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Religious Tolerance logo

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

1st. day of appeal, cont'd. Statement by religious
leaders. Range of court decision. 2010-DEC-06.

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Continuing with the DEC-06 hearings:

Ted Olson, an attorney for the same-sex couples who launched the lawsuit argued before the court, said:

"What this case comes down to is that California has built a fence around its gay and lesbian citizens and around marriage. The same-sex couples outside that fence are denied access and that is a violation of due process and equal protection rights. ... What the U.S. Supreme Court has said in 14 cases is that the right to marriage, in the context of abortion, in the context of prisoners, in the context of contraception and in the context of divorce, that the right to marry is the aspect of the right to liberty, association, privacy."

"They [the supporters of Prop 8] are taking away a constitutional right, [one that is] recognized by the state of California. That in and of itself makes Prop 8 unconstitutional. ..."

"Mr. Cooper talks about society’s rights. This is not society’s right. It is not California’s right. It is the right of individuals." 1,2

Ben Bishin, a political science professor at University of California-Riverside, said:

"This case reflects a classic tension between democratic values. People often think that democracy means the will of a majority should be law, but its also about equality and liberty. Questions of minority rights speak to values of equality and liberty, and courts are reluctant to tread on those rights when there's no harm done to society." 1

State and federal constitutions have two very different main functions. One is to define the structure of the government: the executive, the judicial, the legislative branches, and how they interact. The other is to limit the citizens from engaging in "the tyranny of the majority:" -- depriving minorities of equal rights enjoyed by the majority. The latter is why the U.S. constitution has equal protection and due process clauses.

The appeal court panel is expected to take months before releasing its ruling.

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The possibility of a future appeal of the case to the U.S. Supreme Court:

Once the panel of three judges issues their ruling, either the plaintiffs or defendants could appeal the decision to the entire 9th circuit court of appeals.

Both sides in the case have promised to appeal the case to the U.S. Supreme Court if they lose. That could involve a unusually high level of risk taking:

  • If the court upholds the unconstitutionality of Prop. 8, and
    • if the supporters of Prop. 8 appeal, and
    • if the U.S. Supreme Court accepts the case,
    • then the Supreme Court might accepting Judge Walker's assessment that Prop. 8 is unconstitutional. That might make all of the state constitutional amendments and voter initiatives against SSM null and void. Depending on the wording of the court ruling, that might immediatley legalize same-sex marriage across the entire United State. We would see a near repeat of the last time that the Supreme Court redefined marriage. That was in 1967 in Loving vs. Virginia when the court legalized interracial marriage against the wishes of 72% of American adults.

      On the other hand, if they don't appeal, then SSM would become legal in California -- the most populous state in the nation. The exclusion of loving committed same-sex couples from marriage would experience another serious blow.

  • If the court overturns Judge Walker's ruling, and
    • if the plaintiffs appeal, and
    • if the U.S. Supreme Court accepts the case,
    • then the plaintiffs run the risk of the Supreme Court upholding the constitutionality of Prop 8. This is quite likely because the four strict constructionists on the Court -- Chief Justice Roberts and Justices Alito, Scalia, and Thomas are almost certain to vote as a block in favor of Prop. 8. That would require all 5 of the remaining justices to vote against Prop. 8 in order to declare Prop 8 -- and similar state constitutional amendments and voter initiatives -- null and void. This is an unlikely outcome.

  • A third possibility is that a new Proposition might be authorized to repeal Prop. 8. The next opportunity for a vote is election day in early 2012-NOV. Slightly over 50% of Californian adults currently support SSM. By late 2012, this should rise to about 53%. If Prop. 8 were repealed, then the Perry v. Schwarzenegger case would presumably be moot.

At this point, the Chinese curse comes to mind: "May you live in interesting times."

A group of videos of pivotal speeches in the hearing is avaialble at the Prop 8 Tracker website at:

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2010-DEC-06: Support for Prop. 8 affirmed by conservative religious leaders:

A group of religious leaders including Roman Catholic Archbishop Timothy M. Dolan of New York as well as Anglican, Baptist, evangelical, Jewish, Lutheran, Mormon, Orthodox and Sikh leaders. It is titled: "The Protection of Marriage: A Shared Commitment." All of the signatories are from fundamentalist, evangelical or other conservative wings of various religions. There do not appear to be any representatives from mainline, liberal, or progressive religious communities.

Like so many other terms, names and titles involved in the debate over SSM, this title carries a positive message, even though the intent of the document is the deprivation of equal rights to same-sex couples. The document also implies that SSM is a threat to existing opposite-sex marriages or to the institution of marriage itself.

The document states:

"Marriage is the permanent and faithful union of one man and one woman. As such, marriage is the natural basis of the family. Marriage is an institution fundamental to the well-being of all of society, not just religious communities.

