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Perry v. Schwarzenegger

August 4, 2010


The opinion of the court was delivered by: Walker, Chief Judge.






Plaintiffs challenge a November 2008 voter-enacted amendment to the California Constitution ("Proposition 8" or "Prop 8"). Cal Const Art I, § 7.5. In its entirety, Proposition 8 provides: "Only marriage between a man and a woman is valid or recognized in California." Plaintiffs allege that Proposition 8 deprives them of due process and of equal protection of the laws contrary to the Fourteenth Amendment and that its enforcement by state officials violates 42 USC § 1983.

Plaintiffs are two couples. Kristin Perry and Sandra Stier reside in Berkeley, California and raise four children together. Jeffrey Zarrillo and Paul Katami reside in Burbank, California. Plaintiffs seek to marry their partners and have been denied marriage licenses by their respective county authorities on the basis of Proposition 8. No party contended, and no evidence at trial suggested, that the county authorities had any ground to deny marriage licenses to plaintiffs other than Proposition 8.

Having considered the trial evidence and the arguments of counsel, the court pursuant to FRCP 52(a) finds that Proposition 8 is unconstitutional and that its enforcement must be enjoined.


In November 2000, the voters of California adopted Proposition 22 through the state's initiative process. Entitled the California Defense of Marriage Act, Proposition 22 amended the state's Family Code by adding the following language: "Only marriage between a man and a woman is valid or recognized in California." Cal Family Code § 308.5. This amendment further codified the existing definition of marriage as "a relationship between a man and a woman." In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 407 (Cal 2008).

In February 2004, the mayor of San Francisco instructed county officials to issue marriage licenses to same-sex couples. The following month, the California Supreme Court ordered San Francisco to stop issuing such licenses and later nullified the marriage licenses that same-sex couples had received. See Lockyer v. City & County of San Francisco, 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459 (Cal 2004). The court expressly avoided addressing whether Proposition 22 violated the California Constitution.

Shortly thereafter, San Francisco and various other parties filed state court actions challenging or defending California's exclusion of same-sex couples from marriage under the state constitution. These actions were consolidated in San Francisco superior court; the presiding judge determined that, as a matter of law, California's bar against marriage by same-sex couples violated the equal protection guarantee of Article I Section 7 of the California Constitution. In re Coordination Proceeding, Special Title [Rule 1550(c) ], 2005 WL 583129 (March 14, 2005). The court of appeal reversed, and the California Supreme Court granted review. In May 2008, the California Supreme Court invalidated Proposition 22 and held that all California counties were required to issue marriage licenses to same-sex couples. See In re Marriage Cases, 189 P3d 384. From June 17, 2008 until the passage of Proposition 8 in November of that year, San Francisco and other California counties issued approximately 18,000 marriage licenses to same-sex couples.

After the November 2008 election, opponents of Proposition 8 challenged the initiative through an original writ of mandate in the California Supreme Court as violating the rules for amending the California Constitution and on other grounds; the California Supreme Court upheld Proposition 8 against those challenges. Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48 (Cal 2009). Strauss leaves undisturbed the 18,000 marriages of same-sex couples performed in the four and a half months between the decision in In re Marriage Cases and the passage of Proposition 8. Since Proposition 8 passed, no same-sex couple has been permitted to marry in California.


Plaintiffs challenge the constitutionality of Proposition 8 under the Fourteenth Amendment, an issue not raised during any prior state court proceeding. Plaintiffs filed their complaint on May 22, 2009, naming as defendants in their official capacities California's Governor, Attorney General and Director and Deputy Director of Public Health and the Alameda County Clerk-Recorder and the Los Angeles County Registrar-Recorder/County Clerk (collectively "the government defendants"). Doc # 1. With the exception of the Attorney General, who concedes that Proposition 8 is unconstitutional, Doc # 39, the government defendants refused to take a position on the merits of plaintiffs' claims and declined to defend Proposition 8. Doc # 42 (Alameda County), Doc # 41 (Los Angeles County), Doc # 46 (Governor and Department of Public Health officials).

Defendant-intervenors, the official proponents of Proposition 8 under California election law ("proponents"), were granted leave in July 2009 to intervene to defend the constitutionality of Proposition 8. Doc # 76. On January 8, 2010, Hak-Shing William Tam, an official proponent and defendant-intervenor, moved to withdraw as a defendant, Doc # 369; Tam's motion is denied for the reasons stated in a separate order filed herewith. Plaintiff-intervenor City and County of San Francisco ("CCSF" or "San Francisco") was granted leave to intervene in August 2009. Doc # 160 (minute entry).

The court denied plaintiffs' motion for a preliminary injunction on July 2, 2009, Doc # 77 (minute entry), and denied proponents' motion for summary judgment on October 14, 2009, Doc # 226 (minute entry). Proponents moved to realign the Attorney General as a plaintiff; the motion was denied on December 23, 2009, Doc # 319. Imperial County, a political subdivision of California, sought to intervene as a party defendant on December 15, 2009, Doc # 311; the motion is denied for the reasons addressed in a separate order filed herewith.

The parties disputed the factual premises underlying plaintiffs' claims and the court set the matter for trial. The action was tried to the court January 11-27, 2010. The trial proceedings were recorded and used by the court in preparing the findings of fact and conclusions of law; the clerk is now DIRECTED to file the trial recording under seal as part of the record. The parties may retain their copies of the trial recording pursuant to the terms of the protective order herein, see Doc # 672. Proponents' motion to order the copies' return, Doc # 698, is accordingly DENIED.


The Due Process Clause provides that no "State [shall] deprive any person of life, liberty, or property, without due process of law." US Const Amend XIV, § 1. Plaintiffs contend that the freedom to marry the person of one's choice is a fundamental right protected by the Due Process Clause and that Proposition 8 violates this fundamental right because:

1. It prevents each plaintiff from marrying the person of his or her choice;

2. The choice of a marriage partner is sheltered by the Fourteenth Amendment from the state's unwarranted usurpation of that choice; and

3. California's provision of a domestic partnership -- a status giving same-sex couples the rights and responsibilities of marriage without providing marriage -- does not afford plaintiffs an adequate substitute for marriage and, by disabling plaintiffs from marrying the person of their choice, invidiously discriminates, without justification, against plaintiffs and others who seek to marry a person of the same sex.

The Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." US Const Amend XIV, § 1. According to plaintiffs, Proposition 8 violates the Equal Protection Clause because it:

1. Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and

2. Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying.

Plaintiffs argue that Proposition 8 should be subjected to heightened scrutiny under the Equal Protection Clause because gays and lesbians constitute a suspect class. Plaintiffs further contend that Proposition 8 is irrational because it singles out gays and lesbians for unequal treatment, as they and they alone may not marry the person of their choice. Plaintiffs argue that Proposition 8 discriminates against gays and lesbians on the basis of both sexual orientation and sex.

Plaintiffs conclude that because Proposition 8 is enforced by state officials acting under color of state law and because it has the effects plaintiffs assert, Proposition 8 is actionable under 42 USC § 1983. Plaintiffs seek a declaration that Proposition 8 is invalid and an injunction against its enforcement.


Proponents organized the official campaign to pass Proposition 8, known as -- Yes on 8, a Project of California Renewal ("Protect Marriage"). Proponents formed and managed the Protect Marriage campaign and ensured its efforts to pass Proposition 8 complied with California election law. See FF 13-17 below. After orchestrating the successful Proposition 8 campaign, proponents intervened in this lawsuit and provided a vigorous defense of the constitutionality of Proposition 8.

The ballot argument submitted to the voters summarizes proponents' arguments in favor of Proposition 8 during the 2008 campaign. The argument states:

Proposition 8 is simple and straightforward. * * * Proposition 8 is about preserving marriage; it's not an attack on the gay lifestyle. * * * It protects our children from being taught in public schools that "same-sex marriage" is the same as traditional marriage. * * * While death, divorce, or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father. * * * If the gay marriage ruling [of the California Supreme Court] is not overturned, TEACHERS COULD BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage.

We should not accept a court decision that may result in public schools teaching our own kids that gay marriage is ok. * * * [W]hile gays have the right to their private lives, they do not have the right to redefine marriage for everyone else.

PX0001 *fn1 California Voter Information Guide, California General Election, Tuesday, November 4, 2008 at PM 003365 (emphasis in original).

