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2008 California Proposition 8

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Proposition 8
Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment
Votes %
Yes 7,001,084 52.24%
No 6,401,482 47.76%
Valid votes 13,402,566 97.52%
Invalid or blank votes 340,611 2.48%
Total votes 13,743,177 100.00%
Registered voters/turnout 17,304,428 79.42%
Results by county
  Yes     No
Source: California Secretary of State[1]

Proposition 8, known informally as Prop 8, was a California ballot proposition and a state constitutional amendment passed in the November 2008 California state elections. The proposition was created by opponents of same-sex marriage in advance of[2] the California Supreme Court's May 2008 appeal ruling, In re Marriage Cases, which found the previous attempt to ban same-sex marriage (Proposition 22, 2000) unconstitutional. Proposition 8 was also ultimately ruled unconstitutional by a federal court (on different grounds) in 2010, although only confirmed on June 26, 2013 following the conclusion of proponents' appeals.

Proposition 8 would have circumvented the 2008 ruling by adding the same provision as in Proposition 22 to the California Constitution, providing that "only marriage between a man and a woman is valid or recognized in California", which would not be vulnerable to the 2008 ruling.[3][4][5] As an amendment, it was ruled constitutional by the California Supreme Court in Strauss v. Horton, in 2009, on the grounds that it "carved out a limited [or 'narrow'] exception to the state equal protection clause"; Justice Moreno dissented that exceptions to the equal protection clause could not be made by any majority since its whole purpose was to protect minorities against the will of a majority.

Following affirmation by the state courts, two same-sex couples filed a lawsuit against the initiative in the United States District Court for the Northern District of California in the case Perry v. Schwarzenegger (later Hollingsworth v. Perry). In August 2010, Chief Judge Vaughn Walker ruled that the amendment was unconstitutional under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment,[6] since it purported to re-remove rights from a disfavored class only, with no rational basis. The official proponents' justifications for the measure were analyzed in over fifty pages covering eighty findings of fact. The state government supported the ruling and refused to defend the law.[7] The ruling was stayed pending appeal by the proponents of the initiative.

On June 26, 2013, the Supreme Court of the United States issued its ruling on the appeal in the case Hollingsworth v. Perry, affirming that in accordance with numerous precedents, proponents of initiatives such as Proposition 8 did not possess legal standing in their own right to defend the resulting law in federal court, either to the Supreme Court or (previously) to the Ninth Circuit Court of Appeals. Therefore the Supreme Court both dismissed the appeal and directed the Ninth Circuit to vacate (withdraw) its decision, which had agreed with the district court ruling. The decision left the district court's 2010 ruling as the final decision on Proposition 8.[8][9][10] On June 28, 2013, the Ninth Circuit lifted its stay of the district court's ruling, enabling same-sex marriages to resume.[11]


The wording of Proposition 8 was precisely the same as that which had been found in Proposition 22, which had passed in 2000 and, as an ordinary statute, had been invalidated by the State Supreme Court in 2008. California's State Constitution put Proposition 8 into immediate effect the day after the election. By restricting the recognition of marriage to opposite-sex couples, the proposition effectively overturned the California Supreme Court's ruling of In re Marriage Cases that same-sex couples have a constitutional right to marry.[12] The proposition did not affect domestic partnerships in California,[13] nor same-sex marriages performed before November 5, 2008.[14][15][16]

After the elections, demonstrations and protests occurred across the state and nation. Same-sex couples and government entities filed numerous lawsuits with the California Supreme Court challenging the proposition's validity and effect on previously administered same-sex marriages. In Strauss v. Horton, the California Supreme Court upheld Proposition 8, but allowed existing same-sex marriages to stand (under the grandfather clause principle).

California Supreme Court

In Perry v. Schwarzenegger, United States District Court Judge Vaughn Walker overturned Proposition 8 on August 4, 2010 ruling that it violated both the Due Process and Equal Protection clauses of the U.S. Constitution.[17] Walker issued an injunction against enforcing Proposition 8 and a stay to determine suspension of his ruling pending appeal.[18][19]

A Ninth Circuit Court of Appeals panel first asked the California Supreme Court if the proponents of Prop 8 had the right to appeal the district court's decision, since state government officials refused to do so. The California Supreme Court ruled that they did. Nonetheless, the Ninth Circuit affirmed the federal district court's decision on February 7, 2012,[20] but the stay remained in place as appeals continued to the U.S. Supreme Court,[21] which heard oral arguments on March 26, 2013.[22]

History of the ballot initiative

Proposition 8 (ballot title: Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment; originally titled the "California Marriage Protection Act")[23][24] was a California ballot proposition that changed the California Constitution to add a new section 7.5 to Article I, which reads: "Only marriage between a man and a woman is valid or recognized in California."[3][4][5] This change restricted the definition of marriage to opposite-sex couples, and eliminated same-sex couples' right to marry, thereby overriding portions of the ruling of In re Marriage Cases by "carving out an exception to the preexisting scope of the privacy and due process clauses"[25] of the state constitution.

