Lawsuits to overturn Proposition 8
Encyclopedia
Strauss v. Horton 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48, was the consolidation of three lawsuits following the passage of California
's Proposition 8
on November 4, 2008, which went into effect on November 5. The suits were filed
by a number of gay couples and governmental entities. Three of these six were accepted by the Supreme Court of California
to be heard together. The oral argument
s were made in San Francisco on March 5, 2009. These cases were new to the California Supreme Court, and Justice Kathryn Mickle Werdegar stated that it will set precedent as "no previous case had presented the question of whether an initiative could be used to take away fundamental rights".
The court rendered its decision on May 25. The ruling established that Proposition 8 was valid as voted, but that marriages performed before it went into effect would remain valid.
asked state Attorney General
Jerry Brown
to reply by November 17, 2008, to a number of lawsuits challenging the voter-approved ban on same-sex marriage
. The filing
the court requested from the Attorney General was not to address the ballot measure's validity, but to focus on whether the justices should accept the suits for review and whether Proposition 8 should be suspended while they decide the case, said Christopher Krueger, a senior assistant attorney general.
On November 17, 2008, the Attorney General urged the court to hear these cases in order to decide the important legal issues presented, but also argued that the court should not suspend Proposition 8.
On November 19, 2008, the California Supreme Court accepted three lawsuits (Strauss et al. v. Horton, Tyler et al. v. State of California et al., and City and County of San Francisco et al. v. Horton et al.) challenging Proposition 8 and said that it would hear the cases together, but denied the requests to stay its enforcement. Three additional lawsuits (Asian Pacific American Legal Center et al. v. Horton et al., Equal Rights Advocates and California Women's Law Center v. Horton et al., and California Council of Churches et al. v. Horton et al.) on the matter were denied hearing, but those petitioners were invited by the court to file amicus briefs in the cases which were accepted.
.
, the California Constitution
employs the concept of separation of powers
. The lawsuits argue that the protection of minority groups via the Constitution and the Bill of Rights is inherently a judiciary function, which cannot be overturned by the legislative branch of government, and therefore cannot be overturned by the initiative-amendment process.
said that existing same-sex marriages would be unaffected, but other legal experts were uncertain. On December 19, 2008, supporters of Prop. 8 filed briefs responding to each of the anti-Prop. 8 lawsuits already filed with the State Supreme Court and seeking to nullify same-sex marriages already in effect.
, Lambda Legal
, the National Center for Lesbian Rights
, and the ACLU of Northern California, as well as the cities of San Francisco and Los Angeles
, and the county of Santa Clara
. The Los Angeles County Board of Supervisors voted to join the lawsuit filed by the City of Los Angeles, San Francisco, and Santa Clara County, the four becoming the first governmental entities in the United States
to sue for marriage equality for homosexual couples. This lawsuit was subsequently joined by Alameda
, Marin
, San Mateo
and Santa Cruz
counties, and the cities of Fremont
, Laguna Beach
, Oakland
, San Diego
, Santa Cruz
, Santa Monica
and Sebastopol
. The petitioners were represented by San Francisco City Attorney Therese M. Stewart.
s in these cases were the State of California and some of its officials in their official capacity, California Attorney General Jerry Brown
and his office were the primary individuals charged with responding to the lawsuit. Other respondents include Mark B. Horton of the State Registrar of Vital Statistics and Linette Scott of the California Department of Public Health
.
On December 19, 2008, the Attorney General's office filed its response, whose final section supported overturning Proposition 8. The brief argued that:
In discussing the last section of the answer brief, the Attorney General explained, "Proposition 8 violates constitutionally protected liberties. There are certain rights that are not to be subject to popular votes, otherwise they are not fundamental rights. If every fundamental liberty can be stripped away by a majority vote, then it's not a fundamental liberty."
According to the San Jose Mercury News
, Brown's argument for overturning Proposition 8 left Proposition 8 supporters legally isolated because the Attorney General
would normally defend existing state laws. Brown responded to this noting that the California Constitution also constitutes existing state law.
