusetts Senate asked that state's high court to render an opinion as to the constitutionality of a then pending bill, introduced in response to the court's earlier decision in Goodridge v. Dept. of Pub. Health, supra, 440 Mass. 309, 798 N.E.2d 941, that proposed to establish the institution of civil
In re Marriage Cases, 43 Cal.4th 757 (2008) 183 P.3d 384, 76 Cal.Rptr.3d 683, 08 Cal. Daily Op. Serv. 5820... union under which spouses in a civil union would have all of the rights and responsibilities afforded by that state's marriage laws. In its decision in Opinions of the Justices to the Senate, the Supreme Judicial Court of Massachusetts, by a closely divided (four-tothree) vote, declared that the proposed legislation would violate the equal protection and due process clauses of the Massachusetts Constitution. (802 N.E.2d at pp. 569572.) A similar issue also is currently pending before the Connecticut Supreme Court in Kerrigan v. Comm'r of Public Health (SC No. 17716, argued May 14, 2007). In Kerrigan, the court is expected to determine whether a Connecticut statute that limits marriage to opposite-sex couples is unconstitutional under the Connecticut Constitution, notwithstanding the existence of a recently enacted Connecticut statute that permits same-sex couples to enter into a civil union, a status that, under the applicable legislation, affords same-sex couples the same legal benefits and obligations possessed by married couples under Connecticut law. To avoid possible confusion, we note that the decision in Perez v. Sharp was reported in the unofficial regional reporter as Perez v. Lippold (1948) 32 Cal.2d 711, 198 P.2d 17, and judicial decisions in other states sometimes have referred to the decision by that title. We shall refer to the decision under its correct official title of Perez v. Sharp. For convenience and economy of language, in this opinion we shall use the term gay, with reference to an individual, to relate either to a lesbian or to a gay man, and the term gay couple to refer to a couple consisting of either two women or two men. As noted below (post, at pp. 786787, 76 Cal.Rptr.3d at pp. 703705, 183 P.3d at pp. 402403), four of the six actions in this coordination proceeding were filed by parties (the City and County of San Francisco and same-sex couples, and organizations supporting these parties) who challenge the constitutional validity of the current California marriage statutes, and two of the actions were filed by parties (the Proposition 22 Legal Defense and Education Fund (hereafter Fund or Proposition 22 Legal Defense Fund) and the Campaign for California Families (Campaign)) who maintain that the current statutes are constitutional. For convenience and ease of reference, in this opinion we shall refer collectively to the parties who are challenging the constitutionality of the marriage statutes as plaintiffs. Because the various parties defending the marriage statutes (the state, represented by the Attorney General, the Governor, the Fund, and the Campaign) have advanced differing legal arguments in support of the statutes, this opinion generally will refer to such parties individually. In those instances in which the opinion refers to the parties defending the marriage statutes collectively, those parties will be referred to as defendants. Code of Civil Procedure section 1060 provides in relevant part that [a]ny person ... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action ... for a declaration of his or her rights and duties in the premises.... (Italics added.) At an earlier stage of the action filed by the City (the CCSF action) before the coordination proceeding was established the Fund filed a motion seeking to intervene formally in the CCSF action, but the trial court denied the motion. The Fund appealed from that ruling, but the Court of Appeal affirmed the trial court, holding that the Fund and its members do not ... have a sufficiently direct and immediate interest to support intervention. (City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1038, 27 Cal.Rptr.3d 722.) The amicus curiae brief filed in this court by the Pacific Justice Institute questions the right of the City to maintain a declaratory judgment action challenging the validity of the state's marriage statutes. That issue, however, was not raised in either the trial court or the Court of Appeal, and its resolution would not affect the validity of this proceeding or the substantive issue before us, because the numerous same-sex couples who have been parties to this coordination action from its inception unquestionably are authorized to bring and maintain the present challenge to the marriage statutes. We therefore do not consider it necessary or advisable for us to address, at the present juncture, this issue raised by amicus curiae for the first time in these proceedings. This conclusion, of course, does not mean that the superior court should have denied these organizations the opportunity to participate in the coordination proceeding as amici curiae. Although, as noted above (ante, 76 Cal.Rptr.3d at p. 708, fn. 8, 183 P.3d at p. 406, fn. 8), the Fund was denied the right to intervene formally in the CCSF action that thereafter became part of this coordination proceeding (see City and County of San Francisco v. State of California, supra, 128 Cal.App.4th 1030, 27 Cal.Rptr.3d 722), the Court of Appeal's decision in that matter made clear that the Fund preserved its ability to present its views through amicus curiae status. (Id. at p. 1044, 27 Cal.Rptr.3d 722.) Moreover, the superior court, in exercising its traditional broad discretion over the conduct of pending litigation, retained the authority to determine the manner and extent of these entities' participation as amici curiae that would be of most assistance to the court. As we observed in Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 405, footnote 14, 11 Cal.Rptr.2d 51, 834 P.2d 745: Amicus curiae presentations assist the court by broadening its perspective on the issues raised by the parties. Among other services, they facilitate informed judicial consideration of a wide variety of information and points of view that may bear on important legal questions. In this regard we note that in the present proceeding, this court has received 45 extensively researched and well-written amicus curiae briefs, some of which have been filed on behalf of many of California's largest cities, numerous members of the state Legislature, and scores of organizations, including a variety of commercial, religious, and mental health groups, bar associations, and law professors. The religious groups, like some of the others, are divided in their support of the respective parties in this
4 5 6
7 8
10
In re Marriage Cases, 43 Cal.4th 757 (2008) 183 P.3d 384, 76 Cal.Rptr.3d 683, 08 Cal. Daily Op. Serv. 5820... proceeding. The court has benefited from the considerable assistance provided by these amicus curiae briefs in analyzing the significant issues presented by this case. From the state's inception, California law has treated the legal institution of civil marriage as distinct from religious marriage. Article XI, section 12 of the California Constitution of 1849 provided in this regard: No contract of marriage, if otherwise duly made, shall be invalidated by want of conformity to the requirements of any religious sect. This provision is now set forth, in identical language, in Family Code section 420, subdivision (c). Article XI, section 14 of the 1849 Constitution provided in full: All property, both real and personal, of the wife, owned or claimed by marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property, as to that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property. As enacted in 1872, former section 55 of the Civil Code further provided: Consent alone will not constitute marriage; it must be followed by solemnization, or by a mutual assumption of marital rights, duties, or obligations. (Italics added.) In 1895, that statute was amended to delete the italicized language and to add authorized by this code, so that the concluding clause of the statute read: [consent] must be followed by a solemnization authorized by this code. (Stats. 1895, 1, p. 121.) In Norman v. Thomson (1898) 121 Cal. 620, 627629, 54 P. 143, this court concluded that this statutory change operated to abolish common law marriage in California and to require, for a valid marriage, that solemnization be performed as authorized by the applicable California statutes. (See, e.g., Elden v. Sheldon (1988) 46 Cal.3d 267, 275, 250 Cal.Rptr. 254, 758 P.2d 582.) In 1921, the age limits set forth in former section 56 of the Civil Code (18 years of age for males, 15 years of age for females) were revised upward to authorize marriage by any unmarried male 21 years or older and any unmarried female 18 years or older (Stats. 1921, ch. 233, 1, pp. 333334), and in 1969 these higher age limits were carried over to Civil Code section 4101. Family Code section 300, subdivision (a), provides in full: Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500). Hereafter, unless otherwise specified, all statutory references are to the Family Code. Article II, section 10, subdivision (c) provides in relevant part: The Legislature ... may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval. Nothing in Proposition 22 permits amendment or repeal of section 308.5 without the voters' approval. In 2005 and 2007, the Legislature passed bills that would have amended section 300 to permit marriage of same-sex couples and that purported not to affect the provisions of section 308.5, which the legislation viewed as applicable only to marriages performed outside of California. (Assem. Bill No. 849 (20052006 Reg. Sess.) 3, subd. (k), 4; Assem. Bill No. 43 (20072008 Reg. Sess.) 3, subd. (m), 4.) The Governor vetoed both measures. In returning the 2005 bill to the Assembly without his signature, the Governor stated he believed that Proposition 22 required such legislation to be submitted to a vote of the people a condition that the 2005 bill did not fulfill and the Governor further noted that [t]he ultimate issue regarding the constitutionality of section 308.5 and its prohibition against same-sex marriage is currently before the Court of Appeal in San Francisco and will likely be decided by the Supreme Court. [] This bill simply adds confusion to a constitutional issue. If the ban of same-sex marriage is unconstitutional, this bill is not necessary. If the ban is constitutional, this bill is ineffective. (Governor's veto message to Assem. on Assem. Bill No. 849 (Sept. 29, 2005) Recess J. No. 4 (20052006 Reg. Sess.) pp. 37373738.) Similarly, in returning the 2007 bill to the Assembly without his signature, the Governor noted that a challenge to Proposition 22 currently was pending before this court, and reiterated his position that the appropriate resolution to this issue is to allow the Court to rule on Proposition 22. (Governor's veto message to Assem. on Assem. Bill No. 43 (Oct. 12, 2007) Recess J. No. 9 (20072008 Reg. Sess.) pp. 34973498.) In light of this ongoing controversy, it is appropriate to resolve the question of the scope of section 308.5 at this time. Section 308 provides in full: A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state. The City argues that in employing both the terms valid and recognized, section 308.5 could be interpreted to mean that an out-ofstate marriage involving a same-sex couple not only will not be considered a valid marriage in California, but that, in addition, an out-of-state marriage of a same-sex couple will not be recognized in California in any capacity even as, for example, a domestic partnership. In our view, the interpretation proposed by the City is not a reasonable interpretation of section 308.5's language, because the statute contains no reference to domestic partnership or to any comparable status and there is no indication that the measure was intended to affect or restrict the recognition of such a status. (See Knight v. Superior Court (2005) 128 Cal.App.4th 14, 2325, 26 Cal.Rptr.3d 687.)
11
12
13
14 15
16 17
18 19
20
21
22
23
24
Proposition 22 was one of a number of similar measures (commonly denominated little DOMA's [defense of marriage acts] ) that were proposed and adopted in many states in the 1990's and early 2000's in the wake of the decision of the Hawaii Supreme Court in Baehr v. Lewin (1993) 74 Haw. 530, 852 P.2d 44 and of Congress' enactment of the federal Defense of Marriage Act (Pub.L. No. 104199 (Sept. 21, 1996) 110 Stat. 2419, codified at 1 U.S.C. 7, 28 U.S.C. 1738C). (See Duncan, Revisiting State Marriage Recognition Provisions (2005) 38 Creighton L.Rev. 233, 237238; see also Coolidge & Duncan, Definition or Discrimination: State Marriage Recognition Statutes in the SameSex Marriage Debate (1998) 32 Creighton L.Rev. 3.) Like Proposition 22, a number of these measures provided that only a marriage between a man and a woman would be valid or recognized in the adopting state, and a law review commentary on these measures concluded that the use of the term valid (accompanying the term recognized) in these measures was intended to signify that, with respect to marriages performed within the enacting state, only marriages between opposite-sex couples would be considered legally valid. (See Duncan, Revisiting State Marriage Recognition Provisions, supra, 38 Creighton L.Rev. 233, 261.) Plaintiffs contend that because section 308.5 currently does not prescribe a rule for out-of-state marriages different from the rule California applies to in-state marriages, no constitutional problems are presented even if the statute is interpreted to apply only to out-of-state marriages, and that it is improper, in interpreting the statute, to rely upon potential constitutional problems that would arise only in the event the state in the future were to adopt a different rule for in-state marriages. As explained above, however, because section 308.5 is an initiative statute, under plaintiffs' proposed interpretation of section 308.5, California law, at the present time, would make it more difficult to obtain recognition of out-of-state marriages of same-sex couples than to obtain recognition of in-state marriages of such couples. Moreover, in assessing the merits of alternative interpretations of a statutory provision, it is appropriate to consider the potential constitutional problems that would be posed by each alternative construction of the statute, and to favor an interpretation that avoids such problems. (See, e.g., People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509, 53 Cal.Rptr.2d 789, 917 P.2d 628 [ If a statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional in whole or in part, or raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even though the other construction is equally reasonable ].) Section 297.5, subdivision (b), contains comparable expansive language equalizing the rights and responsibilities of former registered domestic partners and of former spouses. The provision declares: Former 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 former spouses. As noted above (ante, at pp. 796797, fn. 17, 76 Cal.Rptr.3d p. 713, fn. 17, 183 P.3d p. 411, fn. 17), in 2005 and 2007 the Legislature passed bills that would have amended section 300 to permit marriage of same-sex couples (but that purported not to affect the provisions of section 308.5, which the legislation viewed as applicable only to marriages performed outside of California). The Governor vetoed both measures. Although the governing statutes provide that registered domestic partners have the same substantive legal rights and are subject to the same obligations as married spouses, in response to a request for supplemental briefing by this court the parties have identified various differences (nine in number) that exist in the corresponding provisions of the domestic partnership and marriage statutes and in a few other statutory and constitutional provisions. First, although the domestic partnership provisions require that both partners have a common residence at the time a domestic partnership is established ( 297, subd. (b)(1)), there is no similar requirement for marriage. Second, although the domestic partnership legislation requires that both persons be at least 18 years of age when the partnership is established ( 297, subd. (b) (4)), the marriage statutes permit a person under the age of 18 to marry with the consent of a parent or guardian or a court order. ( 302, 303.) Third, to establish a domestic partnership, the two persons desiring to become domestic partners must complete and file a Declaration of Domestic Partnership with the Secretary of State, who registers the declaration in a statewide registry for such partnerships ( 298.5, subds.(a), (b)); to marry, a couple must obtain a marriage license and certificate of registry of marriage from the county clerk, have the marriage solemnized by an authorized individual, and return the marriage license and certificate of registry to the county recorder of the county in which the license was issued, who keeps a copy of the certificate of registry of marriage and transmits the original certificate to the State Registrar of Vital Statistics. ( 306, 359; Health & Saf.Code, 102285, 102330, 102355.) Fourth, although the marriage statutes establish a procedure under which an unmarried man and unmarried woman who have been residing together as husband and wife may enter into a confidential marriage in which the marriage certificate and date of the marriage are not made available to the public ( 500 et seq.), the domestic partnership law contains no similar provisions for confidential domestic partnership. Fifth, although both the domestic partnership and marriage statutes provide a procedure for summary dissolution of the domestic partnership or marriage under the same limited circumstances, a summary dissolution of a domestic partnership is initiated by the partners' joint filing of a Notice of Termination of Domestic
Case 3:13-cv-01159 Filed 12/20/13 PageWorks. 65 of 76 PageID #: 1000 65 2013 ThomsonDocument Reuters. No 47-10 claim to original U.S. Government
In re Marriage Cases, 43 Cal.4th 757 (2008) 183 P.3d 384, 76 Cal.Rptr.3d 683, 08 Cal. Daily Op. Serv. 5820... Partnership with the Secretary of State and may become effective without any court action, whereas a summary dissolution of a marriage is initiated by the spouses' joint filing of a petition in superior court and becomes effective only upon entry of a court judgment; in both instances, the dissolution does not take effect for at least six months from the date dissolution is sought, and during that period either party may terminate the summary dissolution. ( 299, subds.(a)-(c), 2400 et seq.) Sixth, although a proceeding to dissolve a domestic partnership may be filed in superior court even if neither domestic partner is a resident of, or maintains a domicile in, the state at the time the proceedings are filed ( 299, subd. (d)), a judgment of dissolution of marriage may not be obtained unless one of the parties has been a resident of California for six months and a resident of the county in which the proceeding is filed for three months prior to the filing of the petition for dissolution. ( 2320.) Seventh, in order to protect the federal tax-qualified status of the CalPERS (California Public Employees' Retirement System) long-term care insurance program (see Sen. Com. on Appropriations, fiscal summary of Assem. Bill No. 205 (20032004 Reg. Sess.) as amended Aug. 21, 2003; 26 U.S.C. 7702B(f)(2)(C)), the domestic partnership statute provides that nothing in this section applies to modify eligibility for [such] long-term care plans ( 297.5, subd. (g)), which means that although such a plan may provide coverage for a state employee's spouse, it may not provide coverage for an employee's domestic partner; this same disparity, however, would exist even if same-sex couples were permitted to marry under California law, because for federal law purposes the nonemployee partner would not be considered a spouse. (See 1 U.S.C. 7.) Eighth, an additional difference stems from the provisions of California Constitution, article XIII, section 3, subdivisions (o) and (p), granting a $1,000 property tax exemption to an unmarried spouse of a deceased veteran who owns property valued at less than $10,000; however, as the Legislative Analyst explained when this constitutional provision last was amended in 1988 (see Ballot Pamp., Gen. Elec. (Nov. 8, 1988) analysis by Legis. Analyst of Prop. 93, p. 60), few persons claim this exemption, because a homeowner may not claim both this exemption and the more generous homeowner's exemption on the same property (Rev. & Tax.Code, 205.5, subd. (f)), and the homeowner's exemption is available to both married persons and domestic partners. (See 297.5, subd. (a).) Ninth, one appellate decision has held that the putative spouse doctrine (codified in 2251) does not apply to an asserted putative domestic partner. (Velez v. Smith (2006) 142 Cal.App.4th 1154, 11721174, 48 Cal.Rptr.3d 642.) Plaintiffs also have brought to the court's attention a statement of decision in a recent superior court ruling that declares, in part, that [a] Registered Domestic Partnership is not the equivalent of a marriage. It is the functional equivalent of cohabitation. (Garber v. Garber (Super. Ct. Orange County, 2007, No. 04D006519).) That trial court ruling is currently on appeal and has no precedential effect. Title 1, section 7, of the United States Code provides in full: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. The Domestic Partner Act attempts to ameliorate the disparity in treatment caused by federal law by providing in section 297.5, subdivision (e) that [t]o the extent that provisions of California law adopt, refer to, or rely upon, provisions of federal law in a way that otherwise would cause registered domestic partners to be treated differently than spouses, registered domestic partners shall be treated by California law as if federal law recognized a domestic partnership in the same manner as California law. In addition to the differences in the provisions of the Domestic Partner Act and the marriage statute set forth above (ante, 76 Cal.Rptr.3d at pp. 720721, fn. 24, 183 P.3d at pp. 416417, fn. 24), plaintiffs point out that California's designation of the union of same-sex couples as a domestic partnership rather than a marriage has led at least one federal court to conclude that same-sex couples lack standing to maintain a constitutional challenge to the federal Defense of Marriage Act. (See Smelt v. Orange County (9th Cir.2006) 447 F.3d 673.) The federal decision in question, however, does not suggest that a same-sex couple would lack standing to mount a direct federal constitutional challenge to the California marriage statutes or alternatively to mount a direct federal equal protection challenge to the denial to domestic partners of federal benefits that are made available to a married couple, on the theory that such differential treatment is impermissible when state law affords domestic partners legal rights and benefits equal to those afforded married spouses. The court in Smelt instead simply held that the trial court properly concluded that abstention was warranted in light of the pending state litigation that is the subject of the present appeal. (Id. at pp. 681682.) As explained below (post, at p. 724, fn. 28, 183 P.3d at p. 419, fn. 28), in this case plaintiffs' challenge is based solely upon the provisions of the California Constitution, and plaintiffs have not advanced any claim under the federal Constitution. To avoid any potential misunderstanding, we note that the circumstance that the constitutional challenge to the provisions of California's marriage statutes must be evaluated in light of both the marriage statutes and the domestic partnership legislation does not in any sense signify that plaintiffs are in a worse position, as a constitutional matter, by virtue of the Legislature's enactment of the Domestic Partner Act. If a comprehensive domestic partnership law had not been enacted in California, and if plaintiffs had brought a constitutional challenge to the California marriage statutes and our court had concluded that those statutes were unconstitutional because they
25
26
27
