Perry v. Schwarzenegger/10:Findings of Fact--Whether Any Evidence Shows California Has an Interest in Differentiating Between Same-Sex and Opposite-Sex Unions

WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS

42. Same-sex love and intimacy are well-documented in human history. The concept of an identity based on object desire; that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late nineteenth century.
1. Tr 531:25-533:24 (Chauncey: The categories of heterosexual and homosexual emerged in the late nineteenth century, although there were people at all time periods in American history whose primary erotic and emotional attractions were to people of the same sex.);
2. Tr 2078:10-12 (Herek: "[H]eterosexual and homosexual behaviors alike have been common throughout human history[.]");
3. Tr 2064:22-23 (Herek: In practice, we generally refer to three groups: homosexuals, heterosexuals and bisexuals.);
4. Tr 2027:4-9 (Herek: "[S]exual orientation is at its heart a relational construct, because it is all about a relationship of some sort between one individual and another, and a relationship that is defined by the sex of the two persons involved[.]").
43. Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes. An individual's sexual orientation can [p. 72] be expressed through self-identification, behavior or attraction. The vast majority of people are consistent in self-identification, behavior and attraction throughout their adult lives.
1. Tr 2025:3-12 (Herek: "Sexual orientation is a term that we use to describe an enduring sexual, romantic, or intensely affectional attraction to men, to women, or to both men and women. It's also used to refer to an identity or a sense of self that is based on one's enduring patterns of attraction. And it's also sometimes used to describe an enduring pattern of behavior.");
2. Tr 2060:7-11 (Herek: Most social science and behavioral research has assessed sexual orientation in terms of attraction, behavior or identity, or some combination thereof.);
3. Tr 2072:19-2073:4 (Herek: "[T]he vast majority of people are consistent in their behavior, their identity, and their attractions.");
4. Tr 2086:13-21 (Herek: The Laumann study (PX0943 Edward O Laumann, et al, The Social Organization of Sexuality: Sexual Practices in the United States (Chicago 1994)) shows that 90 percent of people in Laumann's sample were consistently heterosexual in their behavior, identity and attraction, and a core group of one to two percent of the sample was consistently lesbian, gay or bisexual in their behavior, identity and attraction.);
5. Tr 2211:8-10 (Herek: "[I]f I were a betting person, I would say that you would do well to bet that [a person's] future sexual behavior will correspond to [his or her] current identity.").
44. Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person's identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents' assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.
1. Tr 2026:7-24 (Herek: In his own research, Herek has asked ordinary people if they are heterosexual, straight, gay, [p. 73] lesbian or bisexual, and that is a question people generally are able to answer.);
2. Tr 858:24-859:5 (Meyer: Sexual orientation is perceived as "a core thing about who you are." People say: "This is who I am.... [I]t is a central identity that is important.”);
3. Tr 2027:14-18 (Herek: These sorts of relationships, that need for intimacy and attachment is a very core part of the human experience and a very fundamental need that people have.);
4. Tr 2324:8-13 (Herek: If two women wish to marry each other, it is reasonable to assume that they are lesbians. And if two men want to marry each other, it is reasonable to assume that they are gay.);
5. Tr 2304:9-2309:1 (Herek: Researchers may define sexual orientation based on behavior, identity or attraction based on the purpose of a study, so that an individual studying sexually transmitted infections may focus on behavior while a researcher studying child development may focus on identity. Researchers studying racial and ethnic minorities similarly focus their definition of the population to be studied based on the purpose of the study. Most people are nevertheless consistent in their behavior, identity and attraction.);
6. Tr 2176:23-2177:14 (Herek, responding to cross-examination that sexual orientation is a socially constructed classification and not a "valid concept": "[Social constructionists] are talking about the construction of [sexual orientation] at the cultural level, in the same way that we have cultural constructions of race and ethnicity and social class.... But to say that there's no such thing as class or race or ethnicity or sexual orientation is to, I think, minimize the importance of that construction.);
7. Tr 1372:10-1374:7 (Badgett: DIX1108 The Williams Institute, Best Practices for Asking Questions about Sexual Orientation on Surveys (Nov 2009), includes a discussion about methods for conducting surveys; it does not conflict with the substantial evidence demonstrating that sexual orientation is a distinguishing characteristic that defines gay and lesbian individuals as a discrete group.).