To qualify for the ballot, Proposition 8 needed 694,354 valid petition signatures, equal to 8% of the total votes cast for governor in the November 2006 general election. The initiative proponents submitted 1,120,801 signatures, and on June 2, 2008, the initiative qualified for the November 4, 2008 election ballot through the random sample signature check.[26]

Pre-election legal challenges

Petition to remove proposition from ballot

On July 16, 2008, the California Supreme Court denied a petition calling for the removal of Proposition 8 from the November ballot. The petition asserted the proposition should not be on the ballot on the grounds it was a constitutional revision that only the Legislature or a constitutional convention could place before voters. Opponents also argued that the petitions circulated to qualify the measure for the ballot inaccurately summarized its effect. The court denied the petition without comment.[27] As a general rule, it is improper for courts to adjudicate pre-election challenges to a measure's substantive validity.[28] The question of whether Proposition 8 is a constitutional amendment or constitutional revision was ruled on by the California Supreme Court on May 26, 2009, and found that it was not a revision and therefore would be upheld. They also declared that the same-sex marriages performed prior to the passing of Prop 8 would remain valid.[29]

Challenge to title and summary

The measure was titled: "Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment." The ballot summary read that the measure "changes the California Constitution to eliminate the right of same-sex couples to marry in California."[30][31]

Proponents of the measure objected to the wording of the ballot title and summary on the grounds that they were argumentative and prejudicial. The resulting legal petition Jansson v. Bowen[32] was dismissed August 7, 2008, by California Superior Court Judge Timothy M. Frawley, who ruled that "the title and summary includes an essentially verbatim recital of the text of the measure itself",[33] and that the change was valid because the measure did, in fact, eliminate a right upheld by the California Supreme Court.

As California State Attorney General, Jerry Brown (shown here campaigning for Governor in 2010) had the ballot's description and title changed from "Limit on Marriage" to "Eliminates the right of same-sex couples to marry"[34]

California Attorney General Jerry Brown explained that the changes were required to more "accurately reflect the measure" in light of the California Supreme Court's intervening In re Marriage Cases decision.[35]

On July 22, 2008, Proposition 8 supporters mounted a legal challenge to the revised ballot title and summary, contending that Attorney General Brown inserted "language [...] so inflammatory that it will unduly prejudice voters against the measure".[36] Supporters claimed that research showed that an attorney general had never used an active verb like “eliminates” in the title of a ballot measure in the past fifty years in which ballot measures have been used.[36] Representatives of the Attorney General produced twelve examples of ballot measures using the word "eliminates" and vouched for the neutrality and accuracy of the ballot language.[37][38]

On August 8, 2008, the California Superior Court turned down the legal challenge, affirming the new title and summary, stating, "[t]he title and summary is not false or misleading because it states that Proposition 8 would 'eliminate the right of same-sex couples to marry' in California." The Superior Court based their decision on the previous Marriages Cases ruling in which the California Supreme Court held that same-sex couples have a constitutional right to marry under the California Constitution."[35][39] That same day, proponents of Prop. 8 filed an emergency appeal with the state appeals court. The Court of Appeal denied their petition later that day and supporters did not seek a review by the Supreme Court of California.[40][41] The deadline for court action on the wording of ballot summaries and arguments in the voter pamphlet was August 11, 2008.[42]

While turning down the challenge to the title and summary, the California Superior Court also found that the Yes on 8 campaign had overstated its ballot argument on the measure's impact on public schools and ordered a minor change in wording. The original arguments included a claim that the Supreme Court's legalization of same-sex marriage requires teachers to tell their students, as young as kindergarten age, that same-sex marriage is the same as opposite-sex marriage. The court said the Yes on 8 argument was false because instruction on marriage is not required and parents can withdraw their children. The court said the ballot argument could be preserved by rewording it to state that teachers "may" or "could" be required to tell children there is no difference between same-sex and opposite-sex marriage.[39]


Campaign funding and spending

The campaigns for and against Proposition 8 respectively raised $39.0 million and $44.1 million. They become the year's highest-funded campaigns on any state ballot and surpassing every campaign in the country in spending except the presidential contest.[citation needed]

