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2010: Lawsuit to overturn California's
Proposition 8 ban on same-sex marriage (SSM)

Consequences of Judge Walker's ruling.
Appeal to Court of Appeals: 2010-SEP to NOV

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2010-SEP-01: Republican legislators send letter to Governor:

All 27 Republican state Assembly members supported the Pacific Justice Institute petition by sending a letter to Governor Schwarzenegger urging that the state take an active role in appealing Judge Walker's ruling to the appeals court. The letter said in part:

"It does not matter whether ... we believe it should or should not be the law of California. The people of the state of California themselves decided this issue on Nov. 4, 2008. ... The initiative was upheld by the California Supreme Court as a valid exercise of the people‚€™s initiative authority under our state Constitution.¬ One unelected federal court judge cannot be allowed to void such a decision, let alone do so without recourse to appeal." 1,2

The legislators' letter cited laws that clearly give the executive branch the authority to appeal the case if they so wished. However, there does not appear to be any requirement that they exercise this authority for every law that is being challenged in the courts.

The letter did not mention that this is the first case that a SSM case had been argued in federal court on the basis of the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution. Proposit ion 8 had been considered valid under state law by the state Supreme Court. However, the Federal District Court found Prop 8 unconstitutional under the federal constitution, and Judge Walker's arguments apparently were convincing to the Governor and Attorney General. Both of them have taken an oath of office that commits them to support both the state and federal constitution. It would seem that they are bound by their oath to oppose Prop. 8 if they agree that Prop 8 conflicts with the federal Constitution.

The state would have had to act before 2010-SEP-11 if it is to intervene in the case. They didn't.

The Republican Caucus wrote that if Attorney General Brown refuses to act, that Schwarzenegger should appeal U.S. District Judge Walker's ruling personally.

In response:

  • A spokesperson for the governor, Aaron McLear, said: "The court will determine whether or not the interveners (initiative authors) can appeal. That is not the governor's decision."

  • Attorney General Brown's office issued a statement saying: "The attorney general does not believe that he can be forced to prosecute an appeal of a decision with which he agrees." 3

According to the Sacramento Bee, the Pacific Justice Institute believes that California law and the state's constitution requires the Attorney General to defend all state laws and propositions. According to former U.S. Attorney General Edwin Meese III, former Governor Ronald Reagan once believed that he had a responsibility to defend all state laws.


  • Brian K. Landsberg, a professor at McGeorge School of Law and expert in constitutional law found no "case holding" that supports the belief that an attorney general must defend all state laws. Landsberg said:
    "The issue is whether the attorney general or the governor are exercising their discretion properly. I would think it's pretty hard to show they're not."
  • Vik Amar, an expert in constitutional law from the University of California, Davis, said:

    "Separation of powers means that courts usually (with narrow exceptions) don't order executive officials to perform their jobs more vigorously. Instead, courts rely on the electorate to place political pressure on elected officials. ...In the end, I think courts will say the remedy against an elected official who won't defend a popular law is political, not judicial." 3

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2010-SEP-08: State Supreme Court refuses to order state officials to defend Prop. 8:

As expected, the Supreme Court of California rejected the emergency petition of the Pacific Justice Institute (PJI). The PJI had asked that the court order the Governor and Attorney General to defend Prop. 8 in the 9th U.S. Circuit Court of Appeals. It appears that the PJI had no case law to back up their assertion that state officials must always defend states laws and citizen initiatives against legal challenges. Also, if the court sent orders to the executive branch it would violate the fundamental constitutional principle of separation of powers among the state legislature, court and executive. 4

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The current ethical and legal status of the appeal:

The current status of the appeal places religious and social conservatives in an awkward predicament:

  • Proposition 8 was supported by slightly over 6 million voters, but was opposed by slightly under 6 million voters. It was thus only narrowly approved by the public in late 2008, and then only after many tens of millions of dollars had been invested in anti-SSM fear based advertising.

  • During 2009-Summer, the National Education Association (NEA) and the American Bar Association (ABA) passed resolutions supporting SSM.

