proposition 8 in california

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

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

—California Constitution, Art. 1, Declaration of Rights, Section 7.5

Only marriage between a man and a woman is valid or recognized in California.—California Family Code Section 308.5

Pre-1977 California Civil Code:Marriage is “a personal

relation arising out of a civil contract, to which consent of

the parties making that contract is necessary.” (Sec.

4100.)

Pre-1977 California law:Baker v. Nelson — 1972 case

brought by two Minnesota male students suing the state issuer of marriage licenses. U.S. Supreme Court’s one-

sentence decision dismissed the Baker case “for want of a substantial federal question,” which acts as a dismissal on

the merits.

Post-1977 California Civil Code:

Marriage is “a personal relation arising out of a civil contract between a man and a woman, to which consent of the parties capable of making that contract is necessary.”

(Sec. 4100.)

1992 California Family Code:Marriage is “a personal

relation arising out of a civil contract between a man and a woman, to which consent of the parties capable of making that contract is necessary.”

(Sec. 300.)

1992 California Family Code:“A marriage contracted

outside this state that would be valid by the laws of the

jurisdiction in which the marriage was contracted is

valid in this state.” (Sec. 308.)

Only marriage between a man and a woman is valid or recognized in California.—California Family Code Section 308.5,Enacted by California voters in March

2000

Choice Votes Percentage

Yes 4,618,673 61.4%

No 2,909,370 38.6%

February 2004: Mayor Gavin Newsom orders the County Clerk of the City and County of San Francisco to issue newly

revised marriage license application forms

February 12, 2004: The City and County of San Francisco begins issuing marriage licenses to same-sex couples

February 14, 2004: Proposition 22 Legal Defense and Education Fund and Campaign for California Families, file

actions in San Francisco Superior Court seeking an immediate stay to prohibit the City from issuing marriage licenses

to same-sex couples.

February 14, 2004: Proposition 22 Legal Defense and Education Fund and Campaign for California Families, file

actions in San Francisco Superior Court seeking an immediate stay to prohibit the City from issuing marriage licenses

to same-sex couples.The court refuses to grant a stay.

Immediately thereafter: The California Attorney General and a

number of taxpayers file two separate petitions seeking to have the California Supreme Court issue an original writ of

mandate, asserting that the City’s actions were unlawful and warranted the court’s immediate intervention.

March 11, 2004: The California Supreme Court orders officials of San

Francisco “to enforce the existing marriage statutes and to refrain from

issuing marriage licenses not authorized by such provisions.”

However, the California Supreme Court emphasizes that the substantive

question of the constitutional validity of the California marriage statutes was not before the court in that proceeding, and

that its decision was not intended to reflect any view on that issue.

September 2004: Six suits challenging the marriage statutes are consolidated

into one case before San Francisco Superior Court Judge Richard Kramer.

March 14, 2005: Judge Richard Kramer finds the statutes violate the

“basic human right to marry a person of one’s choice.”

October 2006: The First District of the Court of Appeal reverses the superior

court’s ruling on the substantive constitutional issue.

December 2006: The California Supreme Court votes unanimously to

review all six cases.

March 4, 2008: The California Supreme Court holds oral argument on

In re Marriage Cases.

May 15, 2008: The California Supreme Court rules that Proposition 22 violates the state Constitution and is therefore

invalid.

Majority opinion:“Under this state’s Constitution, the constitutionally based right to marry

properly must be understood to encompass the core set of basic

substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s

liberty and personal autonomy that they may not be eliminated or abrogated by

the Legislature or by the electorate through the statutory initiative

process.”

“Strict scrutiny [. . .] is applicable here because (1) the statutes in question

properly must be understood as classifying or discriminating on the

basis of sexual orientation, a characteristic that we conclude

represents — like gender, race, and religion — a constitutionally suspect

basis upon which to impose differential treatment, and

“Strict scrutiny [. . .] is applicable here because (1) the statutes in question

properly must be understood as classifying or discriminating on the

basis of sexual orientation, a characteristic that we conclude

represents — like gender, race, and religion — a constitutionally suspect

basis upon which to impose differential treatment, and (2) the differential

treatment at issue impinges upon a same-sex couple’s fundamental interest

in having their family relationship accorded the same respect and dignity

enjoyed by an opposite-sex couple.”

