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Religious Tolerance logo

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

2011-DEC: U.S. 9th Circuit Court of Appeals'
hearing to determine Prop. 8's constitutionality

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Continued from a previous essay.

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2011-DEC-: Impact of the Supreme Court of California's decision:

On 2011-NOV-17, the Supreme Court of California unanimously ruled that -- the Prop. 8 sponsors -- had standing to defend their ballot measure in court. 1,2 Some months earlier, a three-judge panel of the U.S. 9th Circuit Court of Appeals said that it would abide by the state court's decision. 3

As we noted earlier, It is difficult to see how the court could have ruled otherwise. To not recognize the standing of the sponsors would mean that any citizen initiative that as passed by the voters could, in effect, be vetoed by an agreement between the current state Attorney General and the Governor.

Groups promoting marriage equality were disappointed with the court's ruling:

  • Kate Kendell, executive director of the National Center for Lesbian Rights, said:

    "We disagree profoundly with the California Supreme Court’s holding that a handful of unelected initiative sponsors have the power to represent the interests of the entire public and to override the decisions of the state’s elected executive officers. Nonetheless, we are relieved that the case is once again moving forward and the Ninth Circuit [Court of Appeals] will now address whether the initiative proponents can continue this appeal and, if so, whether Prop 8 is constitutional. We hope the 9th Circuit will issue its decision soon and hasten the day when this damaging law is off the books. Every day that goes by, same-​sex couples in California are being denied not only the basic right to marry, but the right to be treated with equal dignity and respect. Same-​sex couples in California have lived under the shadow of this unfair law for far too long." 4

  • Tom Watson, Chairperson of the gay-rights group "Love Honor Cherish" said:

    "This ruling means that it may be years before loving gay and lesbian couples will again be able to marry in California." 3

Brian Brown, president of the National Organization for Marriage -- the leading national group opposing marriage equality -- said:

"It has been nothing short of shameful to see Governor Jerry Brown, his predecessor Arnold Schwarzenegger and Attorney General Kamala Harris abdicate their constitutional responsibility to defend Proposition 8 in Court. Although today’s ruling from the California Supreme Court confirms that the proponents of Prop 8 have the right to defend their initiative when the state officials refuse to fulfill their sworn duty, it is gratifying to know that the over 7 million Californians who supported the initiative will have a vigorous defense of their decision in our federal courts.

With this victory in hand, it is time for the Ninth Circuit [Court of Appeals] to move the Prop 8 litigation forward to its eventual decision by the US Supreme Court. We fully expect the Ninth Circuit, the most overturned court in America, to invalidate Prop 8, finding some phony right to same-​sex marriage in the US constitution. However, once this case gets out of San Francisco and reaches the US Supreme Court, we fully expect to be victorious."

The Supreme Court of California's ruling is important:

  • If the court had ruled that the sponsors of Prop. 8 did not have standing, then presumably Judge Walker's ruling would reinstall SSM in California. That would have benefited the marriage equality movement, but only in California. Also, it would have weakened the citizen initiative process.

  • Now that the Prop. 8 sponsors do have standing, the U.S. 9th Circuit Court of Appeals hearing will proceed. No matter what their ruling is, it will undoubtedly be appealed to the U.S. Supreme Court. Id that court agrees to hear the appeal, the justices will almost certainly decide the case with a 5 to 4 vote. They could conceivably:
    • Rule narrowly in favor of SSM, but only for the state of California;

    • Make a broadly-based decision in favor of SSM as in the case of Lawrence v. Texas which might make SSM available across the entire U.S., or

    • Rule against SSM and thus put the progress toward marriage equality back a decade or so.

The stakes are very high. 4

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2011-DEC-08: Hearing before the a three judge panel of the U.S. 9th Circuit Court of Appeals:

Although the main purpose of the appeal was for the Court of Appeals to determine the constitutionality of Proposition 8, the first day of hearings dealt with two peripheral issues:

  • Whether the video made of the District Court trial in 2010 should be released to the public. The sponsors of Prop. 8 want the video to remain secret. They have expressed concern that the persons who testified against marriage equality might be harassed if the video became available. Judge Walker had promised that the videos would remain sealed. His successor, James Ware, Chief Judge of the Northern District of California ruled that releasing the tape to the public "... was in the public interest and necessary to maintain transparency in a case of such fundamental importance." His decision is supported by a coalition of media organizations, that includes Fox News, the New York Times and KQED among others." 5

  •, the proponents of Prop. 8, want to have District Court Judge Walker's decision to be invalidated because he is gay. They feel that a judge with a homosexual orientation cannot be trusted to give an impartial ruling in this case because he is necessarily biased in favor of equality for the LGBT community. They have tried this move before and were unsuccessful.

