Perry

concurring in part and dissenting in part.

I agree with the majority’s analysis and decisions in parts III and VI of its opinion, *1097 determining that (1) the Proponents have standing to bring this appeal; and (2) the Motion to Vacate the Judgment should be denied. Because I do not agree with the majority’s analysis of other topics regarding the constitutionality of Proposition 8, I have chosen to write separately. Ultimately, I am not convinced that Proposition 8 is not rationally related to a legitimate governmental interest. I must therefore respectfully dissent.

Before addressing the issues now presented before our panel, I want to emphasize a distinguishing point in my analysis from what may be anticipated by the reader. Similar to the California Supreme Court in its prior opinion concerning Proposition 8, our panel was not tasked with determining whether this constitutional amendment “is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution.” Strauss v. Horton, 46 Cal.4th 364 , 93 Cal.Rptr.3d 591 , 207 P.3d 48 , 59 (2009). Our personal views regarding the political and sociological debate on marriage…

Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right—the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less. Proposition 8…

Theodore J. Boutrous, Jr., Christopher D. Dusseault, Theane Evangelis Kapur, Sarah E. Piepmeier, Enrique A. Monagas, and Joshua S. Lipshutz, Gibson, Dunn & Crutcher LLP, Los Angeles, CA; Theodore B. Olson (argued), Matthew D. McGill, and Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, D.C.; David Boies (argued), Jeremy M. Goldman, and Theodore H. Uno, Boies, Schiller & Flexner LLP, Armonk, NY; for plaintiffs-appellees Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo.

Dennis J. Herrera, City Attorney; Therese M. Stewart (argued), Chief Deputy City Attorney; Christine Van Aken and Mollie M. Lee, Deputy City Attorneys; San Francisco, CA; for intervenor-plaintiff-appellee City and County of San Francisco.

Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom, CA; Charles J. Cooper (argued), David H. Thompson, Howard C. Nielson, Jr., and Peter A. Patterson, Cooper and Kirk, PLLC, Washington, D.C.; Brian W. Raum and James A. Campbell, Alliance Defense Fund, Scottsdale, AZ; for intervenor-defendants-appellants Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com.

James Joseph Lynch, Jr., Sacramento,…