Perry v. Schwarzenegger/9:Findings of Fact--Whether Any Evidence Supports California's Refusal to Recognize Marriage Between Two People Because of Their Sex

Perry v. Schwarzenegger
9:Findings of Fact--Whether Any Evidence Supports California's Refusal to Recognize Marriage Between Two People Because of Their Sex


  1. Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.
    1. Tr 195:13-196:21 (Cott: "[C]ivil law has always been supreme in defining and regulating marriage.... [Religious practices and ceremonies] have no particular bearing on the validity of marriages. Any clerics, ministers, rabbis, et cetera, that were accustomed to...performing marriages, only do so because the state has given them authority to do that.");
    2. Cal Fam Code §§ 400, 420.
  2. A person may not marry unless he or she has the legal capacity to consent to marriage.
    1. Tr 202:2-15 (Cott: Marriage "is a basic civil right. It expresses the right of a person to have the liberty to be able to consent validly.");
    2. Cal Fam Code §§ 300, 301.
  3. California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.
    1. Cal Fam Code § 300 et seq;
    2. In re Marriage Cases, 183 P3d 384, 431 (Cal 2008) ("This contention [that marriage is limited to opposite-sex couples because only a man and a woman can produce [p. 61] children biologically related to both] is fundamentally flawed[.]”);
    3. Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting) ("If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct...what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.");
    4. Tr 222:22-223:22 (Cott: There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry.... [P]rocreative ability has never been a qualification for marriage.").
  4. When California became a state in 1850, marriage was understood to require a husband and a wife. See Cal Const, Art XI § 14 (1849); In re Marriage Cases, 183 P3d at 407.
  5. The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained. Tr 202:2-203:12 (Cott).
  6. Many states, including California, had laws restricting the race of marital partners so that whites and non-whites could not marry each other.
    1. Tr 228:9-231:3 (Cott: In "[a]s many as 41 states and territories," laws placed restrictions on "marriage between a white person and a person of color.");
    2. Tr 236:17-238:23 (Cott: Racially restrictive marriage laws "prevented individuals from having complete choice on whom they married, in a way that designated some groups as less worthy than other groups[.]" Defenders of race restrictions argued the laws were "naturally-based and God's plan just being put into positive law, the efforts to undo them met extreme alarm among those who [p. 62] thought these laws were correct.... [P]eople who supported [racially restrictive marriage laws] saw these as very important definitional features of who could and should marry, and who could not and should not.");
    3. Tr 440:9-13 (Chauncey: Jerry Falwell criticized Brown v Board of Education, because school integration could "lead to interracial marriage, which was then sort of the ultimate sign of black and white equality.");
    4. PX2547 (Nathanson Nov 12, 2009 Dep Tr 108:12-23: Defenders of race restrictions in marriage argued that such discrimination was protective of the family); PX2546 (video of same);
    5. Pace v Alabama, 106 US 583, 585 (1883) (holding that anti-miscegenation laws did not violate the Constitution because they treated African-Americans and whites the same);
    6. PX0710 at RFA No 11: Attorney General admits that California banned interracial marriage until the California Supreme Court invalidated the prohibition in Perez v Sharp, 198 P2d 17 (Cal 1948);
    7. PX0707 at RFA No 11: Proponents admit that California banned certain interracial marriages from early in its history as a state until the California Supreme Court invalidated those restrictions in Perez, 198 P2d 17.
  7. Racial restrictions on an individual's choice of marriage partner were deemed unconstitutional under the California Constitution in 1948 and under the United States Constitution in 1967. An individual's exercise of his or her right to marry no longer depends on his or her race nor on the race of his or her chosen partner.
