2008 California Proposition 8

Proposition 8 consisted of two sections. Its full text was:[29]

SECTION 1. 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.

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.[30] As a general rule, it is improper for courts to adjudicate pre-election challenges to a measure's substantive validity.[31] 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.[32]

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."[33][34]

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[35] 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",[36] 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".[37]

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.[38]

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".[39] 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.[39] 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.[40][41]

On August 8, 2008, the California Superior Court turned down the legal challenge, affirming the new title and summary, stating, "the 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.[38][42] 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.[43][44] The deadline for court action on the wording of ballot summaries and arguments in the voter pamphlet was August 11, 2008.[45]

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.[42]

The pro- and anti-Prop 8 campaigns spent a combined $106 million on the campaign.[46] This was not the most expensive California ballot proposition that year, however; the 2008 campaigns for and against Propositions 94, 95, 96, and 97, dealing with the expansion of Native American gambling, surpassed Prop 8, with combined expenditures of $172 million.[46]

By election day, volunteers on both sides spent thousands of hours getting their messages across to the state's 17.3 million registered voters.[47][48] 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,[49] 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.[50] 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 OpenSecrets.[51] A ProtectMarriage.com spokeswoman estimated that 36 companies which had previously contributed to Equality California were targeted to receive a letter requesting similar donations to ProtectMarriage.com.[52][53][54][55]

The California Fair Political Practices Commission fined the LDS Church in 2010 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.[56]

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.[57]

Official ProtectMarriage.com "Yes on 8" campaign sign[58]

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 gay people "do not have the right to redefine marriage for everyone else".[59]

The ProtectMarriage.com organization sponsored the initiative that placed Proposition 8 on the ballot[60] and continues to support the measure. The measure also attracted the support of a number of political figures and religious organizations.

Republican presidential nominee and U.S. Senator John McCain released a statement of support for the proposed constitutional amendment.[61] 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.[62] 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.[63]

The Roman Catholic Church,[64] as well as a Roman Catholic lay fraternal organization, the Knights of Columbus,[65] firmly supported the measure. The bishops of the California Catholic Conference released a statement supporting the proposition,[66] a position met with mixed reactions among church members, including clergy.[67][68]

George Hugh Niederauer as Archbishop of San Francisco campaigned in 2008 in favor of the Proposition, and claimed to have been instrumental in forging alliances between Catholics and Mormons to support the measure.[69] His successor, Salvatore Cordileone was regarded as instrumental in devising the initiative. Campaign finance records show he personally gave at least $6,000 to back the voter-approved ban[70] and was instrumental in raising $1.5 million to put the proposition on the ballot.[71] Subsequently, as archbishop of San Francisco, he has called publicly for an amendment to the US Constitution as "the only remedy in law against judicial activism" following the number of state same-sex marriage bans struck down by federal judges. He also attended and addressed the audience at the "March for Marriage", a rally opposing marriage for same-sex couples, in Washington, D.C., in June 2014.[72]

In California's 2008 election the Knights of Columbus attracted media attention when they donated more than $1.4 million to Proposition 8.[73] The Order was the largest financial supporter of the successful effort to maintain a legal definition of marriage as the union of one man and one woman.[74]

Rally for Yes on Prop 8 in Fresno

The Church of Jesus Christ of Latter-day Saints[75][76][77] (LDS 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".[75] 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.[78] Local church leaders set organizational and monetary goals for their membership—sometimes quite specific—to fulfill this call.[79][80] The response of church members to their leadership's appeals to donate money and volunteer time was very supportive,[81] 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.[82] LDS members contributed over $20 million,[83] about 45% of out-of-state contributions to ProtectMarriage.com came from Utah, over three times more than any other state.[84] 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.[85]

Other religious organizations that supported Proposition 8 include the Union of Orthodox Jewish Congregations of America,[86] Eastern Orthodox Church,[87] a group of Evangelical Christians led by Jim Garlow and Miles McPherson,[88] American Family Association, Focus on the Family[89] and the National Organization for Marriage.[90] Rick Warren, pastor of Saddleback Church, also endorsed the measure.[91]

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.[92]

The Asian Heritage Coalition held a rally in support of Proposition 8 in downtown San Diego on October 19, 2008.[93]

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.[94]

The San Diego branch of the Church of Scientology publicly supported the proposition by signing an online petition asking for Prop 8. This led to award-winning director, producer and writer Paul Haggis to call on Tommy Davis to denounce the signature.[95]