45. Proponents' campaign for Proposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals. [p. 74]
1. PX0480A Video supporting Proposition 8: Supporters of Proposition 8 identified "homosexuals and those sympathetic to their demands" as supporters of marriage for same-sex couples;
3. PX2153 Advertisement, Honest Answers to Questions Many Californians Are Asking About Proposition 8, Protect Marriage (2008): "The 98% of Californians who are not gay should not have their religious freedoms and freedom of expression be compromised to afford special legal rights for the 2% of Californians who are gay.";
4. PX2156 Protect Marriage, Myths and Facts About Proposition 8: "Proposition 8 does not interfere with gays living the lifestyle they choose. However, while gays can live as they want, they should not have the right to redefine marriage for the rest of society.”;
5. PX0021 Leaflet, California Family Council, The California Marriage Protection Act ("San Diego County's 'Tipping Point'") at 2: The leaflet asserts that "homosexuals" do not want to marry; instead, the goal of the "homosexual community" is to annihilate marriage;
6. PX0577 Frank Schubert and Jeff Flint, Passing Prop 8, Politics at 45 (Feb 2009): The Proposition 8 campaign was organized in light of the fact that many Californians are "tolerant" of gays;
7. PX0001 California Voter Information Guide, California General Election, Tuesday, November 4, 2008 at PM 3365: "[W]hile gays have the right to their private lives, they do not have the right to redefine marriage for everyone else" (emphasis in original).
46. Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.
1. Tr 2032:15-22 (Herek: Herek has conducted research in which he has found that the vast majority of lesbians and gay men, and most bisexuals as well, when asked how much choice they have about their sexual orientation say that they have "no choice" or "very little choice" about it.);
2. Tr 2054:12-2055:24 (Herek: PX0928 at 39 contains a table that reports data on approximately 2,200 people who responded to questions about how much choice they had about being lesbian, gay or bisexual. Among gay men, 87 percent said that they experienced no or little choice [p. 75] about their sexual orientation. Among lesbians, 70 percent said that they had no or very little choice about their sexual orientation.); Tr 2056:4-25 (Herek: PX0930 demonstrates that 88 percent of gay men reported that they had "no choice at all" about their sexual orientation, and 68 percent of lesbians said they had "no choice at all," and another 15 percent reported a small amount of choice.);
3. Tr 2252:1-10 (Herek: "It is certainly the case that there have been many people who, most likely because of societal stigma, wanted very much to change their sexual orientation and were not able to do so.");
4. Tr 2314:3-17 (Herek: Herek agrees with Peplau's statement that "[c]laims about the potential erotic plasticity of women do not mean that most women will actually exhibit change over time. At a young age, many women adopt patterns of heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of same-sex attractions and relationships.");
5. Tr 2202:8-22 (Herek: "[M]ost people are brought up in society assuming that they will be heterosexual. Little boys are taught that they will grow up and marry a girl. Little girls are taught they will grow up and marry a boy. And growing up with those expectations, it is not uncommon for people to engage in sexual behavior with someone of the other sex, possibly before they have developed their real sense of who they are, of what their sexual orientation is. And I think that's one of the reasons why...[gay men and lesbians have] experience[d] heterosexual intercourse.... [I]t is not part of their identity. It's not part of who they are, and not indicative of their current attractions.");
6. Tr 2033:6-2034:20 (Herek: Therapies designed to change an individual's sexual orientation have not been found to be effective in that they have not been shown to consistently produce the desired outcome without causing harm to the individuals involved.); Tr 2039:1-3 (Herek: Herek is not aware of any major mental health organizations that have endorsed the use of such therapies.);
7. Tr 140:6, 141:14-19 (Perry: Perry is a lesbian and feels that she was born with her sexual orientation. At 45 years old, she does not think that it might somehow change.);
8. Tr 166:24-167:9 (Stier: Stier is 47 years old and has fallen in love one time in her life —— with Perry.);
9. Tr 77:4-5 (Zarrillo: Zarrillo has been gay "as long as [he] can remember."); [p. 76]
10. Tr 91:15-17 (Katami: Katami has been a "natural-born gay" "as long as he can remember.");
11. Tr 1506:2-11 (Kendall: "When I was a little kid, I knew I liked other boys. But I didn't realize that meant I was gay until I was, probably, 11 or 12 years old.... I ended up looking up the word 'homosexual' in the dictionary. And I remember reading the definition[.]... And it slowly dawned on me that that's what I was.");
12. Tr 1510:6-8 (Kendall: "I knew I was gay just like I knew I'm short and I'm half Hispanic. And I just never thought that those facts would change.").