By election day, volunteers on both sides spent thousands of hours getting their messages across to the state's 17.3 million registered voters.[43][44] The campaigns for and against Proposition 8 raised $39.0 million ($11.3 million or 29.1% from outside California) and $44.1 million ($13.2 million or 30.0% from outside California), respectively,[45] from over 64,000 people in all 50 states and more than 20 foreign countries, setting a new record nationally for a social policy initiative and more than for every other race in the country in spending except the presidential contest.[46] Contributions were much greater than those of previous same-sex marriage initiatives. Between 2004 and 2006, 22 such measures were on ballots around the country, and donations to all of them combined totaled $31.4 million, according to the nonpartisan National Institute on Money in State Politics.[47] A spokeswoman estimated that 36 companies which had previously contributed to Equality California were targeted to receive a letter requesting similar donations to[48][49][50][51]

In 2010, the California Fair Political Practices Commission fined the LDS church for failing to follow campaign disclosure policies during the last two weeks leading up to the election, which amounted to $37,000 in non-monetary contributions. They were fined $5,538.[52]

Both proponents and opponents of Proposition 8 made significant use of online tactics for campaigning. For example, over 800 videos were posted on YouTube, most consisting of original content and most taking a position against the Proposition. A greater proportion of 'Yes on 8' videos were scripted and professionally produced. Many 'No on 8' videos recorded demonstrations in the aftermath of the election.[53]


Official "Yes on 8" campaign sign.[54]

Proponents of the constitutional amendment argued that exclusively heterosexual marriage was "an essential institution of society", that leaving the constitution unchanged would "result in public schools teaching our kids that gay marriage is okay", and that gays "do not have the right to redefine marriage for everyone else."[55]

The organization sponsored the initiative that placed Proposition 8 on the ballot[56] and continues to support the measure. The measure also attracted the support of a number of political figures and religious organizations.

Political figures

Republican presidential nominee and U.S. Senator John McCain released a statement of support for the proposed constitutional amendment.[57] Former Speaker of the House Newt Gingrich released a video in support. Both characterized the court ruling requiring recognition of same sex marriage as being against the will of the people.[58] A political action committee run by former Massachusetts governor Mitt Romney, who personally supported the proposition, donated $10,000 to the National Organization for Marriage during their campaign for the proposition.[59]

Religious organizations

The Roman Catholic Church,[60] as well as a Roman Catholic lay fraternal organization, the Knights of Columbus,[61] firmly supported the measure. The bishops of the California Catholic Conference released a statement supporting the proposition,[62] a position met with mixed reactions among church members, including clergy.[63][64]

Rally for Yes on Prop 8 in Fresno

The Church of Jesus Christ of Latter-day Saints[65][66][67] (the LDS Church or, informally, the Mormon Church), also publicly supported the proposition. The First Presidency of the church announced its support for Proposition 8 in a letter intended to be read in every congregation in California. In this letter, church members were encouraged to "do all you can to support the proposed constitutional amendment by donating of your means and time."[65] The church produced and broadcast to its congregations a program describing the support of the Proposition, and describing the timeline it proposes for what it describes as grassroots efforts to support the Proposition.[68] Local church leaders set organizational and monetary goals for their membership—sometimes quite specific—to fulfill this call.[69][70] The response of church members to their leadership's appeals to donate money and volunteer time was very supportive,[71] such that Latter-day Saints provided a significant source for financial donations in support of the proposition, both inside and outside the State of California.[72] LDS members contributed over $20 million,[73] about 45% of out-of-state contributions to came from Utah, over three times more than any other state.[74] ProtectMarriage, the official proponent of Proposition 8, estimates that about half the donations they received came from Mormon sources, and that LDS church members made up somewhere between 80% and 90% of the volunteers for early door-to-door canvassing.[75]

Other religious organizations that supported Proposition 8 include the Union of Orthodox Jewish Congregations of America,[76] Eastern Orthodox Church,[77] a group of Evangelical Christians led by Jim Garlow and Miles McPherson,[78] American Family Association, Focus on the Family[79] and the National Organization for Marriage.[80] Rick Warren, pastor of Saddleback Church, also endorsed the measure.[81]


The Grossmont Union High School District in San Diego County, California, publicly voted on a resolution endorsing Proposition 8. The Governing Board voted 4–0 to endorse the amendment of the California State Constitution.[82]

The Asian Heritage Coalition held a rally in support of Proposition 8 in downtown San Diego on October 19, 2008.[83]

During the November 2008 election campaign, Porterville's City Council was the only City Council in California that passed a Resolution in favor of Proposition 8.[84]

"Whether You Like It or Not" advertisement

Gay marriage press conference, 2008

In the months leading up to Election Day, Proposition 8 supporters released a commercial featuring San Francisco Mayor Gavin Newsom stating in a speech regarding same-sex marriage: "This door's wide open now. It's going to happen, whether you like it or not."[85] Some observers noted that polls shifted in favor of Proposition 8 following the release of the commercial; this, in turn, led to much speculation about Newsom’s unwitting role in the passage of the amendment.[86][87][88]


Official "Vote NO on Prop 8" logo

Opponents argued that "the freedom to marry is fundamental to our society", that the California constitution "should guarantee the same freedom and rights to everyone", and that the proposition "mandates one set of rules for gay and lesbian couples and another set for everyone else." They also argued that "equality under the law is a fundamental constitutional guarantee" (see Equal Protection Clause).[55]

Equality for All was the lead organization opposed to Proposition 8.[89] They also ran the campaign.[90] As with the measure's proponents, opponents of the measure also included a number of political figures and religious organizations. Some non-partisan organizations and corporations, as well as the editorial boards of many of the state's major newspapers, also opposed the measure.