Davis responded to Haggis and told him that it was a single member of the San Diego branch which had signed the petition using the branch name and not a branch decision. Davis then stated that the man had been "handled."[95]

Haggis spent ten months trying to get Scientology to publicly denounce Prop 8, but Scientology remained silent and later said "Davis explained to Haggis that the church avoids taking overt political stands."[96] going further to explain that because they are a non-profit with tax exempt status, they cannot take a political stance or risk losing that status.[97]

Haggis resigned from Scientology after thirty-five years of membership and wrote in his resignation letter that "public sponsorship of Proposition 8, which succeeded in taking away the civil rights of gay and lesbian citizens of California—rights that were granted them by the Supreme Court of our state—is a stain on the integrity of our organization and a stain on us personally. Our public association with that hate-filled legislation shames us."[95][98]

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."[99] 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.[100][101][102]

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).[59]

Equality for All was the lead organization opposed to Proposition 8.[103] They also ran the NoOnProp8.com campaign.[104] 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.

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

Democratic presidential nominee and U.S. Senator Barack Obama stated that while he personally considered marriage to be between a man and woman,[105] and supported civil unions that confer comparable rights rather than gay marriage,[106] he opposed "divisive and discriminatory efforts to amend the California Constitution... the U.S. Constitution or those of other states".[107] Democratic vice-presidential candidate Joseph Biden also opposed the proposition.[108] 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.[109][110] The U.S. House Speaker, California Representative (8th District), Nancy Pelosi[111] 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.[112] 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.[113][114][115][116]

All six Episcopal diocesan bishops in California jointly issued a statement opposing Proposition 8 on September 10, 2008.[117] Southern California's largest collection of rabbis, the Board of Rabbis of Southern California, voted to oppose Proposition 8.[118] Other Jewish groups who opposed Proposition 8 include Jewish Mosaic,[119] the American Jewish Committee, Progressive Jewish Alliance, National Council of Jewish Women, and the Anti-Defamation League (ADL).[86] The ADL filed amicus briefs urging the Supreme Court of California, Ninth Circuit, and the Supreme Court to invalidate Prop 8.[120] 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.[121] The legislative ministry of the Unitarian Universalists opposed Proposition 8, and organized phone banks toward defeating the measure.[122] They saw 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.[123]

The League of Women Voters of California opposed Proposition 8 because "no person or group should suffer legal, economic or administrative discrimination".[124] 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.[125] Amnesty International also condemned Proposition 8, saying that "states should never withhold rights based on minority status".[126]

A coalition of Silicon Valley executives urged a 'No' vote on Proposition 8.[127] Google officially opposed Proposition 8 "as an issue of equality", and its founders donated $140,000 to the No on 8 campaign.[128][129][130] Apple Inc. also opposed Proposition 8 as a "fundamental" civil rights issue, and donated $100,000 to the No on 8 campaign.[130][131] Biotech leaders warned of potential damage to the state's $73 billion industry, citing Massachusetts as a top competitor for employees.[132]

Many members of the entertainment industry were opposed to Proposition 8.[133] 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".[134] 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.[135] The California Teachers Association donated one million dollars to fight Proposition 8.[136] 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.[137]

All ten of the state's largest newspapers editorialized against Proposition 8, including the Los Angeles Times,[138] and the San Francisco Chronicle.[139][140][141][142][143][144][145][146][147] Other papers to have editorialized in opposition include The New York Times,[148] La Opinión (Los Angeles),[149] and The Bakersfield Californian.[150]

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.[151][152] Rallies against the amendment took place in California and across the country, with participants numbering in thousands.[153][154][155][156][157][158]

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.[159][160][161] Targets of the boycotts included the Sundance Film Festival in Utah, El Coyote Cafe, California Musical Theatre, and the Manchester Grand Hyatt Hotel.[161][162][163]

Some supporters of Proposition 8 reported receiving death threats, some of which claimed to be "stemming from Prop 8".[164][165] Some LDS churches were vandalized with spray paint.[166][167]

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".[164] 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.[168]

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.[185] On the evening of November 4 the "Yes on 8" campaign issued a statement by Ron Prentice, the chairman of ProtectMarriage.com, saying "The people of California stood up for traditional marriage and reclaimed this great institution."[200] 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."[201] 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.[202][203][204][205]

