Briefing Report: Updating the Proposition 8 Litigation

Wednesday, January 19, 2011


In 2000, the voters overwhelmingly passed Proposition 22, the defense of marriage initiative, which enacted a statute stating that California recognized as valid only a marriage between a man and a woman. On May 15, 2008, the California Supreme Court decided the In re Marriage Cases holding that the California Constitution provided a right to same-sex couples to marry. That opinion has been discussed in a previous Briefing Report "Supreme Court Creates a New Right: Gay Marriage" dated May 28, 2008 (which can be found at: /content/briefing-report-supreme-court-creates-new-right-gay-marriage ).

Proposition 8

The voters passed Proposition 8 on November 4, 2008 by a 52%-48% vote declaring that "[o]nly marriage between a man and a woman is valid or recognized in California." Shortly afterward, opponents challenged Proposition 8. On May 26, 2009, the California Supreme Court decided Strauss v. Horton, which upheld the California constitutionality of Proposition 8. The court was at pains to separate the Strauss case from the marriage cases. It stated the principal legal issue was entirely distinct because the first case determined the validity of a statutory provision limiting marriage to a man and a woman under state constitutional provisions that do not expressly permit or proscribe such a limitation. In Strauss, they state the issue "concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such limitation as an explicit section of the state Constitution."

Litigation: Perry v. Schwarzenegger

Trial: On May 22, 2009, Kristin Perry and three other plaintiffs' (two same-sex couples) attorneys filed a complaint for violation of civil rights in United States District Court in San Francisco. Their complaint sought a declaration that Proposition 8, which denies gay and lesbian individuals the opportunity to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as heterosexual individuals, is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.

On August 4, 2010, the district court held that Proposition 8 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution because it "unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation." In holding that the fundamental right to marry protected by the Due Process Clause includes the right to marry a person of the same sex, the district court found that there is no "historical purpose for excluding same-sex couples from marriage," but rather that "the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage."

Appeal: Proposition 8 proponents appealed the decision to the Ninth Circuit Court of Appeals where they were allowed to argue fully in defense of the proposition. The plaintiffs who attacked the initiative also fully participated in the appeal. The Court of Appeals heard the oral arguments on December 6, 2010. At this stage in most appeals, the court would be writing its opinion on the merits of Proposition 8.

An issue crucial to both parties' arguments was whether the proponents had "standing" to appeal the district court order. The proponents of 8 argued that as proponents under California law they were able to argue to defend the initiative they advanced, especially in light of the Governor and Attorney General abjuring their respective duties to defend an initiative the voters passed.

However, in this case the court has issued a new order in the case, which for some time will delay its decision.

Certified Question: When a federal court of appeals faces a question of unresolved or unclear state law, the court may request the highest court of the state to answer its question. The question is addressed to the discretion of the Supreme Court. On December 4, 2010 the Court of Appeals asked whether proponents of the initiative under California law have a sufficient interest in that initiative's validity to enable them to defend it. Specifically, the court asked, " Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so."

The court's question suggests that the answer should be in the affirmative because it implies that someone must be able and willing to defend an initiative. In addition, t here are parts of the court's request that seem to indicate that it believes that proponents do have a right to defend the initiative. Among those indicators, the court 1] states that it along with the parties thinks that state law determines the issue of standing (demonstrating a party's connection to and justifying participation in the legal action), 2] the citizen initiative enjoys a highly protected status under state law the Legislature may not amend nor may a Governor veto one, 3] if a Governor cannot veto one directly, then how can he do so indirectly by refusing to defend one from attack, and 4] it is unclear whether the Governor has the authority to refuse to defend an initiative under the California Constitution.

Comments: It is unclear how long the question will delay the resolution of the Perry appeal.But all counsel who have commented on the question have indicated that the California Supreme Court will likely move to answer the certified question quickly.

Remember that the Ninth Circuit has a reputation for being very liberal and Judge Reinhardt, who heads the panel deciding the appeal, may be the most liberal on that whole court. It is possible he wants to find the proponents have standing to defend Proposition 8 so that he has a chance to decide that Proposition 8 is unconstitutional as violating the right of equal protection of the laws for same-sex couples, who wish to marry. In any event, no matter what the outcome, the losing party will pursue every avenue for reversing that result.


For more information on this report or other Judiciary issues , contact Mike Petersen, Senate Republican Office of Policy at 916/651-1501.