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Religious Tolerance logo

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

1st day of hearings before the 9th circuit
court of appeals. Terms used. 2010-DEC-06:

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2010-DEC-06: Hearing begins before the U.S. 9th Circuit Court of Appeals:

Case: Perry v. Schwarzenegger, 10-16696, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

Before the hearing began, lawyer David Boies, who is acting for the plaintiffs -- one lesbian couple and one male gay couple -- said that Proposition 8:

"... violates due process because marriage is a fundamental right of all citizens that has been stripped away from gay people.[The law violates equal protection guarantees because it] "singled out one class of persons and has taken away a constitutional right from only that class." 1

The ruling in favor of SSM made by U.S. District Court Judge Vaughn R. Walker during 2010-AUG is being appealed by (PM) and Imperial County before a randomly selected three-judge panel of the U.S. 9th Circuit Court of Appeals. PM organized the Prop. 8. initiative in 2008 which was narrowly passed by 52% of the voters and ended same-sex marriages (SSM) in California. Judge Walker ruled that Prop 8 was unconstitutional because it violates both the due process and equal protection clauses of the U.S. Constitution.

The governor and attorney general of California have agreed with Judge Walker's ruling. Governor Schwarzenegger (R) and Attorney General Brown (D) have declined to support Prop 8 before the appeals court.

PM had asked Judge Stephen Reinhardt to recuse himself from the three judge panel, citing his marriage to Ramona Ripston who heads the American Civil Liberties Union of Southern California. The ACLU had earlier filed an amicus curiae (friend of the court) brief urging the court to uphold Walker's ruling. Judge Reinhardt refused, saying that he will rule in the case impartially, independently of his wife's views. 2

Attorneys for the two gay couples who are challenging Prop. 8 have argued that PM lacks standing because nobody in the group is directly affected by SSM. Presumably, essentially all of their membership is married or could be. Allowing same-sex couples to marry would not impinge on the PM members' rights. PM disagrees, noting that they were given standing before the California Supreme Court when PM defended Prop. 8. The couples' lawyers argue that Imperial County cannot appeal the case because marriage is a statewide issue, and it is up to the state to make and enforce marriage laws. Imperial County notes that it issues marriage licenses, and that this gives it the standing to appeal the case.

Law professor Vikram Amar from UC Davis said: "I wouldn't be surprised at all if two of these judges decide there is no standing." 3

The proceedings were broadcast nation-wide over C-SPAN.

The first half-hour of the hearing dealt with PM's standing -- whether they have the right to appeal the case. This is a key question, because if they don't have standing, the hearing will immediately end, Judge Walker's ruling will stand, and SSM will be legal once more in the state of California.

The LA Times reported:

"Many arguments focused on an earlier [U.S.] Supreme Court decision, Arizonans for Official English, in which the court unanimously turned down a challenge to a ballot initiative making English the official language of Arizona. Justice Ruth Bader Ginsburg found that the role of defending the initiative is for the attorney general and the governor -- not for the supporters of the initiative."

"A key moment so far was Judge Stephen Reinhardt asking if there is any case where such standing has been allowed. Charles Cooper, the attorney for the supporters of Prop. 8, said he knew of none, but that this could become that case. Proponents of Prop. 8 also argued that Imperial County should be able to intervene in the case and defend Prop. 8. But the request for intervention came from a deputy clerk, not the clerk, and judges questioned whether the deputy clerk had the authority, especially because the clerk did not seek to intervene."

" 'I believe [the deputy clerk] should have the ability,' said Robert Tyler, a lawyer for Imperial County." 

" 'How long do you think he would last [in that job], taking that action?' a judge asked, to laughter in the courtroom." 3

Attorney Robert Tyler, who represents a deputy clerk from Imperial County said that the clerk had a right to bring the appeal. Tyler said:

"There is not a single [state] governmental defender defending this action. The outcome in this case will alter my client's official duties."

David Boise, attorney for the plaintiff couples who launched the lawsuit, said:

"The fact that there is no one to defend does not give standing. The appellants here do not have the personal, concrete, particularized injury that this court ... made absolutely clear is the law." 4

Judge N. Randy Smith raised an interesting question: Governor Schwarzenegger and Attorney General Brown did not have the authority to veto Prop. 8 when it was passed in 2008. But in 2010, by deciding to not defend the initiative, they may have effectively vetoed it.