In re Marriage Cases, 43 Cal.4th 757 (2008) 183 P.3d 384, 76 Cal.Rptr.3d 683, 08 Cal. Daily Op. Serv. 5820... did not afford same-sex couples rights and benefits equal to those available to opposite-sex couples under the marriage statutes, we might well have further concluded as other state courts have determined in similar situations that the appropriate disposition would be to direct the Legislature to provide equal treatment to same-sex couples, leaving to the Legislature, in the first instance, the decision whether to provide such treatment by a revision of the marriage statutes or by the enactment of a comprehensive domestic partnership or civil union law. (See Baker v. State, supra, 170 Vt. 194, 744 A.2d 864, 886889; Lewis v. Harris, supra, 188 N.J. 415, 908 A.2d 196, 221223.) Because the California Legislature already has enacted a comprehensive domestic partnership law which broadly grants to samesex couples virtually all of the substantive legal rights and benefits enjoyed by opposite-sex married couples, plaintiffs have been relieved of the burden of successfully prosecuting a constitutional challenge to obtain those substantive rights and benefits. Thus, in this proceeding, we are faced only with the narrower question that logically ensues: whether, in light of the enactment of California's domestic partnership legislation, the current California statutory scheme is constitutional. We note that in Baker v. State, supra, 170 Vt. 194, 744 A.2d 864, 886, and Lewis v. Harris, supra, 188 N.J. 415, 908 A.2d 196, 221222, the Vermont Supreme Court and the New Jersey Supreme Court specifically reserved judgment on the analogous state constitutional question that would be presented should the legislature decide to extend to same-sex couples the substantive benefits, but not the official designation, of marriage. To date, neither of these courts has addressed this issue. Plaintiffs base their constitutional challenge in this case solely upon the provisions of the California Constitution and do not advance any claim under the federal Constitution. (See Cal. Const., art. I, 24 [Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution].) Article I, section 1 provides: All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. (Italics added.) Article I, section 2, subdivision (a), provides: Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press. (Italics added.) Article I, section 7, subdivision (a), provides in relevant part: A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws .... (Italics added.) See People v. Belous (1969) 71 Cal.2d 954, 963, 80 Cal.Rptr. 354, 458 P.2d 194 ([t]he fundamental right of the woman to choose whether to bear children follows from the Supreme Court's and this court's repeated acknowledgment of a right of privacy or liberty in matters related to marriage, family, and sex). As we recognized in Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 35, 26 Cal.Rptr.2d 834, 865 P.2d 633, the privacy interests protected under article I, section 1, fall into two categories: autonomy privacy and informational privacy. The right to marry constitutes an aspect of autonomy privacy. (See Hill, at p. 34, 26 Cal.Rptr.2d 834, 865 P.2d 633 [describing the freedom to pursue consensual familial relationships as an interest fundamental to personal autonomy].) The marriage statute enacted in California's first legislative session contained an explicit provision declaring that [a]ll marriages of white persons with negroes or mulattoes are declared to be illegal and void. (Stats. 1850, ch. 140, 3, p. 424.) Similarly, in addressing under the federal Constitution the validity of a prison rule that permitted a prisoner to marry only if the superintendent of the prison found there were compelling reasons to permit the marriage, the high court did not characterize the constitutional right at issue as the right to inmate marriage, but rather considered whether the purposes and attributes of the general fundamental right to marry were applicable in the prison context. (Turner v. Safley (1987) 482 U.S. 78, 9596, 107 S.Ct. 2254, 96 L.Ed.2d 64.) Because the right to marry refers to the right of an individual to enter into a consensual relationship with another person, we find it appropriate and useful to refer to the right to marry as a right possessed both by each individual member of the couple and by the couple as a whole. (Cf. N.A.A.C.P. v. Alabama (1957) 357 U.S. 449, 458460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 [holding that nonprofit association may assert the right of privacy of its members under the federal constitutional right of association].) Numerous decisions of the United States Supreme Court, in discussing marriage and the federal constitutional right to marry, similarly recognize that the significance of this right lies in its relationship to the establishment of a family. (See, e.g., Zablocki v. Redhail (1978) 434 U.S. 374, 386, 98 S.Ct. 673, 54 L.Ed.2d 618 [It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships.... [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society]; Maynard v. Hill (1888) 125 U.S. 190, 211, 8 S.Ct. 723, 31 L.Ed. 654 [[Marriage] is the foundation of the family and of society, without which there would be neither civilization nor progress]; Smith v. Organization of Foster Families for Equality & Reform (1977) 431 U.S. 816, 843, 97 S.Ct. 2094, 53 L.Ed.2d 14 [describing marriage as [t]he basic foundation of the family in our society].)
28 29
30 31
32 33
34
35
36
37
38
39
40
41
42
Through the commitments of marriage and kinship both children and parents experience the need for and the value of authority, responsibility, and duty in their most pristine forms. [] ... [] ... American society has relied to a considerable extent on the family not only to nurture the young but also to instill the habits required for citizenship in a self-governing community. We have relied on the family to teach us to care for others, [and] to moderate ... self-interest.... ... With this perspective, the family in a democratic society not only provides emotional companionship, but is also a principal source of moral and civic duty.... [] Something about the combined permanence, authority, and love that characterize the formal family uniquely makes possible the performance of this teaching enterprise. (Hafen, The Constitutional Status of Marriage, Kinship and Sexual Privacy Balancing the Individual and Social Interests (1983) 81 Mich. L.Rev. 463, 476477, fns. omitted (hereafter Constitutional Status of Marriage ).) Although the legal system has shifted its focus from families to individuals, society still relies on families to play a crucial role in caring for the young, the aged, the sick, the severely disabled, and the needy. Even in advanced welfare states, families at all levels are a major resource for government, sharing the burdens of dependency with public agencies in various ways and to greater and lesser degrees. (Glendon, The Transformation of Family Law (1989) p. 306.) The formal commitment of marriage is ... the basis of stable expectations in personal relationships. The willingness to marry permits important legal and personal assumptions to arise about one's intentions. Marriage ... carries with it a commitment toward permanence that places it in a different category of relational interests than if it were temporary. A justifiable expectation ... that [the] relationship will continue indefinitely permits parties to invest themselves in the relationship with a reasonable belief that the likelihood of future benefits warrants the attendant risks and inconveniences. (Constitutional Status of Marriage, supra, 81 Mich. L.Rev. 463, 485486, fns. omitted; see also id. at pp. 479480 [Mediating structures are the value-generating and value-maintaining agencies in society. ... [] A recent analysis of the concept of mediating structures identifies the family as the major institution within the private sphere, and thus for many people the most valuable thing in their lives. Here they make their moral commitments, invest their emotions, [and] plan for the future.... The family's role in providing emotional and spiritual comfort, as well as human fulfillment, has long been a dominant theme in sociological literature (fns. omitted) ].) As one scholarly article reported, sociological researchers in an updated Middletown project (involving a representative American city) found that the single most important fact about the nuclear family in contemporary Middletown is that it is not isolated from kinship networks. From the standpoint of social structuring, the kin groups organized on the basis of marriage and descent provide the substance which integrates people into the larger social structure.... The moral sentiments established in the interaction of parents and their children are extended and elaborated to produce consensus and loyalties which bind social groups (and possibly societies) into a cohesive whole. (Constitutional Status of Marriage, supra, 81 Mich. L.Rev. 463, 482, fns. omitted.) [T]he conditions that optimize a home environment which enables [a child] to develop into a mature and responsible adult are clearly encouraged by cultural patterns and reinforced by legal expectations that create a sense of permanency and stable expectations in child-parent relations. By giving priority to permanent, relational interests within families, the Supreme Court has reinforced the law's insistence on the conditions that maximize stability. (Constitutional Status of Marriage, supra, 81 Mich. L.Rev. 463, 473, fn. omitted.) The quoted article acknowledges that [n]ot all formal families are stable, nor do all necessarily provide wholesome continuity for their children, as the prevailing levels of child abuse and divorce amply demonstrate. (Id. at p. 475.) Nonetheless, the article indicates that the commitments inherent in formal families do increase the likelihood of stability and continuity for children. Those factors are so essential to child development that they alone may justify the legal incentives and preferences traditionally given to permanent kinship units based on marriage. (Id. at pp. 475476.) It is noteworthy that the California and federal Constitutions are not alone in recognizing that the right to marry is not properly viewed as simply a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people. Article 16 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, provides: Men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and to found a family.... [] ... [] The family is the natural and fundamental unit of society and is entitled to protection by society and the State. Numerous other international human rights treaties similarly recognize the right to marry and to found a family as a basic human right (Internat. Covenant on Civil and Political Rights, art. 23; see European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 12; Amer. Convention on Human Rights, art. 17), and the constitutions of many nations throughout the world explicitly link marriage and family and provide special protections to these institutions. (See Wardle, Federal Constitutional Protection for Marriage: Why and How (2006) 20 BYU J. Pub.L. 439, 453461 [describing constitutional provisions of other nations].) One legal commentator has suggested that the federal constitutional right to marry simply comprises a right of access to the expressive and material benefits that the state affords to the institution of marriage ... [and that] states may abolish marriage without offending the Constitution. (Sunstein, The Right to Marry (2005) 26 Cardozo L.Rev. 2081, 20832084, italics omitted.) The article in question concedes, however, that its suggested view of the right to marry is inconsistent with the governing federal cases that identify the right to marry as an integral feature of the liberty interest protected by the due process clause (id. at pp. 20962097), and further
In re Marriage Cases, 43 Cal.4th 757 (2008) 183 P.3d 384, 76 Cal.Rptr.3d 683, 08 Cal. Daily Op. Serv. 5820... acknowledges that even [i]f official marriage was abolished, the Due Process Clause might give people a right to some of the benefits and arrangements to which married people are ordinarily entitled under existing law. (Id. at p. 2093.) As explained above, in light of the governing cases identifying the source and explaining the significance of the state constitutional right to marry, we conclude that under the California Constitution this constitutional right properly must be viewed as having substantive content. Three of the four decisions of the United States Supreme Court that have found state statutes invalid as violative of the right to marry, as that right is embodied in the federal Constitution, involved circumstances in which an individual was prohibited under state law from entering into an officially sanctioned family relationship. (See Loving v. Virginia (1967) 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010; Zablocki v. Redhail, supra, 434 U.S. 374, 98 S.Ct. 673; Turner v. Safley, supra, 482 U.S. 78, 107 S.Ct. 2254.) In the fourth decision Griswold, supra, 381 U.S. 479, 85 S.Ct. 1678 the court found that a state statute prohibiting married couples from using contraceptives violated the constitutional right of marital privacy inherent in the constitutional right to marry. A number of law review articles support the view that the constitutional right to marry encompasses a positive right to have the state publicly and officially recognize a couple's family relationship. (See Ball, The Positive in the Fundamental Right to Marry: Same Sex Marriage in the Aftermath of Lawrence v. Texas (2004) 88 Minn. L.Rev. 1184; Meyer, A Privacy Right to Public Recognition of Family Relationships? The Cases of Marriage and Adoption (2006) 51 Vill. L.Rev. 891.) As this court observed in Valerie N., supra, 40 Cal.3d 143, 163, 219 Cal.Rptr. 387, 707 P.2d 760, [a]rticle I, section 1, confirms the right not only to privacy, but to pursue happiness and enjoy liberty. (See also Grodin, Rediscovering the State Constitutional Right to Happiness and Safety (1997) 25 Hast. Const. L.Q. 1.) In Perez, supra, 32 Cal.2d 711, 198 P.2d 17, the lead opinion, in describing the historical basis of California's antimiscegenation statute, quoted from a California judicial decision of an earlier era (People v. Hall (1854) 4 Cal. 399, 404), which set forth, as an assertedly established and uncontrovertible proposition, the alleged inferior nature of all non-Caucasian persons. (Perez, supra, 32 Cal.2d at p. 720, 198 P.2d 17.) The court in Perez rejected that demeaning and unsubstantiated characterization, and found there was no justification for the racially discriminatory restriction on the right to marry. (Id. at pp. 722727, 198 P.2d 17.) Similarly, in Sail'er Inn, supra, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529, this court, in holding unconstitutional a statutory provision that generally prohibited women from being employed as bartenders, took note of the significant evolution that had occurred in society's views of the appropriate role of women in society and of the relative abilities and capacities of men and women. Pointing to the United States Supreme Court's early20thcentury decision in Muller v. Oregon (1908) 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551, the court in Sail'er Inn observed: No judge today would justify classification based on sex by resort to such openly biased and wholly chauvinistic statements as this one made by Justice Brewer in Muller [at pp. 421422, 28 S.Ct. 324]: [H]istory discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present.... Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights.... Doubtless there are individual exceptions ... but looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. (5 Cal.3d at p. 17, fn. 15, 95 Cal.Rptr. 329, 485 P.2d 529.) See, for example, Civil Code section 51 (barring sexual orientation discrimination in the provision of services by any business establishment); Government Code sections 12920 (barring sexual orientation discrimination in employment), 12955 (barring sexual orientation discrimination in housing), 11135, subdivision (a) (barring sexual orientation discrimination in any program operated by, or that receives any financial assistance from, the state); Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 466 475, 156 Cal.Rptr. 14, 595 P.2d 592 (Gay Law Students ) (Cal. Const. prohibits sexual orientation discrimination by public utility). See, for example, sections 297 et seq., 9000, subdivisions (b), (g); Welfare & Institutions Code section 16013, subdivision (a); Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 2 Cal.Rptr.3d 699, 73 P.3d 554; Elisa B. v. Superior Court, supra, 37 Cal.4th 108, 33 Cal.Rptr.3d 46, 117 P.3d 660. Although California cases hold that one of the types of misrepresentation or concealment that will justify a judgment of nullity of marriage is the intentional misrepresentation or concealment of an individual's inability to have children (see, e.g., Vileta v. Vileta (1942) 53 Cal.App.2d 794, 796, 128 P.2d 376; Aufort v. Aufort (1935) 9 Cal.App.2d 310, 311, 49 P.2d 620), no case has suggested that an inability to have children when disclosed to a prospective partner would constitute a basis for denying a marriage license or nullifying a marriage. As noted in our earlier discussion of the relationship between procreation and marriage, many opposite-sex married couples choose not to have children and many other opposite-sex married couples become parents through adoption or through a variety of assistedreproduction techniques. If societal acceptance of these marriages (whose numbers surely exceed the number of potential same-sex unions) does not send a message that it is immaterial to the state whether children are raised by their biological mother and father and we conclude there clearly is no such message it is difficult to understand why the message would be sent by our recognition that same-sex couples possess a constitutional right to marry. (See, e.g., Baker v. State, supra, 170 Vt. 194, 744 A.2d 864, 882.)
43
44 45
46
47 48
49
50
51
52
53 54
55
According to a report based upon a review of data from the 2000 Census, at the time of that census same-sex couples in California were raising more than 70,000 children. (See Badgett & Sears, SameSex Couples and SameSex Couples Raising Children in California: Data from Census 2000 (May 2004) p. 2 <http://www.law.ucla. edu/williamsproj/publications/CaliforniaCouplesReport.pdf> [as of May 15, 2008].) The report also states that the 2000 census data indicates that, as of that date, 33 percent of female same-sex couples and 28.4 percent of all same-sex couples in California were raising children, and further notes that those figures do not include foster children being raised by same-sex couples. (Id. at p. 10.) In support of the argument that recognizing that the constitutional right to marry applies to same-sex couples will eventually devalue the institution [of marriage] to the detriment of children, one amicus curiae brief (brief of the American Center for Law & Justice) relies upon a passage attributed to the philosopher John Rawls with respect to the institutions of marriage and family, in which Rawls states that one of the essential functions of the family is to establish the orderly production and reproduction of society and of its culture from one generation to the next and that [r]eproductive labor is socially necessary labor. (Rawls, Justice as Fairness: A Restatement (2001) p. 162.) In the cited work, however, after explaining that essential to the role of the family is the arrangement in a reasonable and effective way of the raising and caring for children, ensuring their moral development and education into the wider culture, Rawls proceeds to observe that in his view, no particular form of the family (monogamous, heterosexual, or otherwise) is so far required by a political conception of justice so long as it is arranged to fulfill these tasks effectively and does not run afoul of other political values. (Id. at pp. 162163.) Rawls then adds that this observation sets the way in which justice as fairness deals with the question of gay and lesbian rights and duties, and how they affect the family. If these rights and duties are consistent with orderly family life and the education of children, they are, ceteris paribus [all other things being equal], fully admissible. (Id. at p. 163, fn. 42.) We emphasize that our conclusion that the constitutional right to marry properly must be interpreted to apply to gay individuals and gay couples does not mean that this constitutional right similarly must be understood to extend to polygamous or incestuous relationships. Past judicial decisions explain why our nation's culture has considered the latter types of relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry. (See, e.g., Reynolds v. United States (1878) 98 U.S. 145, 165166, 25 L.Ed. 244; Davis v. Beason (1890) 133 U.S. 333, 341, 10 S.Ct. 299, 33 L.Ed. 637; People v. Scott (2007) 157 Cal.App.4th 189, 192194, 68 Cal.Rptr.3d 592; State v. Freeman (2003) 155 Ohio App.3d 492, 801 N.E.2d 906, 909; Smith v. State (Tenn.Crim.App.1999) 6 S.W.3d 512, 518520.) Although the historic disparagement of and discrimination against gay individuals and gay couples clearly is no longer constitutionally permissible, the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment. (Accord, e.g., Potter v. Murray City (C.D.Utah 1984) 585 F.Supp. 1126, 11371140, affd. (10th Cir.1985) 760 F.2d 1065, 10681071, cert. den. (1985) 474 U.S. 849, 106 S.Ct. 145, 88 L.Ed.2d 120; People v. Scott, supra, 157 Cal.App.4th 189, 193194, 68 Cal.Rptr.3d 592.) Thus, our conclusion that it is improper to interpret the state constitutional right to marry as inapplicable to gay individuals or couples does not affect the constitutional validity of the existing legal prohibitions against polygamy and the marriage of close relatives. Although the Domestic Partner Act also makes domestic partnership available to opposite-sex couples if at least one of the partners is over the age of 62 years ( 297, subd. (b)(5)(B)), under sections 300 and 308.5 the relationship designated marriage is available only to opposite-sex couples and thus only the relationship designated domestic partnership is available to same-sex couples. One defendant, the Proposition 22 Legal Defense Fund, advances a threshold argument that same-sex couples and opposite-sex couples are not similarly situated with regard to the challenged statute's legitimate purpose (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 456 P.2d 645), assertedly obviating any need for this court even to consider which standard of review applies to plaintiffs' equal protection claim. Although the separate opinions of Justice Baxter (conc. & dis. opn., post, at pp. 881882, 76 Cal.Rptr.3d at pp. 778779, 183 P.3d at pp. 464465) and Justice Corrigan (conc. & dis. opn., post, at pp. 785786, 183 P.3d at pp. 470471) embrace this argument, which in reality would insulate the challenged marriage statute from any meaningful equal protection review, we conclude this contention clearly lacks merit. Both groups at issue consist of pairs of individuals who wish to enter into a formal, legally binding and officially recognized, long-term family relationship that affords the same rights and privileges and imposes the same obligations and responsibilities. Under these circumstances, there is no question but that these two categories of individuals are sufficiently similar to bring into play equal protection principles that require a court to determine whether distinctions between the two groups justify the unequal treatment. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200, 39 Cal.Rptr.3d 821, 129 P.3d 29.) As we noted in Hernandez, supra, 41 Cal.4th 279, 299, footnote 12, 59 Cal.Rptr.3d 442, 159 P.3d 33: In applying the federal equal protection clause, the United States Supreme Court has applied a third standard intermediate scrutiny to discriminatory classifications based on sex or illegitimacy. (Clark v. Jeter (1988) 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465.) Past California decisions, by contrast, have applied the strict scrutiny standard when evaluating discriminatory classifications based on sex (see, e.g., Sail'er Inn, supra, 5 Cal.3d 1, 1520, 95 Cal.Rptr. 329, 485 P.2d 529; Arp v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 395, 400, 138 Cal.Rptr. 293, 563 P.2d 849; Michael M. v. Superior Court (1979) 25 Cal.3d 608, 610611, 159 Cal.Rptr.
In re Marriage Cases, 43 Cal.4th 757 (2008) 183 P.3d 384, 76 Cal.Rptr.3d 683, 08 Cal. Daily Op. Serv. 5820... 340, 601 P.2d 572; Catholic Charities of Sacramento, Inc. v. Superior Court (2004) 32 Cal.4th 527, 564, 10 Cal.Rptr.3d 283, 85 P.3d 67), and have not applied an intermediate scrutiny standard under equal protection principles in any case involving a suspect (or quasi-suspect) classification. At the time the Gay Law Students decision was rendered, the applicable California statute prohibited employment discrimination on the basis of sex, but did not explicitly prohibit discrimination on the basis of homosexuality or sexual orientation. (See Gay Law Students, supra, 24 Cal.3d 458, 489, 156 Cal.Rptr. 14, 595 P.2d 592.) California's current employment discrimination statute explicitly prohibits discrimination either on the basis of sex or on the basis of sexual orientation. (Gov.Code, 12940, subds.(a)-(d), (j).) As illustrated by the numerous authorities cited in the text, virtually all of the decisions that have addressed this issue have rejected the contention that a statute that treats same-sex couples differently from opposite-sex couples constitutes sex discrimination, although we are aware that one state court decision and a number of separate concurring and/or dissenting opinions filed in other recent state court marriage decisions have found such differential treatment to constitute sex discrimination for purposes of the equal protection clause or equal rights amendment contained in the applicable state constitution. (See, e.g., Baehr v. Lewin, supra, 74 Haw. 530, 852 P.2d 44, 60 (plur. opn. of Levinson, J.), endorsed by a majority of justices on motion for reconsideration or clarification, and further explicated in Baehr v. Miike (Haw.1999) 1999 Haw. Lexis 391, p. *6, fn. 1 [explaining that the history of Hawaii's state equal protection clause indicates the framers of that provision expressly declared their intention that a proscription against discrimination based on sexual orientation be subsumed within the clause's prohibition against discrimination based on sex]; Conaway v. Deane, supra, 401 Md. 219, 932 A.2d 571, 677686 (dis. opn. of Battaglia, J.); Goodridge v. Dept. of Pub. Health, supra, 440 Mass. 309, 798 N.E.2d 941, 971972 (conc. opn. of Greaney, J.); Hernandez v. Robles, supra, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 29 30 (dis. opn. of Kaye, C.J.); Baker v. State, supra, 170 Vt. 194, 744 A.2d 864, 904912 (conc. & dis. opn. of Johnson, J.); Andersen v. King County, supra, 158 Wash.2d 1, 138 P.3d 963, 10371039 (dis. opn. of Bridge, J.).) At the same time, a number of these separate opinions also have concluded that the distinction in treatment before the court should be viewed, as well, as discrimination on the basis of sexual orientation. (See, e.g., Hernandez v. Robles, supra, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 2729 (dis. opn. of Kaye, C.J.); Andersen v. King County, supra, 158 Wash.2d 1, 138 P.3d 963, 10291032 (dis. opn. of Bridge, J.).) For the reasons explained below (post, at pp. 836842, 76 Cal.Rptr.3d at pp. 748749, 183 P.3d at pp. 439440), we conclude that, for purposes of determining the applicable standard of review under the California equal protection clause, the distinction drawn by the marriage statutes between opposite-sex couples and same-sex couples is more appropriately analyzed as a difference in treatment on the basis of sexual orientation rather than as sex discrimination. Accordingly, the pertinent question is which standard of review applies under the California equal protection clause to statutory provisions that discriminate between individuals or couples on the basis of sexual orientation. We address that issue in the next part of this opinion. (Post, at pp. 839844, 76 Cal.Rptr.3d pp. 750754, 183 P.3d pp. 440444.) Relying upon a statement appearing in the legislative history of the 1977 statute that added the phrase between a man and a woman to section 300 (see Assem. Com. on Judiciary, Digest, Assem. Bill No. 607 (19771978 Reg. Sess.) Apr. 14, 1977, pp. 12), plaintiffs and a number of amici curiae additionally contend that the statutory limitation of marriage to opposite-sex couples is based upon the outdated stereotype of a marriage comprised of a stay-at-home mother and a breadwinner father, and for that reason should be viewed as reflective of sex discrimination. Neither the 1977 legislation nor any other provision of California law, however, purports to limit the role of either partner in a marriage, and the bulk of the legislative history of the 1977 enactment a measure that, as noted above (ante, 76 Cal.Rptr.3d pp. 711712, 183 P.3d p. 409), was introduced at the behest of the County Clerks' Association of California indicates that the legislation primarily was intended simply to clarify that the existing California marriage statutes retained the historic definition of marriage as the union of a man and a woman. Furthermore, the ballot arguments pertaining to Proposition 22 indicate that section 308.5, which independently limits marriage to the union of a man and a woman, was intended to ensure that the traditional definition of marriage would be retained, and these arguments do not contain any suggestion that the initiative measure was grounded in an outdated stereotypical view of the appropriate roles of men and women in a marriage. Under these circumstances, we cannot agree with plaintiffs' contention that under the theory they advance, the relevant provisions of sections 300 and 308.5 properly should be viewed as embodying sex discrimination. As explained in the amicus curiae brief filed by a number of leading mental health organizations, including the American Psychological Association and the American Psychiatric Association: Sexual orientation is commonly discussed as a characteristic of the individual, like biological sex, gender identity, or age. This perspective is incomplete because sexual orientation is always defined in relational terms and necessarily involves relationships with other individuals. Sexual acts and romantic attractions are categorized as homosexual or heterosexual according to the biological sex of the individuals involved in them, relative to each other. Indeed, it is by acting or desiring to act with another person that individuals express their heterosexuality, homosexuality, or bisexuality.... Thus, sexual orientation is integrally linked to the intimate personal relationships that human beings form with others to meet their deeply felt needs for love, attachment, and intimacy. In addition to sexual behavior, these bonds encompass nonsexual physical affection between partners, shared goals and values, mutual support, and ongoing commitment. [] Consequently, sexual
