Perry v. Schwarzenegger
Encyclopedia
Perry v. Schwarzenegger (also known as Perry v. Brown on appeal) 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, prohibiting California from recognizing same-sex marriages performed on or after November 5, 2008. The suit sought to strike down Proposition 8 as unconstitutional.
On August 4, 2010, Chief Judge Vaughn Walker
ruled that Proposition 8 violated the Due Process and Equal Protection
Clauses of the Fourteenth Amendment
to the United States Constitution
. On August 16, 2010, the Ninth Circuit Court of Appeals
ordered the judgment stayed
pending appeal.
The case is widely regarded as a landmark case that will likely reach the Supreme Court
on appeal. The plaintiffs' attorneys, Theodore Olson
and David Boies
, were listed on the 2010 Time 100
for their nonpartisan
and strong legal approach to challenging Proposition 8.
held in the case In re Marriage Cases
that state statutes limiting marriage to opposite-sex applicants violated the California Constitution. The following month, same-sex couples were able to marry in California. In November 2008, California's electorate adopted Proposition 8, a constitutional amendment that restored the opposite-sex limitation on marriage. Following the adoption of Proposition 8, several lawsuits were filed that challenged the validity of the amendment under various state constitutional provisions. On May 26, 2009, the California Supreme Court held, in Strauss v. Horton, that Proposition 8 was a lawful enactment, but that same-sex marriages contracted before its passage remained valid.
Three days before the Strauss decision, the American Foundation for Equal Rights
(AFER) filed suit in the U.S. District Court for the Northern District of California
to challenge the validity of Proposition 8 on behalf of two same-sex couples. The couples' attorneys included Theodore Boutrous and the two attorneys who opposed each other in the Bush v. Gore
case, David Boies and former U.S. Solicitor General Theodore Olson.
Lambda Legal
, the ACLU, and the National Center for Lesbian Rights
, who originally obtained the right to same-sex marriage in California in In re Marriage Cases and defended it in Strauss v. Horton, opposed the filing because they felt a federal challenge at this time might do more harm than good. Olson and AFER rebuffed this claim and defended the timing of the lawsuit.
Following a pre-trial hearing on July 2, 2009, the three legal groups moved to intervene in the lawsuit, as did the City of San Francisco in a separate filing. The plaintiffs opposed allowing the groups or the City to intervene. On August 19, Judge Vaughn R. Walker
denied the legal groups' motions to intervene but granted the City's, albeit in a limited capacity. Despite the other groups' failed attempt to intervene in the lawsuit, they offered support to the legal team litigating the case, with James Esseks of the ACLU saying: "[w]e are interested in doing whatever we can to make sure their case is as successful as possible".
Arnold Schwarzenegger
, Attorney General
Jerry Brown
, and two officials in the Department of Public Health
.
Several groups sought to intervene as plaintiffs, including the groups who had prosecuted the In re Marriage Cases
and Strauss v. Horton actions. San Francisco also filed a motion to intervene in the case. The City cited its work in the earlier cases that had provided "extensive evidence and proposed findings on strict scrutiny
factors and factual rebuttals to long claimed justifications for marriage discrimination". City Attorney Dennis Herrera
said that his office is "singularly well-prepared" to help "put anti-gay discrimination
on trial based on the facts". Walker permitted only San Francisco to intervene, as it could speak to the impact of Proposition 8 on local governments. He also ordered the attorney general to assist San Francisco in analyzing Proposition 8's impact. Walker stated that necessary speed and swiftness "on an issue of this magnitude and importance" were required and that the intervention of additional groups would only complicate and stall the case.
and should be struck down. Governor Schwarzenegger took a more neutral path, saying that he supported the lawsuit because the Proposition 8 conflict asks "important constitutional questions that require and warrant judicial determination". None of the state officials named in the suit sought to defend the law in court.
Two groups, the official proponents of Proposition 8, ProtectMarriage.com
, led by Dennis Hollingsworth
, and a rival group, the Campaign for California Families
, sought to intervene as defendants. The court allowed the official proponents to intervene, filling the void left by the state officials' acquiescence. The judge denied the request from the Campaign for California Families.
On December 15, Imperial County filed a motion to intervene as a defendant despite the fact that the intervenor deadline had passed. They argued that the civil agencies named in the suit, the counties of Alameda and Los Angeles and the state government, were not actively defending the Proposition. They continued to argue that the case needed a proper governmental defendant. On August 4, along with the ruling, Judge Walker denied Imperial County intervenor status.
that would have immediately restored same-sex marriage in California until the lawsuit was decided. Judge Walker deferred a ruling on the motion and said he would instead "proceed directly and expeditiously to the merits".
Plaintiffs requested that the campaign produce internal documents
that relate to the purpose and intent of the amendment and the development of political messages during the campaign. The Proposition 8 proponents objected to the request because of the potential chilling effect on political speech, among other grounds. On October 1, Walker rejected the contention that the First Amendment
shielded all of those communications. The proponents appealed that decision to the U.S. Court of Appeals for the Ninth Circuit and separately moved to stay the proceedings
in the district court. Noting that the proponents were unlikely to succeed in this appeal, Walker rejected the stay request on October 23. Regardless, the proponents continued to assert a First Amendment privilege over these documents, a sampling of which Walker reviewed privately
. On December 11, 2009, the Ninth Circuit overturned Walker's ruling, saying that the release of the documents "would likely have a chilling effect on political association and the formulation of political expression."
In September, Proposition 8 proponents filed a motion for summary judgment. Running more than 100 pages, the motion asked the court to rule that Proposition 8 did not offend the U.S. Constitution without the need to find facts at a trial. The motion asserted that Baker v. Nelson
foreclosed any further review by the court. Failing that, the motion argued that all of the couples' claims failed as a matter of law. After a two-hour hearing on October 13, Walker denied the motion. He noted that the Supreme Court doctrine on sexual orientation and gender
discrimination had changed since 1972. Resolving the amendment's validity, Walker noted, required hearing testimony at trial.
, Seattle, Portland
, and Brooklyn
, through an experimental new system developed by the Ninth Circuit Appeals Court
. The trial would have also been shown on the video-sharing website YouTube
. Judge Walker noted that he had received 138,574 comments on the plans to broadcast the trial, and all but 32 were in favor.
Two days before the trial, the defendant-intervenors filed emergency papers with the Supreme Court to bar telecasting the trial, with the court ruling 8-1 to temporarily stay live streaming until Wednesday. Although a coalition of media organizations, including CNN
, Fox News, the Associated Press
, and Court TV, filed an emergency amicus brief in support of live streaming and delayed broadcast, the court ruled 5-4 along ideological lines in Hollingsworth v. Perry to indefinitely block live streams to various federal courthouses, although it refused to rule on plans to delay broadcasts on YouTube.
Despite the ruling, the proceedings elicited unprecedented live coverage through social networking site Twitter
from gay-interest magazine The Advocate
, the National Center for Lesbian Rights
, an official feed from the group representing the plaintiffs (AFER), a California-based progressive organization Courage Campaign
, and several independent parties including Chris Geidner, maintainer of the LGBT-oriented Law Dork blog, San Francisco-based attorney Chris Stoll, and others.
Filmmakers John Ireland and John Ainsworth filmed and distributed a re-enactment of the trial. Actors participating in the project include Adrienne Barbeau
, Arye Gross
and Tess Harper
.
, psychologist Gregory M. Herek
, and philosopher Daniel N. Robinson
.
The trial began with opening statements by Theodore Olson and San Francisco Deputy City Attorney Therese Stewart for the plaintiffs. The plaintiffs sought to show that marriage is a fundamental right; that depriving gays and lesbians of the right to marry hurt them and their children; and that there was no reason or societal benefit in prohibiting them from getting married. Charles Cooper made an opening statement for the defendants, saying that marriage had been universally limited to opposite-sex couples. The plaintiffs then testified about their personal experiences as gay Americans and the reasons why they wished to get married.
Following the Supreme Court's decision in Christian Legal Society v. Martinez
on June 28, 2010, the plaintiffs in Perry cited the decision by Justice Ginsburg
as Supreme Court precedent that sexual orientation is "an identifiable class" in opposition to the defense's argument that sexual orientation is "behavioral". Christian Legal Society had asserted that it did not restrict membership based on sexual orientation but based on "conduct and belief that the conduct is not wrong". Ginsburg rejected that distinction, noting that with respect to sexual orientation the court has "declined to distinguish between status and conduct" and offering an analogy from an earlier opinion: "A tax on wearing yarmulkes is a tax on Jews
."
Defense counsel argued that marriage has traditionally been between a man and a woman because it provided a stable unit for procreation and child rearing.
of Yale University
, a social historian who specializes in LGBT history
, described how previous government campaigns had attempted "to demonize gay people as dangerous sexual deviants and child molesters". He then analyzed campaign material from the Yes on 8 campaign to show how they played upon the same message. He analyzed the words of Dr. Hak-Shing William ("Bill") Tam, which included assertions that, were California to fail to pass Proposition 8, other states would follow and "fall into Satan's hands", and that following legalization of same-sex marriage, the advocates of the "gay agenda" would attempt to "legalize having sex with children". Chauncey connected these messages to the earlier history of government demonizing gays and lesbians which he had previously discussed. Helen Zia
, a scholar on Asian American
social and political movements who was also asked to analyze those words, explained how her encounters with similar Asian community organizers encouraged her to "[step] into the closet and [slam] the door." David Thompson for the defense cross-examined Prof. Chauncey by focusing on the progress that had been made for mainstream acceptance of gays and lesbians in the last twenty years. Thompson noted anti-discrimination laws, support for domestic partnerships, and the proliferation of media like the sitcom Will & Grace
and 2005 film Brokeback Mountain
. Thompson's line of questioning was intended to establish "whether systemic bias against lesbians and gay men prevents them from being treated by others as equal citizens in the political process".