Political figures

San Francisco Mayor Gavin Newsom speaks at an Anti-Proposition 8 Rally on Sproul steps at UC Berkeley

While Democratic presidential nominee and U.S. Senator, Barack Obama stated that while he personally considered marriage to be between a man and woman,[91] and supported civil unions that confer comparable rights rather than gay marriage,[92] he opposed "divisive and discriminatory efforts to amend the California Constitution... the U.S. Constitution or those of other states."[93] Democratic vice-presidential candidate Joseph Biden also opposed the proposition.[94] Republican California Governor Arnold Schwarzenegger stated that although he opposed and twice vetoed legislative bills that would recognize same-sex marriage in California, he respected and would uphold the court's ruling and oppose the initiative and other attempts to amend the state's constitution.[95][96] The U.S. House Speaker, California Representative (8th District), Nancy Pelosi[97] along with other members of the California congressional delegation and both of California's U.S. senators, Dianne Feinstein and Barbara Boxer, voiced their opposition to Proposition 8.[98] Also voicing their opposition were the Lieutenant Governor, State Controller John Chiang, former governor and Attorney General Jerry Brown, 42 of 80 members of the state assembly, half of the state senators, and the mayors of San Francisco, Los Angeles, and San Diego: Gavin Newsom, Antonio Villaraigosa, and Jerry Sanders, respectively.[99][100][101][102]

Religious organizations

All six Episcopal diocesan bishops in California jointly issued a statement opposing Proposition 8 on September 10, 2008.[103] Southern California's largest collection of rabbis, the Board of Rabbis of Southern California, voted to oppose Proposition 8.[104] Other Jewish groups who opposed Proposition 8 include Jewish Mosaic,[105] the American Jewish Committee, Progressive Jewish Alliance, National Council of Jewish Women, and the Anti-Defamation League (ADL).[76] The ADL filed amicus briefs urging the Supreme Court of California, Ninth Circuit, and the Supreme Court to invalidate Prop 8.[106] Los Angeles Jews were more opposed to Prop 8 than any other religious group or ethnic group in the city. Seventy-eight percent of surveyed Jewish Angelenos voted against the measure while only 8% supported the measure; the remainder declined to respond.[107] The legislative ministry of the Unitarian Universalists opposed Proposition 8, and organized phone banks toward defeating the measure.[108] They see opposition to the proposition as a civil rights and social justice issue and their actions against it as a continuation of their previous works in civil rights.

In addition, the California Council of Churches urged the "immediate removal of Proposition 8" – saying that it infringes on the freedom of religion for churches who wish to bless same-sex unions.[109]


The League of Women Voters of California opposed Proposition 8 because "no person or group should suffer legal, economic or administrative discrimination."[110] Additionally, all but two of the National Association for the Advancement of Colored People's local chapters in California and NAACP national chairman Julian Bond and President Benjamin Jealous opposed Proposition 8.[111] Amnesty International also condemned Proposition 8, saying that "states should never withhold rights based on minority status".[112]

A coalition of Silicon Valley executives urged a 'No' vote on Proposition 8.[113] Google officially opposed Proposition 8 "as an issue of equality", and its founders donated $140,000 to the No on 8 campaign.[114][115][116] Apple Inc. also opposed Proposition 8 as a "fundamental" civil rights issue, and donated $100,000 to the No on 8 campaign.[116][117] Biotech leaders warned of potential damage to the state's $73 billion industry, citing Massachusetts as a top competitor for employees.[118]

Many members of the entertainment industry were opposed to Proposition 8.[119] Actor Tom Hanks, a strong supporter of same-sex marriage, was extremely outspoken about his opposition to the bill. Brad Pitt and Steven Spielberg each donated different amounts of money to the opposition campaign "No on 8."[120] In 2010, the documentary film 8: The Mormon Proposition premiered to sell-out audiences at the Sundance Film Festival.