47. California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California.
1. PX0707 at RFA No 21: Proponents admit that same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities;
2. PX0710 at RFA No 19: Attorney General admits that sexual orientation bears no relation to a person's ability to perform in or contribute to society;
3. PX0710 at RFA No 22: Attorney General admits that the laws of California recognize no relationship between a person's sexual orientation and his or her ability to raise children; to his or her capacity to enter into a relationship that is analogous to marriage; or to his or her ability to participate fully in all economic and social institutions, with the exception of civil marriage;
4. Tr 1032:6-12 (Lamb: Gay and lesbian sexual orientations are "normal variation[s] and are considered to be aspects of well-adjusted behavior.");
5. Tr 2027:19-2028:2 (Herek: Homosexuality is not considered a mental disorder. The American Psychiatric Association, the American Psychological Association and other major professional mental health associations have all gone on record affirming that homosexuality is a normal expression of sexuality and that it is not in any way a form of pathology.);
6. Tr 2530:25-2532:25 (Miller: Miller agrees that "[c]ourts and legal scholars have concluded that sexual orientation is not related to an individual's ability to contribute to society or perform in the workplace."). [p. 77]
48. Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.
1. PX0707 at RFA No 65: Proponents admit that gay and lesbian individuals, including plaintiffs, have formed lasting, committed and caring relationships with persons of the same sex and same-sex couples share their lives and participate in their communities together;
2. PX0707 at RFA No 58: Proponents admit that many gay men and lesbians have established loving and committed relationships;
3. PX0710 at RFA No 65: Attorney General admits that gay men and lesbians have formed lasting, committed and caring same-sex relationships and that same-sex couples share their lives and participate in their communities together;
4. PX0710 at RFA No 58: Attorney General admits that California law implicitly recognizes an individual's capacity to establish a loving and long-term committed relationship with another person that does not depend on the individual’s sexual orientation;
5. Tr 583:12-585:21 (Peplau: Research that has compared the quality of same-sex and opposite-sex relationships and the processes that affect those relationships consistently shows "great similarity across couples, both same-sex and heterosexual.");
6. Tr 586:22-587:1 (Peplau: Reliable research shows that "a substantial proportion of lesbians and gay men are in relationships, that many of those relationships are long-term.");
7. PX2545 (Young Nov 13 2009 Dep Tr 122:17-123:1: Young agrees with the American Psychoanalytic Association's statement that "gay men and lesbians possess the same potential and desire for sustained loving and lasting relationships as heterosexuals."); PX2544 at 12:40-14:15 (video of same); [p. 78]
8. PX2545 (Young Nov 13, 2009 Dep Tr 100:17-101:5: Young agrees that love and commitment are reasons both gay people and heterosexuals have for wanting to marry.); PX2544 at 10:35-10:55 (video of same);
9. Tr 1362:17-21 (Badgett: Same-sex couples wish to marry for many of the same reasons that opposite-sex couples marry.);
10. Tr 1362:5-10 (Badgett: Same-sex couples have more similarities than differences with opposite-sex couples, and any differences are marginal.);
11. PX2096 Adam Romero, et al, Census Snapshot: California, The Williams Institute at 1 (Aug 2008): "In many ways, the more than 107,000 same-sex couples living in California are similar to married couples. According to Census 2000, they live throughout the state, are racially and ethnically diverse, have partners who depend upon one another financially, and actively participate in California's economy. Census data also show that 18% of same-sex couples in California are raising children."