In addition to the ballot arguments, the Proposition 8 campaign presented to the voters of California a multitude of television, radio and internet-based advertisements and messages. The advertisements conveyed to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children. See FF 79-80 below. The key premises on which Proposition 8 was presented to the voters thus appear to be the following:

1. Denial of marriage to same-sex couples preserves marriage;

2. Denial of marriage to same-sex couples allows gays and lesbians to live privately without requiring others, including (perhaps especially) children, to recognize or acknowledge the existence of same-sex couples;

3. Denial of marriage to same-sex couples protects children;

4. The ideal child-rearing environment requires one male parent and one female parent;

5. Marriage is different in nature depending on the sex of the spouses, and an opposite-sex couple's marriage is superior to a same-sex couple's marriage; and

6. Same-sex couples' marriages redefine opposite-sex couples' marriages.

A state's interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose. See Lawrence v. Texas, 539 U.S. 558, 571, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003); see also Everson v. Board of Education of Ewing Township, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947).

Perhaps recognizing that Proposition 8 must advance a secular purpose to be constitutional, proponents abandoned previous arguments from the campaign that had asserted the moral superiority of opposite-sex couples. Instead, in this litigation, proponents asserted that Proposition 8:

1. Maintains California's definition of marriage as excluding same-sex couples;

2. Affirms the will of California citizens to exclude same-sex couples from marriage;

3. Promotes stability in relationships between a man and a woman because they naturally (and at times unintentionally) produce children; and

4. Promotes "statistically optimal" child-rearing households; that is, households in which children are raised by a man and a woman married to each other.

Doc # 8 at 17-18.

While proponents vigorously defended the constitutionality of Proposition 8, they did so based on legal conclusions and cross-examinations of some of plaintiffs' witnesses, eschewing all but a rather limited factual presentation.

Proponents argued that Proposition 8 should be evaluated solely by considering its language and its consistency with the "central purpose of marriage, in California and everywhere else, * * * to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation." Doc # 172-1 at 21. Proponents asserted that marriage for same-sex couples is not implicit in the concept of ordered liberty and thus its denial does not deprive persons seeking such unions of due process. See generally Doc # 172-1. Nor, proponents continued, does the exclusion of same-sex couples in California from marriage deny them equal protection because, among other reasons, California affords such couples a separate parallel institution under its domestic partnership statutes. Doc # 172-1 at 75 et seq.

At oral argument on proponents' motion for summary judgment, the court posed to proponents' counsel the assumption that "the state's interest in marriage is procreative" and inquired how permitting same-sex marriage impairs or adversely affects that interest. Doc # 228 at 21. Counsel replied that the inquiry was "not the legally relevant question," id, but when pressed for an answer, counsel replied: "Your honor, my answer is: I don't know. I don't know." Id at 23.

Despite this response, proponents in their trial brief promised to "demonstrate that redefining marriage to encompass same-sex relationships" would effect some twenty-three specific harmful consequences. Doc # 295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn's testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that "responsible procreation is really at the heart of society's interest in regulating marriage." Tr 3038:7-8. When asked to identify the evidence at trial that supported this contention, proponents' counsel replied, "you don't have to have evidence of this point." Tr 3037:25-3040:4.

Proponents' procreation argument, distilled to its essence, is as follows: the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households. Tr 3050:17-3051:10. The state therefore, the argument goes, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that opposite-sex sexual activity should occur within marriage. Tr 3053:10-24. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because same-sex couples' sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state's only interest is in opposite-sex sexual activity.


The parties' positions on the constitutionality of Proposition 8 raised significant disputed factual questions, and for the reasons the court explained in denying proponents' motion for summary judgment, Doc # 228 at 72-91, the court set the matter for trial.

The parties were given a full opportunity to present evidence in support of their positions. They engaged in significant discovery, including third-party discovery, to build an evidentiary record. Both before and after trial, both in this court and in the court of appeals, the parties and third parties disputed the appropriate boundaries of discovery in an action challenging a voter-enacted initiative. See, for example, Doc # # 187, 214, 237, 259, 372, 513.

Plaintiffs presented eight lay witnesses, including the four plaintiffs, and nine expert witnesses. Proponents' evidentiary presentation was dwarfed by that of plaintiffs. Proponents presented two expert witnesses and conducted lengthy and thorough cross-examinations of plaintiffs' expert witnesses but failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.

Although the evidence covered a range of issues, the direct and cross-examinations focused on the following broad questions:




Framed by these three questions and before detailing the court's credibility determinations and findings of fact, the court abridges the testimony at trial:


All four plaintiffs testified that they wished to marry their partners, and all four gave similar reasons. Zarrillo wishes to marry Katami because marriage has a "special meaning" that would alter their relationships with family and others. Zarrillo described daily struggles that arise because he is unable to marry Katami or refer to Katami as his husband. Tr 84:1-17. Zarrillo described an instance when he and Katami went to a bank to open a joint account, and "it was certainly an awkward situation walking to the bank and saying, 'My partner and I want to open a joint bank account,' and hearing, you know, 'Is it a business account? A partnership?' It would just be a lot easier to describe the situation -- might not make it less awkward for those individuals, but it would make it -- crystalize it more by being able to say * * * 'My husband and I are here to open a bank account.' " Id. To Katami, marriage to Zarrillo would solidify their relationship and provide them the foundation they seek to raise a family together, explaining that for them, "the timeline has always been marriage first, before family." Tr 89:17-18.

Perry testified that marriage would provide her what she wants most in life: a stable relationship with Stier, the woman she loves and with whom she has built a life and a family. To Perry, marriage would provide access to the language to describe her relationship with Stier: "I'm a 45-year-old woman. I have been in love with a woman for 10 years and I don't have a word to tell anybody about that." Tr 154:20-23. Stier explained that marrying Perry would make them feel included "in the social fabric." Tr 175:22. Marriage would be a way to tell "our friends, our family, our society, our community, our parents * * * and each other that this is a lifetime commitment * * * we are not girlfriends. We are not partners. We are married." Tr 172:8-12.

Plaintiffs and proponents presented expert testimony on the meaning of marriage. Historian Nancy Cott testified about the public institution of marriage and the state's interest in recognizing and regulating marriages. Tr 185:9-13. She explained that marriage is "a couple's choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life." Tr 201:9-14. The state's primary purpose in regulating marriage is to create stable households. Tr 222:13-17.

Think tank founder David Blankenhorn testified that marriage is "a socially-approved sexual relationship between a man and a woman" with a primary purpose to "regulate filiation." Tr 2742:9-10, 18. Blankenhorn testified that others hold to an alternative and, to Blankenhorn, conflicting definition of marriage: "a private adult commitment" that focuses on "the tender feelings that the spouses have for one another." Tr 2755:25-2756:1; 2756:10-2757:17; 2761:5-6. To Blankenhorn, marriage is either a socially approved sexual relationship between a man and a woman for the purpose of bearing and raising children who are biologically related to both spouses or a private relationship between two consenting adults.

Cott explained that marriage as a social institution encompasses a socially approved sexual union and an affective relationship and, for the state, forms the basis of stable households and private support obligations.

Both Cott and Blankenhorn addressed marriage as a historical institution. Cott pointed to consistent historical features of marriage, including that civil law, as opposed to religious custom, has always been supreme in regulating and defining marriage in the United States, Tr 195:9-15, and that one's ability to consent to marriage is a basic civil right, Tr 202:2-5. Blankenhorn identified three rules of marriage (discussed further in the credibility determinations, section I below), which he testified have been consistent across cultures and times: (1) the rule of opposites (the "man/woman" rule); (2) the rule of two; and (3) the rule of sex. Tr 2879:17-25.

Cott identified historical changes in the institution of marriage, including the removal of race restrictions through court decisions and the elimination of coverture and other gender-based distinctions. Blankenhorn identified changes that to him signify the deinstitutionalization of marriage, including an increase in births outside of marriage and an increasing divorce rate.

Both Cott and Blankenhorn testified that California stands to benefit if it were to resume issuing marriage licenses to same-sex couples. Blankenhorn noted that marriage would benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be "a victory for the worthy ideas of tolerance and inclusion." Tr 2850:12-13. Despite the multitude of benefits identified by Blankenhorn that would flow to the state, to gays and lesbians and to American ideals were California to recognize same-sex marriage, Blankenhorn testified that the state should not recognize same-sex marriage. Blankenhorn reasoned that the benefits of same-sex marriage are not valuable enough because same-sex marriage could conceivably weaken marriage as an institution. Cott testified that the state would benefit from recognizing same-sex marriage because such marriages would provide "another resource for stability and social order." Tr 252:19-23.

Psychologist Letitia Anne Peplau testified that couples benefit both physically and economically when they are married. Peplau testified that those benefits would accrue to same-sex as well as opposite-sex married couples. To Peplau, the desire of same-sex couples to marry illustrates the health of the institution of marriage and not, as Blankenhorn testified, the weakening of marriage. Economist Lee Badgett provided evidence that same-sex couples would benefit economically if they were able to marry and that same-sex marriage would have no adverse effect on the institution of marriage or on opposite-sex couples.

