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Religious Tolerance logo

Efforts to overturn Prop. 8 in the courts

Trial in Federal District Court
of Perry v. Schwarzenegger
: Part 1

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  • "The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy ... and to establish them as legal principles to be applied by the courts. ... One's right to life, liberty, and property ... and other fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections." Justice Robert Jackson, in the U.S. Supreme Court 1943 decision in West Virginia State Board of Education v. Barnette, a well known World War II flag salute case. Quoted by Judge Walker in Perry v. Schwarzenegger.

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Summary of the lawsuit:

The case was brought by one lesbian couple, Kristin Perry & Sandra Stier, and one gay couple, Paul Katami and Jeffrey Zarrillo. Both couples had been denied marriage licenses after the passage of Prop. 8, because of their gender. They sued Arnold Schwarzenegger (R) in his official capacity as Governor of California, as well as five other state officials in their official capacities. Five individuals who were the promoters of Prop 8 were defendant-intervenors. The administration took the almost unprecedented action of not attempting to defend Prop. 8 in court. Edmund Brown Jr, the Attorney General, conceded that Prop. 8 violates the U.S. Constitution. Subsequently, the City and County of San Francisco (CCSF) was added as a plaintiff-intervenor.

The plaintiffs' lawsuit was based on their claim that Prop. 8 is in violation of the Fourteenth Amendment of the U.S. Constitution. This was the first time that this specific argument has been raised in a California court. The trial covered the interval from 2010-JAN-11 to JAN-27.

The proponents of Prop. 8 originally lined up six experts to speak against same-sex marriage (SSM). But four withdrew allegedly because they were frightened for their own safety because the court proceedings were to be televised as part of a pilot program. That program was cancelled, but the four still refused to take part. That left one expert witness who did not play a very active role in the trial, and one other expert witness who had unusual ideas concerning family structure. He denigrated marriages in which the children were not genetically related to both parents. Although he concentrated on same-sex marriages, his criteria would also include:

  • Opposite-sex married couples who used artificial insemination or in-vitro fertilization in order to conceive, and
  • Infertile opposite-sex married couples who adopted children.

With their star expert witness holding such unusual views, the proponents of Prop. 8 provided a very weak case.

Federal District Judge Vaughn Walker ruled that Proposition 8, which was narrowly passed by the voters on election day in 2008, is unconstitutional. The 136 page text of his ruling is online, as are copies of evidence submitted at trial. 3,4

He concluded that:

  • The right to marry is a fundamental right for loving, committed couples, whether they be of opposite-sex or of the same-sex.

  • Under the U.S. Constitution, marriage cannot be denied anyone without a compelling reason to do so.

  • There is no compelling reason why a state government should deny marriage to couples simply because they are of the same gender.

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Plaintiffs' case against Prop. 8:

  • They claimed that the freedom to marry the person of one's choice is a fundamental right protected by the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. This clause is worded: no "State [shall] deprive any person of life, liberty, or property, without due process of law." They further claim that Prop. 8 violates that right. California does provide domestic partnerships for same-sex couples, but does not allow them to marry.

  • They further claim that Prop. 8 violates the equal protections clause of the Fourteenth Amendment. It is worded: no state shall "deny to any person within its jurisdiction the equal protection of the laws." Prop 8 denies gay men and lesbians the right to marry the person of their choice, while allowing heterosexual persons to do so freely. Gays and lesbians are discriminated against on the basis of both their sexual orientation and their sex.

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Proponents' defense of Prop. 8:

The Proponents organized the campaign " -- Yes on 8" a Project of California Renewal." This was a coalition of groups from the Roman Catholic Church, The Church of Jesus Christ of Latter-day Saints (the Mormons/LDS church) and several fundamentalist and other evangelical groups.

They asserted that Prop. 8:

  • Maintains the long-standing previous definition of marriage in California by excluding same-sex couples.

  • Affirms that most California citizens wish to exclude same-sex couples from marriage.

  • Promotes relationship stability between opposite-sex married couples which is particularly important if they have children.

  • Promotes the best environment for raising children, which they contend is a man and woman married to each other.

They state that the central purpose of marriage is "to promote naturally procreative sexual relationships and to channel them into stable,enduring unions for the sake of producing and raising the next generation." They do not appear to recognize the worth of lesbian relationships who raise children because they need medical assistance to conceive and because their children will be genetically related to only one parent. They seem to not recognize relationships involving two male gays who adopt children because their children will not be genetically related to either parent. Their stated purpose of marriage also throws into doubt whether the proponents value opposite-sex marriages in which the wife has reached menopause, or opposite-sex marriages in which the spouses decide to not have children.