Professor Gary Segura, a political scientist at Stanford University
, said that no other minority groups in America — including undocumented aliens — have been the target of more restrictive ballot initiatives than gay men and lesbians. He accused Proposition 8 of being the type of social stigma that makes "gay and lesbian social progress seem like it comes at expense of other people and organizations and it makes the hill steeper". Under cross-examination, defendant witness David Blankenhorn
revealed that he believed the principle of equal human dignity applied to gay and lesbian Americans, and that "we would be more American on the day we permitted same-sex marriage than we were on the day before".
Gregory Herek
, a professor from UC Davis contended that "structural stigma" in the form of laws like Proposition 8 directly encourages social stigma, harassment, and violence against LGBT people. He also testified that there is no evidence "conversion therapy" is effective in changing a person's sexuality, and that it "sends a harmful and false message to young people that homosexuality is a disorder", directly leading to more discrimination. During cross-examination, he asserted that "sexual orientation is a combination of attraction, identity, and behavior, and that the complexities researchers face in defining sexual orientation are no different than those they face in defining other characteristics such as race".
San Diego Republican
mayor Jerry Sanders
testified how he transitioned from believing that domestic partnership was an ideal compromise to believing that same-sex marriage was fundamental. "What hit me was that I had been prejudiced", he explained. During cross-examination, he agreed with the defendants that not all people who voted for Proposition 8 were "bigots", but that he believed their vote was "grounded in prejudice".
Examining the impact of same-sex marriage on children, the plaintiffs introduced Michael Lamb, a developmental psychologist at the University of Cambridge
. He contended that there is a fairly substantial body of literature since the late 1970s that focuses specifically on the adjustment of children parented
by gay men and lesbians which provides very good understanding of the factors that affect the adjustment of children being raised by gay and lesbian parents. This substantial body of evidence documents that children raised by gay and lesbian parents are just as likely to be well adjusted as children raised by heterosexual parents. He noted that for significant number of these children, their adjustment would be promoted were their parents able to get married. He added that a field of developmental psychology came to the conclusion that what makes for an effective parent is the same both for a mother or a father, and that children do not need to have a masculine-behaving parent figure, a father, or feminine-behaving parent figure, a mother, in order to be well adjusted. Defendant witness David Blankenhorn
, under cross-examination, concurred that the well-being of children raised by same-sex couples would improve should they be allowed to marry.
San Francisco Attorney Therese Stewart noted in the closing arguments that the city itself was uniquely losing out on potential profits because Proposition 8 dissuaded gay tourists and their families from visiting the "cool, gray city of love" (as Walker referred to it) to get married. She also argued, through testimony by Ryan Kendall and Meyer, that the city was burdened with higher incidents of mental health disorders and the subsequent costs to the public health system.
from Claremont McKenna College
to testify that LGBT people had strong political and social support within California. He argued that all the major newspapers, Hollywood, Silicon Valley
, and a majority of state politicians all strongly opposed Proposition 8.
During cross-examination of George Chauncey
, the defense claimed that LGBT people have enjoyed increased political and social clout, with increased acceptance by society as exemplified by films such as Brokeback Mountain. Chauncey also admitted that employers in California are required to ban discrimination.
On August 4, 2010, Walker announced his ruling in favor of the plaintiffs, overturning Proposition 8 based on the Due Process and Equal Protection
Clauses of the Fourteenth Amendment
to the U.S. Constitution
. Walker concluded that California had no rational basis or vested interest in denying gays and lesbians marriage licenses:
was designed to protect.
. These findings of fact are important because appellate courts generally defer to them. Some of those findings include:
and Griswold v. Connecticut
. He goes on to say that "[r]ace and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage".
Before analyzing Proposition 8 under the applicable level of review (strict scrutiny for fundamental rights), Walker noted that California's domestic partnership laws do not satisfy California's obligation to provide gays and lesbians the right to marry, for two reasons: (1) domestic partnerships do not provide the same social meaning as marriage; and (2) domestic partnerships were created "specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples."
Judge Walker then found Proposition 8 unconstitutional because it does not pass even a rational-basis review (as he explains in the Equal Protection context), much less strict scrutiny.
noted that Judge Walker's decision was crafted similarly to the standard used by Justice Anthony M. Kennedy in his decision in Lawrence v. Texas
, and suggested that Walker was "speaking" to Kennedy, who is commonly the swing vote on the Supreme Court. John C. Eastman
, a law professor who supported Proposition 8, agreed with Professor NeJaime's assessment. Barry McDonald, a constitutional law professor at Pepperdine University
, believed that Walker's strict handling of the case and meticulous evidence gathering would "make it more difficult for appellate courts to overturn this court's ruling."
"Only a trial court [like Walker's] can make factual findings," lawyer Brian DeVine said in an analysis. He further noted that "a Court of Appeal must give great deference to the factual findings of the trial court", and praised Walker "for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court". Andrew Cohen
, CBS
's legal analyst, questioned the defense team's decision to "cede so much ground at trial to their opponents" and called "inconceivable" their gamble that the conservative Supreme Court might "save the day". He praised Judge Walker's handling of the case, especially in respect to the defendant-intervenors. "During the trial, Walker practically begged and cajoled the Prop 8 lawyers to do better for their cause. He asked them written questions to draw them out. He scolded them during closing arguments to make more persuasive arguments. They simply didn't or couldn't or wouldn't respond." Lea Brilmayer, a law professor from Yale University
, suggested that the perceived slant of the trial evidence and the decision resulted from "[Prop 8] supporters' sorry lawyering". Vikram Amar
, a law professor from UC Davis
argued that the defendant's decision to not put up a case may help them in the long run by arguing in higher courts that the evidence was irrelevant.
The religious rights law firm Liberty Counsel
, which has litigated opposition to same-sex marriage in California since 2004, criticized Alliance Defense Fund
's handling of the case. "ADF presented only two witnesses at trial, following the 15 witnesses presented by those who challenged Proposition 8. Even Judge Walker commented that he was concerned by the lack of evidence presented by ADF on behalf of Prop 8."
Ed Whelan
, President of the conservative Ethics and Public Policy Center
and a former lawyer in the George W. Bush
administration, criticized the ruling as being based on the judge's subjective and unsubstantiated views of current societal mores rather than on a neutral interpretation of the law. Whelan criticized in particular Judge Walker's repeated contention that certain facts about society were "beyond any doubt" or "beyond debate," such as Walker's contentions that same-sex parenting has been shown to be equally effective as opposite-sex parenting or that allowing same-sex couples to marry would not in any way negatively affect the rights of opponents of same-sex marriage. Whelan believes those points are in fact hotly contested.
California's elected officials generally also responded positively to the ruling. Governor Schwarzenegger
, who is named as a defendant in the case, said that "for the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves." He also complimented Walker's conduct during the trial, congratulating his efforts to "respect both sides of the issue equally". Attorney General Brown
, also a defendant, lauded the decision, calling it "great news for California". The mayors of San Francisco, Los Angeles
, and San Diego — Gavin Newsom
, Antonio Villaraigosa
, and Jerry Sanders
, respectively — also praised the ruling. Both of California's United States Senators, Barbara Boxer
and Dianne Feinstein
, approved of the ruling as an advancement of equal rights.
Several famous Hollywood stars reacted positively to the decision. Ellen DeGeneres
jubilantly tweeted "This just in: Equality won!" Paris Hilton
also chimed in by tweeting, "What a huge historical day for equal rights in this country! They finally overturned Prop 8! There shouldn't be a law on true love. :)" Lady Gaga
tweeted that the decision inspired her to write songs. Adam Lambert
responded to the ruling by saying "I'm glad California has restored the right for all of its citizens to marry whomever they choose." The reaction on social networking sites like Twitter
were overwhelmingly positive, with the terms "overturned" and "prop. 8" becoming trending topics immediately following the decision.
The Church of Jesus Christ of Latter-day Saints commented: "this decision represents only the opening of a vigorous debate over the rights of the people to define and protect this most fundamental institution – marriage..." The Roman Catholic bishops of California stated: "...the courts do not have the right to distort the meaning of marriage". National Organization for Marriage
(NOM) chairman Maggie Gallagher
also disagreed with the ruling. She targeted the judge's sexuality and accused Walker of "substituting his views for those of the American people and of our Founding Fathers who I promise you would be shocked by courts that imagine they have the right to put gay marriage in our Constitution". Brian Brown
, President of NOM, complained of the "biased way [Walker] conducted the trial." Critics have characterized the ruling as an example of judicial activism
. The American Family Association
called for Walker's impeachment.
. Imperial County, which was denied the right to intervene as a defendant, appealed that denial and Walker's decision. In January 2011, the Ninth Circuit dismissed the Imperial County appeal for lack of standing. Walker cast doubt on whether the defendant-intervenors had legal standing to appeal. If they lack standing, only the named defendants could appeal, and the principal named defendants, Governor Schwarzenegger and Attorney General Brown, have both expressed opposition to Proposition 8. On September 8, 2010, the California Supreme Court denied without explanation an emergency request by the Pacific Justice Institute
, a conservative legal organization, to force Schwarzenegger and Brown to defend the case on appeal.