As explained in the credibility determinations, section I below, the court finds the testimony of Cott, Peplau and Badgett to support findings on the definition and purpose of civil marriage; the testimony of Blankenhorn is unreliable. The trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex.


Plaintiffs' experts testified that no meaningful differences exist between same-sex couples and opposite-sex couples. Blankenhorn identified one difference: some opposite-sex couples are capable of creating biological offspring of both spouses while same-sex couples are not.

Psychologist Gregory Herek defined sexual orientation as "an enduring sexual, romantic, or intensely affectional attraction to men, to women, or to both men and women. It's also used to refer to an identity or a sense of self that is based on one's enduring patterns of attraction. And it's also sometimes used to describe an enduring pattern of behavior." Tr 2025:5-11. Herek explained that homosexuality is a normal expression of human sexuality; the vast majority of gays and lesbians have little or no choice in their sexual orientation; and therapeutic efforts to change an individual's sexual orientation have not been shown to be effective and instead pose a risk of harm to the individual. Proponents did not present testimony to contradict Herek but instead questioned him on data showing that some individuals report fluidity in their sexual orientation. Herek responded that the data proponents presented does nothing to contradict his conclusion that the vast majority of people are consistent in their sexual orientation.

Peplau pointed to research showing that, despite stereotypes suggesting gays and lesbians are unable to form stable relationships, same-sex couples are in fact indistinguishable from opposite-sex couples in terms of relationship quality and stability. Badgett testified that same-sex and opposite-sex couples are very similar in most economic and demographic respects. Peplau testified that the ability of same-sex couples to marry will have no bearing on whether opposite-sex couples choose to marry or divorce.

Social epidemiologist Ilan Meyer testified about the harm gays and lesbians have experienced because of Proposition 8. Meyer explained that Proposition 8 stigmatizes gays and lesbians because it informs gays and lesbians that the State of California rejects their relationships as less valuable than opposite-sex relationships. Proposition 8 also provides state endorsement of private discrimination. According to Meyer, Proposition 8 increases the likelihood of negative mental and physical health outcomes for gays and lesbians.

Psychologist Michael Lamb testified that all available evidence shows that children raised by gay or lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents and that the gender of a parent is immaterial to whether an adult is a good parent. When proponents challenged Lamb with studies purporting to show that married parents provide the ideal child-rearing environment, Lamb countered that studies on child-rearing typically compare married opposite-sex parents to single parents or step-families and have no bearing on families headed by same-sex couples. Lamb testified that the relevant comparison is between families headed by same-sex couples and families headed by opposite-sex couples and that studies comparing these two family types show conclusively that having parents of different genders is irrelevant to child outcomes.

Lamb and Blankenhorn disagreed on the importance of a biological link between parents and children. Blankenhorn emphasized the importance of biological parents, relying on studies comparing children raised by married, biological parents with children raised by single parents, unmarried mothers, step families and cohabiting parents. Tr 2769:14-24 (referring to DIX0026 Kristin Anderson Moore, Susan M Jekielek, and Carol Emig, Marriage from a Child's Perspective: How Does Family Structure Affect Children, and What Can We Do about It, Child Trends (June 2002)); Tr 2771:1-13 (referring to DIX0124 Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps (Harvard 1994)). As explained in the credibility determinations, section I below, none of the studies Blankenhorn relied on isolates the genetic relationship between a parent and a child as a variable to be tested. Lamb testified about studies showing that adopted children or children conceived using sperm or egg donors are just as likely to be well-adjusted as children raised by their biological parents. Tr 1041:8-17. Blankenhorn agreed with Lamb that adoptive parents "actually on some outcomes outstrip biological parents in terms of providing protective care for their children." Tr 2795:3-5.

Several experts testified that the State of California and California's gay and lesbian population suffer because domestic partnerships are not equivalent to marriage. Badgett explained that gays and lesbians are less likely to enter domestic partnerships than to marry, meaning fewer gays and lesbians have the protection of a state-recognized relationship. Both Badgett and San Francisco economist Edmund Egan testified that states receive greater economic benefits from marriage than from domestic partnerships. Meyer testified that domestic partnerships actually stigmatize gays and lesbians even when enacted for the purpose of providing rights and benefits to same-sex couples. Cott explained that domestic partnerships cannot substitute for marriage because domestic partnerships do not have the same social and historical meaning as marriage and that much of the value of marriage comes from its social meaning. Peplau testified that little of the cultural esteem surrounding marriage adheres to domestic partnerships.

To illustrate his opinion that domestic partnerships are viewed by society as different from marriage, Herek pointed to a letter sent by the California Secretary of State to registered domestic partners in 2004 informing them of upcoming changes to the law and suggesting dissolution of their partnership to avoid any unwanted financial effects. Tr 2047:15-2048:5, PX2265 (Letter from Kevin Shelley, California Secretary of State, to Registered Domestic Partners). Herek concluded that a similar letter to married couples would not have suggested divorce. Tr 2048:6-13.

The experts' testimony on domestic partnerships is consistent with the testimony of plaintiffs, who explained that domestic partnerships do not satisfy their desire to marry. Stier, who has a registered domestic partnership with Perry, explained that "there is certainly nothing about domestic partnership* * * that indicates the love and commitment that are inherent in marriage." Tr 171:8-11. Proponents did not challenge plaintiffs' experts on the point that marriage is a socially superior status to domestic partnership; indeed, proponents stipulated that "[t]here is a significant symbolic disparity between domestic partnership and marriage." Doc # 159-2 at 6.

Proponents' cross-examinations of several experts challenged whether people can be categorized based on their sexual orientation. Herek, Meyer and Badgett responded that sexual orientation encompasses behavior, identity and attraction and that most people are able to answer questions about their sexual orientation without formal training. According to the experts, researchers may focus on one element of sexual orientation depending on the purpose of the research and sexual orientation is not a difficult concept for researchers to apply.

As explained in the credibility determinations, section I below, and the findings of fact, section II below, the testimony shows that California has no interest in differentiating between same-sex and opposite-sex unions.


The testimony of several witnesses disclosed that a primary purpose of Proposition 8 was to ensure that California confer a policy preference for opposite-sex couples over same-sex couples based on a belief that same-sex pairings are immoral and should not be encouraged in California.

Historian George Chauncey testified about a direct relationship between the Proposition 8 campaign and initiative campaigns from the 1970s targeting gays and lesbians; like earlier campaigns, the Proposition 8 campaign emphasized the importance of protecting children and relied on stereotypical images of gays and lesbians, despite the lack of any evidence showing that gays and lesbians pose a danger to children. Chauncey concluded that the Proposition 8 campaign did not need to explain what children were to be protected from; the advertisements relied on a cultural understanding that gays and lesbians are dangerous to children.

This understanding, Chauncey observed, is an artifact of the discrimination gays and lesbians faced in the United States in the twentieth century. Chauncey testified that because homosexual conduct was criminalized, gays and lesbians were seen as criminals; the stereotype of gay people as criminals therefore became pervasive. Chauncey noted that stereotypes of gays and lesbians as predators or child molesters were reinforced in the mid-twentieth century and remain part of current public discourse. Lamb explained that this stereotype is not at all credible, as gays and lesbians are no more likely than heterosexuals to pose a threat to children.

Political scientist Gary Segura provided many examples of ways in which private discrimination against gays and lesbians is manifested in laws and policies. Segura testified that negative stereotypes about gays and lesbians inhibit political compromise with other groups: "It's very difficult to engage in the give-and-take of the legislative process when I think you are an inherently bad person. That's just not the basis for compromise and negotiation in the political process." Tr 1561:6-9. Segura identified religion as the chief obstacle to gay and lesbian political advances. Political scientist Kenneth Miller disagreed with Segura's conclusion that gays and lesbians lack political power, Tr 2482:4-8, pointing to some successes on the state and national level and increased public support for gays and lesbians, but agreed that popular initiatives can easily tap into a strain of antiminority sentiment and that at least some voters supported Proposition 8 because of anti-gay sentiment.