They claim that prohibiting marriage for same-sex couples does not deny them either due process or equal protection. Domestic partnerships grant same-sex couples the same protections as are received by opposite-sex married couples.

When the judge asked how permitting same-sex marriage impairs or adversely affects the state's interest in the procreative function of marriage, the lawyer for the Proponents answered that he didn't know. The proponents promised to "demonstrate that redefining marriage to encompass same-sex relationships" would cause 23 specific harmful consequences to the institution of marriage. However, the proponents only supplied one witness to address this matter. Judge Walker concluded that the witness "provided no credible evidence to support any of the claimed adverse effects. ..."

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The Trial:

The four plaintiffs testified, along with four other lay witnesses and nine expert witnesses. The proponents originally planned to present six expert witnesses. However on the first day of the trial, they announced that they were withdrawing all but two expert witnesses. Their lawyer stated that the witnesses who withdrew "... were extremely concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever." The Supreme Court ordered that the court proceedings not be broadcast. However, even after the public broadcast of the case was cancelled, the "proponents failed to make any effort to call their witnesses."

Testimony focused on three questions -- whether there is evidence that:

  1. Establishes that the state has an interest in withdrawing access to marriage to individuals because of their spouses' sex.

  2. Shows that the state has an interest in differentiating between same-sex and opposite-sex unions.

  3. Shows that Prop. 8 enacted a private moral view without advancing a legitimate government interest.

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Concerning question 1: Does the evidence establishes that the state has an interest in denying marriage access on the grounds of their spouses' sex?

The plaintiffs explained what marriage would mean to them personally.

Historian Nancy Cott described the purpose of marriage in terms of commitment, a promise of lifetime support, and economic partnership, etc. She said that the state's primary purpose in regulating marriage is to create stable households. She noted that the institution of marriage has undergone many changes in the past: prohibiting and later allowing slaves to marry; forbidding and later permitting interracial marriages, prohibiting and later allowing wives to own property on their own. etc.

David Blankenhorn, founder and president of the Institute for American Values described marriage as a "socially approved sexual relationship between a man and a woman" for the purpose of "bearing and raising children who are biologically related to both spouses..." As noted above, this definition denigrates the status of adopted children, children born as a result of assisted reproduction, and their parents.

Full disclosure: I am having difficulty maintaining an objective view of Blankenhorn's definition of marriage and its purpose. According to him, my own marriage has no purpose or value because I married late in life, beyond the age at which procreation is either possible or desirable. It seems to me that his testimony comes close to concluding that infertile or elderly opposite-sex couples should only be allowed to enter a registered partnership or civil union, and be prohibited from marrying.

He noted trends that are leading to the deinstitutionalization of marriage: childbirths out of wedlock, and an increasing divorce rate.

Both Cott and Blankenhorn testified that the state would benefit if it allowed SSMs. Marriage would benefit same-sex couples and their children; it would reduce discrimination against gays and lesbians; it would be "a victory for the worthy ideas of tolerance and inclusions." However Blankenhorn still believes that the state should not allow SSMs because they could conceivably weaken marriage as an institution.

Psychologist Letitia Anne Peplau testified that same-sex and opposite-sex couples both benefit physically and economically when they are married. She looks upon the desire of same-sex couples to marry as an indication of the health of the institution of marriage.

Economist Lee Badgett provided evidence that same-sex couples would benefit economically from marriage and that SSM would not adversely affect the institution of marriage or opposite-sex couples.

Judge Walker found the testimony of David Blankenhorn to be "unreliable," and concluded that the answer to question 1 is "No:" the state has no interest in refusing to marry same-sex couples.

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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. Geoff Kors, "Court rules Prop 8 unconstitutional -- Nov. election critical to case!," Email, Equality California, 2010-AUG-04.-
  2. Text of Perry v Schwarzenegger, United States District Court for the Northern District of California, at: Also available at: These are PDF files.
  3. Evidence submitted at the trial is available at:
  4. Text of Perry v Schwarzenegger, Page 26.
  5. Text of Perry v Schwarzenegger, Pages 46 & 47.
  6. Text of Perry v Schwarzenegger, Pages 56 to 111.

You Tube videos about Judge Walker's decision:

"ProfMTH" has prepared a two part video on SSM and Judge Walker's decision:

Site navigation:

Home page > "Hot" topics > Homosexuality > Couples > California > Prop 8 > here

Copyright © 2010 by Ontario Consultants on Religious Tolerance
Original posting: 2010-AUG-06
Latest update: 2010-AUG-16
Author: B.A. Robinson

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