, the sponsors of Proposition 8, asked for permission to intervene in the cases.
On November 19, 2008, the Court granted permission for them to do so.
The Campaign for California Families
, a conservative religious organization, also asked the court for permission to become an official party to all three cases. The group unsuccessfully sought to place a same-sex marriage ban on the November ballot that also would have denied domestic partner benefits to same-sex couples. Represented by the Florida-based Liberty Counsel
, the Campaign said in its motion to intervene that state officials would not adequately defend the rights of voters. On November 19, 2008, the Court denied permission for CCF to intervene in the cases.
On December 19, 2008, the official proponents of Proposition 8 filed briefs responding to each of the anti-Prop. 8 lawsuits already filed with the court, seeking to uphold the validity of Proposition 8 against the lawsuits and nullify same-sex marriages already in effect. Kenneth Starr
, dean of Pepperdine University School of Law
and investigator of the suicide of Vince Foster and Whitewater controversy
, joined the Proposition 8 legal defence team that same day.
letters had been sent to the Court and posted on the Court's web site, 43 in opposition to all or part of Proposition 8, 17 in support.
Forty-four members of the California Legislature (about one-third of its membership) filed an amicus curiae
brief
in support of one of the three lawsuits. The Anti-Defamation League
, the Bar Association of San Francisco
, and three other legal or civil rights groups also submitted letters supporting efforts to get the court to delay implementation of Proposition 8.
Oral arguments took place on March 5, 2009, at the Supreme Court's headquarters in San Francisco, while thousands from both sides protested outside. A television screen had been set up, displaying live shots from the proceedings within the court.
Kenneth Starr
, lawyer for ProtectMarriage.com, argued that "Prop. 8 was a modest measure that left the rights of same-sex couples undisturbed under California's domestic-partner laws and other statutes banning discrimination based on sexual orientation," to the agreement of most of the judges. Chief Justice Ronald M. George
, however, said, "It is just too easy to amend the California Constitution." Starr's argument was challenged in and out of court by two members of his own faculty who argued the court had an obligation to secure both equality and religious freedom, and majorities cannot assume to have the power to deprive minorities of fundamental rights. On this view, if these two fundamental rights clash, the government should get out of the marriage business altogether.
The main issue which arose during the oral argument included the meaning of the word "inalienable
", and to which extent this word goes when used in Article I of the Californian Constitution. Christopher Krueger of the Attorney General
's office said that inalienable rights may not be stripped away by the initiative process. Those claims were rebuffed by Attorney Kenneth Starr, who said, "rights are important, but they don't go to structure. ... rights are ultimately defined by the people."
holiday, the court released its opinion on a Tuesday instead of Monday, as is traditional.
completely unaffected. The majority opinion stated:
The majority also noted that "Proposition 8 must be understood as creating a limited exception to the state equal protection clause."
Citing Varnum v. Brien
, Moreno stated that "equal protection principles lie at the core of the California Constitution and have been embodied in that document from its inception," and that "As a logical matter, [the equal protection clause] cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect." He concurred with the majority over the fact that the 18,000 valid marriages before Proposition 8 would remain (thus, Proposition 8 is not retroactive), as well as concurring with the majority opinion that "Proposition 8 does not entirely repeal or abrogate a same-sex couple’s substantive state constitutional right to marry as set forth in the Marriage Cases
." Despite this, he dissented on the major question at issue and stated that Proposition 8 was indeed a constitutional revision that required a two-third legislative vote, citing article 18 of the California Constitution and the history of the constitutional provisions for amendments and revisions.
While oral arguments were ongoing within the court house in San Francisco, protests took place outside, with both sides sharing their views.
On March 2, 2009, the California State Senate
passed a resolution opposing Proposition 8, saying that "the initiative is a fundamental revision to the document, not an amendment, and therefore required deliberation by the Legislature and a two-thirds vote of both houses to put it on the ballot." The California State Assembly
passed an essentially identical resolution the same day.