Proponent Hak-Shing William Tam testified about his role in the Proposition 8 campaign. Tam spent substantial time, effort and resources campaigning for Proposition 8. As of July 2007, Tam was working with Protect Marriage to put Proposition 8 on the November 2008 ballot. Tr 1900:13-18. Tam testified that he is the secretary of the America Return to God Prayer Movement, which operates the website "" Tr 1916:3-24. encouraged voters to support Proposition 8 on grounds that homosexuals are twelve times more likely to molest children, Tr 1919:3-1922:21, and because Proposition 8 will cause states one-by-one to fall into Satan's hands, Tr 1928:6-13. Tam identified NARTH (the National Association for Research and Therapy of Homosexuality) as the source of information about homosexuality, because he "believe[s] in what they say." Tr 1939:1-9. Tam identified "the internet" as the source of information connecting same-sex marriage to polygamy and incest. Tr 1957:2-12. Protect Marriage relied on Tam and, through Tam, used the website as part of the Protect Marriage Asian/Pacific Islander outreach. Tr 1976:10-15; PX2599 (Email from Sarah Pollo, Account Executive, Schubert Flint Public Affairs (Aug 22, 2008) attaching meeting minutes). Tam signed a Statement of Unity with Protect Marriage, PX2633, in which he agreed not to put forward "independent strategies for public messaging." Tr 1966:16-1967:16.

Katami and Stier testified about the effect Proposition 8 campaign advertisements had on their well-being. Katami explained that he was angry and upset at the idea that children needed to be protected from him. After watching a Proposition 8 campaign message, PX0401 (Video, Tony Perkins, Miles McPherson, and Ron Prentice Asking for Support of Proposition 8), Katami stated that "it just demeans you. It just makes you feel like people are putting efforts into discriminating against you." Tr 108:14-16. Stier, as the mother of four children, was especially disturbed at the message that Proposition 8 had something to do with protecting children. She felt the campaign messages were "used to sort of try to educate people or convince people that there was a great evil to be feared and that evil must be stopped and that evil is us, I guess. * * * And the very notion that I could be part of what others need to protect their children from was just -- it was more than upsetting. It was sickening, truly. I felt sickened by that campaign." Tr 177:9-18.

Egan and Badgett testified that Proposition 8 harms the State of California and its local governments economically. Egan testified that San Francisco faces direct and indirect economic harms as a consequence of Proposition 8. Egan explained that San Francisco lost and continues to lose money because Proposition 8 slashed the number of weddings performed in San Francisco. Egan explained that Proposition 8 decreases the number of married couples in San Francisco, who tend to be wealthier than single people because of their ability to specialize their labor, pool resources and access state and employer-provided benefits. Proposition 8 also increases the costs associated with discrimination against gays and lesbians. Proponents challenged only the magnitude and not the existence of the harms Egan identified. Badgett explained that municipalities throughout California and the state government face economic disadvantages similar to those Egan identified for San Francisco.

For the reasons stated in the sections that follow, the evidence presented at trial fatally undermines the premises underlying proponents' proffered rationales for Proposition 8. An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.




Plaintiffs presented the testimony of the four plaintiffs, four lay witnesses and nine expert witnesses. Proponents did not challenge the credibility of the lay witnesses or the qualifications of the expert witnesses to offer opinion testimony.

Having observed and considered the testimony presented, the court concludes that plaintiffs' lay witnesses provided credible testimony:

1. Jeffrey Zarrillo, a plaintiff, testified about coming out as a gay man. (Tr 77:12-15: "Coming out is a very personal and internal process. * * * You have to get to the point where you're comfortable with yourself, with your own identity and who you are.") Zarrillo described his nine-year relationship with Katami. (Tr 79:20-21: "He's the love of my life. I love him probably more than I love myself.")

2. Paul Katami, a plaintiff, testified about his reasons for wanting to marry Zarrillo. (Tr 89:1-3: "Being able to call him my husband is so definitive, it changes our relationship." Tr 90:24-91:2: "I can safely say that if I were married to Jeff, that I know that the struggle that we have validating ourselves to other people would be diminished and potentially eradicated.") Katami explained why it was difficult for him to tell others about his sexual orientation even though he has been gay for "as long as [he] can remember." (Tr 91:17-92:2: "I struggled with it quite a bit. Being surrounded by what seemed everything heterosexual * * * you tend to try and want to fit into that.") Katami described how the Proposition 8 campaign messages affected him. (Tr 97:1-11: "[P]rotect the children is a big part of the [Proposition 8] campaign. And when I think of protecting your children, you protect them from people who will perpetrate crimes against them, people who might get them hooked on a drug, a pedophile, or some person that you need protecting from. You don't protect yourself from an amicable person or a good person. You protect yourself from things that can harm you physically, emotionally. And so insulting, even the insinuation that I would be part of that category.")

3. Kristin Perry, a plaintiff, testified about her relationship with Stier. (Tr 139:16-17; 140:13-14: Stier is "maybe the sparkliest person I ever met. * * * [T]he happiest I feel is in my relationship with [Stier.]") Perry described why she wishes to marry. (Tr 141:22-142:1: "I want to have a stable and secure relationship with her that then we can include our children in. And I want the discrimination we are feeling with Proposition 8 to end and for a more positive, joyful part of our lives to * * * begin.") Perry described the reason she and Stier registered as domestic partners. (Tr 153:16-17: "[W]e are registered domestic partners based on just legal advice that we received for creating an estate plan.")

4. Sandra Stier, a plaintiff, testified about her relationship with Perry, with whom she raises their four children. (Tr 167:3-5: "I have fallen in love one time and it's with [Perry]."). Stier explained why she wants to marry Perry despite their domestic partnership. (Tr 171:8-13: "[T]here is certainly nothing about domestic partnership as an institution-not even as an institution, but as a legal agreement that indicates the love and commitment that are inherent in marriage, and [domestic partnership] doesn't have anything to do for us with the nature of our relationship and the type of enduring relationship we want it to be.")

5. Helen Zia, a lay witness, testified regarding her experiences with discrimination and about how her life changed when she married her wife in 2008. (Tr 1235:10-13: "I'm beginning to understand what I've always read --marriage is the joining of two families.")

6. Jerry Sanders, the mayor of San Diego and a lay witness, testified regarding how he came to believe that domestic partnerships are discriminatory. (Tr 1273:10-17: On a last-minute decision not to veto a San Diego resolution supporting same-sex marriage: "I was saying that one group of people did not deserve the same dignity and respect, did not deserve the same symbolism about marriage.")

7. Ryan Kendall, a lay witness, testified about his experience as a teenager whose parents placed him in therapy to change his sexual orientation from homosexual to heterosexual. (Tr 1521:20: "I knew I was gay. I knew that could not be changed.") Kendall described the mental anguish he endured because of his family's disapproval of his sexual orientation. (Tr 1508:9-10, 1511:2-16: "I remember my mother looking at me and telling me that I was going to burn in hell. * * * [M]y mother would tell me that she hated me, or that I was disgusting, or that I was repulsive. Once she told me that she wished she had had an abortion instead of a gay son.")

8. Hak-Shing William Tam, an official proponent of Proposition 8 and an intervening defendant, was called as an adverse witness and testified about messages he disseminated during the Proposition 8 campaign. (Tr 1889:23-25: "Q: Did you invest substantial time, effort, and personal resources in campaigning for Proposition 8? A: Yes.")

Plaintiffs called nine expert witnesses. As the education and experience of each expert show, plaintiffs' experts were amply qualified to offer opinion testimony on the subjects identified. Moreover, the experts' demeanor and responsiveness showed their comfort with the subjects of their expertise. For those reasons, the court finds that each of plaintiffs' proffered experts offered credible opinion testimony on the subjects identified.

1. Nancy Cott, a historian, testified as an expert in the history of marriage in the United States. Cott testified that marriage has always been a secular institution in the United States, that regulation of marriage eased the state's burden to govern an amorphous populace and that marriage in the United States has undergone a series of transformations since the country was founded.

a. PX2323 Cott CV: Cott is a professor of American history at Harvard University and the director of the Schlesinger Library on the History of Women in America;

b. PX2323: In 1974, Cott received a PhD from Brandeis University in the history of American civilization;

c. PX2323: Cott has published eight books, including Public Vows: A History of Marriage and the Nation (2000), and has published numerous articles and essays;

d. Tr 186:5-14: Cott devoted a semester in 1998 to researching and teaching a course at Yale University in the history of marriage in the United States;

e. Tr 185:9-13; 188:6-189:10: Cott's marriage scholarship focuses on marriage as a public institution and as a structure regulated by government for social benefit.

