Religious Tolerance logo

Perry v. Schwarzenegger: California lawsuit to
challenge constitutionality of Prop. 8 which banned SSMs

2011: Legal status of
What is the current will of California voters on SSM?

Horizontal line

Sponsored link.

Horizontal line


During 2008-MAY, the California Supreme Court determined that the state's constitution permitted loving, committed same-sex couples to marry in California. About 18,000 couples took advantage of this ruling. However, SSMs were banned once more on election day in 2008-NOV. This time it was by a voter referendum, after the narrow passage of Proposition 8, a citizen initiative.

Two same-sex couples who want to marry and have their marriage registered and recognized in California launched a lawsuit in federal court called Perry vs. Schwarzenegger. They argued that Prop. 8 violated their rights under the U.S. Constitution. District Court Judge Vaughn Walker agreed that Prop. 8 conflicted with the U.S. Constitution and was thus unconstitutional.

Judge Walker's ruling and his associated reasoning appeared conclusive to both the Governor and Attorney General of California. Both agreed that Prop. 8 was clearly unconstitutional. They decided to let Judge Walker's ruling stand without government appeal., the group of Christian conservatives in the California who sponsored Prop. 8 in 2008, remain committed to the overthrow of Judge Walker's ruling. They launched an appeal themselves -- without support from the government -- at the 9th Circuit Court of Appeals. However, they ran into a snag: it is not clear whether they, as sponsors of the Prop. 8 citizen initiative, have the legal authority to defend it in court.

During 2011-FEB, the 9th Circuit Court of Appeals -- a federal court -- asked the California Supreme Court -- the highest state court -- whether the California constitution gives the legal standing to defend their own proposition in court.

Horizontal line

Determining's status:

A hearing was scheduled for 2011-SEP-06 in the California Supreme Court to determine the status of the Prop. 8 sponsors. 1 The justices have 90 days -- until 2011-DEC-05 -- to rule on the group's standing. 2 If the state Supreme Court determines that initiators of citizen initiatives can defend their Propositions in the federal 9th Circuit Court of Appeals, then the group's appeal can re-start in federal court. Otherwise Judge Walker's ruling might hold, Prop. 8 would remain overturned, and same-sex couples might be free to marry, unless some other individual or group with standing steps forward to appeal the case. 2 It is difficult to see who might form such an alternative.

According to The Christian Post:

"’s legal team has vowed to continue their 'tireless efforts to defend the will of the people of California to preserve marriage as the union of a man and a woman'." 1

Horizontal line

Are the results of Proposition 8 still "the will of the people of California?"

Prop. 8 was clearly the will of the majority of voters on election day in 2008-NOV. About 6.1 million voters (52.25%) voted in favor of Prop. 8; about 5.5 million voters (47.75%) were opposed. If slightly more than 2% of those opposed had changed their mind, then Prop. 8 would have failed and SSMs would have continued in the state.'s comment cited above raises the question of whether the banning of SSM is still the will of Californian voters. In other words, would a duplicate Prop. 8 pass again if it were voted upon in at the time of the court hearing -- 2001-SEP -- or on election day in 2012-NOV.

As time progresses, new adults enter the voting pool and older adults leave. Since young adults are far more supportive of SSM than are the elderly, the overall effect is to gradually increase support for SSM overall. Debate on same-sex marriage, the military's don't ask, don't tell policy, the federal hate-crimes law, the federal Defense of Marriage Act, etc. has kept equality for LGBTs continually before the public and has probably increased SSM support as well. Increasing numbers of lesbians, gays, bisexuals, transgenered persons and transsexuals who are coming out of "the closet" and going public with their sexual orientation or gender identity appears to further increase support for SSM.

During the previous 15 years, Gallup Inc. has shown an increase of 26 percentage points in support for SSM, from 27 to 53%. This is a rise of about 17% per decade. Meanwhile opposition has dropped from 68 to 45%, a decrease of about 15% per decade:

Gallup Inc polls on SSM over the past 15 years 3

Surveys by other main polling agencies confirm the Gallup data.


  • Proposition 8 were voted on again during 2011, and

  • If the voters in California have the same level of support for SSM as do voters nationally, then

the new citizen initiative would likely be defeated. The former "will of the [majority of the] people of California to preserve marriage as the union of a man and a woman" would have evaporated.

Of course, this raises the question of whether the people in California are following national trends. During 2011-JUN, Nate Silver published his estimates of "projected vote share for same-sex marriage bans, November 2012." 4 He is a statistician and the webmaster of the FiveThirtyEight blog on the New York Times web site. Silver estimated the percentage of the voters who would vote in favor of a hypothetical plebiscite like Prop. 8 that banned SSM in their state if it were held on election day in 2012. He performed the calculation for each of the 50 states and the District of Columbia using two statistical models:

  • His linear model assumes that support for same-sex marriage will continue to increase at about the same rate in the future as it has in the past -- an average of 10 to 20 percentage points per decade depending upon the state.

  • His accellerated model incorporates trend data from national polls on same-sex marriage. He has noted that same-sex marriage appears to have gained support at a faster rate in recent years. This model will predict a lower vote share for the anti-SSM voters than does the linear model.

Using the two models, he predicted that if a hypothetical proposition like Proposition 8 in 2008 were to re-appear on the California 2012 ballot, it would receive between 41.8% and 45.8% support, depending upon which of his statistical models is used. 4 Such a Proposition would thus be favored to fail. If’s legal team continues their "tireless efforts to defend the will of the people of California ..." then they would have to reverse their stance and promote SSM.

In the unlikely event that the constitutionality of Prop. 8 is finally upheld by the courts, it is almost inevitable that a new citizen initiative will be sponsored to repeal Prop 8 in 2012 or 2014.

horizontal rule

This topic continues

horizontal rule

References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Nicola Menzie, "Prop 8: California Supreme Court Sets Hearing for Sept. 6," The Christian Post, 2011-JUL-29, at:
  2. Ryan Prado, "CA Supreme Court to hear Prop 8 case in September,", 2011-JUL-29, at:
  3. "For first time, majority of Americans favor legal gay marriage," Gallup Inc, 2011-MAY-20, at: Image copyright Gallup, Inc. All rights reserved.
  4. Nate Silver,"The Future of Same-Sex Marriage Ballot Measures," FiveThirtyEight blog, 2011-JUN-29, at:

Horizontal line

Site navigation:

Home page > "Hot" topics > Homosexuality > Couples > California > Prop 8 > here

Copyright 2011 by Ontario Consultants on Religious Tolerance
Original posting: 2011-JUL-31
Latest update: 2011-SEP-06
Author: B.A. Robinson

line.gif (538 bytes)
Sponsored link

Go to the previous page, or to the "Overturning Prop. 8" menu, or choose:


Go to home page  We would really appreciate your help

E-mail us about errors, etc.  Purchase a CD of this web site

FreeFind search, lists of new essays...  Having problems printing our essays?

Twitter link

Facebook icon

GooglePage Translator:

This page translator works on Firefox,
Opera, Chrome, and Safari browsers only

After translating, click on the "show
original" button at the top of this
page to restore page to English.

Sponsored links:

privacy policy