The Los Angeles Unified School District Board of Education voted unanimously for a resolution to oppose Proposition 8.[121] The California Teachers Association donated one million dollars to fight Proposition 8.[122] Chancellor Robert Birgeneau of UC Berkeley urged a vote against the measure, claiming a likely threat to California's academic competitiveness if Proposition 8 is passed.[123]

Newspaper editorials

All ten of the state's largest newspapers editorialized against Proposition 8, including the Los Angeles Times,[124] and the San Francisco Chronicle.[125][126][127][128][129][130][131][132][133] Other papers to have editorialized in opposition include The New York Times,[134] La Opinión (Los Angeles),[135] and The Bakersfield Californian.[136]

Actions against supporters and opponents

After the election, a number of protests were held against the referendum's passing. These included candlelight vigils outside organizations such as LDS churches that promoted the proposition.[137][138] Rallies against the amendment took place in California and across the country, with participants numbering in thousands.[139][140][141][142][143][144]

Boycotts were also a feature of public response to the outcome of the election. LGBT rights groups published lists of donors to the Yes on 8 campaign and organized boycotts of individuals or organizations who had promoted or donated to it.[145][146][147] Targets of the boycotts included the Sundance Film Festival in Utah, El Coyote Cafe, California Musical Theatre, and the Manchester Grand Hyatt Hotel.[147][148][149]

Some supporters of Proposition 8 reported receiving death threats, some of which claimed to be "stemming from Prop 8".[150][151] Some LDS churches were vandalized with spray paint.[152][153][dead link]

Fresno-area supporters of gay marriage were also harassed; "No On 8" signs at the Clovis Unitarian Universalist Church were torn up, with Reverend Bryan Jessup alleging that his church experienced vandalism "every night".[150] Santa Clara County Deputy District Attorney (DDA) Jay Boyarsky attributed a surge in anti-gay hate crimes, from 3 in 2007 to 14 in 2008, to controversy over Proposition 8.[154]

Pre-decision opinion polls

Various opinion polls were conducted to estimate the outcome of the proposition. Those margins with differences less than their margins of error are marked as "n.s.", meaning not significant (see Statistical significance). Those margins considered statistically significant are indicated with the percentage points and the side favored in the poll, as either "pro" for in favor of the proposition's passage (e.g., 1% pro), or "con" for against its passage (e.g., 1% con).

According to the director of the Field Poll, the discrepancy between the pre-election polls and ballot results is because "regular church-goers ... were more prone than other voters to be influenced by last-minute appeals to conform to orthodox church positions when voting on a progressive social issue like same-sex marriage."[155]

Date of opinion poll Conducted by Sample size
(likely voters)
In favor Against Undecided Margin Margin of Error
October 29–31, 2008[156] SurveyUSA 637 47% 50% 3% n.s. ±4%
October 18–28, 2008[157] The Field Poll 966 44% 49% 7% 5% con ±3.3%
October 12–19, 2008[158] Public Policy Institute of California 1,186 44% 52% 4% 8% con ±3%
October 15–16, 2008[159] SurveyUSA 615 48% 45% 7% n.s. ±4%
October 4–5, 2008[160][161] SurveyUSA 670 47% 42% 10% 5% pro ±3.9%
September 23–24, 2008[162][163] SurveyUSA 661 44% 49% 8% 5% con ±3.9%
September 9–16, 2008[164] Public Policy Institute of California 1,157 41% 55% 4% 14% con ±3%
September 5–14, 2008[165] The Field Poll 830 38% 55% 7% 17% con ±3.5%
August 12–19, 2008[166][167] Public Policy Institute of California 1,047 40% 54% 6% 14% con ±3%
July 8–14, 2008[16][168] The Field Poll 672 42% 51% 7% 9% con ±3.9%
May 17–26, 2008[169] The Field Poll 1,052 42% 51% 7% 9% con ±3.2%
May 22, 2008[170] Los Angeles Times/KTLA 705 54% 35% 11% 19% pro ±4%


Proposition 8[1]
Choice Votes %
Referendum passed Yes 7,001,084 52.24
No 6,401,482 47.76
Valid votes 13,402,566 97.52
Invalid or blank votes 340,611 2.48
Total votes 13,743,177 100.00

Amending the California Constitution by voter initiative requires a simple majority to be enacted.[171]

Edison/Mitofsky conducted an exit poll on behalf of the National Election Pool which is the only source of data on voter demographics in California in the 2008 election.[172][173] The statistical trends from the exit poll of 2,240 voters suggested that an array of voters came out both in opposition to and in support of Proposition 8, with no single demographic group making up most of either the Yes or No vote. The National Election Pool poll showed that support for Proposition 8 was strong amongst African American voters, interviewed in the exit poll with 70% in favor, more than any other racial group.[174] Their support was considered crucial to the proposition's passing, since African Americans made up an unusually larger percentage of voters that year, due to the presence of Barack Obama on the ballot.[175] Polls by both the Associated Press and CNN mirrored this data, reporting support among black voters to be at 70%[176] and 75%,[177] respectively. A later study by the National Gay and Lesbian Task Force (NGLTF), examining the black vote only from five counties within the state, suggested that black support was closer to 58%.[178][179]