2. George Chauncey, a historian, was qualified to offer testimony on social history, especially as it relates to gays and lesbians. Chauncey testified about the widespread private and public discrimination faced by gays and lesbians in the twentieth century and the ways in which the Proposition 8 campaign echoed that discrimination and relied on stereotypes against gays and lesbians that had developed in the twentieth century.

a. PX2322 Chauncey CV: Chauncey is a professor of history and American studies at Yale University; from 1991-2006, Chauncey was a professor of history at the University of Chicago;

b. Tr 357:15-17: Chauncey received a PhD in history from Yale University in 1989;

c. PX2322: Chauncey has authored or edited books on the subject of gay and lesbian history, including Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (1994) and Hidden from History: Reclaiming the Gay and Lesbian Past (1989, ed);

d. Tr 359:17-360:11: Chauncey relies on government records, interviews, diaries, films and advertisements along with studies by other historians and scholars in conducting his research;

e. Tr 360:12-21: Chauncey teaches courses in twentieth century United States history, including courses on lesbian and gay history.

3. Lee Badgett, an economist, testified as an expert on demographic information concerning gays and lesbians, same-sex couples and children raised by gays and lesbians, the effects of the exclusion of same-sex couples from the institution of marriage and the effect of permitting same-sex couples to marry on heterosexual society and the institution of marriage. Badgett offered four opinions: (1) Proposition 8 has inflicted substantial economic harm on same-sex couples and their children; (2) allowing same-sex couples to marry would not have any adverse effect on the institution of marriage or on opposite-sex couples; (3) same-sex couples are very similar to opposite-sex couples in most economic and demographic respects; and (4) Proposition 8 has imposed economic losses on the State of California and on California counties and municipalities. Tr 1330:9-1331:5.

a. PX2321 Badgett CV: Badgett is a professor of economics at UMass Amherst and the director of the Williams Institute at UCLA School of Law;

b. PX2321: Badgett received her PhD in economics from UC Berkeley in 1990;

c. Tr 1325:2-17; PX2321: Badgett has written two books on gay and lesbian relationships and same-sex marriage: Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men (2001) and When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage (2009); Badgett has also published several articles on the same subjects;

d. Tr 1326:4-13: Badgett co-authored two reports (PX1268 Brad Sears and M V Lee Badgett, The Impact of Extending Marriage to Same-Sex Couples on the California Budget, The Williams Institute (June 2008) and PX1283 M V Lee Badgett and R Bradley Sears, Putting a Price on Equality? The Impact of Same-Sex Marriage on California's Budget, 16 Stan L & Pol Rev 197 (2005)) analyzing the fiscal impact of allowing same-sex couples to marry in California;

e. Tr 1326:18-1328:4: Badgett has been invited to speak at many universities and at the American Psychological Association convention on the economics of same-sex relationships;

f. Tr 1329:6-22: Badgett has testified before federal and state government bodies about domestic partner benefits and antidiscrimination laws.

4. Edmund A Egan, the chief economist in the San Francisco Controller's Office, testified for CCSF as an expert in urban and regional economic policy. Egan conducted an economic study of the prohibition of same-sex marriage on San Francisco's economy and concluded that the prohibition negatively affects San Francisco's economy in many ways. Tr 683:19-684:19.

a. Tr 678:1-7: As the chief economist for CCSF, Egan directs the Office of Economic Analysis and prepares economic impact analysis reports for pending legislation;

b. Tr 681:16-682:25: In preparing economic impact reports, Egan relies on government data and reports, private reports and independent research to determine whether legislation has "real regulatory power" and the effects of the legislation on private behavior;

c. PX2324 Egan CV: Egan received a PhD in city and regional planning from UC Berkeley in 1997;

d. Tr 679:1-14: Egan is an adjunct faculty member at UC Berkeley and teaches graduate students on regional and urban economics and regional and city planning.

5. Letitia Anne Peplau, a psychologist, was qualified as an expert on couple relationships within the field of psychology. Peplau offered four opinions: (1) for adults who choose to enter marriage, that marriage is often associated with many important benefits; (2) research has shown remarkable similarities between same-sex and opposite-sex couples; (3) if same-sex couples are permitted to marry, they will likely experience the same benefits from marriage as opposite-sex couples; and (4) permitting same-sex marriage will not harm opposite-sex marriage. Tr 574:6-19.

a. PX2329 Peplau CV: Peplau is a professor of psychology and vice chair of graduate studies in psychology at UCLA;

b. Tr 569:10-12: Peplau's research focuses on social psychology, which is a branch of psychology that focuses on human relationships and social influence; specifically, Peplau studies close personal relationships, sexual orientation and gender;

c. Tr 571:13: Peplau began studying same-sex relationships in the 1970s;

d. Tr 571:19-572:13; PX2329: Peplau has published or edited about ten books, authored about 120 peer-reviewed articles and published literature reviews on psychology, relationships and sexuality.

6. Ilan Meyer, a social epidemiologist, testified as an expert in public health with a focus on social psychology and psychiatric epidemiology. Meyer offered three opinions: (1) gays and lesbians experience stigma, and Proposition 8 is an example of stigma; (2) social stressors affect gays and lesbians; and (3) social stressors negatively affect the mental health of gays and lesbians. Tr 817:10-19.

a. PX2328 Meyer CV: Meyer is an associate professor of sociomedical sciences at Columbia University's Mailman School of Public Health;

b. PX2328; Tr 807:20-808:7: Meyer received a PhD in sociomedical sciences from Columbia University in 1993;

c. Tr 810:19-811:16: Meyer studies the relationship between social issues and structures and patterns of mental health outcomes with a specific focus on lesbian, gay and bisexual populations;

d. Tr 812:9-814:22: Meyer has published about forty peer-reviewed articles, teaches a course on gay and lesbian issues in public health, has received numerous awards for his professional work and has edited and reviewed journals and books.

7. Gregory Herek, a psychologist, testified as an expert in social psychology with a focus on sexual orientation and stigma. Herek offered opinions concerning: (1) the nature of sexual orientation and how sexual orientation is understood in the fields of psychology and psychiatry; (2) the amenability of sexual orientation to change through intervention; and (3) the nature of stigma and prejudice as they relate to sexual orientation and Proposition 8. Tr 2023:8-14.

a. PX2326 Herek CV: Herek is a professor of psychology at UC Davis;

b. PX2326: Herek received a PhD in personality and social psychology from UC Davis in 1983;

c. Tr 2018:5-13: Social psychology is the intersection of psychology and sociology in that it focuses on human behavior within a social context; Herek's dissertation focused on heterosexuals' attitudes towards lesbians and gay men;

d. Tr 2020:1-5: Herek regularly teaches a course on sexual orientation and prejudice;

e. PX2326; Tr 2021:12-25; Tr 2022:11-14: Herek serves on editorial boards of peer-reviewed journals and has published over 100 articles and chapters on sexual orientation, stigma and prejudice.

8. Michael Lamb, a psychologist, testified as an expert on the developmental psychology of children, including the developmental psychology of children raised by gay and lesbian parents. Lamb offered two opinions: (1) children raised by gays and lesbians are just as likely to be well-adjusted as children raised by heterosexual parents; and (2) children of gay and lesbian parents would benefit if their parents were able to marry. Tr 1009:23-1010:4.

a. PX2327 Lamb CV: Lamb is a professor and head of the Department of Social and Developmental Psychology at the University of Cambridge in England;

b. Tr 1003:24-1004:6; PX2327: Lamb was the head of the section on social and emotional development of the National Institute of Child Health and Human Development in Washington DC for seventeen years;

c. Tr 1007:2-1008:8; PX2327: Lamb has published approximately 500 articles, many about child adjustment, has edited 40 books in developmental psychology, reviews about 100 articles a year and serves on editorial boards on several academic journals;

d. PX2327: Lamb received a PhD from Yale University in 1976.

9. Gary Segura, a political scientist, testified as an expert on the political power or powerlessness of minority groups in the United States, and of gays and lesbians in particular. Segura offered three opinions: (1) gays and lesbians do not possess a meaningful degree of political power; (2) gays and lesbians possess less power than groups granted judicial protection; and (3) the conclusions drawn by proponents' expert Miller are troubling and unpersuasive. Tr 1535:3-18.

a. PX2330 Segura CV: Segura is a professor of political science at Stanford University and received a PhD in political science from the University of Illinois in 1992;

b. Tr 1525:1-10: Segura and a colleague, through the Stanford Center for Democracy, operate the American National Elections Studies, which provides political scientists with data about the American electorate's views about politics;

c. Tr 1525:11-19: Segura serves on the editorial boards of major political science journals;

d. Tr 1525:22-1526:24: Segura's work focuses on political representation and whether elected officials respond to the voting public; within the field of political representation, Segura focuses on minorities;

e. PX2330; Tr 1527:25-1528:14: Segura has published about twenty-five peer-reviewed articles, authored about fifteen chapters in edited volumes and has presented at between twenty and forty conferences in the past ten years;

f. PX2330; Tr 1528:21-24: Segura has published three pieces specific to gay and lesbian politics and political issues;

g. Tr 1532:11-1533:17: Segura identified the methods he used and materials he relied on to form his opinions in this case. Relying on his background as a political scientist, Segura read literature on gay and lesbian politics, examined the statutory status of gays and lesbians and public attitudes about gays and lesbians, determined the presence or absence of gays and lesbians in political office and considered ballot initiatives about gay and lesbian issues.


Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court. Proponents informed the court on the first day of trial, January 11, 2010, that they were withdrawing Loren Marks, Paul Nathanson, Daniel N Robinson and Katherine Young as witnesses. Doc # 398 at 3. Proponents' counsel stated in court on Friday, January 15, 2010, that their witnesses "were extremely concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever." Tr 1094:21-23.

The timeline shows, however, that proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated. The Supreme Court issued a temporary stay of transmission on January 11, 2010 and a permanent stay on January 13, 2010. See Hollingsworth v. Perry, --- U.S. ----, 130 S.Ct. 1132, --- L.Ed.2d ---- (Jan 11, 2010); Hollingsworth v. Perry, --- U.S. ----, 130 S.Ct. 705, --- L.Ed.2d ---- (Jan 13, 2010). The court withdrew the case from the Ninth Circuit's pilot program on broadcasting on January 15, 2010. Doc # 463. Proponents affirmed the withdrawal of their witnesses that same day. Tr 1094:21-23. Proponents did not call their first witness until January 25, 2010. The record does not reveal the reason behind proponents' failure to call their expert witnesses.

Plaintiffs entered into evidence the deposition testimony of two of proponents' withdrawn witnesses, as their testimony supported plaintiffs' claims. Katherine Young was to testify on comparative religion and the universal definition of marriage. Doc # 292 at 4 (proponents' December 7 witness list) Doc # 286-4 at 2 (expert report). Paul Nathanson was to testify on religious attitudes towards Proposition 8. Doc # 292 at 4 (proponents' December 7 witness list); Doc # 280-4 at 2 (expert report).

Young has been a professor of religious studies at McGill University since 1978. PX2335 Young CV. She received her PhD in history of religions and comparative religions from McGill in 1978. Id. Young testified at her deposition that homosexuality is a normal variant of human sexuality and that same-sex couples possess the same desire for love and commitment as opposite-sex couples. PX2545 (dep tr); PX2544 (video of same). Young also explained that several cultures around the world and across centuries have had variations of marital relationships for same-sex couples. Id.

Nathanson has a PhD in religious studies from McGill University and is a researcher at McGill's Faculty for Religious Studies. PX2334 Nathanson CV. Nathanson is also a frequent lecturer on consequences of marriage for same-sex couples and on gender and parenting. Id. Nathanson testified at his deposition that religion lies at the heart of the hostility and violence directed at gays and lesbians and that there is no evidence that children raised by same-sex couples fare worse than children raised by opposite-sex couples. PX2547 (dep tr); PX2546 (video of same).

Proponents made no effort to call Young or Nathanson to explain the deposition testimony that plaintiffs had entered into the record or to call any of the withdrawn witnesses after potential for contemporaneous broadcast of the trial proceedings had been eliminated. Proponents called two witnesses:

1. David Blankenhorn, founder and president of the Institute for American Values, testified on marriage, fatherhood and family structure. Plaintiffs objected to Blankenhorn's qualification as an expert. For the reasons explained hereafter, Blankenhorn lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents' factual assertions.

2. Kenneth P Miller, a professor of government at Claremont McKenna College, testified as an expert in American and California politics. Plaintiffs objected that Miller lacked sufficient expertise specific to gays and lesbians. Miller's testimony sought to rebut only a limited aspect of plaintiffs' equal protection claim relating to political power.

David Blankenhorn

Proponents called David Blankenhorn as an expert on marriage, fatherhood and family structure. Blankenhorn received a BA in social studies from Harvard College and an MA in comparative social history from the University of Warwick in England. Tr 2717:24-2718:3; DIX2693 (Blankenhorn CV). After Blankenhorn completed his education, he served as a community organizer in low-income communities, where he developed an interest in community and family institutions after "seeing the weakened state" of those institutions firsthand, "especially how children were living without their fathers." Tr 2719:3-18. This experience led Blankenhorn in 1987 to found the Institute for American Values, which he describes as "a nonpartisan think tank" that focuses primarily on "issues of marriage, family, and child well-being." Tr 2719:20-25. The Institute commissions research and releases reports on issues relating to "fatherhood, marriage, family structure [and] child well-being." Tr 2720:6-19. The Institute also produces an annual report "on the state of marriage in America." Tr 2720:24-25.

Blankenhorn has published two books on the subjects of marriage, fatherhood and family structure: Fatherless America: Confronting Our Most Urgent Social Problem (HarperCollins 1995), DIX0108, and The Future of Marriage (Encounter Books 2006), DIX0956. Tr 2722:2-12. Blankenhorn has edited four books about family structure and marriage, Tr 2728:13-22, and has co-edited or co-authored several publications about marriage. Doc # 302 at 21.

Plaintiffs challenge Blankenhorn's qualifications as an expert because none of his relevant publications has been subject to a traditional peer-review process, Tr 2733:2-2735:4, he has no degree in sociology, psychology or anthropology despite the importance of those fields to the subjects of marriage, fatherhood and family structure, Tr 2735:15-2736:9, and his study of the effects of same-sex marriage involved "read[ing] articles and ha[ving] conversations with people, and tr[ying] to be an informed person about it," Tr 2736:13-2740:3. See also Doc # 285 (plaintiffs' motion in limine). Plaintiffs argue that Blankenhorn's conclusions are not based on "objective data or discernible methodology," Doc # 285 at 25, and that Blankenhorn's conclusions are instead based on his interpretation of selected quotations from articles and reports, id at 26.

The court permitted Blankenhorn to testify but reserved the question of the appropriate weight to give to Blankenhorn's opinions. Tr 2741:24-2742:3. The court now determines that Blankenhorn's testimony constitutes inadmissible opinion testimony that should be given essentially no weight.

Federal Rule of Evidence 702 provides that a witness may be qualified as an expert "by knowledge, skill, experience, training, or education." The testimony may only be admitted if it "is based upon sufficient facts or data" and "is the product of reliable principles and methods." Id. Expert testimony must be both relevant and reliable, with a "basis in the knowledge and experience of [the relevant] discipline." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 149, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (citing Daubert v. Merrell Dow Pharm, 509 U.S. 579, 589, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

While proponents correctly assert that formal training in the relevant disciplines and peer-reviewed publications are not dispositive of expertise, education is nevertheless important to ensure that "an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152. Formal training shows that a proposed expert adheres to the intellectual rigor that characterizes the field, while peer-reviewed publications demonstrate an acceptance by the field that the work of the proposed expert displays "at least the minimal criteria" of intellectual rigor required in that field. Daubert v. Merrell Dow Pharm, 43 F.3d 1311, 1318 (9th Cir.1995) (on remand) ( "Daubert II ").

The methodologies on which expert testimony may be based are "not limited to what is generally accepted," Daubert II at 1319 n11, but "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). The party proffering the evidence "must explain the expert's methodology and demonstrate in some objectively verifiable way that the expert has both chosen a reliable * * * method and followed it faithfully." Daubert II, 43 F.3d at 1319 n11.

Several factors are relevant to an expert's reliability: (1) "whether [a method] can be (and has been) tested"; (2) "whether the [method] has been subjected to peer review and publication"; (3) "the known or potential rate of error"; (4) "the existence and maintenance of standards controlling the [method's] operation"; (5) "a * * * degree of acceptance" of the method within "a relevant * * * community," Daubert, 509 U.S. at 593-94; (6) whether the expert is "proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation," Daubert II, 43 F.3d at 1317; (7) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion, see Joiner, 522 U.S. at 145-146; (8) whether the expert has adequately accounted for obvious alternative explanations, see generally Claar v. Burlington Northern RR Co, 29 F.3d 499 (9th Cir.1994); (9) whether the expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field," Kumho Tire, 526 U.S. at 152; and (10) whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give, see id at 151.

Blankenhorn offered opinions on the definition of marriage, the ideal family structure and potential consequences of state recognition of marriage for same-sex couples. None of Blankenhorn's opinions is reliable.

Blankenhorn's first opinion is that marriage is "a socially-approved sexual relationship between a man and a woman." Tr 2742:9-10. According to Blankenhorn, the primary purpose of marriage is to "regulate filiation." Tr 2742:18. Blankenhorn testified that the alternative and contradictory definition of marriage is that "marriage is fundamentally a private adult commitment." Tr 2755:25-2756:1; Tr 2756:4-2757:17 (DIX0093 Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (2001)). He described this definition as focused on "the tender feelings that spouses have for one another," Tr 2761:5-6. Blankenhorn agrees this "affective dimension" of marriage exists but asserts that marriage developed independently of affection. Tr 2761:9-2762:3.