    1. Loving v Virginia, 388 US 1 (1967);
    2. Perez v Sharp, 198 P2d 17 (Cal 1948).
  8. Under coverture, a woman's legal and economic identity was subsumed by her husband's upon marriage. The husband was the legal head of household. Coverture is no longer part of the marital bargain. [p. 63]
    1. PX0710 at RFA No 12: Attorney General admits that the doctrine of coverture, under which women, once married, lost their independent legal identity and became the property of their husbands, was once viewed as a central component of the civil institution of marriage;
    2. Tr 240:11-240:15 (Cott: Under coverture, "the wife was covered, in effect, by her husband's legal and economic identity. And she —— she lost her independent legal and economic individuality.");
    3. Tr 240:22-241:6 (Cott: Coverture "was the marital bargain to which both spouses consented. And it was a reciprocal bargain in which the husband had certain very important...obligations that were enforced by the state. His obligation was to support his wife, provide her with the basic material goods of life, and to do so for their dependents. And her part of the bargain was to serve and obey him, and to lend to him all of her property, and also enable him to take all of her earnings, and represent her in court or in any sort of legal or economic transaction.”);
    4. Tr 241:7-11 (Cott: Coverture "was a highly-asymmetrical bargain that, to us today, appears to enforce inequality.... But I do want to stress it was not simply domination and submission. It was a mutual bargain, a reciprocal bargain joined by consent.");
    5. Tr 243:5-244:10 (Cott: The sexual division of roles of spouses began to shift in the late nineteenth century and came fully to an end under the law in the 1970s. Currently, the state's assignment of marital roles is gender-neutral. "[B]oth spouses are obligated to support one another, but they are not obligated to one another with a specific emphasis on one spouse being the provider and the other being the dependent.");
    6. Follansbee v Benzenberg, 122 Cal App 2d 466, 476 (2d Dist 1954) ("The legal status of a wife has changed. Her legal personality is no longer merged in that of her husband.").
  9. Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family. [p. 64]
    1. Tr 239:25-245:8, 307:14-308:9, 340:14-342:12 (Cott: Marriage laws historically have been used to dictate the roles of spouses. Under coverture, a wife's legal and economic identity was merged into that of her husband's. The coverture system was based on assumptions of what was then considered a natural division of labor between men and women.);
    2. Tr 241:19-23 (Cott: "[A]ssumptions were, at the time, that men were suited to be providers...whereas, women, the weaker sex, were suited to be dependent.");
    3. PX1245 Letitia Anne Peplau and Adam W Fingerhut, The Close Relationships of Lesbians and Gay Men, 58 Annual Rev Pschol 405, 408 (2007): "Traditional heterosexual marriage is organized around two basic principles: a division of labor based on gender and a norm of greater male power and decision-making authority.";
    4. PX2547 (Nathanson Nov 12, 2009 Dep Tr 108:24-109:9: Defenders of prejudice or stereotypes against women argued that such discrimination was meant to be protective of the family. (PX2546 video of same); see also PX2545 (Young Nov 13, 2009 Dep Tr 214:19-215:13: same, PX2544 video of same);
    5. PX1319 Hendrik Hartog, Lecture, Marital Exits and Marital Expectations in Nineteenth Century America, 80 Georgetown L J 95, 101, 128-129 (1991): "Even in equity, a wife could not usually sue under her own name." And "the most important feature of marriage was the public assumption of a relationship of rights and duties, of men acting as husbands and women acting as wives.";
    6. PX1328 Note, A Reconsideration of Husband's Duty to Support and Wife's Duty to Render Services, 29 Va L Rev 857, 858 (1943): "Marriage deprived [the wife] of her legal capacity in most matters affecting property."
  10. The development of no-fault divorce laws made it simpler for spouses to end marriages and allowed spouses to define their own roles within a marriage.
    1. Tr 338:5-14 (Cott: No-fault divorce "was an indication of the shift...[that] spousal roles used to be dictated by the state. Now they are dictated by the couple themselves. There's no requirement that they do X or Y if they are one spouse or the other.");
    2. Tr 339:10-14 (Cott: The move to no-fault divorce underlines the fact that marriage no longer requires [p. 65] specific performance of one marital role or another based on gender.);
    3. PX1319 Hendrik Hartog, Lecture, Marital Exits and Marital Expectations in Nineteenth Century America, 80 Georgetown L J 95, 97, 121 (1991): In nineteenth century America, marriage was permanent, spousal roles were non-negotiable and divorce "punished the guilty for criminal conduct" and "provided a form of public punishment for a spouse who had knowingly and criminally violated his or her public vows of marriage.";
    4. PX1308 Betsey Stevenson and Justin Wolfers, Marriage and Divorce: Changes and their Driving Forces, Institute for the Study of Labor at 2-3, Fig 1 (Feb 2007): Current divorce rates are consistent with trends that developed before states adopted no-fault divorce.
  11. In 1971, California amended Cal Civ Code § 4101, which had previously set the age of consent to marriage at twenty-one years for males and eighteen years for females, to read "[a]ny unmarried person of the age of 18 years or upwards, and not otherwise disqualified, is capable of consenting to and consummating marriage." Cal Civ Code § 4101 (1971); In re Marriage Cases, 183 P3d at 408.