Those who described themselves as religious were the strongest supporters of prop 8.[180] According to the NGLTF study, self-identified Catholics and Protestants supported Prop 8 by measures of 55% and 66%, respectively,[181] while Jews overwhelmingly opposed it, with support at only 17%.[182][183] Young voters were more likely to have voted against the ballot measure than older voters, while Republicans were more likely to have supported the measure than were Democrats.[184]

County breakdown

Post-election events

Immediate response

A post Prop 8 demonstration at the State Capitol

In California, a constitutional amendment passed by the electorate takes effect the day after the election.[171] On the evening of November 4 the "Yes on 8" campaign issued a statement by Ron Prentice, the chairman of, saying "The people of California stood up for traditional marriage and reclaimed this great institution."[185] The organizers of the "No on Prop 8" campaign issued a statement on November 6 saying, "Tuesday’s vote was deeply disappointing to all who believe in equal treatment under the law."[186] The counties of Los Angeles, San Francisco, Yolo, Kern, Santa Barbara, San Luis Obispo, Sonoma, San Diego, San Bernardino, Sacramento, and Tuolumne stopped issuing marriage licenses to same-sex couples the day after the election.[187][188][189][190][191]

Following the passage of Proposition 8, mass protests took place across the state. These included protests outside the LDS's Los Angeles California Temple in Westwood, Los Angeles;[192] a march through Hollywood that blocked traffic and elicited police intervention;[193] a candlelight vigil in front of the Sacramento Gay and Lesbian Center and a large demonstration in front of the state capitol.[194] In San Francisco, thousands gathered in front of the City Hall, along with Mayor Gavin Newsom, to protest the proposition and to perform a candlelit vigil.[195]


Following an audit by the California Franchise Tax Board, the proponents of Proposition 8 are facing a fine of $49,000 for violating California campaign finance disclosure laws, by failing to report $1,169,292 in contributions under the timelines required by state law.[196]

Legal challenges

Following the passing of Proposition 8 in 2008, and the subsequent mass protests, several lawsuits were filed in both the State Supreme Court and in the Federal District Court.

State court: Strauss v. Horton

In considering the cases within the state courts, on November 13, 2008, the California Supreme Court asked California Attorney General Jerry Brown for an opinion on whether the Court should accept these cases for review and whether the measure should be suspended while they decide the case. On November 19, the Court accepted three lawsuits challenging Proposition 8, which consolidated into Strauss v. Horton.[197] The Court rendered its decision on May 26, 2009. The majority decision was that Proposition 8 "carved out a limited [or 'narrow'] exception to the state equal protection clause"; Justice Moreno dissented that exceptions to the equal protection clause could not be made by any majority since its whole purpose was to protect minorities against the will of a majority. Until overturned by Hollingsworth v. Perry (below), the ruling established that Proposition 8 was valid as voted, but that marriages performed before it went into effect would remain valid.

Federal court

Perry v. Schwarzenegger

After the California Supreme Court upheld the voter initiative, a suit, Perry v. Schwarzenegger (later Hollingsworth v. Perry), was filed in a Federal District Court in San Francisco. On August 4, 2010, U.S. District Chief Judge Vaughn Walker overturned Proposition 8, stating it is "...unconstitutional under the Due Process Clause because no compelling state interest justifies denying same-sex couples the fundamental right to marry."[198] The court also determined that "Proposition 8 violated the Equal Protection Clause because there is no rational basis for limiting the designation of 'marriage' to opposite-sex couples."[199] The court also stayed the ruling; the voter initiative was to remain in effect pending appeal.[18] On August 12, Walker announced his decision to lift the stay (which would have allowed same-sex marriages to be performed) as of August 18, 2010.[200][201] However, on August 16, 2010, the United States Court of Appeals for the Ninth Circuit indefinitely extended the District Court's stay, stopping new same-sex marriages in the state of California pending appeal. It also scheduled an accelerated time table for hearing an appeal of Walker's ruling.[202]

Perry v. Brown (on appeal)

On January 4, 2011, the Ninth Circuit Court of Appeals ruled that Imperial County may not have standing to intervene in the lawsuit, by now called Perry v. Brown. Therefore, the court certified a question to the California Supreme Court as to whether non-governmental proponents of an initiative have standing to appeal when the State is no longer willing to defend it.[203] On February 16, 2011, the California Supreme Court unanimously agreed to address the Ninth Circuit's request.[204] The court set an expedited schedule for the hearing[205] and heard oral arguments on September 6, 2011.[206] On November 17, 2011, the court issued an advisory opinion that the proponents of Proposition 8 did have standing, and could defend it.[207][208]