On August 12, 2010, the defendant-intervenors filed an "emergency motion" in the Ninth Circuit for a stay
pending appeal. The stay motion was heard by a 3-judge panel in the Ninth Circuit made up of Edward Leavy
, Michael Daly Hawkins
, and Sidney Thomas
. On August 16, 2010, the Ninth Circuit granted the motion to stay, ordered expedited briefing on the merits of the appeal, and directed the parties to brief the issue of why the appeal should not be dismissed for lack of standing. On August 17, 2010, the same Ninth Circuit panel ordered expedited briefing on the Imperial County appeal. The court also ordered both appeals calendared for oral argument during the week of December 6, 2010, in San Francisco.
The merits were heard by a different 3-judge panel from the Ninth Circuit consisting of Stephen Reinhardt
, Hawkins, and N. Randy Smith
. Reinhardt, the most senior of the three judges, is considered a solid liberal. Proposition 8 proponents filed a motion to disqualify Reinhardt from hearing the case, which was denied. Hawkins is a Clinton appointee, and Smith was appointed by George W. Bush. Erwin Chemerinsky
, who filed a brief in support of Walker's ruling, characterized the panel as "ideologically diverse". On December 6, 2010, the judges heard oral arguments, which were also televised and made available on CSPAN.
On January 4, 2011, in the appeal by the defendant-intervenors, the Ninth Circuit certified a question
to the California Supreme Court. Because California officials had declined to defend the law, the federal court asked the state court to decide whether the backers of a challenged initiative had a "particularized interest in the initiative's validity" that would permit them to defend the law when state officials refuse to do so. The Ninth Circuit stayed the appeal pending a response from the California Supreme Court. The California Supreme Court heard oral argument on the certified question on September 6, 2011, and on November 17 ruled that the non-governmental proponents of Proposition 8 have the legal standing to defend it: "[I]n the past official proponents of initiative measures in California have uniformly been permitted to participate ... in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored."
Any final decision by the Ninth Circuit panel may be reheard by an en banc
court of 11 active judges, but only if a majority of all of the active judges in the Ninth Circuit vote to rehear it. If subsequently the United States Supreme Court grants review, the process may take years.
heard arguments on the motion on June 13 and denied it the next day. Ware wrote in the decision, "Requiring recusal because a court issued an injunction that could provide some speculative future benefit to the presiding judge solely on the basis of the fact that the judge belongs to the class against whom the unconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases. Congress could not have intended such an unworkable recusal statute." Supporters of Proposition 8 appealed this decision to the Ninth Circuit. On November 21, 2011, the court consolidated this appeal with the merits appeal.
On September 19, 2011, Ware ordered the release of the trial videotapes to the public, which the defender-intervenors had sought to keep under seal. The Ninth Circuit stayed the release of the videos pending appeal, and will hear oral arguments on the appeal on December 8, 2011.
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
filed in the United States District Court for the Northern District of California
United States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...
challenging the federal constitutionality
United 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...
of Proposition 8
California Proposition 8 (2008)
Proposition 8 was a ballot proposition and constitutional amendment passed in the November 2008 state elections...
, a 2008 ballot initiative
Initiative
In political science, an initiative is a means by which a petition signed by a certain minimum number of registered voters can force a public vote...
that amended 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...
to restrict marriage to opposite-sex couples, prohibiting California from recognizing same-sex marriages performed on or after November 5, 2008. The suit sought to strike down Proposition 8 as unconstitutional.
On August 4, 2010, Chief Judge Vaughn Walker
Vaughn R. Walker
Vaughn R. Walker served as a district judge of the United States District Court for the Northern District of California from 1989 to 2011.-Biography:Walker was born in Watseka, Illinois, in 1944...
ruled that Proposition 8 violated the Due Process and Equal Protection
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
Clauses of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
to the United States Constitution
United 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...
. On August 16, 2010, the Ninth Circuit Court of Appeals
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
ordered the judgment stayed
Stay of execution
A stay of execution is a court order to temporarily suspend the execution of a court judgment or other court order. The word "execution" does not necessarily mean the death penalty; it refers to the imposition of whatever judgment is being stayed....
pending appeal.
The case is widely regarded as a landmark case that will likely reach the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
on appeal. The plaintiffs' attorneys, Theodore Olson
Theodore Olson
Theodore Bevry Olson is a former United States Solicitor General, serving from June 2001 to July 2004 under President George W. Bush.- Early life :...
and David Boies
David Boies
David Boies is an American lawyer and chairman of the law firm Boies, Schiller & Flexner. He has been involved in various high-profile cases in the United States.-Early life and education:...
, were listed on the 2010 Time 100
Time 100
Time 100 is an annual list of the 100 most influential people in the world, as assembled by Time. First published in 1999 as a result of a debate among several academics, the list has become an annual event.-History and format:...
for their nonpartisan
Nonpartisan
In political science, nonpartisan denotes an election, event, organization or person in which there is no formally declared association with a political party affiliation....
and strong legal approach to challenging Proposition 8.
Background
In May 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:...
held in the case In re 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...
that state statutes limiting marriage to opposite-sex applicants violated the California Constitution. The following month, same-sex couples were able to marry in California. In November 2008, California's electorate adopted Proposition 8, a constitutional amendment that restored the opposite-sex limitation on marriage. Following the adoption of Proposition 8, several lawsuits were filed that challenged the validity of the amendment under various state constitutional provisions. On May 26, 2009, the California Supreme Court held, in Strauss v. Horton, that Proposition 8 was a lawful enactment, but that same-sex marriages contracted before its passage remained valid.
Three days before the Strauss decision, the American Foundation for Equal Rights
American Foundation for Equal Rights
The American Foundation for Equal Rights is a nonprofit organization created to support the plaintiffs in Perry v. Schwarzenegger, a federal lawsuit to overturn Proposition 8 in California. AFER retained former U.S. Solicitor General Theodore Olson and David Boies The American Foundation for Equal...
(AFER) filed suit in the U.S. District Court for the Northern District of California
United States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...
to challenge the validity of Proposition 8 on behalf of two same-sex couples. The couples' attorneys included Theodore Boutrous and the two attorneys who opposed each other in the Bush v. Gore
Bush v. Gore
Bush v. Gore, , is the landmark United States Supreme Court decision on December 12, 2000, that effectively resolved the 2000 presidential election in favor of George W. Bush. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v...
case, David Boies and former U.S. Solicitor General Theodore Olson.
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 ACLU, and 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...
, who originally obtained the right to same-sex marriage in California in In re Marriage Cases and defended it in Strauss v. Horton, opposed the filing because they felt a federal challenge at this time might do more harm than good. Olson and AFER rebuffed this claim and defended the timing of the lawsuit.
Following a pre-trial hearing on July 2, 2009, the three legal groups moved to intervene in the lawsuit, as did the City of San Francisco in a separate filing. The plaintiffs opposed allowing the groups or the City to intervene. On August 19, Judge Vaughn R. Walker
Vaughn R. Walker
Vaughn R. Walker served as a district judge of the United States District Court for the Northern District of California from 1989 to 2011.-Biography:Walker was born in Watseka, Illinois, in 1944...
denied the legal groups' motions to intervene but granted the City's, albeit in a limited capacity. Despite the other groups' failed attempt to intervene in the lawsuit, they offered support to the legal team litigating the case, with James Esseks of the ACLU saying: "[w]e are interested in doing whatever we can to make sure their case is as successful as possible".
Plaintiffs
In May 2009, the Alameda County Clerk-Registrar, Patrick O'Connell, denied Kristin Perry and Sandra Steir a marriage license because they are a same-sex couple. For the same reason, Dean Logan, the Los Angeles County Clerk, denied Paul Katami and Jeffrey Zarrillo a marriage license. The couples sued the two county clerks and several state officials: GovernorGovernor of California
The Governor of California is the chief executive of the California state government, whose responsibilities include making annual State of the State addresses to the California State Legislature, submitting the budget, and ensuring that state laws are enforced...
Arnold Schwarzenegger
Arnold Schwarzenegger
Arnold Alois Schwarzenegger is an Austrian-American former professional bodybuilder, actor, businessman, investor, and politician. Schwarzenegger served as the 38th Governor of California from 2003 until 2011....
, Attorney General
California Attorney General
The California Attorney General is the State Attorney General of California. The officer's duty is to ensure that "the laws of the state are uniformly and adequately enforced" The Attorney General carries out the responsibilities of the office through the California Department of Justice.The...
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 two officials in the 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...
.
Several groups sought to intervene as plaintiffs, including the groups who had prosecuted the In re 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...
and Strauss v. Horton actions. San Francisco also filed a motion to intervene in the case. The City cited its work in the earlier cases that had provided "extensive evidence and proposed findings on strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
factors and factual rebuttals to long claimed justifications for marriage discrimination". 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 his office is "singularly well-prepared" to help "put anti-gay discrimination
Homophobia
Homophobia is a term used to refer to a range of negative attitudes and feelings towards lesbian, gay and in some cases bisexual, transgender people and behavior, although these are usually covered under other terms such as biphobia and transphobia. Definitions refer to irrational fear, with the...
on trial based on the facts". Walker permitted only San Francisco to intervene, as it could speak to the impact of Proposition 8 on local governments. He also ordered the attorney general to assist San Francisco in analyzing Proposition 8's impact. Walker stated that necessary speed and swiftness "on an issue of this magnitude and importance" were required and that the intervention of additional groups would only complicate and stall the case.