Blankenhorn thus sets up a dichotomy for the definition of marriage: either marriage is defined as a socially approved sexual relationship between a man and a woman for the purpose of bearing and raising children biologically related to both spouses, or marriage is a private relationship between two consenting adults. Blankenhorn did not address the definition of marriage proposed by plaintiffs' expert Cott, which subsumes Blankenhorn's dichotomy. Cott testified that marriage is "a couple's choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life." Tr 201:9-14. There is nothing in Cott's definition that limits marriage to its "affective dimension" as defined by Blankenhorn, and yet Cott's definition does not emphasize the biological relationship linking dependents to both spouses.

Blankenhorn relied on the quotations of others to define marriage and provided no explanation of the meaning of the passages he cited or their sources. Tr 2744:4-2755:16. Blankenhorn's mere recitation of text in evidence does not assist the court in understanding the evidence because reading, as much as hearing, "is within the ability and experience of the trier of fact." Beech Aircraft Corp. v. United States, 51 F.3d 834, 842 (9th Cir.1995).

Blankenhorn testified that his research has led him to conclude there are three universal rules that govern marriage: (1) the rule of opposites (the "man/woman" rule); (2) the rule of two; and (3) the rule of sex. Tr 2879:17-25. Blankenhorn explained that there are "no or almost no exceptions" to the rule of opposites, Tr 2882:14, despite some instances of ritualized same-sex relationships in some cultures, Tr 2884:25-2888:16. Blankenhorn explained that despite the widespread practice of polygamy across many cultures, the rule of two is rarely violated, because even within a polygamous marriage, "each marriage is separate." Tr 2892:1-3; Tr 2899:16-2900:4 ("Q: Is it your view that that man who has married one wife, and then another wife, and then another wife, and then another wife, and then another wife, and now has five wives, and they are all his wives at the same time, that that marriage is consistent with your rule of two?* * * A: I concur with Bronislaw Malinowski, and others, who say that that is consistent with the two rule of marriage."). Finally, Blankenhorn could only hypothesize instances in which the rule of sex would be violated, including where "[h]e's in prison for life, he's married, and he is not in a system in which any conjugal visitation is allowed." Tr 2907:13-19.

Blankenhorn's interest and study on the subjects of marriage, fatherhood and family structure are evident from the record, but nothing in the record other than the "bald assurance" of Blankenhorn, Daubert II, 43 F.3d at 1316, suggests that Blankenhorn's investigation into marriage has been conducted to the "same level of intellectual rigor" characterizing the practice of anthropologists, sociologists or psychologists. See Kumho Tire, 526 U.S. at 152. Blankenhorn gave no explanation of the methodology that led him to his definition of marriage other than his review of others' work. The court concludes that Blankenhorn's proposed definition of marriage is "connected to existing data only by the ipse dixit" of Blankenhorn and accordingly rejects it. See Joiner, 522 U.S. at 146.

Blankenhorn's second opinion is that a body of evidence supports the conclusion that children raised by their married, biological parents do better on average than children raised in other environments. Tr 2767:11-2771:11. The evidence Blankenhorn relied on to support his conclusion compares children raised by married, biological parents with children raised by single parents, unmarried mothers, step families and cohabiting parents. Tr 2769:14-24 (referring to DIX0026 Kristin Anderson Moore, Susan M Jekielek, and Carol Emig, Marriage from a Child's Perspective: How Does Family Structure Affect Children, and What Can We Do about It, Child Trends (June 2002)); Tr 2771:1-11 (referring to DIX0124 Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps (Harvard 1994)).

Blankenhorn's conclusion that married biological parents provide a better family form than married non-biological parents is not supported by the evidence on which he relied because the evidence does not, and does not claim to, compare biological to non-biological parents. Blankenhorn did not in his testimony consider any study comparing children raised by their married biological parents to children raised by their married adoptive parents. Blankenhorn did not testify about a study comparing children raised by their married biological parents to children raised by their married parents who conceived using an egg or sperm donor. The studies Blankenhorn relied on compare various family structures and do not emphasize biology. Tr 2768:9-2772:6. The studies may well support a conclusion that parents' marital status may affect child outcomes. The studies do not, however, support a conclusion that the biological connection between a parent and his or her child is a significant variable for child outcomes. The court concludes that "there is simply too great an analytical gap between the data and the opinion proffered." Joiner, 522 U.S. at 146. Blankenhorn's reliance on biology is unsupported by evidence, and the court therefore rejects his conclusion that a biological link between parents and children influences children's outcomes.

Blankenhorn's third opinion is that recognizing same-sex marriage will lead to the deinstitutionalization of marriage. Tr 2772:21-2775:23. Blankenhorn described deinstitutionalization as a process through which previously stable patterns and rules forming an institution (like marriage) slowly erode or change. Tr 2773:4-24. Blankenhorn identified several manifestations of deinstitutionalization: out-of-wedlock childbearing, rising divorce rates, the rise of non-marital cohabitation, increasing use of assistive reproductive technologies and marriage for same-sex couples. Tr 2774:20-2775:23. To the extent Blankenhorn believes that same-sex marriage is both a cause and a symptom of deinstitutionalization, his opinion is tautological. Moreover, no credible evidence supports Blankenhorn's conclusion that same-sex marriage could lead to the other manifestations of deinstitutionalization.

Blankenhorn relied on sociologist Andrew Cherlin (DIX0049 The Deinstitutionalization of American Marriage, 66 J Marriage & Family 848 (Nov 2004)) and sociologist Norval Glen (DIX0060 The Struggle for Same-Sex Marriage, 41 Society 25 (Sept/Oct 2004)) to support his opinion that same-sex marriage may speed the deinstitutionalization of marriage. Neither of these sources supports Blankenhorn's conclusion that same-sex marriage will further deinstitutionalize marriage, as neither source claims same-sex marriage as a cause of divorce or single parenthood. Nevertheless, Blankenhorn testified that "the further deinstitutionalization of marriage caused by the legalization of same-sex marriage," Tr 2782:3-5, would likely manifest itself in "all of the consequences [already discussed]." Tr 2782:15-16.

Blankenhorn's book, The Future of Marriage, DIX0956, lists numerous consequences of permitting same-sex couples to marry, some of which are the manifestations of deinstitutionalization listed above. Blankenhorn explained that the list of consequences arose from a group thought experiment in which an idea was written down if someone suggested it. Tr 2844:1-12; DIX0956 at 202. Blankenhorn's group thought experiment began with the untested assumption that "gay marriage, like almost any major social change, would be likely to generate a diverse range of consequences." DIX0956 at 202. The group failed to consider that recognizing the marriage of same-sex couples might lead only to minimal, if any, social consequences.

During trial, Blankenhorn was presented with a study that posed an empirical question whether permitting marriage or civil unions for same-sex couples would lead to the manifestations Blankenhorn described as indicative of deinstitutionalization. After reviewing and analyzing available evidence, the study concludes that "laws permitting same-sex marriage or civil unions have no adverse effect on marriage, divorce, and abortion rates, the percent of children born out of wedlock, or the percent of households with children under 18 headed by women." PX2898 (Laura Langbein & Mark A Yost, Jr, Same-Sex Marriage and Negative Externalities, 90 Soc Sci Q 2 (June 2009) at 305-306). Blankenhorn had not seen the study before trial and was thus unfamiliar with its methods and conclusions. Nevertheless, Blankenhorn dismissed the study and its results, reasoning that its authors "think that [the conclusion is] so self-evident that anybody who has an opposing point of view is not a rational person." Tr 2918:19-21.

Blankenhorn's concern that same-sex marriage poses a threat to the institution of marriage is further undermined by his testimony that same-sex marriage and opposite-sex marriage operate almost identically. During cross-examination, Blankenhorn was shown a report produced by his Institute in 2000 explaining the six dimensions of marriage: (1) legal contract; (2) financial partnership; (3) sacred promise; (4) sexual union; (5) personal bond; and (6) family-making bond. PX2879 (Coalition for Marriage, Family and Couples Education, et al, The Marriage Movement: A Statement of Principles (Institute for American Values 2000)). Blankenhorn agreed that same-sex marriages and opposite-sex marriages would be identical across these six dimensions. Tr 2913:8-2916:18. When referring to the sixth dimension, a family-making bond, Blankenhorn agreed that same-sex couples could "raise" children. Tr 2916:17.

