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Religious Tolerance logo

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

2012-FEB: Three judge panel of the U.S. 9th Circuit
Court of Appeals
declares Prop. 8 unconstitutional!

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Continued from a previous essay.

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2012-FEB-07: Prop. 8 declared unconstitutional:

On election day in 2008-NOV, Proposition 8 was approved by a slim majority of 52% of California voters. It terminated the right of loving, committed same-sex couples to marry in California by amending the state's constitution to define marriage as the union of one woman and one man. About 36,000 lesbians, gays and bisexuals in the state had been able to marry between 2008-MAY when SSM was legalized and election day in 2008-NOV. They were not forcibly divorced by Proposition 8, but no new loving, committed same-sex couple were able to marry in the state after election day.

During 2009-MAY, lawyers Theodore B. Olson and David Boies filed a lawsuit on behalf of two lesbian and gay California plaintiff couples: Kristin Perry & Sandra Stier of Berkeley, and Paul Katami & Jeffrey Zarrillo of Burbank.

Olson and Boies are arguably the finest litigators in the U.S.

  • Olson (1940) is a former U.S. Solicitor General under President George W. Bush. He is a conservative and views marriage as a fundamental right of all Americans, no matter what their race, sexual orientation, etc.
  • Boies is a liberal with the same view on marriage equality.

They opposed each other before the U.S. Supreme Court over the year 2000 presidential election.

They claimed that Prop. 8 violates both the due process clause and the equal protection clause of the 14th Amendment of the U.S. Constitution. Judge Walker of the federal District Court agreed with the plaintiffs ruled that Proposition 8 was unconstitutional. The case was appealed to the 9th Circuit Court of Appeals.

The defendants, the organizers of Prop. 8, argued that the voters' decision to prevent all same-sex couples from marrying was justified. Their belief is that through marriage inequality and special privileges for opposite-sex couples, a larger percentage of children would be born into "enduring stable unions" where "responsible child-rearing" was practiced. "Responsible" in this case means that the children would be genetically related to their mother and father, normally because they were conceived after sexual intercourse by their parents. At the present stage of medical science, it is impossible for a same-sex couples to conceive children containing DNA from both parents. Judge Walker of the District Court rejected the defendants' arguments. It is worth noting that the defendants' attack on families led by same-sex parents would also apply to families led by opposite-sex couples who adopt children or a third-party surrogacy arrangement. It would also apply to some families that use artificial insemination to conceive. Also, the consensus of many recent studies is that children thrive equally in families led by either same-sex or opposite-sex parents. The most important factors for thriving children is love, consistency, and the presence of two parents.

On 2012-FEB-07, a three judge panel of the 9th Circuit Court of Appeals upheld the lower court ruling.

U.S. Circuit Judges Stephen Reinhardt and Michael Daly Hawkins voted in favor of the plaintiffs. U.S. Circuit Judge N. Randy Smith dissented. Judge Stephen Reinhardt wrote for the majority.

Even though the panel of the appeals court had ruled that Prop. 8 is unconstitutional, loving, committed same-sex couples will not be allowed to marry. Their decision has been placed on hold pending an expected appeal by the promoters of Prop. 8.

As is common in federal court, the ruling was narrowly focused. The court did not rule that all same-sex couples in California had a right to marry. Rather, it noted that same-sex couples had been able to marry for about five months during 2008, and that Proposition 8 terminated that right. Judge Reinhardt wrote:

"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."

"All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation 'marriage, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California. ... " 5

"By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause" in the U.S. Constitution."

The plaintiffs and the rest of the LGBT community had hoped that the circuit court would simply declare that same-sex couples had the right to marry in California. Instead the court determined only that once same-sex couples had been granted the right to marry, that could not be removed by a citizen initiative.

Andrew P. Pugno, general counsel for the sponsors of Proposition 8 said:

"Since the beginning of this case, we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court. We will immediately appeal this misguided decision that disregards the will of more than seven million Californians who voted to restore marriage as the unique union of only a man and woman." 5

The seven million figure refers to the number of voters in 2008-NOV who voted in favor of Prop. 8. There were almost as many California voters at that time who voted against the citizen initiative. Current polls show that a massive shift has occurred in support for SSM in California. If Proposition 8 were to be voted upon again in 2012, it would be certain to pass.