On May 8, a "Meet in the Middle" march and rally took place in Fresno
in an effort to sway Central California voters to support sane-sex marriage, because they had "voted overwhelmingly for the ban".
"Day of Decision" protests or celebrations by supporters of same-sex marriage were planned for the evening of May 26, 2009, following the scheduled release of the Supreme Court decision; these events will take place across California, as well as in major cities in the United States and Canada. San Francisco City Attorney, Dennis Herrera
, said that while it he was disappointed by the court's decision, it shows that the final round "could not be won in the legal arena". He vowed to fight in the ballot box in 2010.
Proposition 8 supporters also planned to respond to the court ruling with public gatherings; Fresno pastor Jim Franklin, a leading opponent of same-sex marriage, opined that "if it were to go against the people, then there really should be rioting in the streets."
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
's Proposition 8
California Proposition 8 (2008)
Proposition 8 was a ballot proposition and constitutional amendment passed in the November 2008 state elections...
on November 4, 2008, which went into effect on November 5. The suits were filed
Filing (legal)
In law, filing is the act of submitting a document to the clerk of a court for the court's immediate consideration, for storage in the court's files, or both. Courts will not consider motions unless an appropriate memorandum or brief is filed before the appropriate deadline...
by a number of gay couples and governmental entities. Three of these six were accepted by the Supreme Court of California
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...
to be heard together. The oral argument
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
s were made in San Francisco on March 5, 2009. These cases were new to the California Supreme Court, and Justice Kathryn Mickle Werdegar stated that it will set precedent as "no previous case had presented the question of whether an initiative could be used to take away fundamental rights".
The court rendered its decision on May 25. The ruling established that Proposition 8 was valid as voted, but that marriages performed before it went into effect would remain valid.
Background
On November 13, 2008, the California Supreme CourtSupreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...
asked state Attorney General
State Attorney General
The state attorney general in each of the 50 U.S. states and territories is the chief legal advisor to the state government and the state's chief law enforcement officer. In some states, the attorney general serves as the head of a state department of justice, with responsibilities similar to those...
Jerry Brown
Jerry Brown
Edmund Gerald "Jerry" Brown, Jr. is an American politician. Brown served as the 34th Governor of California , and is currently serving as the 39th California Governor...
to reply by November 17, 2008, to a number of lawsuits challenging the voter-approved ban on same-sex marriage
Same-sex marriage
Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....
. The filing
Filing (legal)
In law, filing is the act of submitting a document to the clerk of a court for the court's immediate consideration, for storage in the court's files, or both. Courts will not consider motions unless an appropriate memorandum or brief is filed before the appropriate deadline...
the court requested from the Attorney General was not to address the ballot measure's validity, but to focus on whether the justices should accept the suits for review and whether Proposition 8 should be suspended while they decide the case, said Christopher Krueger, a senior assistant attorney general.
On November 17, 2008, the Attorney General urged the court to hear these cases in order to decide the important legal issues presented, but also argued that the court should not suspend Proposition 8.
On November 19, 2008, the California Supreme Court accepted three lawsuits (Strauss et al. v. Horton, Tyler et al. v. State of California et al., and City and County of San Francisco et al. v. Horton et al.) challenging Proposition 8 and said that it would hear the cases together, but denied the requests to stay its enforcement. Three additional lawsuits (Asian Pacific American Legal Center et al. v. Horton et al., Equal Rights Advocates and California Women's Law Center v. Horton et al., and California Council of Churches et al. v. Horton et al.) on the matter were denied hearing, but those petitioners were invited by the court to file amicus briefs in the cases which were accepted.
Whether Proposition 8 is a revision
The lawsuits claimed that revoking the right of same-sex couples to marry is a constitutional revision rather than an amendment. In California, both constitutional amendments and revisions require that a majority of voters approve the ballot initiative. However, a revision, defined as a "substantial alteration of the entire constitution rather than to a less extensive change in one or more of its provisions," also requires the prior approval of 2/3 of each house of the California State LegislatureCalifornia State Legislature
The California State Legislature is the state legislature of the U.S. state of California. It is a bicameral body consisting of the lower house, the California State Assembly, with 80 members, and the upper house, the California State Senate, with 40 members...
