While same-sex marriage supporters celebrate their recent victory for marriage equality in New York, a question still lingers for one of the blue states. What happened in California since three years ago, after the the ballot measure Proposition 8 passed and effectively stripped gay couples of their right to marry? Here is a summarized, three-year history of California's Prop. 8, and the ensuing court battles leading up to now.
Currently California Family Code reads, "Marriage is a personal relation arising out of a civil contract between a man and a woman." But in May 2008, a California Supreme Court decision, In re Marriage, found that this legal code violated the civil rights of same-sex couples. In the next few months following this ruling, over 10,000 same-sex couples were put down in the books as legally married. But these unions would be brief, as religious groups had already begun seeking signatures for Proposition 8, which tightly defined marriage as "between a man and a woman," to become a ballot initiative in the upcoming general elections.
The Vote
While the world celebrated the election of President of the United States Barack Obama on November 4, 2008, marriage equality proponents mourned, while the results of California's ballot measure were also released. Proposition 8 won by a popular vote of 52.24% for yes and 47.76% for no. These numbers came as a surprise to many, as straw polls had indicated Proposition 8 would most likely fail.
Explanations for this loss for gay rights were presented in the investigative film 8: The Mormon Proposition. The campaign for the ballot measure had strong financial support from certain religious groups, including The Roman Catholic Church and The Church of Jesus Christ the Latter-day Saints. As non-profits, these organizations could raise money not circumspect to the usual scrutiny of political action committee funding. Prop. 8 also had the support of high-profile politicians such as Senator John McCain and former Speaker of the House Newt Gingrich.
Several pre-emptive measures that were aimed at striking down Proposition 8's validity before it went on the ballot were dismissed by the Court before the election.
The Lawsuit Aftermath
As soon as Prop. 8 became law, the legal battle to once again change the legality of same-sex marriage shifted gears. A series of lawsuits, challenging the proposition's constitutional validity, were filed shortly after the law's adoption. On May 26, 2009, the California Supreme Court ruled, in Strauss v. Horton, that while Proposition 8 was lawfully enacted, the same-sex marriages conducted before its passage would also remain valid.
Perry v. Schwarzenegger is the most famous Prop 8. lawsuit filed in the United States District Court for the Northern District of California, filed in May 2010. In addition to challenging the federal constitutionality of the measure, the plaintiffs sought to sue the two county clerks that denied them marriage licenses and several state officials: Attorney General Jerry Brown, Governor Arnold Schwarzenegger, and two officials in the Department of Public Health. None of the officials named, including Governor Schwarzenegger and Attorney General Brown, appeared in Court to defend the suit.
To fill the absences left by the state officials, the two main support groups of Proposition 8, ProtectMarriage.com, and the Campaign for California Families, sought to intervene as defendants. The court allowed the motion for ProtectMarriage.com with then-Senator Dennis Hollingsworth as a spokesman, and a highly publicized court debate began.
During the trial, the plantiffs invoked several earlier Court decisions that would give precedent to their constitutional arguments. They quoted Supreme Court Justice Ruth Bader Ginsberg's analogy from one of her earlier rulings on sexual orientation's legitimacy as a class: "A tax on wearing yarmulkes is a tax on Jews." The plaintiff's analogous argument was that legally preventing same-sex marriage targeted gay and lesbian citizens.
Judge Walker's Decision
Judge Walker heard closing arguments on June 16, 2010 and a couple weeks later on August 4, 2010, announced his ruling in favor of the plaintiffs. His decision overturned Proposition 8 based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Walker concluded that the state had no rational or protected interest in denying gays and lesbians marriage licenses.
Judge Walker noted that the defense had “presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage.”
Immediately following the ruling, defendant-intervenors filed an emergency stay motion with the federal, Ninth Circuit Appeals Court preventing same-sex unions to continue. The stay was granted pending an appointment with the Appeals board. After the December 6, 2010 appointment, the three-judge panel appeared skeptical of the appeal but decided to refer it to the Full Circuit Court.
Where is Prop. 8 now?
It's been nearly a year since Judge Walker's ruling, and many months since the Ninth Circuit put it on hold. Chief District Court Judge James Ware now presides over Perry v. Schwarzenegger, having taken over when Judge Walker retired in February, 2011. The marriages from the few months in which same-sex marriage were performed still stand, but no new same-sex marriages can be filed in the meantime.
Ninth Circuit Court cases are notoriously slow due to volume, but efforts have been made to expedite the case. The Court released a statement that they would "accommodate oral argument as early as September 2011."
"I think it is likely that, regardless of how the 9th Circuit rules, there will be a petition to the U.S. Supreme Court seeking review." LGBT rights attorney Dave Codell told Prop 8 Trial Tracker. "I’ll decline to predict whether the Court would take the case, [But] if the Supreme Court were to review this case, the Court would likely issue its ruling by June of the term in which it hears the case. Were the Court to take the case, it would likely be heard and decided in the October 2012 term — meaning that a decision would likely be issued by June 2013."
Prop 8 Trial Tracker, a project of the Courage Campaign institute, runs a blog with comprehensive, up-to-date information on the issue.
Out-of-text sources:
Professor Brad Sears, J.D and Professor M.V. Lee Badgett, PhD. “The Impact of Extending Marriage to Same-Sex Couples on the California Budget.” (June 2008). The Williams Institute. Retrieved July 6, 2011.
California Secretary of State Debra Bowen. “Statement of Vote: November 4,2008, General Election.” Retrieved July 6, 2011.
Candice Hall - Candice Hall is a freelance writer who enjoys politics, pop-culture, and people that burn, burn, burn like fabulous roman candles.
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