from the ruling on 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. Due process protects
individuals against arbitrary governmental intrusion into life,
liberty or property. See Washington v Glucksberg, 521 US 702, 719-
720 (1997). When legislation burdens the exercise of a right
deemed to be fundamental, the government must show that the
intrusion withstands strict scrutiny...
The evidence shows that domestic partnerships do not
fulfill California’s due process obligation to plaintiffs for two
reasons. First, domestic partnerships are distinct from marriage
and do not provide the same social meaning as marriage. FF 53-54.
Second, domestic partnerships were created specifically so that
California could offer same-sex couples rights and benefits while
explicitly withholding marriage from same-sex couples. Id, Cal Fam
Code § 297 (Gov Davis 2001 signing statement: “In California, a
legal marriage is between a man and a woman. * * * This [domestic
partnership] legislation does nothing to contradict or undermine
the definition of a legal marriage.”).
The evidence at trial shows that domestic partnerships
exist solely to differentiate same-sex unions from marriages. FF
53-54. A domestic partnership is not a marriage; while domestic
partnerships offer same-sex couples almost all of the rights and
responsibilities associated with marriage, the evidence shows that
the withholding of the designation “marriage” significantly
disadvantages plaintiffs. FF 52-54. The record reflects that
marriage is a culturally superior status compared to a domestic
partnership. FF 52. California does not meet its due process
obligation to allow plaintiffs to marry by offering them a
substitute and inferior institution that denies marriage to same sex
PROPOSITION 8 IS UNCONSTITUTIONAL BECAUSE IT DENIES PLAINTIFFS A
FUNDAMENTAL RIGHT WITHOUT A LEGITIMATE (MUCH LESS COMPELLING)
Because plaintiffs seek to exercise their fundamental
right to marry, their claim is subject to strict scrutiny.
Zablocki, 434 US at 388. That the majority of California voters
supported Proposition 8 is irrelevant, as “fundamental rights may
not be submitted to [a] vote; they depend on the outcome of no
elections.” West Virginia State Board of Education v Barnette, 319
Under strict scrutiny, the state bears the
burden of producing evidence to show that Proposition 8 is narrowly
tailored to a compelling government interest. Carey v Population
Services International, 431 US 678, 686 (1977). Because the
government defendants declined to advance such arguments,
proponents seized the role of asserting the existence of a
compelling California interest in Proposition 8.
As explained in detail in the equal protection analysis,
Proposition 8 cannot withstand rational basis review. Still less
can Proposition 8 survive the strict scrutiny required by
plaintiffs’ due process claim. The minimal evidentiary
presentation made by proponents does not meet the heavy burden of
production necessary to show that Proposition 8 is narrowly
tailored to a compelling government interest. Proposition 8
cannot, therefore, withstand strict scrutiny. Moreover, proponents
do not assert that the availability of domestic partnerships
satisfies plaintiffs’ fundamental right to marry; proponents
stipulated that “[t]here is a significant symbolic disparity
between domestic partnership and marriage.” Doc #159-2 at 6.
Accordingly, Proposition 8 violates the Due Process Clause of the
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