.
Erwin ChemerinskyErwin ChemerinskyErwin Chemerinsky is an American lawyer and law professor. He is a prominent scholar in United States constitutional law and federal civil procedure...
, the dean of the law school at the University of California, IrvineUniversity of California, IrvineThe University of California, Irvine , founded in 1965, is one of the ten campuses of the University of California, located in Irvine, California, USA...
, stated, "the California Supreme Court has never articulated criteria for what makes something an amendment versus a revision. So I don’t think you can predict anything because there is so little law."
Claims made on similar grounds with respect to other constitutional changes have in some cases taken years to be adjudicated, and almost all have failed. Kenji YoshinoKenji YoshinoKenji Yoshino is a legal scholar and the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law. Formerly, he was the Guido Calabresi Professor of Law at Yale Law School. His work involves Constitutional law, anti-discrimination law, civil and human rights,...
, an openly gay man who serves as the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of LawNew York University School of LawThe New York University School of Law is the law school of New York University. Established in 1835, the school offers the J.D., LL.M., and J.S.D. degrees in law, and is located in Greenwich Village, in the New York City borough of Manhattan....
, cast doubt on the "revision" argument, stating that "for both precedential and political reasons, I think this case is a loser."
Whether Proposition 8 violates separation of powers
Like the United States ConstitutionUnited States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, the California Constitution
California Constitution
The document that establishes and describes the duties, powers, structure and function of the government of the U.S. state of California. The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which...
employs the concept of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
. The lawsuits argue that the protection of minority groups via the Constitution and the Bill of Rights is inherently a judiciary function, which cannot be overturned by the legislative branch of government, and therefore cannot be overturned by the initiative-amendment process.
Whether Proposition 8 invalidates existing marriages
A pending legal issue was whether the approximately 18,000 same-sex marriages already in effect would be retroactively annulled by the constitutional change or whether they would be preserved, since the amendment does not state explicitly that it would nullify same-sex marriages performed before the change took effect. California Attorney General Jerry BrownJerry Brown
Edmund Gerald "Jerry" Brown, Jr. is an American politician. Brown served as the 34th Governor of California , and is currently serving as the 39th California Governor...
said that existing same-sex marriages would be unaffected, but other legal experts were uncertain. On December 19, 2008, supporters of Prop. 8 filed briefs responding to each of the anti-Prop. 8 lawsuits already filed with the State Supreme Court and seeking to nullify same-sex marriages already in effect.
Whether voters can override inalienable rights
The Attorney General's response to the lawsuits included a new argument that the Court should overturn Proposition 8. That brief contends that California's initiative-amendment process does not give voters the right to overturn rights in California's Declaration of Rights without a "compelling justification".Petitioners
Plaintiffs in the three lawsuits included same-sex couples who had married or planned to marry, represented by the same legal team that argued and won In re Marriage CasesIn re Marriage Cases
In re Marriage Cases 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], was a California Supreme Court case with the dual holding that "statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny" and the existing "California legislative and...
, Lambda Legal
Lambda Legal
Lambda Legal is an American civil rights organization that focuses on lesbian, gay, bisexual, transgender communities as well as people living with HIV/AIDS through impact litigation, education, and public policy work.Lambda's founder William J. Thom, Esq...
, the National Center for Lesbian Rights
National Center for Lesbian Rights
The National Center for Lesbian Rights is a national non-profit, public interest law firm that advocates for equitable public policies affecting the LGBT community, provides free legal assistance to LGBT clients and their legal advocates, and conducts community education on LGBT legal issues. It...
, and the ACLU of Northern California, as well as the cities of San Francisco and Los Angeles
Los Ángeles
Los Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...