Following the passage of Proposition 8, mass protests took place across the state. These included protests outside the LDS Church's Los Angeles California Temple in Westwood, Los Angeles;[206] a march through Hollywood that blocked traffic and elicited police intervention;[207] a candlelight vigil in front of the Sacramento Gay and Lesbian Center and a large demonstration in front of the state capitol.[208] In San Francisco, thousands gathered in front of the City Hall, along with Mayor Gavin Newsom, to protest the proposition and to perform a candlelight vigil.[209]

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.[210]

Following the passage of Proposition 8, mass protests took place across the state. These included protests outside a temple of The Church of Jesus Christ of Latter-day Saints in Westwood, Los Angeles;[211] a march through Hollywood that blocked traffic and elicited police intervention;[212] and a candlelight vigil in front of the Sacramento Gay and Lesbian Center.[213]

On Sunday November 9 an estimated crowd of 4,000 people protested in front of the California State Capitol.[214] In San Francisco, thousands gathered in front of the City Hall to protest the proposition and to perform a candlelit vigil. Speakers who voiced their opinion in opposition of Proposition 8 included state senator Mark Leno and mayor Gavin Newsom.[215]

Outside California, a protest at the headquarters of The Church of Jesus Christ of Latter-day Saints in Salt Lake City, Utah[216] was addressed by local gay rights supporters including former Salt Lake City Mayor Rocky Anderson and three gay members of the Utah Legislature: Senator Scott McCoy and Representatives Christine Johnson and Jackie Biskupski.[217] On November 12, 2008, more than 10,000 protesters gathered outside the Manhattan New York Temple to protest the support of The Church of Jesus Christ of Latter-day Saints for Proposition 8.[218] On November 15, 2008, tens of thousands of people in cities around the United States participated in rallies to protest the passage of Proposition 8 and to promote the expansion of civil marriage to same-sex couples throughout the nation.[219]

The passage of Proposition 8 led to opponents responding by publicly shaming its supporters as bigots and boycotting supporters' businesses and employers. On November 7, 2008, a blogger revealed that Scott Eckern, then Artistic Director of California Musical Theatre, had made a personal donation of $1,000 to the "Yes on 8" campaign.[220] All campaign contributions of $1,000 or more required a name, home and occupation be listed. On November 10, gay artists condemned Eckern and called for a boycott of California Musical Theatre.[221] On November 11, Eckern issued an apology on the online site Playbill stating that a similar donation had been made to a human rights organization that includes gay rights as one of its causes.[222] On November 12, Eckern resigned from California Musical Theatre. Executive producer of the CMT Richard Lewis stated that Eckern was not forced to resign but did so of his own accord.[223]

Richard Raddon, Director of the Los Angeles Film Festival, also resigned due to boycotts by the gay community.[224]

Protests in California were marred by racial incidents. Due to their support of Proposition 8, reported as high as 70 percent, some African Americans attending events were allegedly subjected to racial epithets and felt threatened. California Assembly Speaker Karen Bass stated she was disturbed by the treatment of African Americans in the aftermath of the passage of the proposition. In reaction to the racial incidents, Evan Wolfson said, "In any fight, there will be people who say things they shouldn't say, but that shouldn't divert attention from what the vast majority are saying against this, that it's a terrible injustice."[225][226]

To protest the passage of Proposition 8, musical theatre composer Marc Shaiman wrote a satiric mini-musical called "Prop 8 — The Musical".[227] The three-minute video was distributed on the internet at FunnyOrDie.com. The cast includes Jack Black (who plays Jesus), Nicole Parker, Neil Patrick Harris, John C. Reilly, Allison Janney, Andy Richter, Maya Rudolph, Margaret Cho, Rashida Jones, Kathy Najimy, Sarah Chalke, Jennifer Lewis, John Hill and other celebrities. It was directed by Adam Shankman. The video satirizes Christian churches that selectively pick and choose biblical doctrines to follow.[228] It received 1.2 million internet hits in its first day,[229][230] won the 2009 Webby Award category Comedy: Individual Short or Episode,[231] and won a GLAAD media award.[232]

In 2010, 8: The Mormon Proposition, a documentary alleging the involvement of the Church of Jesus Christ of Latter-day Saints in the passage of Proposition 8. Written by Reed Cowan and narrated by Dustin Lance Black, the film divided critics over a perceived heavy-handed approach to the church's involvement; it won the 2011 GLAAD Media Award for Outstanding Documentary.