49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children.
1. PX0707 at RFA No 66: Proponents admit that gay and lesbian individuals raise children together;
2. PX0710 at RFA No 22: Attorney General admits that the laws of California recognize no relationship between a person's sexual orientation and his or her ability to raise children;
3. PX0709 at RFA No 22: Governor admits that California law does not prohibit individuals from raising children on the basis of sexual orientation;
4. PX0710 at RFA No 57: Attorney General admits that California law protects the right of gay men and lesbians in same-sex relationships to be foster parents and to adopt children by forbidding discrimination on the basis of sexual orientation;
5. Cal Welf & Inst Code § 16013(a): "It is the policy of this state that all persons engaged in providing care and services to foster children...shall not be subjected to discrimination or harassment on the basis of their [p. 79] clients' or their own actual or perceived...sexual orientation.";
6. Cal Fam Code § 297.5(d): "The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses.";
7. Elisa B v Superior Court, 117 P3d 660, 670 (Cal 2005) (holding that under the Uniform Parentage Act, a parent may have two parents of the same sex);
8. PX2096 Adam Romero, et al, Census Snapshot: California, The Williams Institute at 2 (Aug 2008): "18% of same-sex couples in California are raising children under the age of 18.";
9. Tr 1348:23-1350:2 (Badgett: Same-sex couples in California are raising 37,300 children under the age of 18.).
50. Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.
1. Tr 594:17-20 (Peplau: "My opinion, based on the great similarities that have been documented between same-sex couples and heterosexual couples, is th[at] if same-sex couples were permitted to marry, that they also would enjoy the same benefits [from marriage].");
2. Tr 598:1-599:19 (Peplau: Married same-sex couples in Massachusetts have reported various benefits from marriage including greater commitment to the relationship, more acceptance from extended family, less worry over legal problems, greater access to health benefits and benefits for their children.);
3. PX0787 Position Statement, American Psychiatric Association, Support of Legal Recognition of Same-Sex Civil Marriage at 1 (July 2005): "In the interest of maintaining and promoting mental health, the American Psychiatric Association supports the legal recognition of same-sex civil marriage with all rights, benefits, and responsibilities conferred by civil marriage, and opposes restrictions to those same rights, benefits, and responsibilities."
51. Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.
1. PX0707 at RFA No 9: Proponents admit that for many gay and lesbian individuals, marriage to an individual of the opposite sex is not a meaningful alternative; [p. 80]
2. PX0710 at RFA No 9: Attorney General admits that for gay men and lesbians, opposite-sex marriage may not be a meaningful alternative to same-sex marriage to the extent that it would compel them to negate their sexual orientation and identity;
3. Tr 85:9-21 (Zarrillo: "I have no attraction, desire, to be with a member of the opposite sex.");
4. Tr 2042:14-25 (Herek: While gay men and lesbians in California are permitted to marry, they are only permitted to marry a member of the opposite sex. For the vast majority of gay men and lesbians, that is not a realistic option. This is true because sexual orientation is about the relationships people form —— it defines the universe of people with whom one is able to form the sort of intimate, committed relationship that would be the basis for marriage.);
5. Tr 2043:1-2044:10 (Herek: Some gay men and lesbians have married members of the opposite sex, but many of those marriages dissolve, and some of them experience considerable problems simply because one of the partners is gay or lesbian. A gay or lesbian person marrying a person of the opposite sex is likely to create a great deal of conflict and tension in the relationship.).
52. Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.
1. PX0707 at RFA No 38: Proponents admit that there is a significant symbolic disparity between domestic partnership and marriage;
2. PX0707 at RFA No 4: Proponents admit that the word "marriage" has a unique meaning;
3. Tr 207:9-208:6 (Cott, describing the social meaning of marriage in our culture: Marriage has been the "happy ending to the romance." Marriage "is the principal happy ending in all of our romantic tales"; the "cultural polish on marriage" is "as a destination to be gained by any couple who love one another.");
4. Tr 208:9-17 (Cott: "Q. Let me ask you this. How does the cultural value and the meaning, social meaning of marriage, in your view, compare with the social meaning of domestic partnerships and civil unions? A. I appreciate the fact that several states have extended —— maybe it's many states now, have extended most of the material rights and benefits of marriage to people who [p. 81] have civil unions or domestic partnerships. But there really is no comparison, in my historical view, because there is nothing that is like marriage except marriage.");
5. Tr 611:1-7 (Peplau: "I have great confidence that some of the things that come from marriage, believing that you are part of the first class kind of relationship in this country, that you are...in the status of relationships that this society most values, most esteems, considers the most legitimate and the most appropriate, undoubtedly has benefits that are not part of domestic partnerships.”);
6. Tr 1342:14-1343:12 (Badgett: Some same-sex couples who might marry would not register as domestic partners because they see domestic partnership as a second class status.);
7. Tr 1471:1-1472:8 (Badgett: Same-sex couples value the social recognition of marriage and believe that the alternative status conveys a message of inferiority.);
8. Tr 1963:3-8 (Tam: "If 'domestic partner' is defined as it is now, then we can explain to our children that, yeah, there are some same-sex person wants to have a lifetime together as committed partners, and that is called 'domestic partner,' but it is not 'marriage.'" (as stated)).
53. Domestic partners are not married under California law. California domestic partnerships may not be recognized in other states and are not recognized by the federal government.
1. Cal Fam Code §§ 297-299.6 (establishing domestic partnership as separate from marriage);
2. Compare Doc #686 at 39 with Doc #687 at 47: The court asked the parties to identify which states recognize California domestic partnerships. No party could identify with certainty the states that recognize them. Plaintiffs and proponents agree only that Connecticut, New Jersey and Washington recognize California domestic partnerships. See also #688 at 2: "To the best of the Administrative Defendants' knowledge," Connecticut, Washington DC, Washington, Nevada, New Hampshire and New Jersey recognize California domestic partnerships;
3. Gill v Office of Personnel Management et al, No 09-10309-JLT at Doc #70 (July 8, 2010) (holding the federal Defense of Marriage Act ("DOMA") unconstitutional as applied to plaintiffs who are married under state law. (Domestic partnerships are not available in Massachusetts [p. 82] and thus the court did not address whether a person in a domestic partnership would have standing to challenge DOMA.)); see also In re Karen Golinski, 587 F.3d 901, 902 (9th Cir 2009) (finding that Golinski could obtain coverage for her wife under the Federal Employees Health Benefits Act without needing to consider whether the result would be the same for a federal employee's domestic partner).
54. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.
