My Favorite Quotes From Perry v Brown Part One

I’ve read the decision, and I’m blown away. It was so difficult to choose my favorite passages, but I managed to stop at eighteen quotes. If you followed the live-blogging of the original Prop 8 trial presided over by Judge Vaughn Walker, this is no less amazing and awe-inspiring.

Some of these quotes are especially long, so I’m going to put the vast majority behind a cut. The last nine quotes will be posted later–but you really should go read the whole thing.

1. (Page 18) “The People may not employ the initiative power to single out
a disfavored group for unequal treatment and strip them, without
a legitimate justification, of a right as important as the
right to marry. Accordingly, we affirm the judgment of the
district court.”

2. “By emphasizing Proposition 8’s limited effect, we do not
mean to minimize the harm that this change in the law caused
to same-sex couples and their families. To the contrary, we
emphasize the extraordinary significance of the official designation
of ‘marriage.’ That designation is important because
‘marriage’ is the name that society gives to the relationship
that matters most between two adults. A rose by any other
name may smell as sweet, but to the couple desiring to enter
into a committed lifelong relationship, a marriage by the name
of ‘registered domestic partnership’ does not. The word ‘marriage’
is singular in connoting “a harmony in living,” “a bilateral
loyalty,” and “a coming together for better or for worse,
hopefully enduring, and intimate to the degree of being
sacred.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
As Proponents have admitted, “the word ‘marriage’ has a
unique meaning,” and “there is a significant symbolic disparity
between domestic partnership and marriage.” It is the designation
of ‘marriage’ itself that expresses validation, by the
state and the community, and that serves as a symbol, like a
wedding ceremony or a wedding ring, of something profoundly
important. See id. at 971.”

3. “We need consider only the many ways in which we
encounter the word ‘marriage’ in our daily lives and understand
it, consciously or not, to convey a sense of significance.
We are regularly given forms to complete that ask us whether
we are “single” or “married.” Newspapers run announcements
of births, deaths, and marriages. We are excited to see someone
ask, “Will you marry me?”, whether on bended knee in
a restaurant or in text splashed across a stadium Jumbotron.
Certainly it would not have the same effect to see “Will you
enter into a registered domestic partnership with me?”.
Groucho Marx’s one-liner, “Marriage is a wonderful institution
. . . but who wants to live in an institution?” would lack
its punch if the word ‘marriage’ were replaced with the alternative
phrase. So too with Shakespeare’s “A young man married
is a man that’s marr’d,” Lincoln’s “Marriage is neither
heaven nor hell, it is simply purgatory,” and Sinatra’s “A man
doesn’t know what happiness is until he’s married. By then
it’s too late.” We see tropes like “marrying for love” versus
“marrying for money” played out again and again in our films
and literature because of the recognized importance and permanence
of the marriage relationship. Had Marilyn Monroe’s
film been called How to Register a Domestic Partnership with
a Millionaire, it would not have conveyed the same meaning
as did her famous movie, even though the underlying drama
for same-sex couples is no different. The name ‘marriage’ signifies
the unique recognition that society gives to harmonious,
loyal, enduring, and intimate relationships. See Knight v.
Super. Ct., 128 Cal. App. 4th 14, 31 (2005) (“[M]arriage is
PERRY v. BROWN 1613
considered a more substantial relationship and is accorded a
greater stature than a domestic partnership.”); cf. Griswold,
381 U.S. at 486.”

4. “Proponents resist this framing of the question. They deem
it irrelevant to our inquiry that the California Constitution, as
interpreted by the Marriage Cases, had previously guaranteed
same-sex couples the right to use the designation of ‘marriage,’
because In re Marriage Cases was a “short-lived decision,”
and same-sex couples were allowed to marry only
during a “143-day hiatus” between the effective date of the
Marriage Cases decision and the enactment of Proposition 8.
Proponents’ Reply Br. 75, 79-80. According to Proponents, a
decision to “restore” the “traditional definition of marriage”
is indistinguishable from a decision to “adhere” to that definition
in the first place. Id. at 79-80. We are bound, however,
by the California Supreme Court’s authoritative interpretation
of Proposition 8’s effect on California law, see Romer, 517
U.S. at 626: Proposition 8 “eliminat[ed] . . . the right of samesex
couples to equal access to the designation of marriage” by
“carv[ing] out a narrow and limited exception to these state
constitutional rights” that had previously guaranteed the designation
of ‘marriage’ to all couples, opposite-sex and samesex
alike. Strauss, 207 P.3d at 61, 76.
Even were we not bound by the state court’s explanation,
we would be obligated to consider Proposition 8 in light of its
actual effect, which was, as the voters were told, to “eliminate
the right of same-sex couples to marry in California.” Voter
PERRY v. BROWN 1615
Information Guide at 54. The context matters. Withdrawing
from a disfavored group the right to obtain a designation with
significant societal consequences is different from declining
to extend that designation in the first place, regardless of
whether the right was withdrawn after a week, a year, or a
decade. The action of changing something suggests a more
deliberate purpose than does the inaction of leaving it as it is.
As the California Supreme Court held, “Proposition 8 [did]
not ‘readjudicate’ the issue that was litigated and resolved in
the Marriage Cases.” Strauss, 207 P.3d at 63. Rather than
“declar[ing] the state of the law as it existed under the California
Constitution at the time of the Marriage Cases,” Proposition
8 “establishe[d] a new substantive state constitutional
rule that took effect upon” its adoption by the electorate. Id.
(emphasis added). Whether or not it is a historical accident,
as Proponents argue, that Proposition 8 postdated the Marriage
Cases rather than predating and thus preempting that
decision, the relative timing of the two events is a fact, and
we must decide this case on its facts.”