  12. In the 1970s, several same-sex couples sought marriage licenses in California, relying on the amended language in Cal Civ Code § 4101. In re Marriage Cases, 183 P3d at 409. In response, the legislature in 1977 amended the marriage statute, former Cal Civ Code § 4100, to read "[m]arriage is a personal relation arising out of a civil contract between a man and a woman...." Id. That provision became Cal Fam Code § 300. The legislative history of the enactment supports a conclusion that unique roles of a man and a woman in marriage motivated legislators to enact the amendment. See In re Marriage Cases, 183 P3d at 409. [p. 66]
  13. In 2008, the California Supreme Court held that certain provisions of the Family Code violated the California Constitution to the extent the statutes reserve the designation of marriage to opposite-sex couples. In re Marriage Cases, 183 P3d at 452. The language "between a man and a woman" was stricken from section 300, and section 308.5 (Proposition 22) was stricken in its entirety. Id at 453.
  14. California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependants. As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman.
    1. Cal Const Art, I § 7.5 (Proposition 8);
    2. Cal Fam Code § 720.
  15. Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.
    1. PX0707 at RFA No 13: Proponents admit that eliminating the doctrine of coverture has not deprived marriage of its vitality and importance as a social institution;
    2. PX0710 at RFA No 13: Attorney General admits that gender-based reforms in civil marriage law have not deprived marriage of its vitality and importance as a social institution;
    3. Tr 245:9-247:3 (Cott: "[T]he primacy of the husband as the legal and economic representative of the couple, and the protector and provider for his wife, was seen as absolutely essential to what marriage was" in the nineteenth century. Gender restrictions were slowly removed from marriage, but "because there were such alarms about it and such resistance to change in this what had been seen as quite an essential characteristic of marriage, it took a very very long time before this trajectory of the removal of the state from prescribing these rigid spousal roles was complete." The removal of gender inequality in marriage is now complete "to no [p. 67] apparent damage to the institution. And, in fact, I think to the benefit of the institution.");
    4. PX0707 at RFA No 13: Proponents admit that eliminating racial restrictions on marriage has not deprived marriage of its vitality and importance as a social institution;
    5. PX0710 at RFA No 13: Attorney General admits that race-based reforms in civil marriage law have not deprived marriage of its vitality and importance as a social institution;
    6. Tr 237:9-239:24 (Cott: When racial restrictions on marriage across color lines were abolished, there was alarm and many people worried that the institution of marriage would be degraded and devalued. But "there has been no evidence that the institution of marriage has become less popular because...people can marry whoever they want.").
  16. Marriage is the state recognition and approval of 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 to join in an economic partnership and support one another and any dependents. Tr 187:11-16; 188:16-189:2; 201:9-14 (Cott).
  17. The state has many purposes in licensing and fostering marriage. Some of the state's purposes benefit the persons married while some benefit the state:
    1. Facilitating governance and public order by organizing individuals into cohesive family units. Tr 222:13-17 (Cott: "[T]he purpose of the state in licensing and incentivizing marriage is to create stable households in which the adults who reside there and are committed to one another by their own consents will support one another as well as their dependents.");
    2. Developing a realm of liberty, intimacy and free decision-making by spouses, Tr 189:7-15 (Cott: "[T]he realm created by marriage, that private realm has been repeatedly reiterated as a —— as a realm of liberty for intimacy and free decision making by the parties[.]");
    3. Creating stable households. Tr 226:8-15 (Cott: The government's aim is "to create stable and enduring unions between couples."); [p. 68]
    4. Legitimating children. Tr 225:16-227:4 (Cott: Historically, legitimating children was a very important function of marriage, especially among propertied families. Today, legitimation is less important, although unmarried couples' children still have to show "that they deserve these inheritance rights and other benefits of their parents.");
    5. Assigning individuals to care for one another and thus limiting the public's liability to care for the vulnerable. Tr 226:8-227:4 (Cott: Marriage gives private actors responsibility over dependents.); Tr 222:18-20 ("The institution of marriage has always been at least as much about supporting adults as it has been about supporting minors.");
    6. Facilitating property ownership. Tr 188:20-22 (Marriage is "the foundation of the private realm transmission.").
  18. States and the federal government channel benefits, rights and responsibilities through marital status. Marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs.