, and the county of Santa Clara
Santa Clara County, California
Santa Clara County is a county located at the southern end of the San Francisco Bay Area in the U.S. state of California. As of 2010 it had a population of 1,781,642. The county seat is San Jose. The highly urbanized Santa Clara Valley within Santa Clara County is also known as Silicon Valley...
. The Los Angeles County Board of Supervisors voted to join the lawsuit filed by the City of Los Angeles, San Francisco, and Santa Clara County, the four becoming the first governmental entities in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
to sue for marriage equality for homosexual couples. This lawsuit was subsequently joined by Alameda
Alameda County, California
Alameda County is a county in the U.S. state of California. It occupies most of the East Bay region of the San Francisco Bay Area. As of the 2010 census it had a population of 1,510,271, making it the 7th most populous county in the state...
, Marin
Marin County, California
Marin County is a county located in the North San Francisco Bay Area of the U.S. state of California, across the Golden Gate Bridge from San Francisco. As of 2010, the population was 252,409. The county seat is San Rafael and the largest employer is the county government. Marin County is well...
, San Mateo
San Mateo County, California
San Mateo County is a county located in the San Francisco Bay Area of the U.S. state of California. It covers most of the San Francisco Peninsula just south of San Francisco, and north of Santa Clara County. San Francisco International Airport is located at the northern end of the county, and...
and Santa Cruz
Santa Cruz County, California
Santa Cruz County is a county located on the Pacific coast of the U.S. state of California, on the California Central Coast. The county forms the northern coast of the Monterey Bay. . As of the 2010 U.S. Census, its population was 262,382. The county seat is Santa Cruz...
counties, and the cities of Fremont
Fremont, California
Fremont is a city in Alameda County, California. It was incorporated on January 23, 1956, from the merger of five smaller communities: Centerville, Niles, Irvington, Mission San Jose, and Warm Springs...
, Laguna Beach
Laguna Beach, California
Laguna Beach is a seaside resort city and artist community located in southern Orange County, California, United States, approximately southwest of the county seat of Santa Ana...
, Oakland
Oakland, California
Oakland is a major West Coast port city on San Francisco Bay in the U.S. state of California. It is the eighth-largest city in the state with a 2010 population of 390,724...
, San Diego
San Diego, California
San Diego is the eighth-largest city in the United States and second-largest city in California. The city is located on the coast of the Pacific Ocean in Southern California, immediately adjacent to the Mexican border. The birthplace of California, San Diego is known for its mild year-round...
, Santa Cruz
Santa Cruz, California
Santa Cruz is the county seat and largest city of Santa Cruz County, California in the US. As of the 2010 U.S. Census, Santa Cruz had a total population of 59,946...
, Santa Monica
Santa Monica, California
Santa Monica is a beachfront city in western Los Angeles County, California, US. Situated on Santa Monica Bay, it is surrounded on three sides by the city of Los Angeles — Pacific Palisades on the northwest, Brentwood on the north, West Los Angeles on the northeast, Mar Vista on the east, and...
and Sebastopol
Sebastopol, California
Sebastopol is a city in Sonoma County, California, United States, approximately north of San Francisco. The population was 7,379 at the 2010 census, but its businesses also serve surrounding rural portions of Sonoma County, totaling about 50,000 people...
. The petitioners were represented by San Francisco City Attorney Therese M. Stewart.
Respondents
As the respondentDefendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
s in these cases were the State of California and some of its officials in their official capacity, California Attorney General Jerry Brown
Jerry Brown
Edmund Gerald "Jerry" Brown, Jr. is an American politician. Brown served as the 34th Governor of California , and is currently serving as the 39th California Governor...
and his office were the primary individuals charged with responding to the lawsuit. Other respondents include Mark B. Horton of the State Registrar of Vital Statistics and Linette Scott of the California Department of Public Health
California Department of Public Health
The California Department of Public Health is the state department responsible for public health in California. It is a subdivision of the California Health and Human Services Agency...
.