Ninth Circuit Ruling
Seal of the United States Court of Appeals for the Ninth Circuit

On February 7, 2012, a three-judge panel on the Ninth Circuit Court of Appeals issued a 2–1 majority opinion affirming the judgment in Perry v. Schwarzenegger, which declared Proposition 8 unconstitutional, saying it violated the Equal Protection Clause. The opinion, written by Judge Stephen Reinhardt and joined by Judge Michael Hawkins, states that Proposition 8 did nothing more than lessen the status and dignity of gays and lesbians, and classify their relationships and families as inferior to those of opposite-sex couples.[209] The court found that the people of California, by using their initiative power to target a minority group and withdraw the right to marry they once possessed under the California State Constitution, violated the federal Constitution.[210]

The court concluded that Proposition 8 had no purpose other than to impose the majority's private disapproval of gays, lesbians, and their relationships through the public law, and to take away from them the designation of marriage and its recognized societal status.[211] The findings of fact and expert witness testimony in District Court played an important role in this appellate decision, emphasizing that it is unreasonable to believe Proposition 8 was enacted to: promote childrearing by biological parents, encourage procreation, be cautious in social change, protect religious liberty, or control children's education.[212] The court declared that it is "implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman."[213][214]

The dissenting judge, Judge N. Randy Smith, noted in his dissent that states do legitimately prohibit sexual relationships condemned by society such as incest, bigamy, and bestiality, and impose age limits for marriage without violating constitutional rights.[215] He stated that "gays and lesbians are not a suspect or quasi-suspect class" and are thus not entitled to the courts' increased scrutiny of laws that affect them.[215] He wrote, "The family structure of two committed biological parents – one man and one woman – is the optimal partnership for raising children." He also said that governments have a legitimate interest in "a responsible procreation theory, justifying the inducement of marital recognition only for opposite-sex couples" because only they can have children.[215] He urged judicial restraint, that the justices should refrain from striking down Proposition 8.[216]

En banc review denied

On February 21, 2012, proponents requested to have to the case reviewed en banc by the Ninth Circuit Court of Appeals.[217] If granted, en banc review could have taken a year or more, which would have delayed possible U.S. Supreme Court review.[217] Pending the appeal, a stay was continued, barring any marriages from taking place.[218] On June 5, 2012, the full Ninth Circuit refused to rehear the case; the stay would remain in place pending final action by the Supreme Court.[219]

Note: The Ninth Court's ruling was subsequently vacated (withdrawn) although it affirmed the district court ruling, since the Supreme Court later determined that the proponents of Proposition 8 had not had standing to appeal the district court's ruling.

Hollingsworth v. Perry (U.S. Supreme Court)

The proposition's proponents filed a petition for certiorari with the U.S. Supreme Court on July 30, 2012, requesting that the Supreme Court review the case.[220] Briefs in opposition both from the individual respondents and from the City and County of San Francisco were filed August 24, and the petitioners replied on September 4.[221] On December 7, 2012, the Supreme Court granted the proponents' petition for certiorari[222] and asked to be briefed for arguments concerning the appellants' standing. Oral arguments were heard on March 26, 2013.[22]

Parties who lodged amicus briefs with the court included: Judge Georg Ress and the Marriage Law Foundation; William N. Eskridge, Jr., et al.; the Center for Constitutional Jurisprudence; the Public Advocate of the United States, et al.; the National Association of Evangelicals, et al.; the American Civil Rights Union; Judicial Watch, Inc., et al.; the Eagle Forum Education & Legal Defense Fund, Inc.; the Foundation for Moral Law; and the state of Indiana, et al.[221]

The Supreme Court issued its decision on June 26, 2013. In accordance with numerous precedent cases rejecting the concept of proponents' standing to defend a challenged law in Federal court, the Supreme Court dismissed the case, ruling that Proposition 8's supporters had lacked standing to appeal. For the same reason the Supreme Court ruled Proposition 8 proponents lacked standing at the Supreme Court, they also ruled they had also lacked standing at the appeal court, and that ruling too should have been dismissed for lack of standing. Therefore the case was returned to the Ninth Circuit with instructions to vacate their former ruling (which had affirmed the district court's overturn of Proposition 8). This left the original district court ruling (overturning Proposition 8) as the final ruling in the original case. Because the appeals to both the Ninth Circuit and the Supreme Court were decided upon grounds of standing, the Supreme Court did not need to, nor did it, reach the substantive merits of the appeal, and therefore the decision did not add anything about same-sex marriage beyond the ruling of the district court, nor say anything about other same-sex marriage bans in states other than California. The vote was 5-4, with Justice Roberts writing for the majority, joined by Justices Ginsburg, Kagan, Breyer, and Scalia. In dissent (i.e., arguing that the plaintiffs did have standing) were Kennedy, Sotomayor, Alito, and Thomas - the two former dissenters wanting to resolve the substantive issue in support of the California Supreme Court decision and thus in opposition to the constitutionality of Prop 8, the latter two seeking to resolve the substance in support of Prop 8.[223][224]