56
57
58
59
In re Marriage Cases, 43 Cal.4th 757 (2008) 183 P.3d 384, 76 Cal.Rptr.3d 683, 08 Cal. Daily Op. Serv. 5820... orientation is not merely a personal characteristic that can be defined in isolation. Rather, one's sexual orientation defines the universe of persons with whom one is likely to find the satisfying and fulfilling relationships that, for many individuals, comprise an essential component of personal identity. See, for example, Baker v. State, supra, 170 Vt. 194, 744 A.2d 864, 878, footnote 10, and cases cited therein; see also Standhardt v. Superior Court, supra, 206 Ariz. 276, 77 P.3d 451, 456457; Hernandez v. Robles, supra, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 910; Andersen v. King County, supra, 158 Wash.2d 1, 138 P.3d 963, 975976. One intermediate appellate court in Oregon held that sexual orientation constitutes a suspect classification for the purpose of that state's equal protection clause (see Tanner v. OHSU (1998) 157 Or.App. 502, 971 P.2d 435, 446447), and, as noted above, a number of justices of other state supreme courts recently have similarly concluded that sexual orientation properly should be considered a suspect classification for purposes of analysis under their state equal protection clauses. (See Hernandez v. Robles, supra, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 2729 (dis. opn. of Kaye, C.J.); Andersen v. King County, supra, 158 Wash.2d 1, 138 P.3d 963, 10291032 (conc. opn. of Bridge, J.); see also Egan v. Canada (Can. 1995) 2 S.C.R. 513, 528529, & 536 [ 5 & 22] [finding sexual orientation to be analogous to enumerated classifications, such as race or sex, that are constitutionally suspect under the equal protection clause of the Canadian Charter].) In Citizens for Responsible Behavior v. Superior Court (1991) 1 Cal.App.4th 1013, 2 Cal.Rptr.2d 648, the court held that a proposed ordinance that would have repealed existing ordinances relating to gay rights and required voter approval for any future ordinances on the subject was invalid under the rational basis equal protection standard, and thus found no need to determine whether heightened scrutiny should be applied. (1 Cal.App.4th at p. 1026, fn. 8, 2 Cal.Rptr.2d 648.) In Children's Hospital & Medical Center v. Bont (2002) 97 Cal.App.4th 740, 769, 118 Cal.Rptr.2d 629, the appellate court, in dicta, referred in an off-hand comment to suspect classifications, such as race or sexual orientation, but the court cited no authority addressing the question whether sexual orientation is a suspect classification, and this brief reference clearly was not intended to have (and does not have) any precedential significance. In Bowens v. Superior Court (1991) 1 Cal.4th 36, 42, 2 Cal.Rptr.2d 376, 820 P.2d 600, in discussing the factors that are relevant under the federal equal protection clause to the issue of suspect classification, the court explained: The determination of whether a suspect class exists focuses on whether [t]he system of alleged discrimination and the class it defines have [any] of the traditional indicia of suspectness: [such as a class] saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. (Quoting San Antonio School Dist. v. Rodriguez (1973) 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16; bracketed material added in Bowens; italics added.) In Frontiero v. Richardson (1973) 411 U.S. 677, 687688, 93 S.Ct. 1764, 36 L.Ed.2d 583, the lead opinion of Justice Brennan pointed to the enactment of laws prohibiting sex discrimination as confirming that a class of individuals had been subjected to widespread discrimination in the past and thus as supporting the need for heightened judicial scrutiny of statutory provisions that impose differential treatment on the basis of such a characteristic. In describing its intermediate scrutiny standard in Clark v. Jeter, supra, 486 U.S. 456, 461, 108 S.Ct. 1910, the high court explained: To withstand intermediate scrutiny, a statutory classification must be substantially related to an important government objective. By contrast, under the strict scrutiny standard, the state bears the burden of demonstrating that the disparate treatment imposed by a statute is necessary to serve a compelling state interest. (See, e.g., Hernandez, supra, 41 Cal.4th 279, 299, 59 Cal.Rptr.3d 442, 159 P.3d 33.) For example, the establishment and maintenance of separate women's collegiate athletic teams to address the long-standing discrimination against women in the allocation of athletic resources has been found to be constitutionally valid. (See, e.g., O'Connor v. Board of Education of School Dist. No. 23 (7th Cir.1981) 645 F.2d 578, 582; Force by Force v. Pierce City RVI School Dist. (W.D.Mo.1983) 570 F.Supp. 1020, 1026.) Courts similarly have held it is constitutionally permissible for a state to remedy the constitutional problem resulting from the inability of indigent criminal defendants to retain counsel by establishing a separate public defender's office through which such defendants are represented by government-selected attorneys, instead of by providing funds to such defendants with which they can obtain their own self-selected attorneys. (See, e.g., People v. Miller (1972) 7 Cal.3d 562, 574, 102 Cal.Rptr. 841, 498 P.2d 1089; People v. Hughes (1961) 57 Cal.2d 89, 9799, 17 Cal.Rptr. 617, 367 P.2d 33.) One such conceivable (albeit unlikely) example would be a statutory scheme that designated all formal family unions as a marriage during the first five years of the union's existence, and thereafter renamed the relationship, for official purposes, as an enduring union, and provided additional benefits to the couple for so long as the enduring union remained intact. In this setting, the withholding of the official designation marriage to all long-term formal relationships would not appear to be stigmatizing or necessarily to warrant, in itself, application of the strict scrutiny standard. In Sweatt v. Painter, supra, 339 U.S. 629, 70 S.Ct. 848, the high court stated in this regard: What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement [such as] ...
60
61
62
63
64
65
66
67
In re Marriage Cases, 43 Cal.4th 757 (2008) 183 P.3d 384, 76 Cal.Rptr.3d 683, 08 Cal. Daily Op. Serv. 5820... standing in the community, traditions and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close. (339 U.S. at p. 634, 70 S.Ct. 848.) Although the disclosure that an individual is a registered domestic partner does not necessarily mean that he or she is in a samesex relationship, because opposite-sex couples comprised of at least one partner who is more than 62 years of age may register as domestic partners, in most instances the revelation that one is a domestic partner will be understood (accurately) to signify that the individual is gay. As set forth ante, 76 Cal.Rptr.3d page 710, footnote 12, 183 P.3d page 407, footnote 12, article XI, section 14 of the California Constitution of 1849 provided in full: All property, both real and personal, of the wife, owned or claimed by marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property, as to that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property. Article XX, section 8 of the California Constitution of 1879 contained a similar provision, stating: All property, real and personal, owned by either husband or wife before marriage, and that acquired by either of them afterwards by gift, devise, or descent, shall be their separate property. The current analogous provision of the California Constitution is contained in article I, section 21, and since 1970 has provided: Property owned before marriage or acquired during marriage by gift, will, or inheritance is separate property. At this time, only six jurisdictions (Massachusetts and five foreign nations Canada, South Africa, the Netherlands, Belgium, and Spain) authorize same-sex couples to marry. Of these six jurisdictions, three (Massachusetts, Canada, and South Africa) arrived at that position through judicial decision (Goodridge v. Dept. of Pub. Health, supra, 440 Mass. 309, 798 N.E.2d 941; Halpern v. Canada (Ont.Ct.App.2003) 65 O.R.3d 161; EGALE Canada, Inc. v. Canada (B.C.Ct.App.2003) 225 D.L.R.4th 472; Hendricks v. Quebec (Que.Super.Ct. 2002) R.J.Q. 2506; Minister of Home Affairs v. Fourie (S.Afr. Const.Ct.2006) (3) BCLR 355), and three (the Netherlands, Belgium, and Spain) adopted that position legislatively, without compulsion or direction from a judicial decision. (Netherlands: Civ. code, art. 30 [as amended Dec. 21, 2000]; Belgium: Civ. code, art. 143 [as amended Feb. 13, 2003]; Spain: Civ. code, art. 44 [as amended by law 13/2005, July 1, 2005].) In Canada and South Africa, after the judiciary invalidated marriage statutes limiting marriage to opposite-sex couples, the legislative branch enacted laws complying with the judicial decisions. (Canada: Civil Marriage Act, 2005 S.C., ch. 33; South Africa: Civil Union Act 2006 (art. No.17. 2006).) Although to date the Supreme Judicial Court of Massachusetts is the only state high court in this nation to have found a statute limiting marriage to opposite-sex couples violative of its state constitution, we note that in each of the other instances in which a state high court has addressed this issue in recent years, each decision rejecting the constitutional challenge was determined by a divided court, frequently by a one-vote margin. (See, e.g., Conaway v. Deane, supra, 401 Md. 219, 932 A.2d 571 [Md.: four-tothree decision]; Hernandez v. Robles, supra, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1 [N.Y.: four-to-two decision]; Andersen v. King County, supra, 158 Wash.2d 1, 138 P.3d 963 [Wn.: five-to-four decision]; see also Lewis v. Harris, supra, 188 N.J. 415, 908 A.2d 196 [N.J.: court unanimously concluded that same-sex couples are constitutionally entitled to the rights and benefits of marriage, and three of the seven justices further concluded that denying such couples the designation of marriage necessarily would violate the state constitution].) This court's 1948 decision in Perez, supra, 32 Cal.2d 711, 198 P.2d 17, was the first judicial decision to hold that a statute prohibiting interracial marriage was unconstitutional. It was not until nearly 20 years later, in 1967, that the United States Supreme Court reached the same conclusion in Loving v. Virginia, supra, 388 U.S. 1, 87 S.Ct. 1817, striking down a comparable Virginia statute. Contrary to the contention of the Proposition 22 Legal Defense Fund and the Campaign, the distinction in nomenclature between marriage and domestic partnership cannot be defended on the basis of an asserted difference in the effect on children of being raised by an opposite-sex couple 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, the asserted difference in the effect on children does not provide a justification for the differentiation in nomenclature set forth in the challenged statutes. We emphasize that in reaching this conclusion we do not suggest that the current marriage provisions were enacted with an invidious intent or purpose. (Cf. Hernandez v. Robles, supra, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 8 [A court should not lightly conclude that everyone who held this belief [that the right to marriage did not extend to same-sex couples] was irrational, ignorant or bigoted].) We conclude that because of the detrimental effect that such provisions impose on gay individuals and couples on the basis of their sexual orientation, the statutes are inconsistent with the constitutional principles embodied in the California Constitution and accordingly cannot be upheld. As the majority acknowledges, California cannot force other jurisdictions to recognize California same-sex legal partnerships, by any name. Indeed, the federal Defense of Marriage Act (DOMA; 28 U.S.C. 1738C, as added by Pub.L. 104199, 2(a) (Sept. 21, 1996), 110 Stat. 2419) specifies that an American state, territory, possession, or Indian tribe may refuse to recognize any same-sex legal
68
69
70
71 72
73
In re Marriage Cases, 43 Cal.4th 757 (2008) 183 P.3d 384, 76 Cal.Rptr.3d 683, 08 Cal. Daily Op. Serv. 5820... relationship created under the laws of another state, territory, possession, or tribe, and treated as a marriage by that other entity. As the majority concedes, many American jurisdictions have exercised this authority, and have enacted laws refusing to recognize same-sex marriages or equivalent same-sex legal unions created under the laws of other jurisdictions. Moreover, under the DOMA, all federal laws and regulations affecting marital or spousal rights, responsibilities, and benefits expressly apply only to opposite-sex unions. (1 U.S.C. 7, as added by Pub.L. 104199, 3(a) (Sept. 21, 1996), 110 Stat. 2419.) Insofar as Family Code section 308.5 does represent California's decision not to recognize same-sex marriages contracted in another jurisdiction, that choice is expressly sanctioned, of course, by 28 United States Code section 1738C, part of the DOMA. (See fn. 1, ante.) This provision is an exercise of Congress's power under the full faith and credit clause (U.S. Const., art. IV, 1). (E.g., Wilson v. Ake (M.D.Fla.2005) 354 F.Supp.2d 1298, 13031304 (Wilson ).) Before addressing the label issue the only one actually presented by this case the majority spends much time and effort to find that there is a fundamental constitutional right to enter a legally recognized familial union with a partner of the same sex. The focus on this subject is puzzling, for, as the majority concedes, California law already provides, to the maximum extent of the state's power, a right to same-sex legal unions with all the substantive legal benefits of their opposite-sex counterparts. Thus, as the majority further acknowledges, plaintiffs have no occasion to establish a constitutional basis for these rights, and the issue is simply whether, in light of the enactment of California's domestic partnership legislation, the current California statutory scheme is constitutional. (Maj. opn., ante, 76 Cal.Rptr.3d at p. 723, fn. 27, 183 P.3d at pp. 418419, fn. 27, italics in original.) The majority's objective appears to be to establish that the so-called fundamental right to same-sex legal unions includes, as a core element [ ], the right to have those unions accorded the same dignity, respect, and stature as opposite-sex legal partnerships enjoy. (Id., at pp. 742743, 183 P.3d at pp. 434435.) This, in turn, supports the majority's later conclusion that the labeling distinction in the current scheme directly infringes this fundamental right, and is therefore subject to strict scrutiny for reasons independent of the equal protection theory also advanced by the majority. (Id., at pp. 754757, 183 P.3d at pp. 444446.) As I explain below, however, I conclude that there is no fundamental constitutional right to a same-sex legal union that equates in every respect with marriage. I would also reject the majority's alternative theory, based on the equal protection clause, for subjecting the labeling distinction to strict scrutiny. Hence, in my view, the naming distinction preserved by California's statutes must be upheld under our Constitution unless it is irrational. By that standard, the People's decision to retain the traditional definition of marriage as between a man and a woman is amply justified. Among American jurisdictions, only the high court of Massachusetts (Goodridge v. Department of Public Health (2003) 440 Mass. 309, 798 N.E.2d 941 (Goodridge ); see also Opinions of the Justices to the Senate (2004) 440 Mass. 1201, 802 N.E.2d 565, 572) has previously found or confirmed in its state Constitution a right of civil marriage to partners of the same sex. Several years earlier, in Baehr v. Lewin (1993) 74 Haw. 530, 852 P.2d 44, the Hawaii Supreme Court had held that the denial of marriage licenses to samesex couples was subject, under the state Constitution, to strict scrutiny, and had remanded the cause for further proceedings on the issue whether strict scrutiny was satisfied. However, before the lower court's no answer (see Baehr v. Miike (Haw.Cir.Ct.1996) 1996 WL 694235) could be reviewed on appeal, the voters ratified a state constitutional amendment giving the Hawaii Legislature the right to reserve marriage to opposite-sex unions (Haw. Const., art. I, 23, as adopted at Gen. Elec. (Nov. 3, 1998) pursuant to Haw. H.R. Bill No. 117 (1997 Reg. Sess.)), a step that body had already taken (Haw.Rev.Stat. 5721, as amended by Haw. Sess. Laws 1994, act 217, 3). Meanwhile, a substantially greater number of courts have rejected claims of state constitutional rights to same-sex marriage. (E.g., Conaway v. Deane (2007) 401 Md. 219, 932 A.2d 571; Hernandez v. Robles (2006) 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1; Andersen v. King County (2006) 158 Wash.2d 1, 138 P.3d 963; Morrison v. Sadler (Ind.Ct.App.2005) 821 N.E.2d 15; Standhardt v. Superior Court (Ct.App.2003) 206 Ariz. 276, 77 P.3d 451; Baker v. Nelson (1971) 291 Minn. 310, 191 N.W.2d 185, appeal dismissed (1972) 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65; see Dean v. District of Columbia (D.C.App.1995) 653 A.2d 307, 332333 (conc. & dis. opn. of Ferren, J); Dean, at pp. 361364 (conc. opns. of Terry, J. & Steadman, J.) [federal Const.]; see also Lewis v. Harris (2006) 188 N.J. 415, 908 A.2d 196 [finding right to same-sex civil union with benefits of marriage, but concluding that label issue is premature]; Baker v. State (Vt.1999) 170 Vt. 194, 744 A.2d 864 [same].) In the wake of these developments, [w]ith the exception of Massachusetts, every state's law, explicitly or implicitly, defines marriage to mean the union of a man and a woman. (Lewis v. Harris, supra, 908 A.2d at p. 208, fn. omitted.) As we have seen, federal statutory law also expressly does so. The majority refrains from declaring explicitly that same-sex legal unions must be called marriage, suggesting only that the name chosen must be equivalent in respect and dignity to the name allotted to opposite-sex unions. Thus, the majority suggests, the Legislature might choose a new, common name for civil unions of both kinds. Either way, as the majority clearly holds, Family Code section 308.5 must be struck down. (Maj. opn., ante, 76 Cal.Rptr.3d at pp. 764765, 183 P.3d at pp. 452453.) This traditional understanding is certainly confirmed by the definitions of marriage contained in standard dictionaries. (See, e.g., Webster's Third New Internat. Dict. (2002) p. 1384, col. 3 [1 a: the state of being united to a person of the opposite sex as husband or wife. b: the mutual relation of husband and wife: WEDLOCK ...]; Random House Webster's College Dict. (2d rev. ed. 2001) p. 814, col. 1 [1. the social institution under which a man and woman live as husband and wife by legal or religious commitments ...]; IX
In re Marriage Cases, 43 Cal.4th 757 (2008) 183 P.3d 384, 76 Cal.Rptr.3d 683, 08 Cal. Daily Op. Serv. 5820... Oxford English Dict. (2d ed. 1989) p. 396, col. 1 [1.a. The condition of being a husband or wife; ... [] ... [] 2.a .... [t]he ceremony or procedure by which two persons are made husband and wife]; American Heritage Dict. (2d ed. 1985) p. 768, col. 1 [1.a. The state of being married: wedlock. b. The legal union of a man and woman as husband and wife....].) In light of the recent development of the issue, late editions of some such works dutifully allude to the concept of same-sex marriage. (See, e.g., American Heritage Dict. (4th ed. 2000) p. 1073, col. 1 [d. A union having the customary but usually not the legal force of marriage: a same-sex marriage ]; compare, e.g., Black's Law Dict. (8th ed. 2004) p. 994, col. 2 [noting that [t]he United States government and most American states do not recognize same-sex marriages, but citing recent decisions on the issue], with Black's Law Dict. (7th ed. 1999) pp. 986, col. 2, 987, cols. 12, 988, col. 1; compare also, e.g., Merriam Webster's Collegiate Dict. (11th ed. 2004) p. 761, col. 2, with Merriam Webster's Collegiate Dict. (10th ed.2000) p. 711, cols. 12.) But such recent acknowledgements in reference books donot undermine the fact that, until very recently, the institution of marriage has universally been understood as the union of opposite-sex partners. In this respect, California's situation differs materially from that of Massachusetts, the only other state that now recognizes a constitutional right to same-sex marriage. In finding such a right, the Massachusetts Supreme Judicial Court addressed marriage statutes that imposed no facial prohibition on the issuance of marriage licenses to same-sex couples. (See Goodridge, supra, 798 N.E.2d 941, 951952.) The Massachusetts court did not confront, as we do, a law, recently adopted by the voters, that gave explicit voice to a prevailing community standard in favor of retaining the traditional man-woman definition of marriage. The majority protests that, contrary to my assertion, the constitutional right it finds is not grounded upon the Legislature's passage of the DPA or any other laws, and such legislation [was] not required in order to confer equal rights on gay and lesbian individuals. (Maj. opn., ante, 76 Cal.Rptr.3d at p. 735, 183 P.3d at p. 428.) As noted, however, the majority's analysis depends heavily on the Legislature's efforts in behalf of gays and lesbians as explicit official recognition (id., at pp. 735, 736, 183 P.3d at pp. 428, 429) of California's policies on this subject, and as consequent justification for concluding, despite an express contrary statute, that our Constitution grants gays and lesbians a right to marry. It is true, as the majority suggests, that initiative statutes are not immune from constitutional scrutiny, for the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation. (Maj. opn., ante, at p. 761, 183 P.3d at p. 450, quoting Citizens Against Rent Control v. Berkeley (1981) 454 U.S. 290, 295, 102 S.Ct. 434, 70 L.Ed.2d 492.) I do not suggest otherwise. I say only that the majority has made three serious mistakes en route to its conclusion that the initiative statute at issue here, Family Code section 308.5, violates the due process clause of the California Constitution. First, the majority finds such a violation largely on the basis of its assessment of prevailing contemporary values in this state, though section 308.5 itself makes clear that our citizens have not yet embraced the concept of same-sex marriage. Second, as evidence that prevailing community attitudes support full marital rights for same-sex couples, the majority cites the Legislature's efforts to accord various rights and benefits to gays and lesbians, including the right to enter same-sex unions that are substantively equivalent to marriage. But this effectively means the Legislature has, by indirection, undermined section 308.5, though the Constitution expressly denies that body express power to do so. (Cal. Const., art. II, 10, subd. (c).) Third, and most fundamentally, the majority has eschewed the judicial restraint and caution that should always apply, under separation of powers principles, before clear expressions of popular will on fundamental issues are overturned. The majority can draw no comfort from Lawrence v. Texas (2003) 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (Lawrence ), which struck down a state law prohibiting same-sex sodomy. (Overruling Bowers v. Hardwick (1986) 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140.) The five-member Lawrence majority, asserting privacy and personal autonomy interests under the due process clause, emphasized that the law, as applied to consenting adults, constituted an intrusion into the most intimate form of human behavior, sexual conduct, in the most private of places, the home. Even if the personal relationships in which such consensual private conduct occurred were not entitled to formal recognition in the law, the majority concluded, the government could not prohibit the conduct itself. (Lawrence, at p. 567, 123 S.Ct. 2472.) In response to concerns expressed in dissent by Justice Scalia, the majority made clear that the case [did] not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. (Id., at p. 578, 123 S.Ct. 2472.) Justice O'Connor, concurring in the judgment, found the antisodomy law invalid on equal protection grounds, seeing no rational basis for the statute's limitation to homosexual conduct. This did not mean, she made clear, that all distinctions between gay and heterosexual persons would similarly fail. In the case at hand, she noted, Texas cannot assert any legitimate state interest [in such a classification], such as ... preserving the traditional institution of marriage. (Id., at p. 585, 123 S.Ct. 2472 (conc. opn. of O'Connor, J.).) In Lawrence, supra, 539 U.S. 558, 123 S.Ct. 2472, the majority held that Texas's law prohibiting homosexual sodomy violated the due-process-derived fundamental right of all consenting adults to engage in intimate activity, including sexual conduct, in private. (Id. at pp. 564579, 123 S.Ct. 2472.) Concurring in the judgment, Justice O'Connor found, for equal protection purposes, that insofar as the law drew a distinction based simply on dislike and moral disapproval of homosexuals, it served no legitimate state interest. (Id., at pp. 581585, 123 S.Ct. 2472 (conc. opn. of O'Connor, J.).) As noted above, both the majority and Justice O'Connor were careful to state that they were not calling into question laws denying formal legal recognition to gay and lesbian relationships. In