On December 19, 2008, the Attorney General's office filed its response, whose final section supported overturning Proposition 8. The brief argued that:
- Although Proposition 8 should not be overturned on the grounds of revision/amendment analysis or on separation-of-power grounds as proposed in the original lawsuits,
- Proposition 8 should not, if upheld, overturn existing same-sex marriages performed in California, and
- Proposition 8 should be "stricken as inconsistent with the guarantees of individual liberty safeguarded by article I, section 1 of the Constitution."
In discussing the last section of the answer brief, the Attorney General explained, "Proposition 8 violates constitutionally protected liberties. There are certain rights that are not to be subject to popular votes, otherwise they are not fundamental rights. If every fundamental liberty can be stripped away by a majority vote, then it's not a fundamental liberty."
According to the San Jose Mercury News
San Jose Mercury News
The San Jose Mercury News is a daily newspaper in San Jose, California. On its web site, however, it calls itself Silicon Valley Mercury News. The paper is owned by MediaNews Group...
, Brown's argument for overturning Proposition 8 left Proposition 8 supporters legally isolated because the Attorney General
State Attorney General
The state attorney general in each of the 50 U.S. states and territories is the chief legal advisor to the state government and the state's chief law enforcement officer. In some states, the attorney general serves as the head of a state department of justice, with responsibilities similar to those...
would normally defend existing state laws. Brown responded to this noting that the California Constitution also constitutes existing state law.
Intervenors
ProtectMarriage.comProtectMarriage.com
ProtectMarriage.com is a coalition of conservative and religious American political activist groups aligned against same-sex marriage. The coalition's stated goal is to "defend and restore the definition of marriage as between a man and a woman." Beginning in 2001 as Proposition 22 Legal Defense...
, the sponsors of Proposition 8, asked for permission to intervene in the cases.
On November 19, 2008, the Court granted permission for them to do so.
The Campaign for California Families
Campaign for California Families
Campaign for California Families is a non-profit organization promoting socially conservative public policy in California, founded by Randy Thomasson, who also founded the Campaign for Children and Families...
, a conservative religious organization, also asked the court for permission to become an official party to all three cases. The group unsuccessfully sought to place a same-sex marriage ban on the November ballot that also would have denied domestic partner benefits to same-sex couples. Represented by the Florida-based Liberty Counsel
Liberty Counsel
Liberty Counsel is a non-profit public interest law firm and ministry that provides free legal assistance in defense of "Christian religious liberty, the sanctity of human life, and the traditional family." Liberty Counsel is headed by attorney Mathew D. Staver, who founded the legal ministry with...
, the Campaign said in its motion to intervene that state officials would not adequately defend the rights of voters. On November 19, 2008, the Court denied permission for CCF to intervene in the cases.
On December 19, 2008, the official proponents of Proposition 8 filed briefs responding to each of the anti-Prop. 8 lawsuits already filed with the court, seeking to uphold the validity of Proposition 8 against the lawsuits and nullify same-sex marriages already in effect. Kenneth Starr
Kenneth Starr
Kenneth Winston "Ken" Starr is an American lawyer and educational administrator who has also been a federal judge. He is best known for his investigation of figures during the Clinton administration....
, dean of Pepperdine University School of Law
Pepperdine University School of Law
The Pepperdine University School of Law is a law school located on the campus of Pepperdine University in Malibu, California.The school placed 54th among the nation's "Top 100" law schools according to the 2011 U.S. News and World Report rankings and is the third highest ranked law school in...
and investigator of the suicide of Vince Foster and Whitewater controversy
Whitewater controversy
The Whitewater controversy was an American politics controversy that began with the real estate investments of Bill and Hillary Clinton and their associates, Jim and Susan McDougal in the Whitewater Development Corporation, a failed business venture in the 1970s and 1980s.A New York...
, joined the Proposition 8 legal defence team that same day.
Amici
By January 19, 2009, sixty amicus curiaeAmicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
letters had been sent to the Court and posted on the Court's web site, 43 in opposition to all or part of Proposition 8, 17 in support.