5. “Proposition 8 is remarkably similar to Amendment 2.*
Like Amendment 2, Proposition 8 “single[s] out a certain
class of citizens for disfavored legal status . . . .” Id. at 633.
Like Amendment 2, Proposition 8 has the “peculiar property,”
id. at 632, of “withdraw[ing] from homosexuals, but no others,”
an existing legal right—here, access to the official designation
of ‘marriage’—that had been broadly available,
notwithstanding the fact that the Constitution did not compel
the state to confer it in the first place. Id. at 627. Like Amendment 2, Proposition 8 denies “equal protection of the laws in
the most literal sense,” id. at 633, because it “carves out” an
“exception” to California’s equal protection clause, by removing
equal access to marriage, which gays and lesbians had
previously enjoyed, from the scope of that constitutional guarantee.
Strauss, 207 P.3d at 61. Like Amendment 2, Proposition
8 “by state decree . . . put[s] [homosexuals] in a solitary
class with respect to” an important aspect of human relations,
and accordingly “imposes a special disability upon [homosexuals]
alone.” Romer, 517 U.S. at 627, 631. And like Amendment
2, Proposition 8 constitutionalizes that disability,
meaning that gays and lesbians may overcome it “only by
enlisting the citizenry of [the state] to amend the State Constitution”
for a second time. Id. at 631.

*Note: Amendment 2 is explained the page before this section. Quote: “In 1992, Colorado
adopted Amendment 2 to its state constitution, which prohibited
the state and its political subdivisions from providing any
protection against discrimination on the basis of sexual orientation.
See Colo. Const. art. II, § 30b. Amendment 2 was proposed
in response to a number of local ordinances that had
banned sexual-orientation discrimination in such areas as
housing, employment, education, public accommodations,
and health and welfare services. The effect of Amendment 2
was “to repeal” those local laws and “to prohibit any governmental
entity from adopting similar, or more protective statutes,
regulations, ordinances, or policies in the future.”

6. “Proposition 8 is no less problematic than Amendment 2 merely
because its effect is narrower; to the contrary, the surgical
precision with which it excises a right belonging to gay and
lesbian couples makes it even more suspect. A law that has no
practical effect except to strip one group of the right to use a
state-authorized and socially meaningful designation is all the
more “unprecedented” and “unusual” than a law that imposes
broader changes, and raises an even stronger “inference that
the disadvantage imposed is born of animosity toward the
class of persons affected,” id. at 633-34.”

7. “Proponents appear to suggest that
unless the Fourteenth Amendment actually requires that the
designation of ‘marriage’ be given to same-sex couples in the
first place, there can be no constitutional infirmity in taking
the designation away from that group of citizens, whatever the
People’s reason for doing so.
[9] Romer forecloses this argument. The rights that were
repealed by Amendment 2 included protections against discrimination
on the basis of sexual orientation in the private
sphere. Those protections, like any protections against private
discrimination, were not compelled by the Fourteenth Amendment.
15 Rather, “[s]tates ha[d] chosen to counter discrimination by enacting detailed statutory schemes” prohibiting
discrimination in employment and public accommodations,
among other contexts, and certain Colorado jurisdictions had
chosen to extend those protections to gays and lesbians.
Romer, 517 U.S. at 628 (emphasis added). It was these elective
protections that Amendment 2 withdrew and forbade.16
The relevant inquiry in Romer was not whether the state of
the law after Amendment 2 was constitutional; there was no
doubt that the Fourteenth Amendment did not require
anti-discrimination protections to be afforded to gays and lesbians.
The question, instead, was whether the change in the
law that Amendment 2 effected could be justified by some
legitimate purpose.”

8. “Rather, what the Supreme
Court forbade in each case was the targeted exclusion of a
group of citizens from a right or benefit that they had enjoyed
on equal terms with all other citizens. The constitutional
injury that Romer and Moreno identified—and that serves as
a basis of our decision to strike down Proposition 8—has little
to do with the substance of the right or benefit from which a
group is excluded, and much to do with the act of exclusion
itself.”

9. “We in no way mean to suggest that Proposition 8
would be constitutional if only it had gone further—for example,
by also repealing same-sex couples’ equal parental rights
or their rights to share community property or enjoy hospital
visitation privileges. Only if Proposition 8 had actually had
any effect on childrearing or “responsible procreation” would
it be necessary or appropriate for us to consider the legitimacy
of Proponents’ primary rationale for the measure.22 Here,
given all other pertinent aspects of California law, Proposition
8 simply could not have the effect on procreation or childbearing that Proponents claim it might have been intended to
have. Accordingly, an interest in responsible procreation and
childbearing cannot provide a rational basis for the measure.”

Stay tuned for the next set of quotes! Part two is here!