    1. Tr 1341:2-16 (Badgett: Specific tangible economic harms flow from being unable to marry, including lack of access to health insurance and other employment benefits, higher income taxes and taxes on domestic partner benefits.);
    2. Tr 235:24-236:16 (Cott: The government has historically channeled many benefits through marriage; as an example, the Social Security Act had "a very distinct marital advantage for those who were married couples as compared to either single individuals or unmarried couples.");
    3. PX1397 US General Accounting Office Report at 1, Jan 23, 2004: Research identified "a total of 1138 federal statutory provisions classified in the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges.".
  19. Marriage creates economic support obligations between consenting adults and for their dependents.
    1. Tr 222:13-17 (Cott: "[T]he purpose of the state in licensing and incentivizing marriage is to create stable households in which the adults who reside there and are [p. 69] committed to one another by their own consents will support one another as well as their dependents.");
    2. Cal Fam Code § 720.
  20. Marriage benefits both spouses by promoting physical and psychological health. Married individuals are less likely to engage in behaviors detrimental to health, like smoking or drinking heavily. Married individuals live longer on average than unmarried individuals.
    1. Tr 578:11-579:9 (Peplau: A recent, large-scale study by the Centers for Disease Control found that married individuals, on average, fare better on "virtually every measure" of health compared to non-married individuals.);
    2. PX0708 at RFA No 84: Proponents admit that opposite-sex couples who are married experience, on average, less anxiety and depression and greater happiness and satisfaction with life than do non-married opposite-sex couples or persons not involved in an intimate relationship;
    3. Tr 578:2-10 (Peplau: "[T]he very consistent findings from [a very large body of research on the impact of marriage on health] are that, on average, married individuals fare better. They are physically healthier. They tend to live longer. They engage in fewer risky behaviors. They look better on measures of psychological well-being.");
    4. Tr 688:10-12 (Egan: "[M]arried individuals are healthier, on average, and, in particular, behave themselves in healthier ways than single individuals.");
    5. PX1043 Charlotte A Schoenborn, Marital Status and Health: United States, 1999-2002, US Department of Health and Human Services at 1 (Dec 15, 2004): "Regardless of population subgroup (age, sex, race, Hispanic origin, education, income, or nativity) or health indicator (fair or poor health, limitations in activities, low back pain, headaches, serious psychological distress, smoking, or leisure-time physical inactivity), married adults were generally found to be healthier than adults in other marital status categories.";
    6. PX0803 California Health Interview Survey (2009): Married individuals are less likely to have psychological distress than individuals who are single and never married, divorced, separated, widowed or living with their partner; [p. 70]
    7. PX0807 Press Release, Agency for Healthcare Research and Quality, Marriage Encourages Healthy Behaviors among the Elderly, Especially Men (Oct 26, 1998): Marriage encourages healthy behaviors among the elderly.
  21. Material benefits, legal protections and social support resulting from marriage can increase wealth and improve psychological well-being for married spouses.
    1. PX0809 Joseph Lupton and James P Smith, Marriage, Assets, and Savings, RAND (Nov 1999): Marriage is correlated with wealth accumulation;
    2. Tr 1332:19-1337:2 (Badgett: Marriage confers numerous economic benefits, including greater specialization of labor and economies of scale, reduced transactions costs, health and insurance benefits, stronger statement of commitment, greater validation and social acceptance of the relationship and more positive workplace outcomes. Some benefits are not quantifiable but are nevertheless substantial.);
    3. PX0708 at RFA No 85: Proponents admit that societal support is central to the institution of marriage and that marital relationships are typically entered in the presence of family members, friends and civil or religious authorities;
    4. PX0708 at RFA No 87: Proponents admit that marriage between a man and a woman can be a source of relationship stability and commitment, including by creating barriers and constraints on dissolving the relationship.
  22. The long-term nature of marriage allows spouses to specialize their labor and encourages spouses to increase household efficiency by dividing labor to increase productivity.
    1. Tr 1331:15-1332:9; 1332:25-1334:17 (Badgett);
    2. PX0708 at RFA No 88: Proponents admit that marriage between a man and a woman encourages spouses to increase household efficiency, including by dividing their labor in ways that increase the family's productivity in producing goods and services for family members. [p. 71]
  23. The tangible and intangible benefits of marriage flow to a married couple's children.
    1. Tr 1042:20-1043:8 (Lamb: explaining that when a cohabiting couple marries, that marriage can improve the adjustment outcomes of the couple’s child because of "the advantages that accrue to marriage.");
    2. PX0886 Position Statement, American Psychiatric Association, Support of Legal Recognition of Same-Sex Civil Marriage (July 2005): Marriage benefits children of that couple.