Forty-four members of the California Legislature (about one-third of its membership) filed an amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
brief
Brief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....
in support of one of the three lawsuits. The Anti-Defamation League
Anti-Defamation League
The Anti-Defamation League is an international non-governmental organization based in the United States. Describing itself as "the nation's premier civil rights/human relations agency", the ADL states that it "fights anti-Semitism and all forms of bigotry, defends democratic ideals and protects...
, the Bar Association of San Francisco
Bar Association of San Francisco
The Bar Association of San Francisco was established in 1872 as a nonprofit legal membership organization that provides San Francisco legal professionals with networking, educational and pro bono opportunities in order to better serve the community....
, and three other legal or civil rights groups also submitted letters supporting efforts to get the court to delay implementation of Proposition 8.
Oral arguments
Kenneth Starr
Kenneth Starr
Kenneth Winston "Ken" Starr is an American lawyer and educational administrator who has also been a federal judge. He is best known for his investigation of figures during the Clinton administration....
, lawyer for ProtectMarriage.com, argued that "Prop. 8 was a modest measure that left the rights of same-sex couples undisturbed under California's domestic-partner laws and other statutes banning discrimination based on sexual orientation," to the agreement of most of the judges. Chief Justice Ronald M. George
Ronald M. George
Ronald Marc George is the retired 27th Chief Justice of California, where he headed the Supreme Court of California and the Judicial Council of California...
, however, said, "It is just too easy to amend the California Constitution." Starr's argument was challenged in and out of court by two members of his own faculty who argued the court had an obligation to secure both equality and religious freedom, and majorities cannot assume to have the power to deprive minorities of fundamental rights. On this view, if these two fundamental rights clash, the government should get out of the marriage business altogether.
The main issue which arose during the oral argument included the meaning of the word "inalienable
InAlienable
InAlienable is a 2008 science fiction horror film written and produced by Walter Koenig, and directed by Robert Dyke.-Plot:Dr. Eric Norris remains wracked with guilt after a terrible tragedy that cost him his family, and when he learns that an alien parasite is not only growing inside him but...
", and to which extent this word goes when used in Article I of the Californian Constitution. Christopher Krueger of the Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
's office said that inalienable rights may not be stripped away by the initiative process. Those claims were rebuffed by Attorney Kenneth Starr, who said, "rights are important, but they don't go to structure. ... rights are ultimately defined by the people."
Decision
The Supreme Court reported on May 22 that it would reach a verdict on the validity of Proposition 8 and the 18,000 same-sex marriages in question on Tuesday, May 26 at 10:00am. Because of the Memorial DayMemorial Day
Memorial Day is a United States federal holiday observed on the last Monday of May. Formerly known as Decoration Day, it originated after the American Civil War to commemorate the fallen Union soldiers of the Civil War...
holiday, the court released its opinion on a Tuesday instead of Monday, as is traditional.
Majority opinion
On May 26, 2009 the California Supreme Court reported its decision on the validity of Proposition 8 and the 18,000 same-sex marriages in question. The proposition was upheld, but existing marriages were allowed to stand. Both the majority and Justice Werdegard emphasized that the ruling applied specifically to the use of the designation "Marriage", and that the ruling left the domestic partnership institution as well as several protections from In re Marriage CasesIn re Marriage Cases
In re Marriage Cases 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], was a California Supreme Court case with the dual holding that "statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny" and the existing "California legislative and...
completely unaffected. The majority opinion stated:
The Attorney General’s contention ... rests inaccurately upon an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy guaranteed by article I, section 1, and on the due process and equal protection guarantees of article I, section 7. As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . .”
The majority also noted that "Proposition 8 must be understood as creating a limited exception to the state equal protection clause."