As religious leaders across different faith communities, we join together and affirm our shared commitment to promote and protect marriage as the union of one man and one woman. We honor the unique love between husbands and wives; the indispensible place of fathers and mothers; and the corresponding rights and dignity of all children.

Marriage thus defined is a great good in itself, and it also serves the good of others and society in innumerable ways. The preservation of the unique meaning of marriage is not a special or limited interest but serves the good of all. Therefore, we invite and encourage all people, both within and beyond our faith communities, to stand with us in promoting and protecting marriage as the union of one man and one woman." 3

The first sentence seems to be a fond wish, and not a statement of reality:

  • Marriages are not necessarily permanent. The divorce rate in North America is close to 50%.

  • Marriages are not necessarily faithful. The rate of adultery over the life of marriages is difficult to estimate; one source estimates that 28% of married men and 16% of married women admit to engaging in infidelity. The percent who are unfaithful but who don't admit to a stranger conducting a poll is is anyone's guess. Estimates have been increasing over time. 4 Added to these percentages should be the couples who engage in what has been variously called swinging, the lifestyle, and partner swapping.

  • Marriages in the Netherlands, Belgium, Spain, Portugal, South Africa, Canada and six states in the U.S. may be between a man and a woman, or two men, or two women.

Their third sentence is a powerful statement. "Marriage is an institution fundamental to the well-being of all of society..." Unfortunately they don't include loving, committed same-sex couples as part of society.

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2010-DEC-06: What is the geographical range of any ruling by the appeals court:

The U.S. 9th circuit court of appeals covers many political jurisdictions: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington State. The Associated Press writes:

"A line of questioning at an appeals court hearing over California's gay marriage ban suggested the three judges could issue a decision that would legalize same-sex marriage in that state but leave intact bans in other western states under the court's jurisdiction. ... The judges appeared troubled over whether they could recognize marriage as a civil right for all same-sex couples [in the states over which they have jurisdictions] or only those in states that already grant gays [lesbians, and bisexuals] the rights of marriage without the title." 5

Judge Stephen Reinhardt commented on a speech by one of the attorneys for the plaintiffs, Theodore Olson. Reinhardt said:

"Your closing speech would require a holding that any state that did not permit gay marriage would be in violation of the Constitution. There is a possibility, I think in this case, that Proposition 8's withdrawal of the right of marriage from gays and lesbians is unconstitutional under the circumstances that they enjoyed that right, that they are given every aspect of marriage and the only thing taken away is the honorific of marriage." 5

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Lies, darn lies, and statistics. A bit of humor:, a function of the American Family Association (AFA), designed a poll that must have generated amusement among statisticians. On 2010-DEC-06, they asked visitors to their website a reasonable question: "What's your primary reaction to the ongoing - and seemingly endless - legal challenges to Proposition 8?" It was the three allowable answers from which their visitors had to choose that were so biased as to make the survey result meaningless:

  • 49%: "Frustration - California voters have already spoken in defense of one man, one woman marriage."
  • 17%: "Appreciation - I am grateful for the persistence of defenders of traditional marriage."
  • 34% "Tension - Activist judges may yet have their way, despite what voters want." 6
  • N = 5,434

All three allowed responses assumed that the visitor opposed SSM. Visitors who support marriage for all loving, committed couples had no option from which to choose. The responses did not include recent data that shows that California voters are showing increasing support for SSM, and that a majority now favor making marriage for all.

Their 2010-DEC-12 poll continued on the same theme. They asked: "In what area of family life do you think the impact of pro-homosexual indoctrination is most destructive?" Allowable answers were: educational, medical, legal/political, and religious. Most answered "religious." Again, there is no provision for a site visitor who considers tolerance education to be constructive.

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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. Devin Dwyer & Arletter Saenz, "Proposition 9 before federal appeals court," ABC News, 2010-DEC=-6. at:
  2. Pamela MacLean, "Gay marriage opponents ask appeals court to reinstate 2008 ban," Bloomberg, 2010-DEC-06, at:
  3. "Protection of Marriage: A Shared Commitment," Ad Hoc Committee for the Defense of Marriage," United States Conference of Catholic Bishops," 2010-DEC, at:
  4. "Love, Sex and the Changing Landscape of Infidelity," The New York Times, 2008-OCT-27, at:
  5. Paul Elias & Lisa Leff, "Court weights constitutionality of gay marriage ban," Associated Press, 2010-DEC-07, at:
  6. "Recent poll results (Dec. 6-10, 2010),", at:

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Site navigation:

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

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Copyright © 2009 by Ontario Consultants on Religious Tolerance
Original posting: 2010-DEC-06
Latest update: 2010-DEC-08
Author: B.A. Robinson

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