10
11
In re Marriage Cases, 43 Cal.4th 757 (2008) 183 P.3d 384, 76 Cal.Rptr.3d 683, 08 Cal. Daily Op. Serv. 5820... Romer, supra, 517 U.S. 620, 116 S.Ct. 1620, the majority found that a Colorado constitutional amendment which prohibited all state and local agencies from enacting or enforcing laws whereby homosexuality or bisexuality could be the basis for claims of minority or protected status, or of discrimination, was obviously motivated by antigay animus, an illegitimate state purpose, and thus could not survive rational basis review. The Romer majority specifically noted (id., at p. 625, 116 S.Ct. 1620), but did not adopt, the Colorado Supreme Court's theory that the amendment was subject to strict scrutiny because it invaded fundamental political rights. Numerous other decisions have held that sexual orientation is not a suspect or quasi-suspect classification. (E.g., Lofton v. Secretary of Dept. of Children & Family (11th Cir.2004) 358 F.3d 804, 818; Equality Foundation v. City of Cincinnati (6th Cir.1997) 128 F.3d 289, 292293; Holmes v. California Army National Guard (9th Cir.1997) 124 F.3d 1126, 1132; Richenberg v. Perry (8th Cir.1996) 97 F.3d 256, 260; High Tech Gays v. Defense Ind. Sec. Clearance Off. (9th Cir.1990) 895 F.2d 563, 573574 (High Tech Gays ); Woodward v. U.S. (Fed.Cir.1989) 871 F.2d 1068, 1076; Rich v. Secretary of the Army (10th Cir.1984) 735 F.2d 1220, 1229; Wilson, supra, 354 F.Supp.2d 1298, 13071308 [DOMA and Florida marriage statutes]; Selland v. Perry (D.Md.1995) 905 F.Supp. 260, 265266, aff'd (4th Cir.1996) 100 F.3d 950, 1996 WL 647265; see Thomasson v. Perry (4th Cir.1996) 80 F.3d 915, 928; BenShalom v. Marsh (7th Cir.1989) 881 F.2d 454, 464.) Like Justice Baxter, I agree with the majority on the following subsidiary issues: (1) Family Code section 308.5 applies to both instate and out-of-state marriages; (2) the marriage statutes do not discriminate on the basis of gender; and (3) the Court of Appeal properly dismissed as moot the actions in Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco (Super. Ct. S.F. City & County, No. CPF04503943) and Campaign for California Families v. Newsom (Super. Ct. S.F. City & County, No. CGC04428794). I confine my discussion to the central disputed issue before the court. The majority recognizes that these statutes were not enacted with an invidious purpose. (Maj. opn., ante, 76 Cal.Rptr.3d at p. 764, fn. 73, 183 P.3d at p. 452, fn. 73.) Thus, this is not a case like Mulkey v. Reitman (1966) 64 Cal.2d 529, 50 Cal.Rptr. 881, 413 P.2d 825, where this court declared an initiative measure unconstitutional because it was enacted with the clear intent to overturn state laws prohibiting racial discrimination. (Id. at p. 534, 50 Cal.Rptr. 881, 413 P.2d 825.) The majority correctly observes that if plaintiffs are not similarly situated to married couples for the purpose of the laws they challenge, those laws are insulated from equal protection review. (Maj. opn., ante, at pp. 743744, fn. 54, 183 P.3d at p. 435, fn. 54.) That is the purpose of the well-settled requirement that plaintiffs making an equal protection claim first show that they are similarly situated. (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253, 127 Cal.Rptr.2d 177, 57 P.3d 654.) It is particularly appropriate for us to refrain from employing equal protection doctrine to thwart the will of the voters in this case. Whether the institution of marriage should be expanded to include same-sex couples is a question properly reserved for the political process. The majority details the latest legislative and gubernatorial moves, which occurred in 2005 and 2007. (Maj. opn., ante, at pp. 796 797, fn. 17, 76 Cal.Rptr.3d at p. 713, fn. 17, 183 P.3d at p. 410, fn. 17.)
12
End of Document
Page 1 Slip Copy, 2013 WL 6096784 (M.D.Tenn.) (Cite as: 2013 WL 6096784 (M.D.Tenn.)) Only the Westlaw citation is currently available. United States District Court, M.D. Tennessee, Nashville Division. Daryl A. HIGHT, Plaintiff, v. Dustin COX, Individually, Allyson S. Abbott, Adag, Individually, David Bragg, Circuit Judge, Individually, Defendants. No. 3:13CV00367. Nov. 20, 2013. Shawn P. Sirgo, Sirgo & Associates, PC, Nashville, TN, for Plaintiff. Edward Evan Cope, Thomas Stephen Santel, Jr., Cope, Hudson, Reed & McCreary, PLLC, Murfreesboro, TN, for Defendants. MEMORANDUM ALETA A. TRAUGER, District Judge. *1 Pending before the court are several motions that collectively request dismissal of plaintiff Daryl Hight's claims. Defendant Tennessee Circuit Court Judge David Bragg (Judge Bragg) has filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) (Docket No. 11), defendant Tennessee Assistant District Attorney General Allyson S. Abbott (ADAG Abbott) has filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) (Docket No. 13), and defendant Rutherford County Sheriff Department Officer Dustin Cox (Officer Cox) has filed a Motion for Judgment on the Pleadings under Fed.R.Civ.P. 12(c) ( Docket No. 18). Hight filed a combined Response in opposition to the defendants' motions (Docket No. 26), to which Judge Bragg and ADAG Abbott filed a combined Reply (Docket No. 31), and Officer Cox filed a separate Reply (Docket No. 32). Officer Cox has also filed a Motion for Judicial Notice (Docket No. 21), to which Hight did not file a response. For the reasons stated herein, the defendants' motions will be granted, Hight's claim for malicious prosecution against Officer Cox will be dismissed without prejudice, Hight's remaining claims will be dismissed with prejudice, and the court will grant Hight leave to amend his malicious prosecution claim against Officer Cox. BACKGROUND I. Factual BackgroundFN1 FN1. The facts are drawn from (1) the plaintiff's Complaint and (2) records related to underlying (and now-concluded) criminal proceedings against Hight in State of Tennessee v. Daryl Hight, Rutherford County Circuit Court No. F66667 (Criminal Case). As explained herein, the conduct of Officer Cox, ADAG Abbott, and Judge Bragg with respect to the Criminal Case forms the alleged factual basis for Hight's claims, placing the state court proceedings squarely at issue here. Hight has not formally opposed Cox's Motion for Judicial Notice, which asks the court to take judicial notice of the state court proceedings. Regardless, the state court records introduced by the defendants satisfy Fed.R.Evid. 201(b) and are the types of records of which courts routinely take judicial notice. See, e.g., Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir.1980). Furthermore, courts taking judicial notice of state court records may consider those records in ruling on a Rule 12 motion without converting that motion into a motion for summary judgment. See Scarso v. Cuyahoga Cnty. Dep't of Human Serv., 1990 WL 169645, at *2 (6th Cir.1990) ( In determining the legal efficacy of plaintiff's complaint, the lower court properly took judicial notice of facts in the public record, specifically the records of state court proceedings.);
Page 2 Slip Copy, 2013 WL 6096784 (M.D.Tenn.) (Cite as: 2013 WL 6096784 (M.D.Tenn.)) Plassman v. City of Wauseon, 85 F.3d 629 (Table), 1996 WL 254662, at *4 (6th Cir.1996) (holding that trial court erred when, based on references to relevant state court proceedings. it converted Rule 12 motion into a Rule 56 motion). This case has its genesis in a January 28, 2011 incident involving Hight's son, Brandon Hight (Brandon), who, at the time, was a student at Smyrna High School in Smyrna, Tennessee. During that time frame, Officer Cox of the Rutherford County Sheriff's Office was serving as a Student Resource Officer at the school. On January 28, 2011, Officer Cox, purportedly acting on a belief that Brandon was in possession of a firearm on school grounds, removed Brandon from class, patted him down, searched his locker, and ransacked Brandon's car while ostensibly searching it for firearms. Inside the car, Officer Cox found a small First Aid kit, which contained a folding knife. After discovering the knife, Officer Cox demanded to speak with Brandon's father (Hight) and left Hight a voicemail. When Hight returned the call, Officer Cox and Hight had a verbal altercation, in which Hight accused Officer Cox of harassing his son. After the call, Officer Cox told Brandon he was expelled and escorted him off the school premises. Believing that Officer Cox had acted inappropriately with respect to Brandon and/or outside of his authority by calling Hight directly, Hight filed written grievances against Officer Cox with the Rutherford County Board of Education. As best the court can discern from the Complaint, Hight filed these grievances within 2 days of the underlying incident.FN2 On January 31, 2011after Hight had filed the grievances against Officer CoxOfficer Cox signed a sworn Affidavit of Complaint against Hight and obtained a warrant for Hight's arrest for the offense of Retaliation of Past Action under Tenn.Code Ann. 3916510.FN3 In the affidavit, Officer Cox averred that, during their initial telephone discussion, Mr. Hight became irate and belligerent. (Docket No. 21, Ex. 1, Affidavit of Complaint.) Officer Cox also averred that, [d]uring the course of approximately four phone calls to affiant, Mr. Hight threatened to kill affiant two times and that Mr. Hight also threatened to come to SHS [Smyrna High School, presumably] and cause bodily harm to affiant. (Id.) Hight alleges that Officer Cox swore out the warrant in retaliation for Hight having filed grievances against Officer Cox.FN4 Hight also alleges that there was no probable cause for his arrest and subsequent prosecution. However, as discussed in the court's analysis herein, the Complaint at no point alleges that the averments in Officer Cox's Affidavit of Complaint were actually false, let alone identifies any particular falsehoods or material omissions of fact. FN2. The Complaint is not a model of clarity. At times, it references the names of individuals without explaining what positions those individuals held and how their roles related to the underlying events, (see, e.g., Compl. 1216 (referencing, without explanation, a Mr. Harris, a Mr. Gill, and a Ms. Sutherland)), contains malapropisms that require some degree of inference to decipher (see, e.g., 3 (stating, with respect to information provided to Cox about Brandon's alleged firearm: This information was merely rumors, had no basis for truth [sic] and no probable cause or reasonable suspension [sic] existed.[ ])), and fails to provide relevant dates for key events, such as the date on which Hight complained about Officer Cox, as well as the dates of Hight's arrest, probable cause hearing, indictment, and the like. Particularly in light of necessary context gleaned from the Criminal Case record, the court has endeavored to provide a coherent chronology of the relevant events. FN3. The statute reads as follows: A person commits the offense of retaliation for past action who harms or
Page 3 Slip Copy, 2013 WL 6096784 (M.D.Tenn.) (Cite as: 2013 WL 6096784 (M.D.Tenn.)) threatens to harm a witness at an official proceeding, judge, district attorney general ... or a law enforcement officer, clerk, juror, or former juror, ... by any unlawful act in retaliation for anything the witness, judge, ... or a law enforcement officer, clerk, or juror did in an official capacity as witness, judge, or a law enforcement officer, clerk, or juror. Tenn.Code. Ann. 3616510(a)(1) (current 2013). Violating the statute is a felony. Id. 3616510(b). This broadly worded statute seeks to prohibit threats of violence against specific individuals involved in the judicial process. State v. Lanier, 81 S.W.3d 776, 781 (Tenn.Crim.App.2000). The Tennessee Court of Appeals has found that threats of violence are criminalized under the statute, that criminalizing such threats does not violate federal or Tennessee free speech rights, and that threats of violence can support a conviction regardless of whether the threats are likely to produce unlawful activity. Id. FN4. Officer Cox's affidavit also referenced that he has had recent prior contact with Mr. Hight regarding a reported separate situation regarding Mr. Hight's son. However, the record before this court does not explain what recent prior contact Officer Cox was referencing. *2 On February 7, 2011, Hight was arrested. Hight alleges that, while in custody, a law enforcement officerwho was a friend of Coxpunched Hight in the testicles. The Complaint does not allege Officer Cox was present for, participated in, or otherwise participated in this alleged incident. The criminal case against Hight was filed in the Rutherford County General Sessions Court. (See Docket No. 21, Ex. 2.) Hight was scheduled to appear before the Rutherford County General Sessions Court on May 9, 2011 but received a continuance to June 13, 2011. A preliminary hearing was held on June 13, 2011, at which probable cause apparently was found to exist for Hight's arrest. As a consequence, on that date, Hight was bound over to the grand jury in the case of State of Tennessee v. Daryl Hight, Case No. F66667.FN5 On August 3, 2011, the grand jury returned an indictment, charging that Hight did unlawfully and knowingly threaten or harm a witness at an official proceeding, a law enforcement officer, to-wit: DUSTIN COX, RCSO, by any unlawful act in retaliation for anything the law enforcement officer [ ] did in an official capacity as a law enforcement officer, in violation of T .C.A. 3916510. (Docket No. 13, Ex. 1.) FN5. Hight's Complaint does not address the preliminary hearing, nor do the records introduced by the defendants shed any light on those proceedings beyond the fact that probable cause presumably was found. Be that as it may, the court notes that, at least by the end of the proceedings in Circuit Court, Hight's counsel in this lawsuit apparently also served as Hight's counsel in the Criminal Case. Circuit Court Judge Bragg presided over the criminal proceedings against Hight in State of Tennessee v. Hight, in which Hight was represented by counsel. ADAG Abbott served as the State of Tennessee's prosecutor. Hight alleges in conclusory terms that ADAG acted in such an intentional and outrageous manner as to deny the Plaintiff his constitutionally protected rights to due process of law. (Compl. 25.) Hight alleges that ADAG Abbott (1) took affirmative action to deny [Hight] access to exculpatory evidence, (2) filed a motion to amend the statute that his charges were based upon, (3) prosecuted Hight despite the lack of any evidence supporting the charges; and (4) unduly and maliciously pressed [Hight] into agreeing to not pursue civil litigation against any of the participat-
Page 4 Slip Copy, 2013 WL 6096784 (M.D.Tenn.) (Cite as: 2013 WL 6096784 (M.D.Tenn.)) ing governmental entities in order for the District Attorney to agree to dismiss his criminal charges, which Hight alleges [t]he District Attorney acknowledged was not within the scope and authority of [ADAG Abbott's] duties. During the proceedings, Judge Bragg ruled on a number of motions, including a motion by the State of Tennessee seeking to amend the indictment against Hight to remove extraneous language therefrom. (Docket No. 13, Ex. 2.) In an order addressing several motions filed by the state and by Hight, Judge Bragg granted the state's motion to amend the indictment. (Docket No. 13, Ex. 3.) Hight alleges that Judge Bragg knowingly violated Hight's rights by ordering the statute amended. FN6 (Compl. 6.) Hight also alleges that Judge Bragg knowingly violated [Hight's] constitutional rights by allowing SRO Cox's personal [sic] file to be tampered with prior to it being submitted to the court, refusing to address the fact that all disciplinary actions in SRO Cox's file had be [sic] removed, sealed the file and threatened the Plaintiff's counsel with sanctions if he continued to seek access to sealed records. (Id. 29.) FN6. In that motion, the state asked the court to strike from the August 3, 2011 indictment the clause: or harm a witness at an official proceeding. Although it is of limited relevance to the court's analysis of the pending motions here, the court notes that Hight believes (for reasons not specified here) that removing this language from the indictment violated his constitutional due process rights. *3 On April 24, 2012, all criminal charges against Hight were dismissed with the consent of both Hight and the state. In the Order of Dismissal, the court ordered that [t]his dismissal constitutes full and final settlement of all matters related to this cause and the incidents leading up to and following the same, both criminally and civilly. (Docket No. 21, Ex. 3 (emphasis added).) On behalf of Hight, the Order of Dismissal was approved for entry by S. Sirgo, whom the court presumes is the same counsel now representing Hight in this lawsuit. II. Hight's Complaint On April 19, 2013, Hight filed this lawsuit. Hight appears to assert the following claims under 42 U.S.C. 1983 and/or State Law (presumably Tennessee law): (1) Claims against Officer Cox for unlawful arrest, malicious prosecution, and malicious abuse of process under both 1983 and Tennessee law, abuse of authority under Tenn.Code Ann. 3916402 and 18 U.S.C. 242, and intentional infliction of emotional distress under Tennessee law. (2) Claims against both ADAG Abbott and Judge Bragg for malicious prosecution under 42 U.S.C. 1983 and Tennessee law, abuse of authority under Tenn.Code Ann. 3916402 and 18 U.S.C. 242, claims under Tennessee law for conspiracy and intentional infliction of emotional distress, and a separate claim under Tennessee law against ADAG Abbott for tortious interference with business relationships. Hight has sued all three defendants in their individual capacities only. He demands compensatory and punitive damages. III. The Defendants' Motions Judge Bragg and ADAG Abbott have filed Motions to Dismiss under Rule 12(b)(6), arguing that, inter alia, they are shielded from liability under the doctrines of absolute judicial and prosecutorial immunity, respectively. Officer Cox has filed a Motion for Judgment on the Pleadings under Rule 12(c), arguing that Hight's claims against him should be dismissed on multiple grounds. RULE 12(B) (6) AND RULE 12(c) STANDARDS A motion for judgment on the pleadings under Rule 12(c) is governed by the same standards that govern a motion to dismiss for failure to state a claim under Rule 12(b)(6). See Reilly v. Vadlamudi,
Page 5 Slip Copy, 2013 WL 6096784 (M.D.Tenn.) (Cite as: 2013 WL 6096784 (M.D.Tenn.)) 680 F.3d 617, 62223 (6th Cir.2012). In deciding a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), the court will construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff. Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.2002). The Federal Rules of Civil Procedure require that a plaintiff provide a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (quoting Fed.R.Civ.P. 8(a)(2)). The court must determine whether the claimant is entitled to offer evidence to support the claims, not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). *4 The complaint's allegations, however, must be enough to raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To establish the facial plausibility as required to unlock the doors of discovery, the plaintiff cannot rely on legal conclusions or [threadbare] recitals of the elements of a cause of action, but, instead, the plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 194950, 173 L.Ed.2d 868 (2009). ANALYSIS I. Claims Against Judge Bragg and ADAG Abbott A. Claims Against ADAG Abbott As a general matter, prosecutors are immune from suit under 1983 for monetary damages when they act in their official, prosecutorial capacities. See Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (holding that prosecutorial immunity encompasses immunity from 1983 claims). In Imbler, the Supreme Court established the absolute immunity of a prosecutor from a civil suit for damages under 1983 in initiating a prosecution and in presenting the state's case. Id. The Court has subsequently confirmed that a prosecutor acting in her prosecutorial role as advocate for the State is entitled to absolute immunity. Burns v. Reed, 500 U.S. 478, 48792, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (extending Imbler to accord absolute immunity to a prosecutor for participation in a probable cause hearing that led to the issuance of a search warrant, because he was acting in his prosecutorial role); see also Manetta v. Macomb Cnty. Enforcement Team, 141 F.3d 270, 279 (6th Cir.1998); Ireland v. Tunis, 113 F.3d 1435, 1445 (6th Cir.1997) (Investigative acts undertaken in direct preparation of judicial proceedings, including the professional evaluation of evidence, warrant absolute immunity[.]), cert. denied, 522 U.S. 996, 118 S.Ct. 560, 139 L.Ed.2d 401 (1997). The immunity accorded to prosecutors extends to all decisions to prosecute, except those deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (citations omitted). Here, Hight's individual capacity claims against ADAG Abbott relate to her role as a prosecutor in the criminal proceedings against Hight, including allegedly denying Hight access to exculpatory evidence, continuing to pursue the criminal charges despite a lack of supporting evidence, pressuring Hight to release his potential civil claims in return for the state's agreement to dismiss the criminal charges, and moving to amend the indictment in a manner that Hight believes was unconstitutional. Even assuming these allegations to be true, they all relate to ADAG Abbott's role as an advocate for the State of Tennessee in the criminal case against Hight. Therefore, regardless of the veracity of Hight's al-
Page 6 Slip Copy, 2013 WL 6096784 (M.D.Tenn.) (Cite as: 2013 WL 6096784 (M.D.Tenn.)) legations, ADAG Abbott is absolutely immune from Hight's individual capacity claims against her. B. Claims Against Judge Bragg *5 [J]udges are entitled to absolute judicial immunity from suits for money damages for all actions taken in the judge's judicial capacity, unless these actions are taken in the complete absence of any jurisdiction. Bush v. Rauch, 38 F.3d 842, 847 (6th Cir.1994) (internal quotations marks and citations omitted); Pierson v. Ray, 386 U.S. 547, 55354, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). [J]udicial immunity is immunity from suit, not just from ultimate assessment of damages. Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial. Mireles v. Waco, 502 U.S. 9, 10, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). The scope of the judge's jurisdiction must be construed broadly where the issue is immunity of the judge. A judge will not be deprived of jurisdiction because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of jurisdiction. Stump v. Sparkman, 435 U.S. 349, 35667, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Tennessee has adopted a similar doctrine of judicial immunity. The rule is that a civil action for damages will not lie against a judge of a court of general jurisdiction for his judicial acts if such acts were committed within the jurisdiction of his court. Heath v. Corneliues, 511 S.W.2d 683, 684 (Tenn.1974). If done within his jurisdiction neither the correctness of nor motive behind the acts affects the immunity. Id.; see also Harris v. Witt, 552 S.W.2d 85, 85 (Tenn.1977) (It is generally recognized that a judge is immune from civil liability for bona fide acts done in the exercise of his judicial function while acting within the limits of his jurisdiction.) Judge Bragg is a Circuit Court Judge for the Sixteenth Judicial District in Rutherford County, Tennessee. See Tenn.Code Ann. 16 2 50616) (A)(i) (authorizing and delineating the jurisdiction of the Sixteenth Judicial District). The Circuit Court is a court of general jurisdiction, Tenn.Code Ann. 1610101, and has exclusive original jurisdiction over all crimes and misdemeanors, unless otherwise provided. Tenn.Code Ann. 1610102. The statute under which Hight was charged, Tenn.Code Ann. 3916510, does not strip the Circuit Courts of their presumptive jurisdiction over the crime of retaliation for past action stated therein. Therefore, Judge Bragg appropriately exercised jurisdiction over the state's criminal case against Hight. All of the alleged acts by Judge Bragg of which Hight complains, including making decisions on motions and the like, were made in Judge Bragg's official capacity as a judge. Therefore, even accepting Hight's allegations as true, Judge Bragg is entitled to absolute judicial immunity from Hight's individual capacity claims. FN7 FN7. Furthermore, the allegations against Judge Bragg are conclusory and unsubstantiated. Thus, even if Judge Bragg were not entitled to absolute judicial immunity, Hight has not coherently alleged any improper conduct by Judge Bragg with respect to State of Tennessee v. Hight. II. Claims Against Officer Cox A. Excessive Force Hight alleges a Fourth Amendment excessive force claim against Officer Cox. Hight has failed to respond to Cox's argument that this claim should be dismissed, which alone provides grounds for dismissal. Regardless, Hight's Complaint does not reference any conduct by Cox involving a use of force on Hight, constitutional or otherwise. Although Hight alleges that Cox's law enforcement officer friend struck Hight while Hight was in custody, Hight does not allege that Officer Cox struck him or that Cox was even aware of the incident. Thus, Hight has not provided any viable basis under
