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

2012-FEB to MAR: Reactions to the ruling of
the panel of the 9th Circuit Court of Appeal.

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Continued from a previous essay.

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Reactions to the court ruling (Cont'd):

  • Contra Costa Times interviewed a number of people in Los Angeles about the ruling by a three-judge panel of the Court of Appeal:

    • Marvin Ellis, 51, of North Hollywood, said: "I have to go biblical on that. A man should be with another woman, not another man. The Bible, refers to Adam and Eve not Adam and Steve."

    • Robert Orum, 51 of Los Angeles resident, said that Proposition 8 should be allowed to stand because it represents a majority of the state's voters. He said: "I think the [will of the] voters in California should be respected."

    • Weston Lutz, 20, of Valencia, who described himself as a "hard-core conservative" said he nonetheless supports the ruling: "My mom said if you turn gay I'll love you. My dad said if you ever turned gay, I'll disown you. But I support the decision 100 percent. It's a matter of fairness. I believe what goes on in a household is a personal thing."

    • Nelson Estevez, 30, an aspiring actor said: "For me, love is love. I just feel like marriage nowadays is more of a business. For me ... Love has no gender. Love has no race. Love is neutral."

    • Bill Rosendahl, the only openly gay Los Angeles City Councilman said: "This is great, we won. What this means is it puts us on a step toward equal rights with heterosexuals. ... This is a major victory for gays and lesbians."

    • State Sen. Sharon Runner, (R) opposed the ruling, saying: "Today's court decision is an affront to the voters of California. Proposition 8 was approved by the people of this state. Our democracy is based on the power of individuals and their right to express their voice through the ballot box. This court decision not only disregarded voters' rights, it muffled their democratic freedoms."

    • Assemblyman Mike Feuer, (D) said the ruling upholds the constitutional principle that all Americans are equal under the law. He said: "The court declared that none of our friends or neighbors should be singled out by the government and told they are not allowed to marry the person they love. Unfortunately, this decision is likely to be appealed, so Californians who believe in fairness and equality must not rest until the discrimination compelled by Proposition 8 is eliminated once and for all."

    • Assembly Speaker John A. Perez, (D), who is also openly gay, said: "We know we have a long road to travel before we achieve our full and equal standing in the eyes of the law, but today's ruling is a strong validation of our belief that we will ultimately prevail. This is another proud moment for Californians of conscience, and I am very pleased with the ruling." 4

Those individuals opposed to the court ruling appear to share the same belief -- one that is also shared by many Americans. That is, that democracy means that the will of the majority must rule, no matter what damage it may do to minorities. Thus, they believe that 50% of voters plus one is sufficient to terminate any fundamental human right of a minority. America's founders, on the other hand, were very concerned about exactly such a development. It is called "the tyranny of the majority." One of the main functions of the U.S. Constitution -- in particular its 14th Amendment -- is to withhold certain powers from the people and from congress, legislatures, and people in order to give minorities equal protection from the oppression of the majority and equal access to state and federal programs.

  • Chad Griffin, president of the American Foundation for Equal Rights’ -- a pro-equality group -- said:

    "Today the 9th Circuit Court of Appeals affirmed, as the courts have repeatedly throughout our nation’s history, that singling out a class of citizens for discriminatory treatment is unfair, unlawful and violates basic American values. Like many other Americans, our plaintiffs want nothing more than to marry the person they love. Committed, loving couples and their families should not be denied this most fundamental freedom."

  • Ex-senator Rick Santorum (R-PA) who was a leading Republican candidate for the Presidency in early 2012 described the Prop 8 decision as another in a "... long line of radical activist rulings by this rogue circuit [court]."

  • Ex-governor Mitt Romney (R-MA), another leading Republican candidate said:
    "This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this decision and the movement to preserve our values."
    Subsequently he said:
    "On my watch [as Governor of Massachusetts], we fought hard and prevented Massachusetts from becoming the Las Vegas of gay marriage."

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The options available to the Prop. 8 proponents:

Carla Hass, one of the attorneys for the group supporting Proposition 8, said that the group was deliberating on their next step. 