Judge Reinhardt suggested that the appeals court could ask the California Supreme Court to decide who has standing to defend an initiative. The Federal Court of Appeals could then proceed on that decision.

Charles Cooper, an attorney for PM argued that:

"The people of California and Americans are engaged in a profound debate about the meaning of marriage. It is fundamental to the existence of the human race."

That seems to be a valid comment. Allowing loving, committed same-sex couples to marry would give them protection and security and make it more likely that they would decide to raise a family. The result would be an increase in the birth rate greater than would occur if these couples were denied access to marriage. However, this seems like a strange comment for Cooper to make because it weaken's his clients' case.

Circuit Judge Michael Daly Hawkins asked whether the people of California could pass another ballot initiative to authorize a practice that is clearly unconstitutional, like reinstating school segregation on the basis of race.

Cooper responded:

"No, it would be inconsistent with the Constitution. ... We believe that there is a rational basis justifying the traditional definition of marriage. The key reason marriage has existed at all is that sexual relationships between men and women naturally produced children." 4

He further commented that SSM is bears little resemblance to earlier racial restrictions that have been overturned by the U.S. Supreme Court.

PM had earlier filed a brief stating that until recently:

"it was commonly understood and acknowledged that the institution of marriage owed its very existence to society’s vital interest in responsible procreation and child rearing."

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Terms used by (PM):

  • "Responsible procreation," and "naturally produced children:" These terms surfaced during the original trial and the appeal. They appear to be a new code term used by some religious conservatives to refer to a fertile man married to a fertile woman, most of whom procreate. They produce children whose DNA is a combination of both parent's DNA. By implication, all other methods of procreating and raising children are irresponsible procreation."

    PM uses the term to denigrate same-sex parents. At the current stage of medical science, a gay or lesbian couple can only procreate children with the DNA from one and only one spouse. A lesbian spouse can become pregnant with donated sperm. A gay spouse can produce sperm to inseminate a woman who is willing to be a surrogate mother.

    However, by attempting to denigrate all loving committed same-sex couples, PM denigrates other groups as well, such as:

    • Opposite-sex couples where the husband is infertile. They often resort to artificial insemination in order to procreate. Their children would then have DNA that is a combination of the mother's DNA and a male donor who is not the mother's husband. The husband would not have contributed his DNA to the child/children. This is presumably irresponsible procreation according to PM.

    • They denigrate both opposite-sex and same-sex couples who for whatever reason are unable to have their own children, and who adopt a child. The child's DNA would then not be related to either of the couple's DNA. This also is presumably irresponsible procreation according to PM.

  • "Traditional marriage" and "Historical marriage:" There is a foundational rule concerning names and terms used by agencies engaged in social advocacy. The name of the groups must be positive, even though the overall message of the groups is negative. For example, groups that wish to restrict women's access to abortion refer to themselves as "pro-life" and not "anti-abortion." The main national group that opposes marriage equality is not called the "National Organization against Same-sex Marriage;" they are called the "National Organization for Marriage."

    The terms that they use also must be positive. So, they do not indicate that they are against "same-sex marriage" but rather that they are in favor of "traditional marriage:" i.e. marriage between one man and one woman. They ignore the tradition lasting in excess of a millennium among Muslims for polygynous marriages involving one man and multiple women. They ignore polygamy among ancient Hebrews, members of The Church of Jesus Christ of Latter-day Saints (the Mormons or LDS) prior to the 1920's, and members of various fundamentalist Mormon denominations today.

    These names and terms are successful. Some quite intelligent, sincere people honestly believe that by promoting "traditional marriage" they are not discriminating against loving, committed same-sex couples who want to get married. For example, we were surpised to hear Jennifer and Greg Willits on their Sirius/XM satellite radio program 5 explain how they were in no way discriminating against same-sex couples; they were merely promoting "traditional marriage."

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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. Goeffrey A. Fowler, "California's Gay-Marriage Ban Heads Again to Court," The Wall Street Journal, 2010-DEC-06, at:
  2. Carol Williams, "Judge refuses to withdraw from same-sex marriage case," L.A. Times, 2010-DEC-03, at:
  3. "Prop. 8: Judges question whether gay-marriage foes have legal standing," L.A. Times, 2010-DEC-06, at:
  4. Devin Dwyer & Arletter Saenz, "Proposition 9 before federal appeals court," ABC News, 2010-DEC=-6. at:
  5. "The Catholics Next Door," Sirius/XM radio, 2010-DEC-04, circa 10 AM ET.

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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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