Richard Socarides, a leading marriage equality advocate, said:

"We were hoping for a very broad ruling that held that there was a right under the Constitution to same sex marriage. If the court had ruled on those grounds, there would have been more pressure for ... {President Obama] to move forward with his evolution on this."

President Obama has been stating for years that he favors same-sex unions for loving, committed same-sex couples with all of the state rights of marriage except the right to call their relationship a marriage. He has stated repeatedly that his position on same-sex marriage is "evolving." 1 In 2012-MAY, he and other Democratic leaders announced on TV their personal support for SSM.

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Additional reactions to the court ruling:

  • Mitt Romney, a Republican candidate for the Presidency in 2012 said that the decision was an attack by "unelected judges ... [on] traditional marriage." He predicted that the Supreme Court would decide the case. He added: "That prospect underscores the vital importance of this [presidential] election and the movement to preserve our values." 5

  • State Senator Stephen M. Sweeney (D) president of the New Jersey Senate, said: "Today’s court ruling simply reaffirmed what we already knew: Marriage equality is right, and its time is now." 5

  • Spencer Perry, son of plaintiffs Kris Perry and her partner Sandy Stier said:

    "When Proposition 8 doesn’t allow parents like mine to marry, it isn’t just defining their love as taboo or wrong. It says that our family, that my brothers, that my mothers, shouldn’t belong, and we don’t get to be the same as in my friend’s families. With this ruling, in the eyes of the government, my family is finally normal."

  • John Davidson is a spokesperson for Lambda Legal, a gay civil rights group. He said that if Baehr v Lewin -- the Hawaiian court case that first acknowledged same-sex marriage -- was the shot heard round the world, Perry v Brown is:

    "... "the ruling that foreshadows the ultimate fate of other states in the Ninth Circuit that refuse to recognize the equal dignity of same-sex couples and their families by shunting them off to second-class statuses like domestic partnerships or civil unions." 2

  • Governor Jerry Brown of California said:
  • "The court has rendered a powerful affirmation of the right of same-sex couples to marry. I applaud the wisdom and courage of this decision."

  • Brian Raum, senior counsel for the Alliance Defense Fund, an evangelical Christian legal aid group that helped defend the Proposition 8 ban said:
  • “We are not surprised that this Hollywood-orchestrated attack on marriage -- tried in San Francisco -- turned out this way. But we are confident that the expressed will of the American people in favor of marriage will be upheld at the Supreme Court."

Surprisingly, Brian Raum appears to be unaware of the many recent national polls on SSM which have shown a substantial and growing majority of American adults favor the legalization of SSM.

  • Rick Santorum (R), a candidate for the presidency in 2012, criticized the Circuit Court decision saying that the judges had offended religious people by labeling them as bigots. 3 He told an audience in McKinney, TX:

    "Where is the tolerance of someone having a belief structure that is based in nature, that is based in reason, that is based in faith? ... The intolerance of the left, the intolerance of the secular ideology. It is a religion on to itself; it is just not a biblical based religion. And it is the most intolerant — just like we say from the days of the Atheists in the Soviet Union. It is completely intolerant of dissent."


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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. Robert Barnes, "Proposition 8 ruled unconstitutional: On to the Supreme Court?," Washington Post, 2012-FEB-07, at:
  2. Alan R. Spector, "It's time for marriage equality in Hawaii," Honolulu Civil Beat, 2012-FEB-16, at:
  3. Igor Volsky, "Santorum Compares 9th Circuit To Soviet Union, Says Court Is ‘Intolerant’ For Striking Down Proposition 8," Think Progress, 2012-FEB-08, at:
  4. Rick Santorum's message about the 9th Circuit Court of Appeals can be seen at:
  5. Adam Nagourney, "Court strikes down ban on gay marriage in California," New York Times, 2012-FEB-07, at:

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

Copyright © 2012 by Ontario Consultants on Religious Tolerance
Original posting: 2012-FEB-07
Latest update: 2012-JUN-10
Author: B.A. Robinson

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