Their options appear to be to:

  • Do nothing. This would let loving, committed same-sex couples marry in California, and give all the usual state marriage recognition, rights, and protections to the married spouses and their children. This would obviously be unacceptable to the pro-Prop. 8 group.

  • Appeal the ruling of the three-judge panel to an en banc review. This would involve a review by 11 judges including the chief judge and ten randomly selected judges from from the 25 active judges who make up the 9th U.S. Circuit Court of Appeals. 6

  • Appeal the ruling directly to the U.S. Supreme Court, in the hope that the Court would legitimate the concept that 50% of voters plus one voter, can deny a fundamental human right to a specific group, like the right to marry. Depending upon the wording of the Supreme Court's ruling, it might apply only to California, or to the other states and territories associated with the 9th U.S. Circuit Court of Appeals, or to the District of Columbia, and the 50 states. Obviously, the risks are high. If the Supreme Court upheld the lower court rulings then groups opposed to SSM would no longer be able to mount a citizen initiative to repeal a law passed by the state legislature.

The sponsors of Prop. 8 chose to request an en banc review. This is a win-win option for religious and social conservatives because it will delay the entire process by many months until a larger panel of judges can complete their review of the case. Even if, as expected, the Prop. 8 sponsors lose the appeal, they will still be able to appeal the decision to SCOTUS (the Supreme Court of the United States).

The two plaintiffs and the City of San Francisco have  asked the court to decline reviewing the the 3-judge panel's ruling. If their request is accepted, then the sponsors of Prop.8 would have no real options but to appeal the case to SCOTUS or to drop further action and see SSM reinstated in California.

In the meantime, even though two levels of federal court have found that Prop. 8 was unconstitutional, same-sex couples will still not be able to marry.

Even if SCOTUS eventually rules on the case and affirms the 9th Circuit Court of Appeals decision, their ruling would only effect SSM in certain states. It would only apply to unusual cases in which same-sex couples were first allowed to marry in a state, and then a citizen initiative later withdrew that right by a majority vote of the public. At this time, three states fit this criteria or may do so in the future:

  • California certainly met this criteria when Proposition 8 was passed on election day in 2008-NOV by a very small margin. Recent polls have shown that if the vote were held today, it would lose by an overwhelming margin.

  • So did Maine. The legislature authorized same-sex marriages with a law passed in 2009-MAY. A citizen initiative, Proposition 1, very narrowly repealed the law in 2009-NOV.

  • The State of Washington may meet this criteria in the future because its legislature passed a law legalizing SSM in early 2012, and a citizen initiative is being raised with the intention of repealing that law. The latter will be voted upon on election day in 2012-NOV.

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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. Igor Volsky, "Santorum Compares 9th Circuit To Soviet Union, Says Court Is ‘Intolerant’ For Striking Down Proposition 8," Think Progress, 2012-FEB-08, at:
  3. Rick Santorum's message about the 9th Circuit Court of Appeals can be seen at:
  4. Dana Bartholomew and Rick Orlov, "L.A. reaction mixed to federal appeals ruling that California gay marriage ban Prop 8 is unconstitutional," Contra Costa Times, 2012-FEB-07, at:
  5. Alan R. Spector, "It's time for marriage equality in Hawaii," Honolulu Civil Beat, 2012-FEB-16, at:
  6. "Supporters Of Same-Sex Marriage Ask Court Not To Reconsider Ruling Striking Down Prop 8," Bay City News, 2012-MAR-01, at:
  7. Michael K. Lavers, "Look to the Supremes for Final Ruling on Marriage Equality," Edge on the Net, 2012-MAR-19, at:
  8. Peter Hecht, "Final hurdle cleared for top court showdown on California's gay marriage ban," The Sacramento Bee, 2012-JUN-06, at:
  9. "CNN Poll: Americans' attitudes toward gay community changing," CNN, 2012-JUN-06, at:
  10. Lisa Leff, "Gay marriage ban backers seek Supreme Court review," Associated Press, 2012-JUL-31, at:

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Copyright 2012 by Ontario Consultants on Religious Tolerance
Original posting: 2012-FEB-07
Latest update: 2012-AUG-01
Author: B.A. Robinson

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