Defendants
Attorney General Brown chose not to defend the lawsuit, saying that Proposition 8 violates the 14th AmendmentFourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
and should be struck down. Governor Schwarzenegger took a more neutral path, saying that he supported the lawsuit because the Proposition 8 conflict asks "important constitutional questions that require and warrant judicial determination". None of the state officials named in the suit sought to defend the law in court.
Two groups, the official proponents of Proposition 8, ProtectMarriage.com
ProtectMarriage.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...
, led by Dennis Hollingsworth
Dennis Hollingsworth
Dennis Clark Hollingsworth is an American politician who represented California's 36th State Senate district, which includes portions of San Diego and Riverside County, from 2002 to 2010. In 2000, Hollingsworth was elected to the Legislature as a member of the Assembly, and in 2002, Hollingsworth...
, and a rival group, 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...
, sought to intervene as defendants. The court allowed the official proponents to intervene, filling the void left by the state officials' acquiescence. The judge denied the request from the Campaign for California Families.
On December 15, Imperial County filed a motion to intervene as a defendant despite the fact that the intervenor deadline had passed. They argued that the civil agencies named in the suit, the counties of Alameda and Los Angeles and the state government, were not actively defending the Proposition. They continued to argue that the case needed a proper governmental defendant. On August 4, along with the ruling, Judge Walker denied Imperial County intervenor status.
Pre-trial motions
Plaintiffs filed a motion for a preliminary injunctionPreliminary injunction
A preliminary injunction, in equity, is an injunction entered by a court prior to a final determination of the merits of a legal case, in order to restrain a party from going forward with a course of conduct or compelling a party to continue with a course of conduct until the case has been decided...
that would have immediately restored same-sex marriage in California until the lawsuit was decided. Judge Walker deferred a ruling on the motion and said he would instead "proceed directly and expeditiously to the merits".
Plaintiffs requested that the campaign produce internal documents
Request for production
A request for production is a legal request for documents, electronically stored information, or other tangible items. In civil procedure, during the discovery phase of litigation, a party to a lawsuit may request that another party provide any documents that it has that pertain to the subject...
that relate to the purpose and intent of the amendment and the development of political messages during the campaign. The Proposition 8 proponents objected to the request because of the potential chilling effect on political speech, among other grounds. On October 1, Walker rejected the contention that the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
shielded all of those communications. The proponents appealed that decision to the U.S. Court of Appeals for the Ninth Circuit and separately moved to stay the proceedings
Stay of proceedings
A stay of proceedings is a ruling by the court in civil and criminal procedure, halting further legal process in a trial. The court can subsequently lift the stay and resume proceedings. However, a stay is sometimes used as a device to postpone proceedings indefinitely.-United Kingdom:In United...
in the district court. Noting that the proponents were unlikely to succeed in this appeal, Walker rejected the stay request on October 23. Regardless, the proponents continued to assert a First Amendment privilege over these documents, a sampling of which Walker reviewed privately
In camera
In camera is a legal term meaning "in private". It is also sometimes termed in chambers or in curia.In camera describes court cases that the public and press are not admitted to...
. On December 11, 2009, the Ninth Circuit overturned Walker's ruling, saying that the release of the documents "would likely have a chilling effect on political association and the formulation of political expression."
In September, Proposition 8 proponents filed a motion for summary judgment. Running more than 100 pages, the motion asked the court to rule that Proposition 8 did not offend the U.S. Constitution without the need to find facts at a trial. The motion asserted that Baker v. Nelson
Baker v. Nelson
Richard John Baker v. Gerald R. Nelson was a case in which the Minnesota Supreme Court ruled that Minnesota law limited marriage to different-sex couples and that this limitation did not violate the United States Constitution...
foreclosed any further review by the court. Failing that, the motion argued that all of the couples' claims failed as a matter of law. After a two-hour hearing on October 13, Walker denied the motion. He noted that the Supreme Court doctrine on sexual orientation and gender
Gender
Gender is a range of characteristics used to distinguish between males and females, particularly in the cases of men and women and the masculine and feminine attributes assigned to them. Depending on the context, the discriminating characteristics vary from sex to social role to gender identity...
discrimination had changed since 1972. Resolving the amendment's validity, Walker noted, required hearing testimony at trial.
Broadcast and online coverage
Perry would have been the first federal trial to be filmed and be shown live at public courthouses in San Francisco, PasadenaPasadena, California
Pasadena is a city in Los Angeles County, California, United States. Although famous for hosting the annual Rose Bowl football game and Tournament of Roses Parade, Pasadena is the home to many scientific and cultural institutions, including the California Institute of Technology , the Jet...
, Seattle, Portland
Portland, Oregon
Portland is a city located in the Pacific Northwest, near the confluence of the Willamette and Columbia rivers in the U.S. state of Oregon. As of the 2010 Census, it had a population of 583,776, making it the 29th most populous city in the United States...
, and Brooklyn
Brooklyn
Brooklyn is the most populous of New York City's five boroughs, with nearly 2.6 million residents, and the second-largest in area. Since 1896, Brooklyn has had the same boundaries as Kings County, which is now the most populous county in New York State and the second-most densely populated...
, through an experimental new system developed by the Ninth Circuit Appeals Court
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
. The trial would have also been shown on the video-sharing website YouTube
YouTube
YouTube is a video-sharing website, created by three former PayPal employees in February 2005, on which users can upload, view and share videos....
. Judge Walker noted that he had received 138,574 comments on the plans to broadcast the trial, and all but 32 were in favor.
Two days before the trial, the defendant-intervenors filed emergency papers with the Supreme Court to bar telecasting the trial, with the court ruling 8-1 to temporarily stay live streaming until Wednesday. Although a coalition of media organizations, including CNN
CNN
Cable News Network is a U.S. cable news channel founded in 1980 by Ted Turner. Upon its launch, CNN was the first channel to provide 24-hour television news coverage, and the first all-news television channel in the United States...
, Fox News, the Associated Press
Associated Press
The Associated Press is an American news agency. The AP is a cooperative owned by its contributing newspapers, radio and television stations in the United States, which both contribute stories to the AP and use material written by its staff journalists...
, and Court TV, filed an emergency amicus brief in support of live streaming and delayed broadcast, the court ruled 5-4 along ideological lines in Hollingsworth v. Perry to indefinitely block live streams to various federal courthouses, although it refused to rule on plans to delay broadcasts on YouTube.
Despite the ruling, the proceedings elicited unprecedented live coverage through social networking site Twitter
Twitter
Twitter is an online social networking and microblogging service that enables its users to send and read text-based posts of up to 140 characters, informally known as "tweets".Twitter was created in March 2006 by Jack Dorsey and launched that July...
from gay-interest magazine The Advocate
The Advocate
The Advocate is an American LGBT-interest magazine, printed monthly and available by subscription. The Advocate brand also includes a web site. Both magazine and web site have an editorial focus on news, politics, opinion, and arts and entertainment of interest to LGBT people...
, 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...
, an official feed from the group representing the plaintiffs (AFER), a California-based progressive organization Courage Campaign
Courage Campaign
The Courage Campaign is a California-based human rights campaign and progressive advocacy organization with more than 700,000 followers, working on a variety of causes, including the repeal of Proposition 8, California budget reforms,, and ballot procedures...
, and several independent parties including Chris Geidner, maintainer of the LGBT-oriented Law Dork blog, San Francisco-based attorney Chris Stoll, and others.
Filmmakers John Ireland and John Ainsworth filmed and distributed a re-enactment of the trial. Actors participating in the project include Adrienne Barbeau
Adrienne Barbeau
Adrienne Jo Barbeau is an American actress and the author of three books. Barbeau came to prominence in the 1970s as Broadway's original Rizzo in the musical Grease, and as Carol Traynor, the divorced daughter of Maude Findlay in the sitcom Maude...
, Arye Gross
Arye Gross
-Biography:Gross was born in Los Angeles, California, the son of Sheri and Joseph Gross, who was an aerospace engineer and later worked in business....
and Tess Harper
Tess Harper
Tess Harper is an American actress.-Early life:Born Tessie Jean Washam on August 15, 1950 in Mammoth Spring, Arkansas. Her parents' names are Ed and Rosemary Washam. She grew up around lots of quilts and quilt makers. On her own time, she liked to sit on the porch-swing and read...
.
Trial
In scheduling a trial for January 11, 2010, to gather facts about the case, Judge Walker largely surprised both the plaintiffs and defendants. The trial was intended to address issues such as how having same-sex parents affects children, whether same-sex marriages undermine opposite-sex marriages, the history of discrimination against gays, and the effects of prejudice against gays. Notable trial witnesses included historian George ChaunceyGeorge Chauncey
George Chauncey is a professor of history at Yale University. He is best known as the author of Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 .-Life and works:...
, psychologist Gregory M. Herek
Gregory M. Herek
Gregory M. Herek, Ph.D. is a researcher, author, and professor of psychology at the University of California at Davis . He has conducted extensive research on prejudice against sexual minorities, and coined the term sexual prejudice as a replacement for homophobia to describe this phenomenon...