Blankenhorn gave absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered. See Joiner, 522 U.S. at 146.

Blankenhorn was unwilling to answer many questions directly on cross-examination and was defensive in his answers. Moreover, much of his testimony contradicted his opinions. Blankenhorn testified on cross-examination that studies show children of adoptive parents do as well or better than children of biological parents. Tr 2794:12-2795:5. Blankenhorn agreed that children raised by same-sex couples would benefit if their parents were permitted to marry. Tr 2803:6-15. Blankenhorn also testified he wrote and agrees with the statement "I believe that today the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were the day before." DIX0956 at 2; Tr 2805:6-2806:1.

Blankenhorn stated he opposes marriage for same-sex couples because it will weaken the institution of marriage, despite his recognition that at least thirteen positive consequences would flow from state recognition of marriage for same-sex couples, including: (1) by increasing the number of married couples who might be interested in adoption and foster care, same-sex marriage might well lead to fewer children growing up in state institutions and more children growing up in loving adoptive and foster families; and (2) same-sex marriage would signify greater social acceptance of homosexual love and the worth and validity of same-sex intimate relationships. Tr 2839:16-2842:25; 2847:1-2848:3; DIX0956 at 203-205.

Blankenhorn's opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore finds the opinions of Blankenhorn to be unreliable and entitled to essentially no weight.

Kenneth P Miller

Proponents called Kenneth P Miller, a professor of government at Claremont McKenna College, as an expert in American and California politics. Tr 2427:10-12. Plaintiffs conducted voir dire to examine whether Miller had sufficient expertise to testify authoritatively on the subject of the political power of gays and lesbians. Tr 2428:3-10. Plaintiffs objected to Miller's qualification as an expert in the areas of discrimination against gays and lesbians and gay and lesbian political power but did not object to his qualification as an expert on initiatives. Tr 2435:21-2436:4.

Miller received a PhD from the University of California (Berkeley) in 2002 in political science and is a professor of government at Claremont McKenna College. Doc # 280-6 at 39-44 (Miller CV). Plaintiffs contend that Miller lacks sufficient expertise to offer an opinion on the relative political power of gay men and lesbians. Having considered Miller's background, experience and testimony, the court concludes that, while Miller has significant experience with politics generally, he is not sufficiently familiar with gay and lesbian politics specifically to offer opinions on gay and lesbian political power.

Miller testified that factors determining a group's political power include money, access to lawmakers, the size and cohesion of a group, the ability to attract allies and form coalitions and the ability to persuade. Tr 2437:7-14. Miller explained why, in his opinion, these factors favor a conclusion that gays and lesbians have political power. Tr 2442-2461.

Miller described religious, political and corporate support for gay and lesbian rights. Miller pointed to failed initiatives in California relating to whether public school teachers should be fired for publicly supporting homosexuality and whether HIV-positive individuals should be quarantined or reported as examples of political successes for gays and lesbians. Tr 2475:21-2477:16. Miller testified that political powerlessness is the inability to attract the attention of lawmakers. Tr 2487:1-2. Using that test, Miller concluded that gays and lesbians have political power both nationally and in California. Tr 2487:10-21.

Plaintiffs cross-examined Miller about his knowledge of the relevant scholarship and data underlying his opinions. Miller admitted that proponents' counsel provided him with most of the "materials considered" in his expert report. Tr 2497:13-2498:22; PX0794A (annotated index of materials considered). See also Doc # 280 at 23-35 (Appendix to plaintiffs' motion in limine listing 158 sources that appear on both Miller's list of materials considered and the list of proponents' withdrawn expert, Paul Nathanson, including twenty-eight websites listing the same "last visited" date). Miller stated that he did not know at the time of his deposition the status of antidiscrimination provisions to protect gays and lesbians at the state and local level, Tr 2506:3-2507:1, could only identify Don't Ask, Don't Tell and the federal Defense of Marriage Act as examples of official discrimination against gays and lesbians, Tr 2524:4-2525:2, and that he has read no or few books or articles by George Chauncey, Miriam Smith, Shane Phelan, Ellen Riggle, Barry Tadlock, William Eskridge, Mark Blasius, Urvashi Vaid, Andrew Sullivan and John D'Emilio, Tr 2518:15-2522:25.

Miller admitted he had not investigated the scope of private employment discrimination against gays and lesbians and had no reason to dispute the data on discrimination presented in PX0604 (The Employment Non-Discrimination Act of 2009, Hearings on HR 3017 before the House Committee on Education and Labor, 111 Cong, 1st Sess (Sept 23, 2009) (testimony of R Bradley Sears, Executive Director of the Williams Institute)). Tr 2529:15-2530:24. Miller did not know whether gays and lesbians have more or less political power than African Americans, either in California or nationally, because he had not researched the question. Tr 2535:9-2539:13.

Plaintiffs questioned Miller on his earlier scholarship criticizing the California initiative process because initiatives eschew compromise and foster polarization, undermine the authority and flexibility of representative government and violate norms of openness, accountability, competence and fairness. Tr 2544:10-2547:7. In 2001 Miller wrote that he was especially concerned that initiative constitutional amendments undermine representative democracy. Tr 2546:14-2548:15.

Plaintiffs questioned Miller on data showing 84 percent of those who attend church weekly voted yes on Proposition 8, 54 percent of those who attend church occasionally voted no on Proposition 8 and 83 percent of those who never attend church voted no on Proposition 8. Tr 2590:10-2591:7; PX2853 at 9 Proposition 8 Local Exit Polls-Election Center 2008, CNN). Plaintiffs also asked about polling data showing 56 percent of those with a union member in the household voted yes on Proposition 8. Tr 2591:25-2592:6; PX2853 at 13. Miller stated he had no reason to doubt the accuracy of the polling data. Tr 2592:7-8. Miller did not explain how the data in PX2853 are consistent with his conclusion that many religious groups and labor unions are allies of gays and lesbians.

Miller testified that he did not investigate the extent of anti-gay harassment in workplaces or schools. Tr 2600:7-17, 2603:9-24. Miller stated he had not investigated the ways in which anti-gay stereotypes may have influenced Proposition 8 voters. Tr 2608:19-2609:1. Miller agreed that a principle of political science holds that it is undesirable for a religious majority to impose its religious views on a minority. Tr 2692:16-2693:7.

Miller explained on redirect that he had reviewed "most" of the materials listed in his expert report and that he "tried to review all of them." Tr 2697:11-16. Miller testified that he believes initiatives relating to marriage for same-sex couples arise as a check on the courts and do not therefore implicate a fear of the majority imposing its will on the minority. Tr 2706:17-2707:6. Miller explained that prohibiting same-sex couples from marriage "wasn't necessarily invidious discrimination against" gays and lesbians. Tr 2707:20-24.

The credibility of Miller's opinions relating to gay and lesbian political power is undermined by his admissions that he: (1) has not focused on lesbian and gay issues in his research or study; (2) has not read many of the sources that would be relevant to forming an opinion regarding the political power of gays and lesbians; (3) has no basis to compare the political power of gays and lesbians to the power of other groups, including African-Americans and women; and (4) could not confirm that he personally identified the vast majority of the sources that he cited in his expert report, see PX0794A. Furthermore, Miller undermined the credibility of his opinions by conceding that gays and lesbians currently face discrimination and that current discrimination is relevant to a group's political power.

Miller's credibility was further undermined because the opinions he offered at trial were inconsistent with the opinions he expressed before he was retained as an expert. Specifically, Miller previously wrote that gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process, see PX1869 (Kenneth Miller, Constraining Populism: The Real Challenge of Initiative Reform, 41 Santa Clara L Rev 1037 (2001)), contradicting his trial testimony that gays and lesbians are not politically vulnerable with respect to the initiative process. Miller admitted that at least some voters supported Proposition 8 based on anti-gay sentiment. Tr 2606:11-2608:18.

For the foregoing reasons, the court finds that Miller's opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence.



Having considered the evidence presented at trial, the credibility of the witnesses and the legal arguments presented by counsel, the court now makes the following findings of fact pursuant to FRCP 52(a). The court relies primarily on the testimony and exhibits cited herein, although uncited cumulative documentary evidence in the record and considered by the court also supports the findings.



1. Kristin Perry and Sandra Stier reside together in Alameda County, California and are raising four children. They are lesbians in a committed relationship who seek to marry.

2. On May 21, 2009, Perry and Stier applied for a marriage license from defendant O'Connell, the Alameda County Clerk-Recorder, who denied them a license due to Proposition 8 because they are of the same sex.

3. Paul Katami and Jeffrey Zarrillo reside together in Los Angeles County, California. They are gay men in a committed ...

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