Prop 8 decision

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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, 207 P3d 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.
PROCEDURAL HISTORY OF THIS ACTION
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).

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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.

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Proponents’ motion to order the copies’ return, Doc #698, is
accordingly DENIED.
PLAINTIFFS’ CASE AGAINST PROPOSITION 8
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

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