, and philosopher Daniel N. Robinson
Daniel N. Robinson
Daniel N. Robinson is a Distinguished Professor Emeritus of Philosophy at Georgetown University and a Fellow of the Faculty of Philosophy, Oxford University.-Career:...
.
The trial began with opening statements by Theodore Olson and San Francisco Deputy City Attorney Therese Stewart for the plaintiffs. The plaintiffs sought to show that marriage is a fundamental right; that depriving gays and lesbians of the right to marry hurt them and their children; and that there was no reason or societal benefit in prohibiting them from getting married. Charles Cooper made an opening statement for the defendants, saying that marriage had been universally limited to opposite-sex couples. The plaintiffs then testified about their personal experiences as gay Americans and the reasons why they wished to get married.
Following the Supreme Court's decision in Christian Legal Society v. Martinez
Christian Legal Society v. Martinez
Christian Legal Society v. Martinez, 561 U.S. ___, 130 S.Ct. 2971, 177 L.Ed.2d 838 , is a June 28, 2010, decision by the United States Supreme Court...
on June 28, 2010, the plaintiffs in Perry cited the decision by Justice Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
as Supreme Court precedent that sexual orientation is "an identifiable class" in opposition to the defense's argument that sexual orientation is "behavioral". Christian Legal Society had asserted that it did not restrict membership based on sexual orientation but based on "conduct and belief that the conduct is not wrong". Ginsburg rejected that distinction, noting that with respect to sexual orientation the court has "declined to distinguish between status and conduct" and offering an analogy from an earlier opinion: "A tax on wearing yarmulkes is a tax on Jews
Jews
The Jews , also known as the Jewish people, are a nation and ethnoreligious group originating in the Israelites or Hebrews of the Ancient Near East. The Jewish ethnicity, nationality, and religion are strongly interrelated, as Judaism is the traditional faith of the Jewish nation...
."
History of marriage
The plaintiffs called expert witness Nancy Cott, an American history scholar, who testified that "marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage". The next day, she continued her testimony, which revolved around three key points: how marriage has historically been used "punitively" to demean disfavored groups, how the legally enshrined gender roles in marriage had been disestablished during the 20th century and how the changes in the institution of marriage had mainly involved "shedding inequalities", which she said strengthens marriage. She emphasized the importance of the institution of marriage by noting that "when slaves were emancipated, they flocked to get married. And this was not trivial to them, by any means". Cott was then cross-examined by David Thompson, who took supposedly out-of-context statements from her deposition testimony and publications and asked if she agreed with them.Defense counsel argued that marriage has traditionally been between a man and a woman because it provided a stable unit for procreation and child rearing.
Discrimination
Professor George ChaunceyGeorge Chauncey
George Chauncey is a professor of history at Yale University. He is best known as the author of Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 .-Life and works:...
of Yale University
Yale University
Yale University is a private, Ivy League university located in New Haven, Connecticut, United States. Founded in 1701 in the Colony of Connecticut, the university is the third-oldest institution of higher education in the United States...
, a social historian who specializes in LGBT history
LGBT history
LGBT history refers to the history of lesbian, gay, bisexual, and transgender peoples and cultures around the world, dating back to the first recorded instances of same-sex love and sexuality of ancient civilizations. What survives of many centuries' persecution– resulting in shame, suppression,...
, described how previous government campaigns had attempted "to demonize gay people as dangerous sexual deviants and child molesters". He then analyzed campaign material from the Yes on 8 campaign to show how they played upon the same message. He analyzed the words of Dr. Hak-Shing William ("Bill") Tam, which included assertions that, were California to fail to pass Proposition 8, other states would follow and "fall into Satan's hands", and that following legalization of same-sex marriage, the advocates of the "gay agenda" would attempt to "legalize having sex with children". Chauncey connected these messages to the earlier history of government demonizing gays and lesbians which he had previously discussed. Helen Zia
Helen Zia
Helen Zia is an American journalist and scholar who has covered Asian American communities and social and political movements for decades.-Life and career:...
, a scholar on Asian American
Asian American
Asian Americans are Americans of Asian descent. The U.S. Census Bureau definition of Asians as "Asian” refers to a person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent, including, for example, Cambodia, China, India, Indonesia, Japan,...
social and political movements who was also asked to analyze those words, explained how her encounters with similar Asian community organizers encouraged her to "[step] into the closet and [slam] the door." David Thompson for the defense cross-examined Prof. Chauncey by focusing on the progress that had been made for mainstream acceptance of gays and lesbians in the last twenty years. Thompson noted anti-discrimination laws, support for domestic partnerships, and the proliferation of media like the sitcom Will & Grace
Will & Grace
Will & Grace was an American television sitcom that was originally broadcast on NBC from September 21, 1998 to May 18, 2006 for a total of eight seasons. Will & Grace remains the most successful television series with gay principal characters...
and 2005 film Brokeback Mountain
Brokeback Mountain
Brokeback Mountain is a 2005 romantic drama film directed by Ang Lee. It is a film adaptation of the 1997 short story of the same name by Annie Proulx with the screenplay written by Diana Ossana and Larry McMurtry...
. Thompson's line of questioning was intended to establish "whether systemic bias against lesbians and gay men prevents them from being treated by others as equal citizens in the political process".
Professor Gary Segura, a political scientist at Stanford University
Stanford University
The Leland Stanford Junior University, commonly referred to as Stanford University or Stanford, is a private research university on an campus located near Palo Alto, California. It is situated in the northwestern Santa Clara Valley on the San Francisco Peninsula, approximately northwest of San...
, said that no other minority groups in America — including undocumented aliens — have been the target of more restrictive ballot initiatives than gay men and lesbians. He accused Proposition 8 of being the type of social stigma that makes "gay and lesbian social progress seem like it comes at expense of other people and organizations and it makes the hill steeper". Under cross-examination, defendant witness David Blankenhorn
David Blankenhorn
David Blankenhorn is the founder and president of the Institute for American Values and the author of The Future of Marriage and Fatherless America.-Biography:...
revealed that he believed the principle of equal human dignity applied to gay and lesbian Americans, and that "we would be more American on the day we permitted same-sex marriage than we were on the day before".
Gregory Herek
Gregory M. Herek
Gregory M. Herek, Ph.D. is a researcher, author, and professor of psychology at the University of California at Davis . He has conducted extensive research on prejudice against sexual minorities, and coined the term sexual prejudice as a replacement for homophobia to describe this phenomenon...
, a professor from UC Davis contended that "structural stigma" in the form of laws like Proposition 8 directly encourages social stigma, harassment, and violence against LGBT people. He also testified that there is no evidence "conversion therapy" is effective in changing a person's sexuality, and that it "sends a harmful and false message to young people that homosexuality is a disorder", directly leading to more discrimination. During cross-examination, he asserted that "sexual orientation is a combination of attraction, identity, and behavior, and that the complexities researchers face in defining sexual orientation are no different than those they face in defining other characteristics such as race".
San Diego Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
mayor Jerry Sanders
Jerry Sanders (politician)
Gerald Robert "Jerry" Sanders is an American politician, Mayor of San Diego, California, and former Chief of Police.-Personal life:...
testified how he transitioned from believing that domestic partnership was an ideal compromise to believing that same-sex marriage was fundamental. "What hit me was that I had been prejudiced", he explained. During cross-examination, he agreed with the defendants that not all people who voted for Proposition 8 were "bigots", but that he believed their vote was "grounded in prejudice".
Psychological effects
Relationship psychologist Anne Peplau took the stand and argued that individuals gain physical, psychological, and social benefits from being married. Edmund A. Egan, the chief economist for San Francisco, agreed and said that the citizen's improved health would save city emergency health funds. Anne Peplau also argued that the quality and stability of same-sex relationships are similar to those of heterosexual relationships and that permitting same-sex couples to marry will not harm the institution of marriage in any way. Peplau was cross-examined by Nicole Moss, who asked Peplau about the differences between same-sex and opposite-sex relationships, but Peplau reiterated there are no significant differences. The plaintiffs also called forward Doctor Ilan H. Meyer to testify on the mental and psychological harms of being denied the right to marry. "Young children do not aspire to be domestic partners, marriage is a common, socially approved goal." He continued to say that gays and lesbians suffered from "minority stress".Examining the impact of same-sex marriage on children, the plaintiffs introduced Michael Lamb, a developmental psychologist at the University of Cambridge
University of Cambridge
The University of Cambridge is a public research university located in Cambridge, United Kingdom. It is the second-oldest university in both the United Kingdom and the English-speaking world , and the seventh-oldest globally...
. He contended that there is a fairly substantial body of literature since the late 1970s that focuses specifically on the adjustment of children parented
LGBT parenting
LGBT parenting refers to lesbian, gay, bisexual, and transgender people parenting one or more children. This includes children raised by same-sex couples , children raised by single LGBT parents, and children raised by an opposite-sex couple where at least one partner is LGBT.LGBT people can...
by gay men and lesbians which provides very good understanding of the factors that affect the adjustment of children being raised by gay and lesbian parents. This substantial body of evidence documents that children raised by gay and lesbian parents are just as likely to be well adjusted as children raised by heterosexual parents. He noted that for significant number of these children, their adjustment would be promoted were their parents able to get married. He added that a field of developmental psychology came to the conclusion that what makes for an effective parent is the same both for a mother or a father, and that children do not need to have a masculine-behaving parent figure, a father, or feminine-behaving parent figure, a mother, in order to be well adjusted. Defendant witness David Blankenhorn
David Blankenhorn
David Blankenhorn is the founder and president of the Institute for American Values and the author of The Future of Marriage and Fatherless America.-Biography:...