Senior Legal Counsel Austin R. Nimocks of the Alliance Defense Fund -- a fundamentalist Christian legal advocacy group opposed to marriage equality -- commented:

"I think the hearings went very well. Unfortunately, this is the fifth time the proponents of Proposition 8 have had to seek appellate review of the errors that the district court made. This is the third time we’ve been to the 9th Circuit [Court of Appeals]. We’ve been to the California Supreme Court and every time the courts have had to correct the errors that Judge Walker made.

We feel very confident that yet again on these issues the court will again correct these substantial errors that Judge Walker made." 6

[Author's comment: It may be worth noting at this point that later, in 2012-FEB, a three-judge panel of the 9th Circuit Court of Appeals upheld Judge Walker's decision, as did the full court in 2012-JUN.]

Bob Egelko, staff writer for the San Francisco Chronicle speculated that will likely be successful at keeping the video away from the public. However, he felt that the sponsors of Prop. 8 "... made little apparent headway in a more ambitious argument: that the judge who ruled the measure unconstitutional should have been disqualified because he is a gay man with a longtime partner." 7 Egelko wrote:

"In two hours of hearings at the Ninth U.S. Circuit Court of Appeals in San Francisco, a three-judge panel questioned claims by a lawyer for Proposition 8's backers that former Chief U.S. District Judge Vaughn Walker's then-undisclosed relationship gave him an improper stake in the outcome of his own ruling.

'So a married judge could never hear a divorce?' asked Judge Michael Hawkins.

That's different, replied Prop. 8 attorney Charles Cooper, because Walker's longtime relationship would raise an 'obvious question' for most people -- whether he would get married if he had the right to do so. That alone should have required the judge to disclose his intentions before the trial started in January 2010, Cooper said.

But Judge N. Randy Smith said Cooper was essentially arguing that a judge in a divorce case would have to disclose difficulties in his own marriage. And Judge Stephen Reinhardt said Cooper's position might also disqualify married heterosexual judges from considering Prop. 8, since backers of the measure argued that same-sex unions would weaken "traditional marriage."

Cooper said the ruling ignored a judge's legal duty to "disclose all relevant facts" that might lead a reasonable person to question the judge's objectivity. Anyone who knew of the relationship would have concluded Walker was very likely to have had an interest in marrying his partner, he said.

David Boies, lawyer for two same-sex couples and a gay-rights group challenging Prop. 8, retorted that Cooper was advocating a 'double standard' that would disqualify minority judges from considering any civil rights case." 7

News Fix has made available a audio archive of the full hearing. It apparently requires Flash on your browser. 5

A ruling by the three judge panel is expected before the end of 2012-FEB. Supporters of Prop. 8 may ask the full court to review the ruling, or may appeal the decision to the U.S. Supreme Court. Even if the Supreme Court were willing to take up the case, it is unlikely that the ruling by the three judge panel of the Appeals Court would be released soon enough for the higher court to accept the case in the latter's current term. The deadline for acceptance is the end of 2012-JAN. 8

Needless to say, if the Appeals Court declares Proposition 8 to be unconstitutional, a stay of the ruling is almost certain, until the case is appealed.

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This topic continues

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References used:

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

  1. "Prop. 8 sponsors are legally entitled to defend measure, court rules," LA Times, 2011-NOV-17, at:
  2. Text of the California Supreme Court decision Perry v. Brown, 2011-NOV-17, at:
  3. Maura Dolan, "Backers win right to fight for Prop. 8," Los Angeles Times, 2011-NOV-18, at:
  4. David Badash, "Prop 8: LGBT And Anti-Gay Groups Respond To Today's Supreme Court Decision," The New Civil Rights Movement, 2011-NOV-17, at:
  5. Jon Brooks, "Judges Hear Arguments on Prop 8 Trial Video, Judge Vaughn Walker's Same-Sex Relationship," News Fix, KQED, 2011-DEC-08, at:
  6. Alex Murashko, "Gay Marriage: Prop. 8 Proponents Optimistic After Court Hearing," The Christian Post, 2011-DEC-09, at:
  7. Bob Egelko, "Appeals court hears challenges in Prop. 8 case ," San Francisco Chronicle, 2011-DEC-09, at:
  8. Jacob Combs, "All you need to know about today’s Prop 8 hearing at the 9th Circuit," Prop 8 trial tracker, 2011-DEC-08, at:

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

Copyright © 2011 & 2012 by Ontario Consultants on Religious Tolerance
Original posting: 2011-DEC-13
Latest update: 2012-JUN-10
Author: B.A. Robinson

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