Page 7 Slip Copy, 2013 WL 6096784 (M.D.Tenn.) (Cite as: 2013 WL 6096784 (M.D.Tenn.)) which Officer Cox could be held liable for that other officer's conduct. Therefore, Hight's 1983 excessive force claim will be dismissed. Hight's companion state law claim will also be dismissed for the same reasons. See Partin v. Scott, 2008 WL 4922412, at *10 (Tenn.Ct.App. Nov.13, 2008).FN8 FN8. Even if Hight had articulated otherwise viable excessive force claims against Cox, Hight's claims would be time-barred. As explained herein, Hight's 1983 and state law excessive force claims are governed by Tennessee's one-year statute of limitations. Claims related to Hight's arrest would have accrued on or about the date of his arrestFebruary 7, 2011and, therefore, would have expired over a year before this lawsuit was filed. B. Abuse of Authority Claims *6 Hight purports to assert claims for abuse of authority under 18 U.S.C. 242 and Tenn.Code Ann. 3916402 against Officer Cox. However, 18 U.S.C. 242 is a criminal statute that does not provide a civil cause of action or a civil remedy for damages. See Timmon v. Wood, 316 F. App'x 364, 365 (6th Cir.2007); In re Northeast Ohio Corr. Ctr., 211 F.3d 1269 (table), 2000 WL 553917, at *2 (6th Cir.2000); Watson v. Devlin, 167 F.Supp. 638, 640 (E.D.Mich.1958); Salaam El v. City of Dearborn, 2010 WL 582773, at *8 (E.D.Mich.2010). Similarly, Tenn.Code 3916402, which criminalizes official misconduct, can only be brought by indictment, presentment, or criminal information, not by a civil cause of action. See Kidd v. Neff, 2012 WL 4442526, at *5 (E.D.Tenn.2012) (quoting Tenn.Code Ann 3916402(f)). Therefore, the abuse of authority claims under both federal and state law will be dismissed with prejudice.
FN9
C. Unlawful Arrest Hight alleges that his February 7, 2011 arrest was unlawful. To make out a claim for unlawful arrest under 1983, a plaintiff must show that the arresting officer lacked probable cause to arrest him. Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir.2010). Officer Cox argues that, inter alia, the unlawful arrest claim is barred by the statute of limitations. The statute of limitations applicable to a 1983 action is the state statute of limitations applicable to personal injury actions under the law of the state in which the 1983 claim arises. Eidson v. State of Tenn. Dep't of Children's Servs., 510 F.3d 631, 635 (6th Cir.2007); Fox v. Desoto, 489 F.3d 227, 23233 (6th Cir.2007). The parties agree that a one-year limitations period, borrowed from Tennessee law, Tenn Code Ann. 283104(a) (3), applies in this case. See Eidson, 510 F.3d at 634. Although the Tennessee statute of limitations applies, the date on which that one-year statute of limitations begins to run in a 1983 action is a question of federal law. Id. at 635. Ordinarily, the limitation period starts to run when the plaintiff knows or has reason to know of the injury which is the basis of his action. Id. In determining when the cause of action accrues in a 1983 action, the court must look to what event should have alerted the typical lay person to protect his or her rights. Id. (quoting Kuhnle Bros., Inc. v. Cnty. of Geauga, 103 F.3d 516, 520 (6th Cir.1997)). [A] claim for wrongful arrest under 1983 accrues at the time of the arrest or, at the latest, when detention without legal process ends. Fox, 489 F.3d at 233 (citing Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 109596, 166 L.Ed.2d 973 (2007)). Hight was arrested on February 7, 2011, was presumably released shortly thereafter, and was bound over to the grand jury on June 13, 2011. Even assuming arguendo that the latest of these dates applies here, Hight's claims are untimelyabsent tolling or delay in accrualbecause he did not file this lawsuit until April 19, 2013, a date well outside
FN9. The court notes that Hight did not meaningfully respond to Cox's argument concerning 18 U.S.C. 242, and Hight did not respond at all to Cox's argument concerning Tenn.Code. 3916402.
Page 8 Slip Copy, 2013 WL 6096784 (M.D.Tenn.) (Cite as: 2013 WL 6096784 (M.D.Tenn.)) the one-year statute of limitations. See Fox, 489 F.3d at 233. *7 Here, relying on outdated Sixth Circuit precedent in Shamaeizadeh v. Cunigan, 182 F.3d 391 (6th Cir.1999), Hight argues that the court should hold that, pursuant to Heck v. Humphrey, 512 U.S. 477, 48487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), accrual of his claim was deferred until April 24, 2012, the date on which the criminal proceedings against him were dismissed. In Heck, the Supreme Court articulated a deferred accrual doctrine for malicious prosecution claims, which the Sixth Circuit in Shamaeizadeh initially extended to the pre-conviction context. Shamaeizadeh, 82 F.3d at 398. However, in Wallace, the Supreme Court found that the Heck deferred accrual rule did not apply to false arrest claims. 549 U.S. at 393. Accordingly, in Fox, the Sixth Circuit found that Wallace had abrogated its holding in Shamaeizadeh with respect to the pre-conviction application of the Heck deferred accrual rule. Fox, 489 F.3d at 234. Thus, in Fox, the Sixth Circuit held that [t]he statute of limitations for a claim for false arrest ..., where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process. 489 F.3d at 235 (quoting Wallace, 127 S.Ct. at 1098). Applying Wallace and Fox here, Hight is not entitled to deferred accrual of his false arrest claim. See Powers v. Wallen, 2013 WL 1327135, at *3 (E.D.Tenn. Mar.29, 2013) (dismissing false arrest claim, where plaintiff did not file suit until almost two years after his arrest); Catchings v. Frye, 2013 WL 441600, at *3 (W.D.Tenn. Feb.1, 2013) (The Sixth Circuit has held that a Fourth Amendment claim based on an allegedly unlawful arrest accrues at the time of arrest.) (citing Fox, 489 F.3d at 233, 235); see also Freeman v. Gay, 2012 WL 2061557, at *20 (M.D.Tenn. June 8, 2012) (Report and Recommendation of Magistrate Judge) (Accrual of [false imprisonment and false arrest] claims does not depend upon the termination of criminal charges in favor of a plaintiff but begins at the time when a plaintiff becomes detained pursuant to the legal process.) (citing Wallace, 549 U.S. at 397). Hight appears to argue that abstention principles under Younger v. Harris, 401 U.S. 37 (1971), should save his otherwise untimely claims. Under the Younger abstention doctrine, a federal court must, absent extraordinary circumstances, abstain from hearing a federal civil rights lawsuit where adjudicating that civil case would interfere with ongoing state judicial proceedings. See O'Neill v. Coughlan, 511 F.3d 638, 641 (6th Cir.2008). The Younger abstention doctrine only applies when (1) a state proceeding is currently pending; (2) the state case involves an important state interest; and (3) the state proceeding affords the plaintiff an adequate opportunity to raise constitutional claims. See Coles v. Granville, 448 F.3d 853 (6th Cir.2006); Nimer v. Litchfield Twp. Bd. of Trustees, 707 F.3d 699, 700 (6th Cir.2013). When a federal court dismisses an otherwise timely lawsuit based on Younger abstention principles, the federal court in its discretion may later find that, following the conclusion of the underlying state court proceedings (i.e., when abstention is no longer necessary), the federal claims are entitled to tolling for purposes of the statute of limitations. See Eidson, 510 F.3d at 641 (The Wallace court was content to entrust the matter of tolling to abstaining district courts in the exercise of their discretion on a case-by-case basis.) The Sixth Circuit has made clear that a prerequisite to obtaining any such tolling relief, of course, is the timely filing of the 1983 action that will prompt abstention during the pendency of related state court proceedings. 510 F.3d at 641 (emphasis added). *8 Here, when Hight filed this lawsuit, the state court proceeding had been concluded for over a year.FN10 Therefore, the first abstention factor is not met, and the Younger abstention doctrine does not apply. Under Eidson, this court does not have discretion to toll Hight's otherwise untimely 1983 claims, where Hight never filed a timely claim in the first place. Because Hight never filed a timely
Page 9 Slip Copy, 2013 WL 6096784 (M.D.Tenn.) (Cite as: 2013 WL 6096784 (M.D.Tenn.)) 1983 unlawful arrest claim in the first place, he forfeited any hope of [tolling] relief. Id. FN10. The record does not indicate that Hight filed an appeal related to the Criminal Case. Finally, Hight argues that his claims were timely under the continuing violation doctrine. Under the continuing violation doctrine, a court may toll limitations periods for alleged discriminatory conduct that is continuing in nature. See Nat'l R.R. Passenger Corp. V. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The doctrine applies when (1) the defendant's wrongful conduct continued after the precipitating event that began the pattern; (2) injury to the plaintiff continued to accrue after that event; and (3) further injury to the plaintiff must have been avoidable if the defendants had at any time ceased their wrongful conduct. Eidson, 510 F.3d at 635 (citing Tolbert v. State of Ohio Dep't of Transp., 172 F.3d 934, 940 (6th Cir.1999)). Mere inaction is insufficient to satisfy the doctrine. Eidson, 510 F.3d at 637 (finding that doctrine was not met, where plaintiff alleged that state continued to fail to conduct the sort of thorough investigation that would have exonerated him). Federal courts are generally reluctant to apply the continuing violations doctrine to 1983 actions, which generally involve discrete and identifiable injuries, including injuries stemming from a false arrest. See Sharpe v. Cureton, 319 F.3d 959 (6th Cir.2003) (This Circuit employs the continuing violations doctrine most commonly in Title VII cases, and rarely extends it to 1983 actions.); McCune v. City of Grand Rapids, 842 F.2d 903, 906 (6th Cir.1988) (refusing to consider false arrest claim as a continuing violation); Mann v. Compton, 2007 WL 854725, at *2 (E.D.Ky. Mar.16, 2007) (holding that continuing violation doctrine did not apply to toll false arrest claim, where plaintiff remained incarcerated following arrest); see also McCormick v. Farrar, 147 F. App'x 716, 72122 (10th Cir.2005); Petaccio v. Davis, 76 F. App'x 442, 44445 (3d Cir.2003). Here, the continuing violation doctrine does not apply, because Hight's injury from the allegedly false arrest was completeand he was aware of the injuryas of the date of his false arrest, and certainly no later than June 13, 2013, when his case was bound over to the grand jury. Therefore, the continuing violation doctrine does not apply to save Hight's otherwise untimely claims. FN11 FN11. Furthermore, even if the continuing violation doctrine could apply in this context, Hight has not identified any involvement by Officer Cox in the proceedings against Hight subsequent to Cox's swearing out the Affidavit of Complaint on January 31, 2011. Thus, there is no allegation that Cox engaged in any type of affirmative conduct relative to Hight's arrest and prosecution after January 31, 2011. That is, Hight has not even alleged conduct that could be construed as part of a continuing violation. See Tolbert, 172 F.3d at 940 (Passive inaction does not support a continuing violation theory). As to the state law claim for false arrest, that claim is referred to under Tennessee law as a claim for false imprisonment. See Bettis v. Pearson, 2007 WL 2426404, at *11 (E.D.Tenn. Aug.21, 2007) (citing Coffee v. Peterbilt of Nashville, Inc., 795 S.W.2d 656 (Tenn.1990)). To make out a claim for false imprisonment, a plaintiff must show (1) the detention or restraint of one against his will and (2) the unlawfulness of such detention or restraint. Coffee, 795 S.W.2d at 659. A claim for false imprisonment is subject to the one-year statute of limitations set forth in Tenn.Code Ann. 283104. Simmons v. Gath Baptist Church, 109 S.W.3d 370, 373 (Tenn.Ct.App.2003); Crowe v. Bradley Equip. Rentals & Sales, Inc., 2010 WL 1241550, at *6 (Tenn.Ct.App. Mar.31, 2010). As with a federal claim for false arrest, a false imprisonment claim accrues at the time of the arrest and not at the time of dismissal of the charge. Crowe, 2010 WL 1241550, at *6 (finding that false arrest
Page 10 Slip Copy, 2013 WL 6096784 (M.D.Tenn.) (Cite as: 2013 WL 6096784 (M.D.Tenn.)) and imprisonment claim was time-barred, where plaintiff filed action more than one year after the date of his arrest); Simmons, 109 S .W. at 373 (same). Hight has not identified any independent basis for deferred accrual or tolling of his otherwise untimely Tennessee law unlawful arrest claim. Therefore, the court will dismiss that claim on substantially the same grounds as the companion 1983 false arrest claim.FN12 FN12. Because the statute of limitations bars Hight's unlawful arrest claims, the court need not address Cox's additional arguments concerning qualified immunity and collateral estoppel. D. Intentional Infliction of Emotional Distress/ Outrageous Conduct *9 Tennessee recognizes a claim for the intentional infliction of emotional distress, which Tennessee courts typically refer to as a claim for outrageous conduct. See Bain v. Wells, 936 S.W.2d 618, 622 n. 3 (Tenn.1997). A claim for outrageous conduct has three elements: (1) the conduct complained of must be intentional or reckless; (2) the conduct must be so outrageous that it is not tolerated by civilized society; and (3) the conduct complained of must result in serious mental injury. Id.; see also Medlin v. Allied Inv. Co., 217 Tenn. 469, 398 S.W.2d 270, 274 (1996). To qualify as outrageous, conduct be so outrageous in character, and extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Doe I v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 39 (Tenn.2005); (quoting Medlin, 398 S.W.2d at 274). [T]he outrageousness requirement is an exacting standard which provides the primary safeguard against fraudulent and trivial claims. Id. (quoting Miller v. Willbanks, 8 S.W.3d 607, 614 (Tenn.1999)). A claim for outrageous conduct is subject to a one-year statute of limitations under Tenn.Code Ann. 283104. Leach v. Taylor, 124 S.W.3d 84 (Tenn.2004). The discovery rule is applicable to the tort of intentional infliction of emotional distress. Id. Officer Cox argues that Hight's claims are barred under the one-year statute of limitations, because, accepting the Complaint allegations as true, Hight knew or should have known of his injuries well before the dismissal of the criminal case. Hight has failed to address this argument, which alone constitutes grounds for dismissal. Furthermore, even if it were appropriate to address the merits of his allegations concerning this claim, the Complaint allegations establish that Hight knew or should have known of his injuries from any affirmative conduct by Officer Cox no later than June 13, 2011, when his case was bound over to the grand jury.FN13 Furthermore, as discussed in a previous section, Hight does not allege any affirmative conduct by Officer Cox after Cox swore out the Affidavit of Complaint in late January 2011. Therefore, Hight's outrageous conduct claims, which were not filed until April 19, 2013, are time-barred.FN14 FN13. The court need not decide whether, as a matter of law, Hight's claim may have accrued even earlier, on February 7, 2011, the date of his arrest. FN14. Because the statute of limitations bars Hight's outrageous conduct claim, the court need not address Cox's alternative argument that Hight has otherwise failed to state a claim. E. Malicious Prosecution To succeed on a federal claim for malicious prosecution, a plaintiff must show: (1) that a criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute; (2) that there was a lack of probable cause for the criminal prosecution; (3) that, as a consequence of a legal proceeding, the plaintiff suffered a deprivation of liberty; and (4) that the criminal proceeding was resolved in the plaintiff's favor. Sykes v. Anderson, 625 F.3d 294, 305, 308309 (6th Cir.2010). A Tennessee state law malicious prosecution claim relies on similar but not identical elements: requiring a
Page 11 Slip Copy, 2013 WL 6096784 (M.D.Tenn.) (Cite as: 2013 WL 6096784 (M.D.Tenn.)) plaintiff to show that the defendant, with malice, initiated legal proceedings against him without probable cause, and that those proceedings terminated in his favor. Donaldson v. Donaldson, 557 S.W.2d 60 (Tenn.1977). For purposes of his motion, Cox disputes only the lack of probable cause element, arguing that (1) Hight has failed to allege sufficient facts to articulate a malicious prosecution claim against Officer Cox, and/or (2) the state court finding of probable cause precludes Hight from relitigating the issue here under the doctrine of collateral estoppel. Cox also argues that, in the alternative, Hight's release dismissal agreement bars his claims entirely. *10 [A]n officer cannot rely on a judicial determination of probable cause if that officer knowingly makes false statements and omissions to the judge such that but for these falsities the judge would not have issued the warrant. Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir.2003) (quoting Yancey v. Carroll Cnty., 876 F.2d 1238, 1243 (6th Cir.1989)). Thus, [a] finding of probable cause in a preliminary state criminal hearing does not have preclusive effect in a subsequent civil action for malicious prosecution when there is evidence of false statements or misrepresentations by law enforcement officials during the criminal proceedings. Shipp v. United States, 212 F. App'x 393, 399 (6th Cir.2006) (applying Tennessee law); see also Darrah v. City of Oak Park, 255 F.3d 301, 311 (6th Cir.2001) (finding that, for collateral estoppel purposes, a state court's determination of probable cause at a probable cause hearing is not identical to the issue of whether an officer made materially false statements to a state judge that formed the basis of the judge's probable cause determination.); Buttino v. City of Hamtramck, 87 F. App'x 499, 504 (6th Cir.2004); Zulock v. Shures, 441 F. App'x 294, 303304 (6th Cir.2010); Day v. Ingle's Markets, Inc., 2006 WL 239290, at *6 (E.D.Tenn. Jan.25, 2006) (applying Tennessee law). Here, Hight has failed to allege sufficient facts to support a malicious prosecution claim against Officer Cox. Nowhere in Hight's Complaint does Hight squarely allege that any statement in Officer Cox's affidavit was actually false or materially misleading. Hight does allege that Officer Cox filled out the warrant in retaliation for Hight's filing grievances against Officer Cox (Compl. at p.10), that the police lacked probable cause to arrest him (Compl. at p. 9), that [t]he arrest of the Plaintiff was illegal and punitive in nature, (Compl. at p.10), and that AAG Abbott continued to prosecute Hight despite the lack of any evidence that a crime had been committed. None of these statements, even if true, alleges that the warrant itself actually contained any misrepresentations, materially misleading statements, or material omissions of fact. Furthermore, Hight has failed to allege which, if any, of these allegedly false or misleading statements the General Sessions court relied upon in making a finding of probable cause. Thus, Hight has not sufficiently alleged that, but for any false or misleading statements by Officer Cox, the General Sessions court would not have made a finding of probable cause. Therefore, Hight has failed to state a claim for malicious prosecution under federal or Tennessee law. If Hight's theory is actually that Officer Cox lied in the affidavit and that the court would not have made a probable cause finding without relying on Cox's misrepresentations, Hight has failed to allege that theory in a manner that sufficiently places Officer Cox on notice of the allegations supporting a malicious prosecution claim. Given that, unlike the other claims, Hight is not necessarily barred from asserting a malicious prosecution claim against Officer Cox, the court will grant Hight the opportunity to amend his allegations concerning that claim. If Hight chooses to file an Amended Complaint against Officer Cox within the time period allowed by the court, the defendants may assert any applicable defenses thereto, including the application of the collateral estoppel doctrine and their argument that Hight's release-dismissal agreement bars the claims. Because the court finds that Hight has failed to state a claim, the court need not
Page 12 Slip Copy, 2013 WL 6096784 (M.D.Tenn.) (Cite as: 2013 WL 6096784 (M.D.Tenn.)) reach Hight's alternative arguments concerning the collateral estoppel doctrine and the enforceability of the release-dismissal agreement.FN15 FN15. The court notes that, although the Supreme Court has found that a releasedismissal agreement can be enforceable under appropriate circumstances, see Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987), the Sixth Circuit has consistently found that a party seeking to enforce the agreement must establish by a preponderance of the evidence that (1) the agreement was voluntary; (2) there was no evidence of prosecutorial misconduct; and (3) enforcement of the agreement will not adversely affect relevant public interests. See Coughlen v. Coots, 5 F.3d 970, 974 (6th Cir.1993) (reversing and remanding for further proceedings, where district court erroneously had presumed that release-dismissal agreement was valid and enforceable); MacBoyle v. City of Parma, 383 F.3d 456, 459462 (6th Cir.2004) (affirming district grant of summary judgment to defendants, where evidence showed that relevant factors were met); Friebus v. Kifer, 47 F. App'x 699 (6th Cir.2002) (finding that district court appropriately refused to enforce release-dismissal agreement because, notwithstanding jury's finding that release was voluntary, jury issued verdict that officer had actually used excessive force in incident subject to the release). To the extent that additional evidence outside the pleadings would be required to satisfy the required burden (or to refute it), the issue could warrant discovery, factual submissions (thereby moving outside the Rule 12 context), and/or an evidentiary hearing. At the same time, the court is somewhat perplexed by Hight's position, because the same attorney (Mr. Sirgo) who signed the release-dismissal on his behalf in the Criminal Case is representing him here. This means that Mr. Sirgo, one year after signing the release-dismissal agreement on Hight's behalf, filed this lawsuit in violation of the releasedismissal agreement's terms. At any rate, because Hight has failed to state a claim for malicious prosecution in his Complaint, the court need not address those issues here. CONCLUSION *11 For the reasons stated herein, the Motion for Judicial Notice will be granted and the defendants' Motions to Dismiss will be granted. Hight's claims for malicious prosecution against Officer Cox are dismissed without prejudice, Hight's remaining claims are dismissed with prejudice, and the court will grant Hight leave to re-plead his malicious prosecution claims against Officer Cox. An appropriate order will enter. M.D.Tenn.,2013. Hight v. Cox Slip Copy, 2013 WL 6096784 (M.D.Tenn.) END OF DOCUMENT
Page 1 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) suffered unnecessarily because the CT scan was not prescribed earlier in his course of treatment. U.S.C.A. Const.Amend. 8. Andrew Simpkins, Clifton, TN, pro se. Brandon O. Gibson, James I. Pentecost, Pentecost, Glenn & Rudd, PLLC, Jackson, TN, Brent S. Usery , Spicer, Flynn & Rudstrom, Nashville, TN, for Defendants. MEMORANDUM and ORDER ALETA A. TRAUGER, District Judge. *1 Presently pending before the court is the Magistrate Judge's Report and Recommendation (R & R) entered November 20, 2008 (Docket Entry No. 55), to which the plaintiff has filed timely objections (Docket Entry No. 58). I. STANDARD OF REVIEW Under Rule 72(b), Fed.R.Civ.P., and 28 U.S.C. 636(b)(1), the court is required to make a de novo determination of the Magistrate Judge's recommendations to which objection has been made. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions. Rule 72(b)(3), Fed.R.Civ.P. II. ANALYSIS A. The Magistrate Judge's Recommendations The Magistrate Judge recommended that the defendant's motion for summary judgment (Docket Entry No. 41) be granted, that the plaintiff's claim against the sole remaining defendant, defendant CCA, be dismissed for failure to state a claim on which relief may be granted, that this action be dismissed with prejudice, that the dismissal of this action be counted as strike under 28 U.S.C. 1915(g), and that any appeal not be certified under 28 U.S.C. 1915(a)(3) as taken in good faith. The Magistrate Judge assumed for the sake of his analysis that the plaintiff's medical condition