, under cross-examination, concurred that the well-being of children raised by same-sex couples would improve should they be allowed to marry.
Economics
In an exploration on the economics of Proposition 8, the plaintiffs called forward Edmund A. Egan, the chief economist for San Francisco. He testified that same-sex marriage would aid the city because "married individuals tend to accumulate more wealth than single individuals" and that "married individuals are healthier on average and behave themselves in healthier ways than single individuals", saving the city from paying emergency room bills and insurance funds. He also testified that San Francisco's revenue would increase if same-sex marriage were legal, citing the period in 2008 when 5,100 marriage licenses were issued. He estimated that the city of San Francisco was losing out on $37.2 million in retail and hotel spending and $2.5 million in sales and hotel tax revenue each year.San Francisco Attorney Therese Stewart noted in the closing arguments that the city itself was uniquely losing out on potential profits because Proposition 8 dissuaded gay tourists and their families from visiting the "cool, gray city of love" (as Walker referred to it) to get married. She also argued, through testimony by Ryan Kendall and Meyer, that the city was burdened with higher incidents of mental health disorders and the subsequent costs to the public health system.
Political strength
The defense called up Professor Kenneth P. MillerKenneth P. Miller
Kenneth P. Miller is a political science professor at Claremont McKenna College. He specializes in California politics.Miller has a BA from Pomona College, a JD from Harvard Law School and a Ph.D...
from Claremont McKenna College
Claremont McKenna College
Claremont McKenna College is a private, coeducational liberal arts college and a member of the Claremont Colleges located in Claremont, California. The campus is located east of Downtown Los Angeles...
to testify that LGBT people had strong political and social support within California. He argued that all the major newspapers, Hollywood, Silicon Valley
Silicon Valley
Silicon Valley is a term which refers to the southern part of the San Francisco Bay Area in Northern California in the United States. The region is home to many of the world's largest technology corporations...
, and a majority of state politicians all strongly opposed Proposition 8.
During cross-examination of George Chauncey
George Chauncey
George Chauncey is a professor of history at Yale University. He is best known as the author of Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 .-Life and works:...
, the defense claimed that LGBT people have enjoyed increased political and social clout, with increased acceptance by society as exemplified by films such as Brokeback Mountain. Chauncey also admitted that employers in California are required to ban discrimination.
Decision
Judge Walker heard closing arguments on June 16, 2010.On August 4, 2010, Walker announced his ruling in favor of the plaintiffs, overturning Proposition 8 based on the Due Process and Equal Protection
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
Clauses of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
to the U.S. Constitution
United 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...
. Walker concluded that California had no rational basis or vested interest in denying gays and lesbians marriage licenses:
An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.He further noted that Proposition 8 was based on traditional notions of opposite-sex marriage and on moral disapproval of homosexuality, neither of which is a legal basis for discrimination. He noted that gays and lesbians are exactly the type of minority that strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
was designed to protect.
Findings of Fact
Over 50 pages of the opinion are devoted to Walker's 80 findings of fact and the supporting evidenceEvidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
. These findings of fact are important because appellate courts generally defer to them. Some of those findings include:
- Marriage is a civil, not religious, matter. (Finding of Fact (FF) #19, p. 60)
- How the State defines civil marriage (FF #34, p. 67)
- The benefits of civil marriage (to the State and individuals). ( FF #35-41, pp. 67-71)
- Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes. An individual’s sexual orientation can be expressed through self-identification, behavior or attraction. (FF #43, pp. 71-72)
- Individuals do not generally choose their sexual orientation. An individual does not, through conscious decision, therapeutic intervention or any other method, change sexual orientation. ( FF #46, p. 74)
- The State has no interest in asking gays and lesbians to change their orientation or in reducing the number of gays and lesbians in California. (FF #47, p. 76)
- Marrying a person of the opposite sex is an unrealistic option for gays and lesbians. (FF #51, p. 79)
- Domestic partnerships lack the social meaning associated with marriage. (FF #52, p. 80)
- The costs and harm (to the State and to lesbians and gays) resulting from denial of marriage to same-sex couples. ( FF #64-68, 77-78)
- A parent's gender is not a factor in a child's adjustment. An individual's sexual orientation does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. (FF #70, p. 95)
- Gays and lesbians have a long history of being victims of discrimination. (FF #74, p. 96)
- Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians. ( FF #77, p. 101)
Substantive due process
Judge Walker characterized the right at issue as simply "the right to marry", which, he opined, "has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household", citing Loving v. VirginiaLoving v. Virginia
Loving v. Virginia, , was a landmark civil rights case in which the United States Supreme Court, in a unanimous decision, declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v...
and Griswold v. Connecticut
Griswold v. Connecticut
Griswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...
. He goes on to say that "[r]ace and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage".
Before analyzing Proposition 8 under the applicable level of review (strict scrutiny for fundamental rights), Walker noted that California's domestic partnership laws do not satisfy California's obligation to provide gays and lesbians the right to marry, for two reasons: (1) domestic partnerships do not provide the same social meaning as marriage; and (2) domestic partnerships were created "specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples."
Judge Walker then found Proposition 8 unconstitutional because it does not pass even a rational-basis review (as he explains in the Equal Protection context), much less strict scrutiny.
Evaluation of expert witnesses
The court found that all nine of the witnesses presented by the plaintiffs as experts "were amply qualified to offer opinion testimony on the subjects identified" and "offered credible opinion testimony on the subjects identified." The defense proffered two witnesses as experts. David Blankenhorn, who had been allowed to testify, was ultimately judged as lacking "the qualifications to offer opinion testimony". The court found that Kenneth P. Miller's "opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence."Legal analysis of the decision
Professor Doug NeJaime of Loyola Law SchoolLoyola Law School
Loyola Law School is the law school of Loyola Marymount University, a private Catholic university in the Jesuit and Marymount traditions, in Los Angeles, California. Loyola was established in 1920. Like Loyola University Chicago School of Law and Loyola University New Orleans College of Law , it...
noted that Judge Walker's decision was crafted similarly to the standard used by Justice Anthony M. Kennedy in his decision in Lawrence v. Texas
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
, and suggested that Walker was "speaking" to Kennedy, who is commonly the swing vote on the Supreme Court. John C. Eastman
John C. Eastman
John C. Eastman is an American law professor and politician. He is the Donald P. Kennedy Chair in Law and former Dean at Chapman University School of Law. in Orange, California...
, a law professor who supported Proposition 8, agreed with Professor NeJaime's assessment. Barry McDonald, a constitutional law professor at Pepperdine University
Pepperdine University
Pepperdine University is an independent, private, medium-sized university affiliated with the Churches of Christ. The university's campus overlooking the Pacific Ocean in unincorporated Los Angeles County, California, United States, near Malibu, is the location for Seaver College, the School of...
, believed that Walker's strict handling of the case and meticulous evidence gathering would "make it more difficult for appellate courts to overturn this court's ruling."
"Only a trial court [like Walker's] can make factual findings," lawyer Brian DeVine said in an analysis. He further noted that "a Court of Appeal must give great deference to the factual findings of the trial court", and praised Walker "for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court". Andrew Cohen
Andrew Cohen
Andrew Cohen is an American guru, spiritual teacher, magazine editor, author, and musician who has developed what he characterizes as a unique path of spiritual transformation, called Evolutionary Enlightenment. He sees himself as working in conjunction with others to bring about a new stage of...
, CBS
CBS
CBS Broadcasting Inc. is a major US commercial broadcasting television network, which started as a radio network. The name is derived from the initials of the network's former name, Columbia Broadcasting System. The network is sometimes referred to as the "Eye Network" in reference to the shape of...
's legal analyst, questioned the defense team's decision to "cede so much ground at trial to their opponents" and called "inconceivable" their gamble that the conservative Supreme Court might "save the day". He praised Judge Walker's handling of the case, especially in respect to the defendant-intervenors. "During the trial, Walker practically begged and cajoled the Prop 8 lawyers to do better for their cause. He asked them written questions to draw them out. He scolded them during closing arguments to make more persuasive arguments. They simply didn't or couldn't or wouldn't respond." Lea Brilmayer, a law professor from Yale University
Yale University
Yale University is a private, Ivy League university located in New Haven, Connecticut, United States. Founded in 1701 in the Colony of Connecticut, the university is the third-oldest institution of higher education in the United States...
, suggested that the perceived slant of the trial evidence and the decision resulted from "[Prop 8] supporters' sorry lawyering". Vikram Amar
Vikram Amar
Vikram David Amar is professor and the Associate Dean for Academic Affairs at the UC Davis School of Law . Before becoming a professor, he clerked for Judge William A. Norris of the United States Court of Appeals for the Ninth Circuit and for Justice Harry Blackmun at the Supreme Court of the...
, a law professor from UC Davis
University of California, Davis
The University of California, Davis is a public teaching and research university established in 1905 and located in Davis, California, USA. Spanning over , the campus is the largest within the University of California system and third largest by enrollment...
argued that the defendant's decision to not put up a case may help them in the long run by arguing in higher courts that the evidence was irrelevant.