In 2011, 8, a play re-enacting the proceedings of Perry v. Brown in a condensed manner of documentary theatre, was premiered on Broadway.

Protesters at the "Day of Decision" rally marched up Market Street in downtown San Francisco following the California Supreme Court ruling.

Pro and Anti-Proposition 8 protesters rally in front of the San Francisco City Hall on the day of the Supreme Court hearings.

After the passage of Proposition 8, a number of lawsuits were filed by against the state and state officials with the intent of overturning the measure and arguing that Proposition 8 should not have retroactive effect on existing same-sex marriages. 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 but denied the requests to stay its enforcement.[242] The Court asked for final briefs by January 5, 2009. Oral arguments were held on March 5, 2009.

On Tuesday May 26 the court ruled that "The Amendment to the State Constitution referred to as Proposition 8 is valid and enforceable from the moment it was passed." The court also held that "Proposition 8 must be understood as creating a limited exception to the state equal protection clause."[243] Justice Moreno in his lone dissenting opinion, argued that such a change to the Constitution should only be implemented "by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons" and not by a simple majority vote.

The Court did rule that their decision cannot be applied to retroactively annul marriages that were transacted while the practice was legal in the state of California.[244] Proposition 8 has no retroactive effect. The California Supreme Court ruled unanimously on May 26, 2009, that the approximately 18,000 same-sex marriages that had occurred prior to Proposition 8's passage would still be valid and must continue to be recognized in the state, since the amendment does not state explicitly that it would nullify the same-sex marriages performed before it took effect.[244]

Later legislation clarified that same-sex couples who married out-of-state within the window of legality would also retain their legal marriage rights. The bill was signed by Governor Arnold Schwarzenegger on October 11, 2009.[245]

Immediately following the passage of Proposition 8, Arthur Smelt and Christopher Hammer filed suit in the Southern Division of the United States District Court for the Central District of California, in Orange County. In the case, Smelt v. United States, the couple argued that Proposition 8 and the Federal Defense of Marriage Act violated the Equal Protection Clause of the American constitution.[246] The United States Justice Department filed a motion to dismiss the case because the "plaintiffs are married, and their challenge to the federal Defense of Marriage Act ("DOMA") poses a different set of questions."[247] On July 15, 2009, District Judge Carter dismissed the part of Smelt that challenged Proposition 8, finding that the fact that the plaintiffs were already legally married in California meant they had no standing to challenge Proposition 8. The challenge to the Defense of Marriage Act, however, remained intact.[248] The remainder of the case was heard on August 3, 2009, in an Orange County district court.[249] The lawsuit was thrown out because the two men had filed suit against the federal government in a state court, a technicality which meant the suit needed to be re-filed.[250]

On the day of Strauss v. Horton's decision, the American Foundation for Equal Rights (AFER) filed suit in U.S. District Court for the Northern District of California to challenge the validity of Proposition 8. Lambda Legal, the ACLU, and the National Center for Lesbian Rights have since announced their support for the lawsuit.[251] San Francisco filed a motion to and was granted intervenor status in the case, saying that their work in In re Marriage Cases and Strauss v. Horton provided them with "extensive evidence and proposed findings on strict scrutiny factors and factual rebuttals to long claimed justifications for marriage discrimination".[252]

California Attorney General, and former and later again Governor Jerry Brown backed the lawsuit, saying that Proposition 8 violates the U.S. Constitution and should be struck down.[253] Governor Arnold Schwarzenegger took a more neutral path,[254] saying that he supported the lawsuit because the Proposition 8 conflict asks "important constitutional questions that require and warrant judicial determination." Because this means that the Californian government will not defend the law in court,[255] the proponents of Proposition 8's campaign were granted the right to intervene as defendants.[256] The case was first heard on July 2, 2009, in the United States District Court for the Northern District of California in San Francisco, Judge Vaughn R. Walker presiding.[257]

In an act unprecedented in California history both the Governor and Attorney General refused to defend a constitutional amendment.[258]

In August, Judge Walker heard further requests for intervenor status and ordered a trial set for January 2010. On August 4, 2010, U.S. District Chief Judge Vaughn R. Walker ruled Proposition 8 unconstitutional, but at the same time temporarily provided for a suspension of the ruling while he considered whether to grant an indefinite suspension pending appeal.[259] Walker lifted the stay on August 12, 2010, thus allowing same-sex marriages to be performed as of August 18, 2010[260]

On August 16, 2010, the United States Court of Appeals for the Ninth Circuit imposed a stay of all new same-sex marriages in the State of California. It also scheduled an accelerated time table for hearing an appeal of Judge Walker's ruling.[261] Before the appeal trial begins, there will be a December 6, 2010 hearing on who has legal standing to appeal the District Court's decision and whether the proposition violates equal protection rights.[262]

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.[273] 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.