1. Tr 613:23-614:12 (Peplau: There is a significant symbolic disparity between marriage and domestic partnerships; a domestic partnership is "not something that is necessarily understood or recognized by other people in your environment.");
2. Tr 659:8-15 (Peplau: As a result of the different social meanings of a marriage and a domestic partnership, there is a greater degree of an enforceable trust in a marriage than a domestic partnership.);
3. Tr 2044:20-2045:22 (Herek: The difference between domestic partnerships and marriage is much more than simply a word. :[J]ust the fact that we're here today suggests that this is more than just a word...clearly, [there is] a great deal of strong feeling and emotion about the difference between marriage and domestic partnerships.");
4. Tr 964:1-3 (Meyer: Domestic partnerships reduce the value of same-sex relationships.);
5. PX0710 at RFA No 37: Attorney General admits that establishing a separate legal institution for state recognition and support of lesbian and gay families, even if well-intentioned, marginalizes and stigmatizes gay families;
6. Tr 142:2-13 (Perry: When you are married, "you are honored and respected by your family. Your children know what your relationship is. And when you leave your home and you go to work or you go out in the world, people know what your relationship means."); [p. 83]
7. Tr 153:4-155:5 (Perry: Stier and Perry completed documents to register as domestic partners and mailed them in to the state. Perry views domestic partnership as an agreement; it is not the same as marriage, which symbolizes "maybe the most important decision you make as an adult, who you choose [as your spouse].");
8. Tr 170:12-171:14 (Stier: To Stier, domestic partnership feels like a legal agreement between two parties that spells out responsibilities and duties. Nothing about domestic partnership indicates the love and commitment that are inherent in marriage, and for Stier and Perry, "it doesn't have anything to do...with the nature of our relationship and the type of enduring relationship we want it to be. It's just a legal document.");
9. Tr 172:6-21 (Stier: Marriage is about making a public commitment to the world and to your spouse, to your family, parents, society and community. It is the way to tell them and each other that this is a lifetime commitment. "And I have to say, having been married for 12 years and been in a domestic partnership for 10 years, it's different. It's not the same. I want —— I don't want to have to explain myself.”);
10. Tr 82:9-83:1 (Zarrillo: "Domestic partnership would relegate me to a level of second class citizenship.... It's giving me part of the pie, but not the whole thing... [I]t doesn't give due respect to the relationship that we have had for almost nine years.");
11. Tr 115:3-116:1 (Katami: Domestic partnerships "make[]you into a second, third, and...fourth class citizen now that we actually recognize marriages from other states.... None of our friends have ever said, 'Hey, this is my domestic partner.'").
55. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.
1. Tr 596:13-597:3 (Peplau: Data from Massachusetts on the "annual rates for marriage and for divorce" for "the four years prior to same-sex marriage being legal and the four years after" show "that the rates of marriage and divorce are no different after [same-sex] marriage was permitted than they were before.");
2. Tr 605:18-25 (Peplau: Massachusetts data are "very consistent" with the argument that permitting same-sex [p. 84] couples to marry will not have an adverse effect on the institution of marriage.);
3. Tr 600:12-602:15 (Peplau: Allowing same-sex couples to marry will have "no impact" on the stability of marriage.);
4. PX1145 Matthew D Bramlett and William D Mosher, First Marriage Dissolution, Divorce, and Remarriage: United States, US Department of Health and Human Services at 2 (May 31, 2001): Race, employment status, education, age at marriage and other similar factors affect rates of marriage and divorce;
5. PX1195 Matthew D Bramlett and William D Mosher, Cohabitation, Marriage, Divorce, and Remarriage in the United States, Vital and Health Statistics 23:22, US Department of Health and Human Services at 12 (July 2002): Race and socioeconomic status, among other factors, are correlated with rates of marital stability;
6. PX0754 American Anthropological Association, Statement on Marriage and the Family: The viability of civilization or social order does not depend upon marriage as an exclusively heterosexual institution.
56. The children of same-sex couples benefit when their parents can marry.
1. Tr 1332:19-1337:25 (Badgett: Same-sex couples and their children are denied all of the economic benefits of marriage that are available to married couples.);
2. PX0787 Position Statement, American Psychiatric Association, Support of Legal Recognition of Same-Sex Civil Marriage at 1 (July 2005): "The children of unmarried gay and lesbian parents do not have the same protection that civil marriage affords the children of heterosexual couples.";
3. Tr 1964:17-1965:2 (Tam: It is important to children of same-sex couples that their parents be able to marry.);
4. Tr 599:12-19 (Peplau: A survey of same-sex couples who married in Massachusetts shows that 95 percent of same-sex couples raising children reported that their children had benefitted from the fact that their parents were able to marry.).