The religious rights law firm 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...
, which has litigated opposition to same-sex marriage in California since 2004, criticized Alliance Defense Fund
Alliance Defense Fund
The Alliance Defense Fund is a conservative Christian nonprofit organization with the stated goal of "defending the right to hear and speak the Truth through strategy, training, funding, and litigation." ADF was founded in 1994 by the late Bill Bright , the late Larry Burkett , James Dobson The...
's handling of the case. "ADF presented only two witnesses at trial, following the 15 witnesses presented by those who challenged Proposition 8. Even Judge Walker commented that he was concerned by the lack of evidence presented by ADF on behalf of Prop 8."
Ed Whelan
M. Edward Whelan III
Martin Edward Whelan III , known professionally as M. Edward Whelan III but known in the blogosphere as Ed Whelan, is an American lawyer and a prominent conservative legal analyst...
, President of the conservative Ethics and Public Policy Center
Ethics and Public Policy Center
The Ethics and Public Policy Center is a Washington, D.C.-based conservative advocacy group. Formed in 1976 by Ernest W. Lefever, who was its president until 1989, the group describes itself as "dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy."Since...
and a former lawyer in the George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
administration, criticized the ruling as being based on the judge's subjective and unsubstantiated views of current societal mores rather than on a neutral interpretation of the law. Whelan criticized in particular Judge Walker's repeated contention that certain facts about society were "beyond any doubt" or "beyond debate," such as Walker's contentions that same-sex parenting has been shown to be equally effective as opposite-sex parenting or that allowing same-sex couples to marry would not in any way negatively affect the rights of opponents of same-sex marriage. Whelan believes those points are in fact hotly contested.
Reaction to the judgment
Rallies in support of the decision were planned in major cities across the country.California's elected officials generally also responded positively to the ruling. Governor Schwarzenegger
Arnold Schwarzenegger
Arnold Alois Schwarzenegger is an Austrian-American former professional bodybuilder, actor, businessman, investor, and politician. Schwarzenegger served as the 38th Governor of California from 2003 until 2011....
, who is named as a defendant in the case, said that "for the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves." He also complimented Walker's conduct during the trial, congratulating his efforts to "respect both sides of the issue equally". Attorney General 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...
, also a defendant, lauded the decision, calling it "great news for California". The mayors of San Francisco, 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 San Diego — Gavin Newsom
Gavin Newsom
Gavin Christopher Newsom is an American politician who is the 49th and current Lieutenant Governor of California. Previously, he was the 42nd Mayor of San Francisco, and was elected in 2003 to succeed Willie Brown, becoming San Francisco's youngest mayor in 100 years. Newsom was re-elected in 2007...
, Antonio Villaraigosa
Antonio Villaraigosa
Antonio Ramón Villaraigosa , born Antonio Ramón Villar, Jr., is the 41st and current Mayor of Los Angeles, California, the third Mexican American to have ever held office in the city of Los Angeles and the first in over 130 years. He is also the current president of the United States Conference of...
, and Jerry Sanders
Jerry Sanders (politician)
Gerald Robert "Jerry" Sanders is an American politician, Mayor of San Diego, California, and former Chief of Police.-Personal life:...
, respectively — also praised the ruling. Both of California's United States Senators, Barbara Boxer
Barbara Boxer
Barbara Levy Boxer is the junior United States Senator from California . A member of the Democratic Party, she previously served in the U.S. House of Representatives ....
and Dianne Feinstein
Dianne Feinstein
Dianne Goldman Berman Feinstein is the senior U.S. Senator from California. A member of the Democratic Party, she has served in the Senate since 1992. She also served as 38th Mayor of San Francisco from 1978 to 1988....
, approved of the ruling as an advancement of equal rights.
Several famous Hollywood stars reacted positively to the decision. Ellen DeGeneres
Ellen DeGeneres
Ellen Lee DeGeneres is an American stand-up comedienne, television host and actress. She hosts the syndicated talk show The Ellen DeGeneres Show, and was also a judge on American Idol for one year, having joined the show in its ninth season....
jubilantly tweeted "This just in: Equality won!" Paris Hilton
Paris Hilton
Paris Whitney Hilton is an American businesswoman, heiress, and socialite. She is a great-granddaughter of Conrad Hilton . Hilton is known for her controversial participation in a sex tape in 2003, and appearance on the television series The Simple Life alongside fellow socialite and childhood...
also chimed in by tweeting, "What a huge historical day for equal rights in this country! They finally overturned Prop 8! There shouldn't be a law on true love. :)" Lady Gaga
Lady GaGa
Stefani Joanne Angelina Germanotta , better known by her stage name Lady Gaga, is an American singer and songwriter. Born and raised in New York City, she primarily studied at the Convent of the Sacred Heart and briefly attended New York University's Tisch School of the Arts before withdrawing to...
tweeted that the decision inspired her to write songs. Adam Lambert
Adam Lambert
Adam Mitchel Lambert is an American singer, songwriter, and actor from San Diego, California. In May 2009, he finished as the runner-up on the eighth season of American Idol...
responded to the ruling by saying "I'm glad California has restored the right for all of its citizens to marry whomever they choose." The reaction on social networking sites like Twitter
Twitter
Twitter is an online social networking and microblogging service that enables its users to send and read text-based posts of up to 140 characters, informally known as "tweets".Twitter was created in March 2006 by Jack Dorsey and launched that July...
were overwhelmingly positive, with the terms "overturned" and "prop. 8" becoming trending topics immediately following the decision.
The Church of Jesus Christ of Latter-day Saints commented: "this decision represents only the opening of a vigorous debate over the rights of the people to define and protect this most fundamental institution – marriage..." The Roman Catholic bishops of California stated: "...the courts do not have the right to distort the meaning of marriage". National Organization for Marriage
National Organization for Marriage
The National Organization for Marriage is a nonprofit political association established in 2007 to work against legalization of same-sex marriage in the United States, specifically to pass California Proposition 8 banning same-sex marriage in California...
(NOM) chairman Maggie Gallagher
Maggie Gallagher
Margaret Gallagher Srivastav , better known by her working name Maggie Gallagher, is an American writer, commentator, and opponent of same-sex marriage. She has written a syndicated column for Universal Press Syndicate since 1995, and has published five books...
also disagreed with the ruling. She targeted the judge's sexuality and accused Walker of "substituting his views for those of the American people and of our Founding Fathers who I promise you would be shocked by courts that imagine they have the right to put gay marriage in our Constitution". Brian Brown
Brian Brown
Brian Brown or Bryan Brown may refer to:* Brian E. Brown, deceased Los Angeles, California, USA police officer* Bryan Brown, Australian actor* Bryan D. Brown, US general* Brian Brown , Australian rules footballer...
, President of NOM, complained of the "biased way [Walker] conducted the trial." Critics have characterized the ruling as an example of judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
. The American Family Association
American Family Association
The American Family Association is a 501 non-profit organization that promotes conservative Christian values, such as opposition to same-sex marriage, pornography, and abortion, as well as other public policy goals such as deregulation of the oil industry and lobbying against the Employee Free...
called for Walker's impeachment.
Appeals and stay
On August 4, 2010, the defendant-intervenors filed a notice of appeal to the Ninth CircuitUnited States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
. Imperial County, which was denied the right to intervene as a defendant, appealed that denial and Walker's decision. In January 2011, the Ninth Circuit dismissed the Imperial County appeal for lack of standing. Walker cast doubt on whether the defendant-intervenors had legal standing to appeal. If they lack standing, only the named defendants could appeal, and the principal named defendants, Governor Schwarzenegger and Attorney General Brown, have both expressed opposition to Proposition 8. On September 8, 2010, the California Supreme Court denied without explanation an emergency request by the Pacific Justice Institute
Pacific Justice Institute
The Pacific Justice Institute is a Christian legal defense organization in California, USA.-Overview:The Pacific Justice Institute was founded in 1997. It is headquartered in Sacramento, California...
, a conservative legal organization, to force Schwarzenegger and Brown to defend the case on appeal.
On August 12, 2010, the defendant-intervenors filed an "emergency motion" in the Ninth Circuit for a stay
Stay of execution
A stay of execution is a court order to temporarily suspend the execution of a court judgment or other court order. The word "execution" does not necessarily mean the death penalty; it refers to the imposition of whatever judgment is being stayed....
pending appeal. The stay motion was heard by a 3-judge panel in the Ninth Circuit made up of Edward Leavy
Edward Leavy
Judge Edward Leavy is a judge for the United States Court of Appeals for the Ninth Circuit and the United States Foreign Intelligence Surveillance Court of Review. Prior to these positions, Leavy was a judge for the U.S...
, Michael Daly Hawkins
Michael Daly Hawkins
Michael Daly Hawkins serves as a senior judge on the United States Court of Appeals for the Ninth Circuit, and is resident in Phoenix, Arizona at the Sandra Day O'Connor United States Courthouse.- Early life and education :...
, and Sidney Thomas
Sidney Runyan Thomas
Sidney Runyan Thomas is a federal judge on the United States Court of Appeals for the Ninth Circuit.Judge Thomas was interviewed by President Barack Obama for possible nomination to replace retiring Justice John Paul Stevens on the Supreme Court.-Early life and education:Judge Thomas was born in...