Only the Westlaw citation is currently available. United States District Court, M.D. Tennessee, Nashville Division. Andrew SIMPKINS, Plaintiff, v. CORRECTIONS CORPORATION OF AMERICA, et al., Defendants. No. 3:070948. Dec. 9, 2008. West KeySummaryPrisons 310 192
310 Prisons 310II Prisoners and Inmates 310II(D) Health and Medical Care 310k191 Particular Conditions and Treatments 310k192 k. In General. Most Cited Cases (Formerly 310k17(2)) Sentencing and Punishment 350H 1546
350H Sentencing and Punishment 350HVII Cruel and Unusual Punishment in General 350HVII(H) Conditions of Confinement 350Hk1546 k. Medical Care and Treatment. Most Cited Cases A corrections corporation was not deliberately indifferent to a prisoner's serious medical needs, in alleged violation of the Eighth Amendment, based on the prisoner's claim that the corporation refused to prescribe a CT scan in the context of treatment for abdominal pain solely for reasons of cost. The prisoner failed to provide any evidence, not even a scintilla, that the corrections corporation had a policy of not prescribing CT scans for inmates based solely on cost considerations, that his health was affected adversely because of the alleged delay in administering the CT scan, or that he
Page 2 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) was sufficiently serious to satisfy the first half of the two-part test required to establish a claim under the Eighth Amendment for deliberate indifference. However, the Magistrate Judge ultimately concluded in his detailed and well-reasoned analysis that the plaintiff failed to satisfy the second half of that two-part test. More particularly, the Magistrate Judge concluded that: 1) the plaintiff received continuous medical care for his condition during the time frame at issue; 2) the plaintiff's treatment followed a logical progression in the manner in which it was prescribed; 3) because the CT scanthe test at issuewas negative, the plaintiff's course of treatment would not have been any different had the CT scan been prescribed earlier; 4) because a different course of treatment would not have been warranted had the CT scan been performed earlier, the plaintiff cannot show that his health was impaired, or that he suffered unnecessarily, because it was not; and 5) because the plaintiff had a CT scan previously, the plaintiff cannot show that defendant CCA has a policy of not prescribing CT scans solely for reasons of cost. On the other hand, the Magistrate Judge determined that the plaintiff provided no evidence that defendant CCA has a policy of not prescribing CT scans based solely on considerations of cost, that his health was affected adversely, or that he suffered unnecessarily, because the CT scan was not prescribed earlier in his course of treatment. In short, the Magistrate Judge determined that the defendant failed to provide any evidence that defendant CCA was deliberately indifferent to his medical circumstances. B. Plaintiff's Objections to the R & R *2 The plaintiff's burden in objecting to the R & R remains the same as it was when he responded to defendant CCA's motion for summary judgment, i.e., the plaintiff must present evidence that there is a genuine issue of material fact. However, apart from rehashing the background of the case, and repeating his allegations against defendant CCA, including some claims that were dismissed previously, the plaintiff has made no effort to address the R & R itself. More particularly, the plaintiff has provided no evidence or legal argument that the Magistrate Judge erred in his conclusion that defendant CCA was entitled to summary judgment. III. CONCLUSION After reviewing the record, including the R & R and the plaintiff's response thereto, the court is of the opinion that the Magistrate Judge's conclusions and recommendations are correct. Accordingly the R & R is ACCEPTED, and is ADOPTED as the findings of fact and conclusions of law of this court. For the reasons expressed in the R & R, and in this opinion, the plaintiff's claims against defendant CCA are DISMISSED with prejudice. Entry of this order shall constitute the final judgment in this action. It is so ORDERED. REPORT AND RECOMMENDATION JOHN S. BRYANT, United States Magistrate Judge. To: The Honorable Aleta A. Trauger, United States District Judge For the reasons explained below, the undersigned RECOMMENDS that the defendant's motion for summary judgment (Docket Entry No. 41) be GRANTED, that the plaintiff's claim against the sole remaining defendant, Corrections Corporation of America (CCA), be DISMISSED for failure to state a claim on which relief may be granted, that this action be DISMISSED with prejudice, that the dismissal of this action be counted as a STRIKE under 28 U.S.C. 1915(g),FN1 and that any appeal NOT be certified under 28 U.S.C. 1915(a)(3) as taken in good faith. FN1. Dismissal of an action counts as a strike under 1915(g) if a prisoner files a complaint that is dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may
Page 3 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) be granted .... This action was dismissed for frivolity and for failure to state a claim against all of the other defendants during the initial frivolity review. (Docket Entry No. 34) Because the plaintiff's sole remaining claim against the sole remaining defendant, CCA, is subject to dismissal for failure to state a claim, the dismissal of this action is properly counted as a strike under 1915(g). I. INTRODUCTION AND BACKGROUND The plaintiff is an inmate in the South Central Correctional Facility (SCCF) FN2 in Clifton, Tennessee. The factual background in this matter was previously set forth in the Court's October 10, 2007 memorandum. (Docket Entry No. 3, pp. 13) FN2. The parties refer to SCCF as the South Central Correctional Center (SCCC). The undersigned uses the abbreviation SCCF, which is how the Tennessee Department of Correction lists the facility. An initial frivolity review was conducted in this case on October 10, 2007 as required under 28 U.S.C. 1915A. (Docket Entry No. 34) Pursuant to that review, the complaint was dismissed as to all but one of the defendants. (Docket Entry No. 34) The sole remaining defendant, CCA, is the corporate entity that owns and operates SCCF. (Docket Entry No. 3, pp. 1415; Docket Entry No. 42, p. 1) This matter was referred to the Magistrate Judge following the initial frivolity review. (Docket Entry No. 4, pp. 12) In the order of referral, the Magistrate Judge was directed to manage the case against defendant CCA, to issue a report and recommendation (R & R) on all dispositive motions, to conduct other proceedings as necessary, and to consider whether an appeal from an R & R, if adopted by the Court, should be certified as taken in good faith as required under 28 U.S.C. 1915(a)(3) . (Docket Entry No. 4, p. 2) *3 Defendant CCA filed a motion for summary judgment on August 7, 2008. (Docket Entry No. 4142, 45) An order entered on September 30, 2008 directing the plaintiff to show cause why defendant CCA's motion for summary judgment should not be granted, and this action dismissed. (Docket Entry No. 49) The plaintiff responded to the show-cause order on October 15, 2008. (Docket Entry No. 5153) Defendant CCA's motion for summary judgment is now properly before the Court. II. ANALYSIS A. Summary Judgment Standard of Review Summary judgment is appropriate only where there is no genuine issue as to any material fact ... and the moving party is entitled to summary judgment as a matter of law. Rule 56(c), Fed.R.Civ.P., see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Newman v. Federal Express Corp., 266 F.3d 401, 40405 (6th Cir.2001). A genuine issue of material fact is a fact which, if proven at trial, could lead a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing the absence of genuine factual disputes from which a reasonable jury could return a verdict for the non-moving party. Id. at 24950. Inferences from underlying facts must be viewed in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir.2001), cert. denied, 534 U.S. 896, 122 S.Ct. 217, 151 L.Ed.2d 155 (2001). In considering whether summary judgment is appropriate, the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Sowards v. Loudon County, 203 F.3d 426, 431 (6th Cir.2000), cert. denied, 531 U.S. 875, 121 S.Ct. 179, 148 L.Ed.2d 123 (2000). If there is a genuine issue of material fact, then summary judgment should be denied. Id. However, [t]he moving party need not support its
Page 4 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) motion with evidence disproving the non-moving party's claim, but need only show that there is an absence of evidence to support the non-moving party's case. Hayes v. Equitable Energy Resources Co., 266 F.3d 560, 566 (6th Cir.2001) (quoting Celotex Corp., 477 U.S. at 325). Once the moving party has presented evidence sufficient to support a motion for summary judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant probative evidence must be presented to support the complaint. Goins v. Clorox Co., 926 F.2d 559, 561 (6th Cir.1991). More particularly, the party opposing the motion for summary judgment may not rely solely on the pleadings. Banks v. Wolfe County Bd. of Educ., 330 F.3d 888, 892 (6th Cir.2003) (citing Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir.2001). At the summary judgment stage, the party opposing the motion must present affirmative evidence to support his/her position; a mere scintilla of evidence is insufficient. Bell v. Ohio State University, 351 F.3d 240, 247 (6th Cir.2003) (quoting Anderson, 477 U.S. at 252). Conclusory allegations, speculation, and unsubstantiated assertions are not evidence, and are insufficient to defeat a well-supported motion for summary judgment. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). B. Analysis the Plaintiff's Claim *4 For the reasons explained in its October 10, 2007 memorandum, the only claim before the Court is the plaintiff's allegation under 42 U .S.C. 1983 that defendant CCA refused to prescribe a CT scan to treat his abdominal pain solely for reasons of cost, and that because of CCA's alleged cost-policy, the plaintiff [wa]s subject to pain that he would not otherwise be subjected to .... (Docket Entry No. 3, p. 14) To establish a violation of his constitutional rights resulting from a delay in providing medical care, the plaintiff must show that the defendants were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Brooks v. Celeste, 39 F.3d 125, 127 (6th Cir.1994). Deliberate indifference is the reckless disregard of a substantial risk of serious harm; mere negligence, or even gross negligence, will not suffice. Farmer v. Brennan, 511 U.S. 825, 83536, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc ); Westlake v. Lucas, 537 F.2d 857, 86061 n. 5 (6th Cir.1976); see also Estelle, 429 U.S. at 10506 . An Eighth Amendment claim alleging a delay in providing medical care has both an objective and subjective component. The objective component requires that the plaintiff's medical needs were sufficiently serious. See Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir.1992). The subjective component requires that the prison officials were deliberately indifferent to the plaintiff's medical needs. See Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); Hunt, 974 F.2d at 735. To be entitled to relief under 1983 in the claim before the Court, the plaintiff must show that: 1) his medical needs were serious; and 2) defendant CCA's alleged delay in authorizing the CT scan was detrimental to his health, or caused him to suffer unnecessarily. The undersigned assumes for the sake of the following analysis that the plaintiff's abdominal pain satisfies the first half of this two-part inquiry. Thus, the only question is whether defendant CCA's alleged delay in prescribing the CT scan was detrimental to the plaintiff's health, or caused him to suffer unnecessarily.FN3 FN3. In its October 10, 2007 memorandum, the Court noted that [t]aking costs into consideration when providing medical care to prisoners generally does not constitute deliberate indifference. (Docket Entry No. 3, p. 14) The Court also noted that denying medical care based solely on cost constitutes deliberate indifference
Page 5 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) only when an inmate suffers an unnecessary detriment to his health, or is harmed in some way. (Docket Entry No. 3, p. 14) 1. Defendant's Motion for Summary Judgment Defendant CCA argues in its memorandum of law that the plaintiff cannot show: 1) that he was denied medical care; 2) that he had a serious medical need; 3) that those charged with his medical care were deliberately indifferent to his medical needs; or 4) that defendant CCA has a policy of providing medical care based solely on considerations of cost. (Docket Entry No. 42, III, pp. 615) In support of its motion for summary judgment, defendant CCA has filed the affidavits of Lisa Edwards, Health Services Administrator at SCCF; Dr. Paul Niner, M.D., one of two physicians at SCCF who treated the plaintiff, and Dr. Charles Marable, M.D., a former contract physician at SCCF who also treated the plaintiff. (Docket Entry No. 4344, 48) The afore-named individuals all were employed at SCCF at the time of the alleged events that gave rise to this claim against defendant CCA. a. Affidavit of Lisa Edwards *5 Edwards declares in her affidavit that she is the Health Services Administrator at SCCF and, as such, she is responsible for the daily operations of the SCCF medical department. (Docket Entry No. 43, 2, 45, pp. 12) She declares further that she is familiar with the SCCF medical department's record keeping system, and that it is the practice of the SCCF medical department to keep records pertaining to an inmate's medical care. (Docket Entry No. 43, 5, p. 2) Edwards has attached to her affidavit a 68page copy of the plaintiff's inmate medical record for the period of time relevant to this claim, noting that the records were maintained in the regular course of business. (Docket Entry No. 43, 5, p. 2 & Ex. A) The attached medical record comprises PHYSICIAN'S ORDERS, PROBLEM ORIENTEDPROGRESS RECORD[s], and laboratory results. (Docket Entry No. 43, Ex. A) Edwards' declarations are summarized below. Edwards declares generally that neither she nor, to the best of her knowledge, anyone else on the SCCF medical staff denied or delayed providing appropriate and necessary care to the plaintiff, nor did she or anyone else deny medical care to the plaintiff based solely on the cost of the procedure. (Docket Entry No. 43, 6, 9, 21, pp. 23, 5) According to Edwards, she and the medical staff acted in good faith, and in accordance with their best professional medical judgment in providing appropriate, adequate, and necessary medical care to the plaintiff. (Docket Entry No. 43, 78, 20, pp. 2, 5) Edwards declares further that, when the plaintiff complained of lower abdominal pain in October 2006, the SCCF medical staff examined the plaintiff, and reviewed his medical history, including his most recent untrasound and CT scan which both appeared normal. FN4,FN5 (Docket Entry No. 43, 11, p. 3; Ex. A, pp. 001516, 004446) Although, the SCCF medical staff determined that there was no evidence of any new or reoccurring herniation, or any complications from the plaintiff's prior hernia surgeries, the staff continued to monitor and evaluate the situation. (Docket Entry No. 43, 11, p. 3; Ex. A, pp. 001516, 004446) FN4. The plaintiff's medical records show that the CT scan considered by the medical staff was taken on August 26, 2005 while the plaintiff was an inmate at SCCF. (Docket Entry No. 43, Ex. A, p. 0044; No. 48, 9, p. 2) FN5. The record shows that the plaintiff had a bilateral hernia repair while incarcerated at SCCF, the first surgery conducted in 2004, and a second one performed in 2005. (Docket Entry No. 43, pp. 0017, 0050, 0060, 0062, 0066, 0068) Edwards declares that, on November 2, 2006, Dr. Marable diagnosed the plaintiff's condition as a possible gastrointestinal disorder such as irritable
Page 6 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) bowel syndrome (IBS). (Docket Entry No. 43, 12, 19, pp. 3, 5; Ex. A, pp. 0015, 0043) Dr. Marble requested, and received, defendant CCA's permission to refer the plaintiff to an offsite gastroenterologist. (Docket Entry No. 43, 12, p. 3; Ex. A, pp. 001315, 004144, 006668) The plaintiff was transported on March 14, 2007 to see Dr. Nuri Ozden, M .D. at the Nashville General Hospital at Meharry (Meharry). (Docket Entry No. 43, 13, p. 4; Ex. A, pp. 001314, 0042) According to Edwards, the SCCF medical staff treated the plaintiff after his consult with Dr. Ozden. (Docket Entry No. 43, 14, p. 4; Ex. A., pp. 001213, 001840) However, because the plaintiff continued to complain of abdominal pain, the SCCF medical staff ordered, and the plaintiff received, an unltrasound of his abdomen/pelvis on June 4, 2007. (Docket Entry No. 43, 15, p. 4, Ex. A, pp. 0012, 003839) The ultrasound revealed no signs of abdominal abnormalities or herniation. (Docket Entry No. 43, Ex. A, p. 0065) *6 Following the ultrasound, the SCCF medical staff again referred the plaintiff to Dr. Ozden at Meharry. (Docket Entry No. 43, 16, p. 4; Ex. A, pp. 001112, 0040) Doctor Ozden saw the plaintiff on June 13, 2007, following which he recommended that an esophagogastrodueodenoscopy (EGD) and colonoscopy be performed. (Docket Entry No. 43, 16, p. 4; Ex. A, pp. 001112, 003738, 0064) The EGD and colonoscopy were ordered for the plaintiff on June 18, 2007. (Docket Entry No. 43, 16, p. 4; Ex. A, pp. 0011, 0037) Both tests were performed on October 17, 2007; neither test revealed any abnormalities or signs of herniation. (Docket Entry No. 43, 16, p. 4; Ex. A, pp. 00089, 0055) Edwardd declares next that the SCCF medical staff also took an x-ray of the plaintiff's spine to determine if a spinal injury/condition might be causing the plaintiff's discomfort. (Docket Entry No. 43, 17, pp. 45; Ex. A, pp. 0008, 0054) The x-ray, taken on October 18, 2007, revealed no signs of a fracture or degenerative bone disease that might be the cause of the plaintiff's continuing abdominal distress. (Docket Entry No. 43, 17, pp. 45; Ex. A, p. 0054) Finally, Edwards declares that a CT scan of the plaintiff was performed on November 21, 2007. (Docket Entry No. 43, 18, p. 5; Ex. A. pp. 00056, 0053) Once again, however, there was no evidence of significant abdominal abnormalities or any sign of herniation. (Docket Entry No. 43, 18, p. 5; Ex. A, p. 0053) b. Affidavit of Dr. Paul Niner, M.D. Dr. Niner declares in his affidavit that: 1) he was an attending physician at SCCF at all times relevant to this claim (Docket Entry No. 44, 3, p. 1); 2) he provided medical care to the plaintiff (Docket Entry No. 44, 4, p. 1); 3) he acted in good faith and exercised reasonably prudent professional judgment in treating the plaintiff (Docket Entry No. 44, 6, p. 2); 4) he did not at any time deny or delay providing appropriate and timely medical care to the plaintiff (Docket Entry No. 44, 7, p. 2); 5) based on his physical examinations of the plaintiff, and review of the plaintiff's medical records, it is his professional medical opinion that the plaintiff's discomfort was caused by a gastrointestinal disorder such as irritable bowel syndrome or gastritis (Docket Entry No. 44, 8, p. 2); 6) he did not observe any signs of herniation or other loss of containment at any time during the plaintiff's treatment (Docket Entry No. 44, 9, p. 2); 7) the course of treatment prescribed to the plaintiff before and after he received a CT scan was adequate and appropriate (Docket Entry No. 44, 10, p. 2); 8) a CT scan is not necessary to treat gastrointestinal disorders such as IBS or gastritis (Docket Entry No. 44, 11, p. 2); 9) the CT scan showed no signs of masses, swelling, or herniation (Docket Entry No. 44, 11, p. 2); 10) the plaintiff did not suffer any detrimental effect as a result of any alleged delay in receiving the CT scan (Docket Entry No. 44, 13, p. 3); 11) he made all decisions pertaining to the plaintiff's medical care based on his professional medical judgment (Docket Entry No. 44, 14, p. 3); 12) he
Page 7 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) never decided the plaintiff's course of treatment based solely on the costs of care or treatment (Docket Entry No. 44, 15, p. 3); and 13) he never told the plaintiffor insinuatedthat CCA would not approve a CT scan solely because of the cost of the procedure (Docket Entry No. 44, 16, p. 4). c. Affidavit of Dr. Charles Marable, M.D. *7 Dr. Marable declares in his affidavit that: 1) he was an attending physician under contract with CCA at all times relevant to this claim (Docket Entry No. 48, 3, p. 1); 2) he provided medical care to the plaintiff (Docket Entry No. 48, 4, p. 1); 3) he exercised good faith, and provided reasonably prudent medical care for the plaintiff's medical condition (Docket Entry No. 48, 6, p. 2); 4) CCA does not have, to the best of his knowledge, any policy, procedure, or custom of denying or otherwise making health care decisions based solely on the cost of the procedure (Docket Entry No. 48, 7, p. 2); 5) at no time did he deny or delay providing the plaintiff with appropriate and timely medical care (Docket Entry No. 48, 8, p. 2); 6) he examined the plaintiff's complaints in October 2006, at which time he consulted the plaintiff's most recent ultrasound and CT scan, both of which were normal (Docket Entry No. 48, 9, p. 2); 7) in October 2006, he saw no reoccurring herniation or complications from the plaintiff's prior hernia surgeries (Docket Entry No. 48, 9, p. 2); 8) he examined the plaintiff in November 2006, determined that he had a gastrointestinal disorder such as IBS, and ordered a consult with a gastroenterologist (Docket Entry No. 48, 10, 12, pp. 23); 9) at no time did he observe any indications that the plaintiff had a hernia or other similar loss of containment (Docket Entry No. 48, 11, p. 3); 10) he reviewed the results from the 2007 ultrasound, EGD, colonoscopy, x-ray, and CT scan, and none of the tests showed any abdominal abnormality, signs of herniation, or other previously unforeseen or undiagnosed medical condition (Docket Entry No. 48, 12, p. 3); 11) the course of treatment before and after the CT scan was adequate and appropriate for the plaintiff's medical condition (Docket Entry No. 48, 12, p. 3); 12) he made all of his medical determinations in the plaintiff's case based on his professional judgment in view of the plaintiff's symptoms (Docket Entry No. 48, 14, p. 3); 13) none of his health care decisions were based solely on cost (Docket Entry No. 48, 15, p. 3); and 14) he never told the plaintiffor insinuated to himthat CCA would not approve a CT scan solely for reasons of cost (Docket Entry No. 48, 16, p. 3). 2. Plaintiff's Response to the Motion for Summary Judgment There are three parts to the plaintiff's response to defendant CCA's motion for summary judgment. First, the plaintiff argues generally that defendant CCA's motion does not comply with Rule 7, Fed R. Civ. P, because it is nothing more than a conclusory statement .... (Docket Entry No. 52, p. 1) Second, the plaintiff provides an unsworn, pointby-point response to defendant CCA's statement of undisputed material facts. (Docket Entry No. 52, 130) FN6 Finally, the plaintiff provides the affidavit of Tony E. Beasley, a fellow inmate at SCCF. (Docket Entry No. 5253) FN6. The plaintiff did not number the pages in his response to defendant CCA's motion for summary judgment. (Docket Entry No. 52) Moreover, page 2 of the copy of the plaintiff's response scanned into CM/ECF was scanned in as a blank page. Therefore, only the paragraph numbers are used when referring to Docket Entry No. 52. a. Plaintiff's Argument That Defendant CCA's Motion for Summary Judgment Is Conclusory *8 In arguing that defendant CCA's motion for summary judgment is conclusory, the plaintiff apparently overlooks the memorandum of law that defendant CCA submitted in support of its motion (Docket Entry No. 42). Amply supported by legal argument, citations to relevant authority, and three sworn affidavits, defendant CCA's motion for summary judgment is anything but conclusory. The plaintiff's argument that defendant CCA's motion
