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Religious Tolerance logo

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

2012-MAR to now:
Refusal by the full appeals court to review case.
Appeal to the U.S. Supreme Court accepted.

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Continued from a previous essay.

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2012-MAR-05: 9th U.S. Circuit Court of Appeals refuses an en banc review:

In a seven-page ruling, a majority of the Court of Appeals' 25 judges refused the request for a review of the 2012-FEB decision by the court's three-judge panel. Supporters of Proposition 8 then had 90 days to appeal the case to the U.S. Supreme Court. They had promised to do this, even though such an appeal runs the risk of making SSM available in California and perhaps some other states, now and in the future. 1

Reactions to the Court's refusal:

  • Brian Brown, president of the National Organization for Marriage -- the main national group opposing marriage equality -- said: "I think now this will get us more quickly to the U.S. Supreme Court, where this nonsense will stop and we will win. There is no constitutional right to redefine marriage. It is pretty simple."

  • Alliance Defense Fund Senior Counsel Brian Raum, speaking for which is supporting Prop. 8 said: "The legal team looks forward to standing before the U.S. Supreme Court on behalf of the people's right to preserve the fundamental building block of civilization, especially since the dissents accompanying today's decision strongly support our arguments. The democratic process and the most important human institution -- marriage -- shouldn't be overthrown based on the demands of Hollywood activists."

  • David Boies, co-counsel for the plaintiffs seeking to overturn Proposition 8, said that this decision marked "... a great day for Americans who care about equality. This vestige of state-sponsored discrimination and second-class citizenship will be removed from the constitution of our state. 1

The next day, CNN released the findings of the latest national poll on SSM. They found that 54% of American adults believe that same-sex marriage (SSM) should be legalized while 42% are opposed! That is a margin of 12 percentage points, the largest that we have ever seen in a national poll. In addition, more than 75% of both supporters and opponents of SSM feel strongly about the issue. 2 The "Hollywood activists" referred to by Brain Raum appear to be in synchronism with the majority of Americans.

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2012-JUL-31: Supporters of Prop 8 appeal case to the Supreme Court:

Having lost at the federal District Court level, before a three judge panel of the U.S. 9th Circuit Court of Appeals, and before the larger Court of Appeals, supporters of Prop. 8 appealed the case to the U.S. Supreme Court.

If the Supreme Court declines to hear the case, then same-sex marriages would resume in California. If they do accept the case, then it is almost certain to result in a 5:4 decision with Justice Kennedy being the swing vote. It is impossible to predict whether the majority will be for or against marriage equality.

Supporters of Prop. 8 wrote in their appeal that:

"... the 9th Circuit's error, if left uncorrected, will have widespread and immediate negative consequences. ... [The decision] will force states to make an all-or-nothing choice: either to retain the traditional definition of marriage without any recognition of same-sex relationships or to radically redefine -- with no possibility of reconsideration -- an age-old institution that continues to play a vital role in our society today. The 9th Circuit's sweeping dismissal of the important societal interests served by the traditional definition of marriage is tantamount to a judicial death sentence for traditional marriage laws throughout the Circuit."

That scenario would be essentially a replay of the Supreme Court's decision in 1967 to declare "a judicial death sentence for" those "traditional marriage laws throughout" much of the U.S. at the time that prohibited interracial couples to marry. This type of death sentence is precisely the way in which discrimination is eliminated in state laws.

Lawyers for the plaintiffs are expected to urge the Supreme Court to refuse to hear the case. The Court's decision on whether to hear the case was expected in the fall of 2012.

If the Supreme Court decides to hear the case and rules for the supporters of Prop. 8 -- perhaps in 2013-JUN -- then the fallback position of marriage equality groups is certain to be another Proposition that would attempt to repeal Prop. 8. It would probably be held in 2014-NOV. Support for marriage equality among the public, has steadily increased in recent years. The most recent poll among adults in California found: 59% in favor of SSM, 34% opposed and 7% don't know or didn't answer.

The other two possible outcomes -- that the Court refuses to hear the case, or that it hears the case and eventually rules for the plaintiffs -- would result in marriage equality being restored in California.

More than five federal courts have ruled that the 1996 federal Defense of Marriage Act (DOMA) is unconstitutional. The Supreme Court had the option of combining these DOMA cases with the Prop. 8 case and consider them together. Alternately, they could have taken up the DOMA case first and then rule on the Prop. 8 case. 3

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2012-SEP/OCT: Appeal to the Supreme court:

During September, the U.S. Supreme Court released a partial list of cases that it will hear during their 2012/2013 term. 4 This case was not on the list.

On OCT-01, the court was expected to take some action but didn't. Neither Proposition 8 nor the Defense of Marriage Act (DOMA) cases were included in the list of cases that the U.S. Supreme Court will take up in its new session. Also they were not included in their list of cases that they have decided to not review. The cases remain in limbo.

Towleroad, a LGBT-positive web site, commented:

"So there are a couple possible scenarios left.

1. The Supreme Court, on OCT 08, will release the list of cases that it will not consider. If the Prop 8 and/or DOMA cases are placed on that list, then the lower court rulings will stand. Gay and lesbian couples in California would again be able to marry, as soon as the lower courts sign off on the case.

2. However, if the Prop 8 and/or DOMA cases are not on the list, that means the Supreme Court could be postponing any decision on those cases until after the presidential election, making Nov. 19 a highly watched date. There is also the distinct possibility that the justices will merge several high-profile gay-rights cases to review en masse. 5

The justices of the U.S. Supreme Court (SCOTUS) held a conference on 2012-NOV-30 with the Prop. 8 appeal and several cases concerning the Defense of Marriage Act on the agenda. They did not resolve the issue.

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2012-DEC-07: SCOTUS accepts the Prop. 8 case for review:

The Supreme Court met again one week later. They finally agreed on NOV-07 to grant certiorari to the Prop. 8 case Hollingsworth v. Perry. This means that the Supreme Court will hear the case during their 2012/2013 session, probably in the spring of 2013. A decision is expected about 2013-JUN.

If SCOTUS had decided to not grant certiorari, then the ruling by the panel of the 9th U.S. Court of Appeals would have been final, and loving, committed same-sex couples in California would have been able to marry in the near future.

The Court also granted certiorari to the Edith Wilson v. United States case. This is a seprate case that also involves same-sex marriage. It will determine the constitutionality of Section 3 of the federal Defense of Marriage (DOMA) law. This section requires that the federal government ignore legal same-sex marriages solemnized in the District of Columbia or in one of the growing number of states that have widened their criteria for marriage to include same-sex couples. DOMA requires the federal government to withold the approximately 1,140 benefits and protections that the federal government automatically gives to opposite-sex married couples. "Wilson's" court schedule is expected to be the same as the Prop. 8 case.

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This topic continues in the next essay

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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. Peter Hecht, "Final hurdle cleared for top court showdown on California's gay marriage ban," The Sacramento Bee, 2012-JUN-06, at:
  2. "CNN Poll: Americans' attitudes toward gay community changing," CNN, 2012-JUN-06, at:
  3. Lisa Leff, "Gay marriage ban backers seek Supreme Court review," Associated Press, 2012-JUL-31, at:
  4. "Case Timeline: Supreme Court," American Foundation for Equal Rights, 2012, at:
  5. Ken Williams, "Wait continues: Supreme Court still has not addressed Prop 8, DOMA cases," San Diego Gay & Lesbian News, 2012-OCT-01, 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-DEC-12
Author: B.A. Robinson

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