Concurrence
Justices Kennard and Werdegar filed concurring opinions. Kennard noted primarily that whereas "interpretation" of the law is a Judicial power, "alteration" is not, and as the proposal altered the language to be interpreted, it could not possibly violate the separation of powers. Werdegar considered that much of the argumentation of the majority regarding the difference between a "revision" and an "amendment" was flawed, expressing specific concern that the ruling "gives the foundational principles of social organization in free societies, such as equal protection, less protection from hasty, unconsidered change than principles of governmental organization."Dissent
Justice Moreno's dissent agreed with the petitioners' contention that "requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution" and thus should be considered a revision.Citing Varnum v. Brien
Varnum v. Brien
Varnum v. Brien, 763 N.W.2d 862 , is an Iowa court case in which six same-sex couples filed suit against Timothy Brien, Polk County Recorder, for refusing to grant marriage licenses to them...
, Moreno stated that "equal protection principles lie at the core of the California Constitution and have been embodied in that document from its inception," and that "As a logical matter, [the equal protection clause] cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect." He concurred with the majority over the fact that the 18,000 valid marriages before Proposition 8 would remain (thus, Proposition 8 is not retroactive), as well as concurring with the majority opinion that "Proposition 8 does not entirely repeal or abrogate a same-sex couple’s substantive state constitutional right to marry as set forth in the Marriage Cases
In re Marriage Cases
In re Marriage Cases 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], was a California Supreme Court case with the dual holding that "statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny" and the existing "California legislative and...
." Despite this, he dissented on the major question at issue and stated that Proposition 8 was indeed a constitutional revision that required a two-third legislative vote, citing article 18 of the California Constitution and the history of the constitutional provisions for amendments and revisions.
Demonstrations and events
On March 2, 2009, the California State Senate
California State Senate
The California State Senate is the upper house of the California State Legislature. There are 40 state senators. The state legislature meets in the California State Capitol in Sacramento. The Lieutenant Governor is the ex officio President of the Senate and may break a tied vote...
passed a resolution opposing Proposition 8, saying that "the initiative is a fundamental revision to the document, not an amendment, and therefore required deliberation by the Legislature and a two-thirds vote of both houses to put it on the ballot." The California State Assembly
California State Assembly
The California State Assembly is the lower house of the California State Legislature. There are 80 members in the Assembly, representing an approximately equal number of constituents, with each district having a population of at least 420,000...
passed an essentially identical resolution the same day.
On May 8, a "Meet in the Middle" march and rally took place in Fresno
Fresno, California
Fresno is a city in central California, United States, the county seat of Fresno County. As of the 2010 census, the city's population was 510,365, making it the fifth largest city in California, the largest inland city in California, and the 34th largest in the nation...
in an effort to sway Central California voters to support sane-sex marriage, because they had "voted overwhelmingly for the ban".
"Day of Decision" protests or celebrations by supporters of same-sex marriage were planned for the evening of May 26, 2009, following the scheduled release of the Supreme Court decision; these events will take place across California, as well as in major cities in the United States and Canada. San Francisco City Attorney, Dennis Herrera
Dennis Herrera
Dennis Herrera is City Attorney of San Francisco, best known for his court action in favor of gay marriage, including against Proposition 8. He was re-elected as City Attorney in 2009 with 96 percent of the vote...
, said that while it he was disappointed by the court's decision, it shows that the final round "could not be won in the legal arena". He vowed to fight in the ballot box in 2010.
Proposition 8 supporters also planned to respond to the court ruling with public gatherings; Fresno pastor Jim Franklin, a leading opponent of same-sex marriage, opined that "if it were to go against the people, then there really should be rioting in the streets."
See also
- Perry v. SchwarzeneggerPerry v. SchwarzeneggerPerry v. Schwarzenegger is a federal lawsuit filed in the United States District Court for the Northern District of California challenging the federal constitutionality of Proposition 8, a 2008 ballot initiative that amended the California Constitution to restrict marriage to opposite-sex couples,...
, a federal case challenging Proposition 8 and launched the day of the Strauss v. Horton decision - For a review of Strauss vs. Horton see: Thomas Kupka, Names and Designations in Law, in: The Journal Jurisprudence 6 (2010) 121-130.