. On August 16, 2010, the Ninth Circuit granted the motion to stay, ordered expedited briefing on the merits of the appeal, and directed the parties to brief the issue of why the appeal should not be dismissed for lack of standing. On August 17, 2010, the same Ninth Circuit panel ordered expedited briefing on the Imperial County appeal. The court also ordered both appeals calendared for oral argument during the week of December 6, 2010, in San Francisco.
The merits were heard by a different 3-judge panel from the Ninth Circuit consisting of Stephen Reinhardt
Stephen Reinhardt
Stephen Roy Reinhardt is a circuit judge on the United States Court of Appeals for the Ninth Circuit, with chambers in Los Angeles, California. He was appointed in 1980 by President Jimmy Carter.-Education and practice:...
, Hawkins, and N. Randy Smith
N. Randy Smith
Norman Randy Smith is a federal judge on the United States Court of Appeals for the Ninth Circuit. He currently lives and maintains chambers in Pocatello, Idaho.-Background:...
. Reinhardt, the most senior of the three judges, is considered a solid liberal. Proposition 8 proponents filed a motion to disqualify Reinhardt from hearing the case, which was denied. Hawkins is a Clinton appointee, and Smith was appointed by George W. Bush. Erwin Chemerinsky
Erwin Chemerinsky
Erwin Chemerinsky is an American lawyer and law professor. He is a prominent scholar in United States constitutional law and federal civil procedure...
, who filed a brief in support of Walker's ruling, characterized the panel as "ideologically diverse". On December 6, 2010, the judges heard oral arguments, which were also televised and made available on CSPAN.
On January 4, 2011, in the appeal by the defendant-intervenors, the Ninth Circuit certified a question
Certified question
In the law of the United States, a certified question is a formal request by one court to one of its sister courts, usually but not always in another jurisdiction, for an opinion on a question of law....
to the California Supreme Court. Because California officials had declined to defend the law, the federal court asked the state court to decide whether the backers of a challenged initiative had a "particularized interest in the initiative's validity" that would permit them to defend the law when state officials refuse to do so. The Ninth Circuit stayed the appeal pending a response from the California Supreme Court. The California Supreme Court heard oral argument on the certified question on September 6, 2011, and on November 17 ruled that the non-governmental proponents of Proposition 8 have the legal standing to defend it: "[I]n the past official proponents of initiative measures in California have uniformly been permitted to participate ... in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored."
Any final decision by the Ninth Circuit panel may be reheard by an en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
court of 11 active judges, but only if a majority of all of the active judges in the Ninth Circuit vote to rehear it. If subsequently the United States Supreme Court grants review, the process may take years.
Related motions
Judge Walker retired in February 2011 and on April 6 told reporters that he is gay and has been in a relationship with a male doctor for about ten years. On April 25, supporters of Proposition 8 filed a motion in district court to vacate Walker's decision. They argued he should have recused himself or disclosed his relationship status, and unless he "disavowed any interest in marrying his partner", he had "a direct personal interest in the outcome of the case". District Court Judge James WareJames Ware (judge)
James S. Ware is the chief judge of the U.S. District Court for the Northern District of California and his chambers are in San Francisco, California.- Early life and education :...
heard arguments on the motion on June 13 and denied it the next day. Ware wrote in the decision, "Requiring recusal because a court issued an injunction that could provide some speculative future benefit to the presiding judge solely on the basis of the fact that the judge belongs to the class against whom the unconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases. Congress could not have intended such an unworkable recusal statute." Supporters of Proposition 8 appealed this decision to the Ninth Circuit. On November 21, 2011, the court consolidated this appeal with the merits appeal.
On September 19, 2011, Ware ordered the release of the trial videotapes to the public, which the defender-intervenors had sought to keep under seal. The Ninth Circuit stayed the release of the videos pending appeal, and will hear oral arguments on the appeal on December 8, 2011.
See also
- 2010 in LGBT rights2010 in LGBT rightsThis is a list of notable events in the history of LGBT rights that took place in the year 2010.-February:* 2 – The United States Tax Court ruled in O'Donnabhain v. Commissioner that taxpayers may deduct the medical costs associated with treating gender identity disorder from their federal...
- Griswold v. ConnecticutGriswold v. ConnecticutGriswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...
— 1965 case that held that a law criminalizing the use of contraceptives violated the right to marital privacy. - Loving v. VirginiaLoving v. VirginiaLoving v. Virginia, , was a landmark civil rights case in which the United States Supreme Court, in a unanimous decision, declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v...
— 1967 case that put an end to state anti-miscegenation laws. - Baker v. NelsonBaker v. NelsonRichard John Baker v. Gerald R. Nelson was a case in which the Minnesota Supreme Court ruled that Minnesota law limited marriage to different-sex couples and that this limitation did not violate the United States Constitution...
— 1972 case of two Minnesota male students suing state issuer of marriage licenses. U.S. Supreme Court's one-sentence decision has been interpreted as conflicting precedent by different courts. Prop 8 proponents cited this case. - Zablocki v. RedhailZablocki v. RedhailZablocki v. Redhail, 434 U.S. 374 , was a U.S. Supreme Court decision that held that Wisconsin Statutes §§ 245.10 , , violated the Fourteenth Amendment equal protection clause. Section 245.10 required noncustodial parents who were Wisconsin residents attempting to marry inside or outside of...
— 1978 case holding that marriage is a fundamental right. - High Tech Gays v. Defense Industrial Security Clearance OfficeHigh Tech Gays v. Defense Industrial Security Clearance OfficeHigh Tech Gays v. Defense Industrial Security Clearance Office 895 F.2d 563 was a lawsuit decided by the United States Court of Appeals for the Ninth Circuit on February 2, 1990....
— 1990 case holding that rational basisRational basis reviewRational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...
, rather than the more stringent heightened scrutiny, was the proper standard of review of laws treating homosexuals as a class. - Turner v. SafleyTurner v. SafleyTurner v. Safley, 482 U.S. 78 , was a U.S. Supreme Court decision involving the constitutionality of two prison regulations. Citing the reduced liberty and greater security needs of the prison context, the Court declined to use the strict scrutiny standard of review...
— 1987 case holding marriage is a fundamental right. - Romer v. EvansRomer v. EvansRomer v. Evans, 517 U.S. 620 , is a landmark United States Supreme Court case dealing with civil rights and state laws. It was the first Supreme Court case to deal with LGBT rights since Bowers v...
— 1996 case regarding a ballot initiative preventing anti-discrimination laws at municipal level in Colorado. - Lawrence v. TexasLawrence v. TexasLawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
— 2003 case that ruled unconstitutional a Texas ban on sodomy. - Citizens for Equal Protection v. BruningCitizens for Equal Protection v. BruningCitizens for Equal Protection v. Bruning, 455 F.3d 859 , was a federal lawsuit filed in the United States District Court for the District of Nebraska and decided on appeal by the United States Court of Appeals for the Eighth Circuit challenging the federal constitutionality of Nebraska Initiative...
— 2006 case in which a federal district court ruled that a Nebraska ballot initiative constitutionally defining marriage as only between a man and a woman and prohibiting the recognition of same-sex marriages and other similar relationships violated Equal Protection, but was overturned on appeal by the Eighth Circuit. - Christian Legal Society v. MartinezChristian Legal Society v. MartinezChristian Legal Society v. Martinez, 561 U.S. ___, 130 S.Ct. 2971, 177 L.Ed.2d 838 , is a June 28, 2010, decision by the United States Supreme Court...
— 2010 case regarding refusal by UC HastingsUniversity of California, Hastings College of the LawUniversity of California, Hastings College of the Law is a public law school in San Francisco, California, located in the Civic Center neighborhood....
to grant funding and official recognition to a student association that does not accept gays. - Gill v. Office of Personnel ManagementGill v. Office of Personnel ManagementGill et al. v. Office of Personnel Management 699 F.Supp.2d 374 is a lawsuit filed in the United States District Court for the District of Massachusetts...
and Massachusetts v. United States Department of Health and Human ServicesMassachusetts v. United States Department of Health and Human ServicesCommonwealth of Massachusetts v. United States Department of Health and Human Services 698 F.Supp.2d 234 is a lawsuit filed in the United States District Court for the District of Massachusetts...
— a pair of 2010 cases regarding constitutionality of the federal Defense of Marriage ActDefense of Marriage ActThe Defense of Marriage Act is a United States federal law whereby the federal government defines marriage as a legal union between one man and one woman. Under the law, no U.S. state may be required to recognize as a marriage a same-sex relationship considered a marriage in another state...
.
External links
- Perry v. Schwarzenegger official case site
- New York Times day 1 summary of the trial
- "The Bay Area" blog of the New York Times day 2 and afterwards
- American Foundation for Equal Rights Case Site
- Protect Marriage, the Prop. 8 campaign site
- Video Re-enactments of the trial
- Prop 8 Trial Tracker, blog covering the trial from the plaintiffs' point of view
- "The Conservative Case for Gay Marriage", by Theodore J. Olson, Newsweek, January 19, 2010 — The conservative lawyer for plaintiffs explains his support
- http://www.pbs.org/moyers/journal/02262010/watch.htmlLawyers for the plaintiffs discuss the trial, evidence, and legal approach on PBSPublic Broadcasting ServiceThe Public Broadcasting Service is an American non-profit public broadcasting television network with 354 member TV stations in the United States which hold collective ownership. Its headquarters is in Arlington, Virginia....
.]