  • Evidence provided at trial showed that the state, same-sex couples, and their children are harmed by Prop. 8 but that the proponents of Prop. 8 would not benefit from a continuation of the ban on same-sex marriage (SSM). 5,6

  • District Court Judge Walker convincingly argued that Prop. 8 is unconstitutional because it clearly violates both the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution. 5,6

  • Governor Schwarzenegger considers Prop. 8 to be undesirable and unconstitutional.

  • Attorney General Brown considers Prop. 8 to be undesirable and unconstitutional.

  • This appeals court is considered the most liberal in the federal court system.

  • The appeals court may well declare that proponents of Prop. 8 do not have standing to appeal Judge Walker's decision.

  • Recent polls show that most Californian adults now support SSM.

  • A meta study of polls taken in California showed that public support for SSM rose from 34% in 1994-1996 to 42% in 2003-2004. This is an increase of about 1 percentage point per year. By 2008-2009, SSM support had reached 51%, having risen almost 2 percentage points per year. This increase is largely driven by new, more SSM-positive youths entering the voters' registry and elderly SSM-negative leaving it. Thus there is little doubt but that support will continue to increase with time.

It would seem that, unless religious and social conservatives are able to provide new and convincing evidence that SSM would harm the state or institution of marriage, the appeals court will probably uphold District Court Judge Walker's decision, either by rejecting the proponents' standing or by rejecting their arguments if a trial proceeds.

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Our predictions, (made on 2010-AUG-07):

Under the best of circumstances, it would take a few years before Perry v. Schwarzenegger reaches the U.S. Supreme Court. Commentators often mention that every Justice who has been added to the Supreme Court during the past three decades has a more conservative judicial philosophy than the Justice that they replaced. As a result, the court itself is gradually shifting to the right.

If Perry reaches the court, we can expect the four strict constructionist Justices (Chief Justice Roberts and Justices Alito, Scalia and Thomas) to vote as a block to overturn Judge Walker's decision. It would require all 5 of the remaining Justices to uphold Walker's ruling in order for SSM to become the law of the land. That is a really long shot.

Our prediction is that before the Supreme Court has a chance to vote, the citizens of California will be presented with a new Proposition on election day, on 2012-NOV. Its intent would be to repeal Prop. 8. As of mid-2010, a slim majority of Californians now support same-sex marriage. Bu the time of the 2012-NOV ballot, support for SSM in California would have further increased. We predict that in 2012, a new proposition would be approved by the voters with about a 3% margin of victory.

That would make the Perry v. Schwarzenegger case moot, and it could be terminated without a decision by the Supreme Court.

On the other hand, if the Circuit Court decides to not hear the appeal, then the whole legal process would probably grind to a halt and all loving committed couples would be able to marry in California, whether they are of the same gender or opposite genders.

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Impact of the 2010-NOV elections:

Governor-elect Jerry Brown (D) beat Meg Whitman (R). Lieutenant governor-elect Gavin Newsom (D) beat Abel Maldonado (R). Senator Barbara Boxer (D) won her fourth term and defeated Carly Fiorina (R). All three elected Democrats are strong supporters of same-sex marriage; all three losing Republicans oppose same-sex marriage. The race between San Francisco District Attorney Kamala Harris (D) and Los Angeles Country District Attorney Steve Cooley (R) was initially too close to call. Results were finalized on NOV-24 with Harris declared the winner. The Democrats achieved a clean sweep of all four statewide offices.

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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. Letter to Governor Schwarzenegger from the Republican Caucus, 2010-AUG-31, at: This is a PDF file.
  2. Jon Fleishman, "Assembly Republicans Unanimously Call On Governor To Order An Appeal Filed In Prop. 8 Case," Flash Report, 2010-SEP-01, at:
  3. Susan Ferriss, "Supporters pressure Brown, Schwarzenegger to defend Prop. 8 in court," The Sacramento Bee, 2010-SEP-02, at:
  4. Lisa Leff, "Court won't order California to defend Prop 8," 2010-SEP-08, Associated Press, at:
  5. Text of Perry v Schwarzenegger, United States District Court for the Northern District of California, at: This is a PDF file.
  6. Evidence submitted at the trial is available at:

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Copyright © 2009 by Ontario Consultants on Religious Tolerance
Original posting: 2010-SEP-01
Latest update: 2010-DEC-06
Author: B.A. Robinson

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