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."[274] 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."[275] The court also stayed the ruling; the voter initiative was to remain in effect pending appeal.[20] 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.[276][277] 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.[278]

As the State of California chose not to appeal the ruling, an appeal was sought by two parties—the initiative proponents, and Imperial County (via its deputy clerk). The Ninth Circuit Court of Appeals considered the question of standing first. On January 4, 2011, the Ninth Circuit ruled that Imperial County did not have standing to intervene in the lawsuit (by now called Perry v. Brown)—the formal reason being the county's appeal had been "untimely", but also that the appellant was the county's deputy clerk, and precedent existed in other cases that a deputy clerk could not 'represent' a county.

To address the question whether the initiative proponents had particularized standing (that is, standing either via personal interest, or standing to represent the State's interest), the Ninth Circuit certified a question to the California Supreme Court on January 4, 2011, asking that court to rule whether, under the California Constitution or otherwise under California law, non-governmental proponents of an initiative have standing to appeal when the State is no longer willing to defend it.[279] On February 16, 2011, the California Supreme Court unanimously agreed to address the Ninth Circuit's request.[280] The court set an expedited schedule for the hearing[281] and heard oral arguments on September 6, 2011.[282] On November 17, 2011, the California Supreme Court issued an advisory opinion that the proponents of Proposition 8 did have standing, and could defend it.[283][284]

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.[285] 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.[286]

The court concluded that the trial court had correctly found Proposition 8 to have 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.[287] 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.[288] 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".[289][290]

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.[291] 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.[291] 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.[291] He urged judicial restraint, that the justices should refrain from striking down Proposition 8.[292]

On February 21, 2012, proponents requested to have to the case reviewed en banc by the Ninth Circuit Court of Appeals.[293] If granted, en banc review could have taken a year or more, which would have delayed possible U.S. Supreme Court review.[293] Pending the appeal, a stay was continued, barring any marriages from taking place.[294] 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.[295]

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.

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.[296] 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.[297] On December 7, 2012, the Supreme Court granted the proponents' petition for certiorari[298] and asked to be briefed for arguments concerning the petitioners' Article III standing,[299] amid considerable anticipation of a finding of a lack of justiciability in order to avoid a holding on the merits.[300] Oral arguments were heard on March 26, 2013.[24]

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.[297]

The Supreme Court issued a 5–4 decision on June 26, 2013.[301] Chief Justice Roberts wrote for the majority, and was joined by Justices Scalia, Ginsburg, Breyer, and Kagan.[301] Justices Kennedy, Thomas, Alito, and Sotomayor were in the minority.[302] The Court found the proponents did not have standing to appeal in federal court. To have standing, they "must have suffered an injury in fact, thus giving [them] a sufficiently concrete interest in the outcome of the issue in dispute".[11] Because no injury had been shown, the appeal to the Ninth Circuit should have been dismissed for lack of jurisdiction. (This only applied to the Ninth Circuit and Supreme Court cases.) The Court returned the case to the Ninth Circuit with instructions to dismiss the appeal. This left the district court's ruling overturning Proposition 8 as the final ruling in the case. Because the appeal was decided on the question of standing, the Supreme Court did not examine nor rule on whether in their view Proposition 8 had violated the U.S. Constitution.

Justice Kennedy, writing for the minority, said the views of the California Supreme Court on the proponents' standing should have been respected,[11] because "the basic premise of the initiative process [and] the essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around".[7]^: 13

Plaintiffs Perry and Stier at the June 30, 2013, Pride Parade in San Francisco after their marriage

On June 28, 2013, the Ninth Circuit lifted its stay of the district court's ruling, enabling same-sex marriages to resume;[12] 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 California's Attorney General Kamala Harris officiating at the ceremony.[303]

There were two legal challenges made to the implementation of the ruling, both subsequently denied:

Federal court legal challenge to removal of stay

State court legal challenges to statewide implementation of ruling