As a result of the above legal rulings, same-sex marriage was expected once again to imminently become legal in California.[225] Proposition 8 supporters have expressed the intent to fight on (for example by asserting the ruling only applies to the persons or counties involved), but this was rejected by California's Attorney General Kamala Harris, who noted that "state officials are obligated to govern marriage equally in all counties and that Walker's ruling specifically covers those officials".[226] On June 28, 2013, the Ninth Circuit lifted its stay of the district court's ruling, enabling same-sex marriages to resume;[11] minutes afterward, plaintiffs Perry and Stier became the first couple in California to legally wed under state law since the enactment of Proposition 8 in 2008, doing so at San Francisco City Hall at 4:45 PDT, with Harris officiating at the ceremony.[227] On June 29, 2013, the proponents of Proposition 8 filed an emergency motion with the U.S. Supreme Court to vacate the Ninth Circuit's lifting of its stay, claiming it had been lifted prematurely,[228] but on June 30, 2013, U.S. Supreme Court Justice Anthony Kennedy, responsible for overseeing the Ninth Circuit, denied the motion without comment, thereby allowing same-sex marriages to continue.[229]

Some commentators, such as law professor Erwin Chemerinsky,[230] and Jon Coupal, president of the Howard Jarvis Taxpayers Association[231] expressed concern about the implications of the Supreme Court ruling, noting that voter initiatives existed precisely for when voters felt the State was insufficiently responsive to their concerns or as a way for the people to assert their rights, and that elected officials should not have the ability to nullify such laws simply by choosing not to defend them.[230][231][232]

Full text

Proposition 8 consisted of two sections. Its full text was:[233]

Section I. Title

This measure shall be known and may be cited as the "California Marriage Protection Act."

Section 2. Article I. Section 7.5 is added to the California Constitution, to read:

Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

See also


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  215. ^ a b c Dissenting Prop. 8 judge says 'optimal partnership' is man, woman
  216. ^ Prop. 8 Appeals Court Ruling: Inside the Dissenting Opinion
  217. ^ a b Dolan, Maura (February 22, 2012). "Prop. 8 backers seek full review by appeals court". LA Times. Retrieved February 29, 2012.
  218. ^ McVeigh, Karen (February 7, 2012). "Prop 8: California gay marriage ban struck down by federal appeals court". The Guardian. London. Retrieved February 8, 2012.
  219. ^ "California's Proposition 8 case headed to U.S. Supreme Court". Retrieved November 15, 2012.
  220. ^ Denniston, Lyle (July 31, 2012). ""Proposition 8" defenders' appeal filed (FINAL UPDATE)". SCOTUSblog. Retrieved August 3, 2012.
  221. ^ a b Hollingsworth v. Perry, no. 12-144, (docket). . Retrieved September 7, 2012.
  222. ^
  223. ^ Clarke, Rachel (June 26, 2013). "Supreme Court strikes down part of DOMA, dismisses Prop. 8 appeal". Retrieved June 26, 2013.
  224. ^
  225. ^ Supreme Court strikes down Calif. Prop 8, DOMA Read more:
  226. ^ Goodbye and good riddance to Prop. 8 - Los Angeles Times, editorial, June 27, 2013
  227. ^ Winter, Michael (June 28, 2013). "Same-sex marriages resume in Calif.: San Francisco plaintiffs in Prop. 8 ruling are first couple to wed after appellate action". USA Today. Retrieved June 28, 2013.
  228. ^ "Emergency stay of California same-sex marriages sought," SCOTUSblog, June 29, 2013.
  229. ^ "New gay marriage challenge fails," SCOTUSblog, June 30, 2013.
  230. ^ a b Prop. 8 deserved a defense: The state shouldn't abandon measures passed by voters - L.A. Times, by Erwin Chemerinsky, June 28, 2013
  231. ^ a b Prop. 8 ruling raises fears about effects on other initiatives - L.A. Times, by Chris Megerian/Anthony York, June 27, 2013
  232. ^ The Economist (6 July 2013). "Ballot measures in California:Power from the people". The Economist. Retrieved 11 July 2013. Many who applaud that result are worried about how it was reached. They fear the court has in effect granted a veto to officials in California (and the 26 other states that have similar ballot-initiative systems) over democratically passed laws that they dislike....Given that the whole point of ballot initiatives is to let voters bypass politicians, that seems perverse.
  233. ^ Scan of Initiative from California Attorney General website.

External links

Media related to California Proposition 8 (2008) at Wikimedia Commons