Page 8 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) for summary is conclusory is without merit. b. Plaintiff's PointbyPoint Response to Defendant CCA's Statement of Undisputed Material Facts The next part of the plaintiff's response to defendant CCA's motion for summary judgment takes the form of an unsworn, paragraph-by-paragraph response to defendant CCA's statement of undisputed material facts. The plaintiff's response will be analyzed accordingly. Paragraphs 17 Paragraphs 17 in defendant CCA's statement of material facts, and the plaintiff's response thereto, do not pertain to the issue before the court, i.e., whether defendant CCA's alleged delay in prescribing the CT scan was detrimental to the plaintiff's health, or caused him to suffer unnecessarily. (Docket Entry No. 45, 17, pp. 12; No. 52, 17) Paragraph 8 The plaintiff admits defendant CCA's assertion that, [a]t all times relevant to this action, CCA and SCCF maintained adequate and appropriate policies and procedures for the provision of medical care to inmates. (Docket Entry No. 45, 8, p. 2; No. 52, 8) The plaintiff notes, however, that, as adequate or appropriate the S.C.C.C. Policies and Procedures may be they are only as sufficient as the medical treatment administered . (Docket Entry No. 52, 8) Editorial comments are not evidence, and do not establish a genuine issue of material fact. Paragraph 9 The plaintiff denies defendant CCA's assertion that it has no policy, procedure, or custom of making any decision that determines health care provided to inmates based solely on the consideration of its cost, arguing instead that CCA has previously been the subject of lawsuits where cost issues were found to be the reason ... inmate[s] had been denied proper medical treatment. (Docket Entry No. 45, 9, p. 2; No. 52, 9) The plaintiff has provided no evidence that a court of competent jurisdiction has found that defendant CCA denies required medical care to inmates based solely on considerations of cost. Even if such cases exist, the plaintiff has made no effort to show that those other cases are relevant to his case, or that they would be admissible as evidence were this case to go to trial. The plaintiff's unsupported assertion that other courts have found that defendant CCA denies required medical care based solely on considerations of cost is insufficient to establish a genuine issue of material fact. Paragraphs 1012 Defendant CCA asserts that the SCCF medical staff acted in good faith, and in accordance with its best professional medical opinion, in examining, evaluating, and prescribing the best course of treatment in the plaintiff's case; that the medical staff at SCCF provided the plaintiff with appropriate, adequate, and necessary medical care for his condition; and that at no time did any CCA employee deny, or otherwise unreasonably delay, providing the plaintiff with appropriate and necessary medical care. (Docket Entry No. 45, 1012, pp. 23) The plaintiff's sole response to each of these three statements is: Plaintiff denies this statement. (Docket Entry No. 52, 1012) Naked denials do not constitute evidence and, as such, they are insufficient to establish a genuine issue of material fact. *9 Paragraph 13 The plaintiff both admits and denies defendant CCA's assertion that SCCF medical personnel have examined and rendered, or attempted to render, medical care to the plaintiff 28 times from October 2006 to December 2007. (Docket Entry No. 45, 13, p. 3; No. 52, 13) The plaintiff admits that he has made a multitude of trips to the facility clinic complaining of his medical conditions .... (Docket Entry No. 52, 13) The plaintiff's denial, on the other hand, is merely a catalog of his symptoms. The plaintiff's response fails to establish a genuine issue of material fact. Paragraph 14 The plaintiff both admits and denies defendant CCA's assertion that, when the plaintiff came to the SCCF medical department in October 2006, the medical staff: 1) examined him;
Page 9 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) 2) reviewed his medical history, including his most recent ultrasound and CT scan, both of which appeared to be normal; 3) determined that there was no new or reoccurring herniation or complications from the plaintiff's prior hernia surgeries; and 4) scheduled the plaintiff for follow-up visits to monitor his condition. (Docket Entry No. 45, 14, p. 3; No. 52, 14) In his response, the plaintiff avers only that defendant CCA ha[s] attempted to mislead the Court through the confusion of dates and events, that he did not receive an ultrasound until June 4, 2007, and that he did not receive a CT scan until November 21, 2007. (Docket Entry No. 52, 14) Notwithstanding the plaintiff's claim to the contrary, the medical record shows that, in treating the plaintiff on October 19, 2006 Dr. Marable reviewed a prior CT scan and ultrasound, the clear inference being that the plaintiff received both tests previously. (Docket Entry No. 43, Ex. A, p. 0044) Because the entry in the plaintiff's medical recordmade the year prior to his bringing this actioncontradicts the plaintiff's denial, and because no reasonable trier of fact would believe the plaintiff in view of his medical record, the plaintiff's response fails to establish a genuine issue of material fact. Paragraph 15 The plaintiff avers that he has insufficient information ... to either admit or deny defendant CCA's assertion that, in November 2006, Dr. Marable examined the plaintiff and determined that [his] discomfort could be caused by a gastrointestinal disorder such as irritable bowel syndrome (IBS), and that Dr. Marable ordered that the plaintiff undergo a consultation with a gastroenterologist .... (Docket Entry No. 45, 14, p. 3; No. 52, 15) Notwithstanding the plaintiff's assertion the he has insufficient information to respond, the plaintiff's health record shows that Dr. Marable did, in fact, diagnose the plaintiff's condition on November 2, 2006, as gastrointestinal (GI) in nature, possibly IBS, and that Dr. Marable did, in fact, order a GI consult that same date. (Docket Entry No. 43, Ex. A, pp. 0015, 0043, 006668) With or without the plaintiff's response, the plaintiff fails to establish a genuine issue of material fact. *10 Paragraph 16 The plaintiff admits defendant CCA's assertion that the plaintiff was transported on March 14, 2007 to see Dr. Ozden at the Meharry, but denies that he received the test prescribed during the consultation. (Docket Entry No. 45, 15, p. 3; No. 52, 16) The plaintiff further states that he did not receive the prescribed test until after he filed this lawsuit. (Docket Entry No. 52, 16) Defendant CCA does not assert that the plaintiff was scheduled for treatment on March 14, 2007, only that the plaintiff was scheduled for a consult with Dr. Ozden. The plaintiff's medical record shows that he was again referred to Dr. Ozden on June 13, 2007, at which time Dr. Ozden recommended that an EGD and colonoscopy be performed. (Docket Entry No. 43, Ex. A, pp. 0011, 003738, 0064) The plaintiff's medical record shows that the EGD and colonoscopy were approved on April 25, 2007, ordered on June 18, 2007, the day following the plaintiff's second consult, and that the actual tests were conducted on October 17, 2007. (Docket Entry No. 43, Ex. A, pp. 000811, 003738, 0055, 006064) Although the EGD and colonoscopy were not conducted until October 17, 2007, after the plaintiff filed his complaint, the record shows that both tests were approved by defendant CCA on April 25, 2007nearly four months before the plaintiff mailed his complaint to the district court. Both tests also were negative. (Docket Entry No. 43, Ex. A, p. 0055) Accordingly, when the EGD and colonoscopy were performed does not establish a genuine issue of material fact. Paragraph 17 Although the plaintiff admits defendant CCA's assertion that the SCCF medical staff continued to see and examine him each time he went to the SCCF medical department, the
Page 10 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) plaintiff claims that he received only palliative treatment. (Docket Entry No. 45, 17, p. 5; No. 52, 17) The plaintiff's medical record does not support the plaintiff's claim that he received only palliative treatment, i.e., treatment that only lessened the severity of his pain. On the contrary, the plaintiff's medical record shows that he also was referred twice to an outside specialist, and that he received sophisticated diagnostic tests during the time frame at issue. The plaintiff has not provided any evidence that would cast doubt upon the accuracy of his medical record. Accordingly, the plaintiff's unsupported statement that he received only palliative treatment is insufficient to establish a genuine issue of material fact. Paragraph 18 The plaintiff admits defendant CCA's assertion that he was scheduled for an ultrasound because of his continued complaints. (Docket Entry No. 45, 18, p. 4; No. 52, 18) Although the plaintiff admits defendant CCA's statement, the plaintiff asserts that Dr. Niner told him that CCA did not like to pay for a CT scan. (Docket Entry No. 52, 18) First, the subject of paragraph 18 is the unltrasound, not the CT scan. Second, there is a clear difference between defendant CCA not lik[ing] to pay for a CT scan, and defendant CCA refusing to authorize a CT scan because of the cost. The plaintiff's response fails to establish a genuine issue of material fact. *11 Paragraph 19 The plaintiff neither admits nor denies defendant CCA's assertion that he received an ultrasound on June 4, 2007, and that the ultrasound showed no abdominal abnormalities or herniation. (Docket Entry No. 45, 19, p. 4; No. 52, 19) The plaintiff states only that he has no personal knowledge of the ultrasound results, and that Edwards' affidavit is self serving and not reliable. (Docket Entry No. 52, 19) The plaintiff's health record shows that an ultrasound was, in fact, conducted on June 4, 2007, and that it was a [n]ormal appearing abdominal ultrasound. (Docket Entry No. 43, Ex. A, p. 0065) Given that the ultrasound was ordered and administered two months before the plaintiff mailed his complaint to the district court, and given that the ultrasound revealed no abdominal abnormalities, the plaintiff cannot establish a genuine issue of material fact with respect to the ultrasound itself. Absent any supporting facts, the plaintiff's unsupported remark about Edwards' affidavit also fails to establish a genuine issue of material fact. Paragraphs 2022 The plaintiff admits defendant CCA's assertion that he had a follow-up consult with Dr. Ozden on June 13, 2007, that the SCCF medical staff scheduled him to undergo and EGD and colonoscopy, and that the EGD and colonoscopy were performed on October 17, 2007. (Docket Entry No. 45, 2022, p. 4; No. 52, 2022) The plaintiff notes however, that he filed his lawsuit on August, 2007. (Docket Entry No. 52, 20) (italics in the original) Although the plaintiff does not say so specifically, the undersigned liberally construes the plaintiff's reference to when he filed his complaint to allege that the EGD and colonoscopy were only ordered and provided because he filed a lawsuit. For reasons previously explained, supra at pp. 1415, the fact that the EGD and colonoscopy were not actually performed until October 17, 2007 does not establish a genuine issue of material fact. Paragraph 23 The plaintiff neither admits nor denies defendant CCA's assertion that the SCCF medical staff took an x-ray of the plaintiff's spine to determine if a spinal injury might be causing the plaintiff's discomfort, and that the x-ray revealed no evidence of a fracture or degenerative bone disease. (Docket Entry No. 45, 23, p. 4; No. 52, 23) The plaintiff aversonce againthat he has no personal knowledge of the ultrasound results, and that Edwards' affidavit is self serving and not reliable. Although the plaintiff's response clearly does not pertain to the x-ray, the undersigned will address the point anyway. The plaintiff's health record shows that the xray of the plaintiff's lower spine was ordered and
Page 11 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) taken on October 18, 2007. (Docket Entry No. 43, Ex. A, pp. 0008, 0054) The plaintiff's medical record shows that [t]he vertebrae are well aligned and show no evidence of any fracture or any destructive bone disease. (Docket Entry No. 43, Ex. A, p. 0054) According to the radiologist, the x-ray was normal. Because the x-ray was normal, the plaintiff cannot establish a genuine issue of material fact based on when, and under what circumstances, the x-ray was taken. *12 Paragraph 24 The plaintiff neither admits nor denies defendant CCA's assertion that a CT scan was administered on November 21, 2007, and that it showed no significant abdominal abnormalities or signs of herniation. (Docket Entry No. 45, 24, p. 5; No. 52, 24) Once again, the plaintiff states that he has no personal knowledge of the results of the ultrasound, that the subject is beyond his knowledge, and that Edwards' affidavit is self serving and not reliable. (Docket Entry No. 52, 24) Although the plaintiff's response clearly does not pertain to the CT scan, which is the subject of paragraph 24, the undersigned will address the point anyway. When the plaintiff filed his complaint, and when process was served, are relevant to this inquiry. Although the docket shows this action as having been filed on September 24, 2007, the plaintiff actually mailed his complaint to the district court on August 20, 2007. (Docket Entry No. 1, Attach. Env.) However, the Court denied the plaintiff's application to proceed in forma pauperis. (Case No. 3:07mc0948 (Docket Entry No. 2)) The delay in filing the complaint was due to the time that it took the plaintiff to pay the $350.00 filing fee. The record shows that process was served on defendant CCA on November 2, 2007. (Docket Entry No. 10) The plaintiff's record reveals the following time line with respect to the CT scan: 1) the CT scan was ordered on September 4, 2007; 2) an order was entered on September 20, 2007, to confirm an appointment for the CT scan; and 3) a September 27, 2007, entry shows that the CT scan was denied (pending). (Docket Entry No. 43, Ex. A, pp. 001011, 003435, 006063) The record also shows that the CT scan was subsequently performed on November 21, 2007. (Docket Entry No. 43, Ex. A, p. 0005) Based on this time line, the plaintiff could argue that the CT scan was not ordered until after he filed his complaint, and that it was not actually approved/provided until after process was served. As explained below, however, the time line alone is insufficient to establish a genuine issue of material fact. The plaintiff's health record shows that the CT revealed no significant FN7 abdominal abnormalities, or signs of herniation. (Docket Entry No. 43, Ex. A, pp. 0053) In other words, the results of the CT scan preclude the plaintiff from showing that failure to provide him the CT scan earlier in his course of treatment was detrimental to his health, or caused him to suffer unnecessarily. More particularly, because the CT scan was negative with respect to his medical complaint, even if the CT scan had been provided earlier, it would not have provided the cure for his ills. Accordingly, the plaintiff cannot establish a genuine issue of material fact because of when, and under what circumstances, the CT scan was approved and administered. FN7. The plaintiff's medical records show that the CT scan revealed an accessory spleen or medial lobe of the spleen, and [p]ossible posterior diverticulum of the bladder. (Docket Entry No. 43, Ex. A, p. 0053) As previously discussed supr a at pp. 910, Dr. Niner determined that the CT scan showed no signs of masses, swelling, or hernia, and Dr. Marable determined similarly that the CT scan did not show any abdominal abnormality, signs of herniation, or any other previously unforeseen or undiagnosed medical condition. In other words, the CT scan showed nothing that would have supported the plaintiff's al-
Page 12 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) leged condition. Paragraph 25 The plaintiff both admits and denies defendant CCA's assertion that, based on the various diagnostic tests, the SCCF medical staff determined that the plaintiff's abdominal problems were caused by a gastrointestinal disorder such as IBS or gastritis, that the prescribed treatment before and after the CT scan was adequate and proper, and that the SCCF medical staff continued to treat his condition using medications. (Docket Entry No. 45, 25, p. 5; No. 52, 25) In his response, the plaintiff avers that the medications only lessened the pain and discomfort and did not provide a cure, that he has not been treated for the cause of the pain, and that the doctors do not know what is wrong with him. (Docket Entry No. 52, 25) Because the plaintiff's response does not go to the issue before the Court, his response fails to establish a genuine issue of material fact. *13 Paragraph 26 The plaintiff admits defendant CCA's assertion that a CT scan is not necessary to treat gastrointestinal disorders, that the purpose of a CT scan is to detect the presence of internal masses, growths, swelling of the organs, or herniation, and that the plaintiff's CT scan showed no signs of masses, swelling or herniation. (Docket Entry No. 45, 26, p. 5: No. 52, 25) The plaintiff states only that he has no personal knowledge of the medical purposes of the tests performed, and that the doctors have not counseled him regarding the outcome of his CT scan. (Docket Entry No. 52, 26) The plaintiff's lack of knowledge of the purposes of CT scans, or the alleged failure of the SCCF medical staff to explain the results of his CT scan to him, do not establish a genuine issue of material fact. Paragraph 27 The plaintiff denies defendant CCA's assertion that he did not suffer any detrimental effect from the alleged delay in providing the CT scan, arguing that neither he nor the doctors know whether [he] has suffered any detrimental effect from the delays .... (Docket Entry No. 45, 27, p. 5; No. 52, 27) For the reasons previously explained, supra at p. 19, the results of the CT scan preclude the plaintiff from establishing that failure to provide him the CT scan earlier in his course of treatment was detrimental to his health, or caused him to suffer unnecessarily. Accordingly, the plaintiff's response fails to establish a genuine issue of material fact. Paragraph 28 The plaintiff denies defendant CCA's assertion that all medical decisions in the plaintiff's case were made based on the medical providers' professional medical judgments in light of [the plaintiff's] medical records, arguing that the costs of the treatments were a determining factor in the plaintiff's treatment. (Docket Entry No. 45, 28, p. 5; No. 52, 28) The plaintiff has failed to provide any evidence that cost was the sole factor in the decision to provide a CT scan in his case. Accordingly, the plaintiff's response fails to establish a genuine issue of material fact. Paragraph 29 The plaintiff denies defendant CCA's assertion that, [a]t no time was the cost of any medical procedure, test, or treatment the sole basis for determining the plaintiff's medical treatment, the plaintiff arguing in opposition that his treatment was definitely controlled by the costs, and that he was told as much by Dr. Niner. (Docket Entry No. 45, 29, p. 5; No. 52, 29) As noted previously, the plaintiff has failed to provide any proof that cost was the sole consideration in prescribing the CT scan in his case. Further, Dr. Niner has submitted a sworn affidavit flatly denying that he ever told the plaintiff that cost was the sole factor in prescribing the plaintiff's course of treatment. Apart from his unsworn allegation in his response, the plaintiff has provided no proof that Dr. Niner lied in his affidavit. Therefore, the plaintiff fails to establish a genuine issue of material fact. *14 Paragraph 30 Finally, the plaintiff denies defendant CCA's assertion that neither Dr. Marable nor Dr. Niner told the plaintiff that CCA would not approve ... a CT scan solely because of the cost of the procedure. (Docket Entry No. 45,
Page 13 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) 30, p. 6; No. 52, 30) The plaintiff avers that both Dr. Marable and Dr Niner told him that CCA would not pay for a CT scan. (Docket Entry No. 52, 30) For the reasons previously explained, the plaintiff has failed to provide any proof that cost was the sole determining factor in prescribing a CT scan his case. For the reasons explained above, the plaintiff has failed to offer any proof that Dr. Niner was lying in his affidavit in which he declared that he never told the plaintiff that cost was the sole reason for not prescribing a CT scan earlier. The plaintiff also has failed to provide any proof that Dr. Marable was lying in his affidavit in which he too flatly denied having told the plaintiff that cost was the sole determining factor. Accordingly, the plaintiff has failed to establish a genuine issue of material fact. c. Affidavit of Inmate Tony E. Beasley The plaintiff does not say why he filed inmate Beasley's affidavit in this case. In the affidavit itself, inmate Beasley states only that he filed his affidavit in support of the lawsuit filed by inmate Andrew Simpkins ... because of the lackadaisical attitude of the medical staff at CCA/SCCF. (Docket Entry No. 53, 12, p. 2) The undersigned will apply the rule of liberal construction in viewing inmate Beasley's affidavit in the context of the claim before the Court. On analysis, paragraphs 111 of the affidavit pertain to inmate Beasley's own alleged difficulties during the latter half of 2008 in obtaining routine medical care at SCCF for a broken toe and an inner ear infection. (Docket Entry No. 53, 111, pp. 12) Nothing in paragraphs 111 has anything to do with the plaintiff's claim against defendant CCA, or the matter before the court. Inmate Beasley's alleged problems in obtaining routine medical care is irrelevant to the plaintiff's claim that defendant CCA would not prescribe a costly CT scan solely for reasons of cost. In paragraph 13, inmate Beasley declares that, just as he has received nothing for pain or treatment of his broken toe ... [he] has learned that inmate Andrew Simpkins ... has received nothing for his ... broken right hand. (Docket Entry No. 53, 13, p. 2) The matter before the Court does not pertain to the plaintiff's right hand, that claim having been dismissed on initial review because it was raised beyond the statute of limitations. (Docket Entry No. 34) Moreover, inmate Beasley's statement that he has learned about the plaintiff's alleged situation lacks any evidentiary value. Finally, inmate Beasley makes the following declaration in paragraph 14 of his affidavit: Affiant knows from personal experience that CCA is a private corporation and that COSTS is the only bottom line that makes any difference to the corporation, to include the professionals retained by the corporation to allegedly provide medical care. *15 (Docket Entry No. 53, 14, p. 2) Inmate Beasley's conclusory declaration that he knows through personal experience that CCA is profit motivated because it is a corporation has no evidentiary value. Inmate Beasley's statement that defendant CCA is a corporation, and that all corporations are profit-motivated, also has no evidentiary value. For the reasons explained above, inmate Beasley's affidavit does not establish a genuine issue of material fact in this case. 3. Summarizing Defendant CCA's Motion for Summary Judgment and the Plaintiff's Response Defendant CCA has established the following through the plaintiff's medical records and the affidavits of Edwards, Dr. Niner, and Dr. Marable: 1) the plaintiff received continuous medical care and treatment for his condition throughout the period of time relevant to this claim; 2) the plaintiff's treatment followed a progression from routine care at SCCF, to offsite consultations, and diagnostic tests of increasing sophistication; 3) the CT scan was negative in the context of the plaintiff's medical compliant, i.e., it did not reveal any internal abdom-
Page 14 Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) (Cite as: 2008 WL 5158182 (M.D.Tenn.)) inal abnormalities or evidence of herniation; 4) because the CT scan was negative, the plaintiff's course of treatment would not have been any different had the CT scan been prescribed earlier; 5) because the results of the CT scan would not have warranted a different course of treatment, the plaintiff cannot show that his health was impaired, or that he suffered unnecessarily, because he did not receive a CT scan until later; and 6) given that the plaintiff had a CT scan previously, it cannot be said that defendant CCA has a policy of not prescribing CT scans to inmates based solely on considerations of cost. For his part, the plaintiff has failed to provide any evidencenot even a scintillathat defendant CCA has a policy of not prescribing CT scans for inmates based solely on cost considerations, that his health was affected adversely because of the alleged delay in administering the CT scan, or that he suffered unnecessarily because the CT scan was not prescribed earlier in his course of treatment. For the reasons explained herein, the plaintiff has failed to meet his burden of proof that a genuine issue of material fact exists to defeat defendant CCA's motion for summary judgment.FN8 Accordingly, defendant CCA is entitled to summary judgment as a matter of law. FN8. It is apparent from the record that the plaintiff's claim amounts to a disagreement with the course of treatment provided. Disagreements with a prescribed course of treatment do not rise to the level of an Eighth Amendment violation. Estelle, 429 U.S. at 10506. Moreover, it is abundantly clear from the record, that the plaintiff received considerable medical care for his condition before he filed his lawsuit. The record supports the conclusion that the plaintiff merely disputes the adequacy of that care. When a prisoner has been provided medical care, the courts will not second-guess the judgment of medical professionals, and constitutionalize claims that sound in state law. Westlake, 537 F.2d at 860 n. 5. These additional reasons support the conclusion that the plaintiff's claim against defendant CCA should be dismissed. III. CONCLUSION For the reasons explained above, the undersigned RECOMMENDS that the defendant's motion for summary judgment (Docket Entry No. 41) be GRANTED, that the plaintiff's claim against the sole remaining defendant, Corrections Corporation of America (CCA), be DISMISSED for failure to state a claim on which relief may be granted, that this action be DISMISSED with prejudice, that the dismissal of this action be counted as a STRIKE under 28 U.S.C. 1915(g), and that any appeal NOT be certified under 28 U.S.C. 1915(a)(3) as taken in good faith. *16 Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has ten (10) days from service of this R & R within which to file with the district court any written objections to the proposed findings and recommendations made herein. Any party opposing shall have ten (10) days from receipt of any objections filed regarding this R & R within which to file a response to said objections. Failure to file specific objections within the time frames specified may constitute a waiver of further appeal of this R & R. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986). ENTERED this the 20th day of November, 2008. M.D.Tenn.,2008. Simpkins v. Corrections Corp. of America Not Reported in F.Supp.2d, 2008 WL 5158182 (M.D.Tenn.) END OF DOCUMENT

3:13-cv-01159 #47

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

3:13-cv-01159 #47

Uploaded by

Copyright:

Available Formats

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION VALERIA TANCO and

Case No. 3:13-cv-01159 Judge Aleta A. Trauger

APPENDIX TO REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 3:13-cv-01159 Document 47 Filed 12/20/13 Page 1 of 4 PageID #: 820

9. 10. 11. 12.

Dated: December 20, 2013 Respectfully submitted,

Case 3:13-cv-01159 Document 47 Filed 12/20/13 Page 2 of 4 PageID #: 821

Case 3:13-cv-01159 Document 47 Filed 12/20/13 Page 3 of 4 PageID #: 822

/s/ J. Scott Hickman

Case 3:13-cv-01159 Document 47 Filed 12/20/13 Page 4 of 4 PageID #: 823

MARRIAGESAME SEX MARRIAGESENFORCEABILITY, 1996 Tennessee Laws...

MARRIAGESAME SEX MARRIAGESENFORCEABILITY, 1996 Tennessee Laws...

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-2 Filed 12/20/13 Page 1 of 7 PageID #: 826

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-2 Filed 12/20/13 Page 2 of 7 PageID #: 827

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-2 Filed 12/20/13 Page 3 of 7 PageID #: 828

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-2 Filed 12/20/13 Page 4 of 7 PageID #: 829

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-2 Filed 12/20/13 Page 5 of 7 PageID #: 830

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-2 Filed 12/20/13 Page 6 of 7 PageID #: 831

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-2 Filed 12/20/13 Page 7 of 7 PageID #: 832

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 1 of 19 PageID #: 833

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 2 of 19 PageID #: 834

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 3 of 19 PageID #: 835

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 4 of 19 PageID #: 836

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 5 of 19 PageID #: 837

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 6 of 19 PageID #: 838

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 7 of 19 PageID #: 839

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 8 of 19 PageID #: 840

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 9 of 19 PageID #: 841

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 10 of 19 PageID #: 842

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 11 of 19 PageID #: 843

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 12 of 19 PageID #: 844

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 13 of 19 PageID #: 845

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 14 of 19 PageID #: 846

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 15 of 19 PageID #: 847

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 16 of 19 PageID #: 848

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 17 of 19 PageID #: 849

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 18 of 19 PageID #: 850

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case 3:13-cv-01159 Document 47-3 Filed 12/20/13 Page 19 of 19 PageID #: 851