“The exclusion of same-sex couples from the designation of marriage clearly

is not necessary in order to afford full protection to all of the rights and

benefits that currently are enjoyed by married opposite-sex couples.”

Justice Baxter, concurring and dissenting:

“Nothing in our Constitution, express or implicit, compels the majority’s startling

conclusion that the age-old understanding of marriage—an

understanding recently confirmed by an initiative law—is no longer valid.

California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea

change in the social and legal understanding of marriage itself, that

evolution should occur by similar democratic means. The majority

forecloses this ordinary democratic process, and, in doing so, oversteps its

authority.”

“If such a profound change in this ancient social institution is to occur, the People and their representatives, who

represent the public conscience, should have the right, and the responsibility, to control the pace of that change through

the democratic process. Family Code sections 300 and 308.5 serve this salutary purpose. The majority’s decision erroneously usurps it.”

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.

April 24, 2008: The initiative proponents submitted 1,120,801

signatures, and on June 2, 2008, the initiative qualified for the November 4,

2008 election ballot.


Yes 4,618,673 61.4%

No 2,909,370 38.6%


Yes 7,001,084 52.24%

No 6,401,482 47.76%

State Court Challenge (Strauss v. Horton)

November 19, 2008: California Supreme Court accepts Strauss v.

Horton cases. Question: Was Prop 8 merely an “amendment” (allowing it to

be placed on the ballot by 8% of the voters) or was it a constitutional

“revision” (requiring it to be proposed by two-thirds of the legislature and a

majority of voters)?


November 19, 2008: California Supreme Court accepts Strauss v.

Horton cases. Question: Was Prop 8 merely an “amendment” (allowing it to

be placed on the ballot by 8% of the voters) or was it a constitutional

“revision” (requiring it to be proposed by two-thirds of the legislature and a

majority of voters)?Question: Can an initiative be used to

take away fundamental rights?


May 26, 2009: California Supreme Court decides Strauss v. Horton,

rejecting claims that Prop 8 was not validly adopted, but affirming the

validity of 18,000 same-sex marriages that had been entered into in California

during the five and one-half month period of time between the May 15,

2008 California Supreme Court opinion striking down Proposition 22 and the

November 4, 2008 passage of Proposition 8.

Federal Court Challenge (Perry v. Schwarzenegger)

May 23, 2009: Two same-sex couples file suit challenging the constitutionality

of Prop 8, arguing it violates both Substantive Due Process and the Equal

Protection Guarantee of the 14th Amendment to the U.S. Constitution.


June 12, 2009: Attorney General Jerry Brown files brief refusing to defend Prop

8.September 9, 2009: Prop 8

supporters file a motion for summary judgment.

October 13, 2009: Judge Walker denies the motion.

January 11, 2010: Prop 8 trial begins.January 27, 2010: Prop 8 testimony

ends.June 16, 2010: Prop 8 trial closing

arguments.


August 4, 2010: U.S. District Chief Judge Vaughn R. Walker overturns

Proposition 8, stating (1) it is “...unconstitutional under the Due

Process Clause because no compelling state interest justifies denying same-sex couples the fundamental right to marry” and (2) it violates “the Equal Protection

Clause because there is no rational basis for limiting the designation of ‘marriage’ to opposite-sex couples.”


Judge Walker stays his ruling; the voter initiative is to remain in effect pending appeal. Then, on August 12, Walker announces his decision to lift the stay as of August 18, 2010 (which would

allow same-sex marriages to be performed thereafter).


However, on August 16, 2010, the United States Court of Appeals for the Ninth Circuit indefinitely extends the District Court’s stay, stopping new same-sex marriages in the state of California pending appeal. It also

schedules an accelerated time table for hearing an appeal of Walker’s ruling.


Following briefing of the case, oral arguments are heard on December 6,

2010 by three judges of the United States Court of Appeals for the Ninth Circuit, Stephen Reinhardt, Michael

Hawkins, and N. Randy Smith.

Federal Court Challenge (Perry v. Brown)

One month later, January 4, 2011: The Ninth Circuit certifies a question to the

California Supreme Court. Because California officials had declined to

defend the law, the federal court has asked the state court to decide whether the backers of the challenged initiative

have standing (i.e., do they have “a particularized interest in the initiative’s validity or the authority to assert the

State’s interest in the initiative’s validity” that would permit them to defend the law when state officials

refuse to do so?)


U.S. District Chief Judge Vaughn R. Walker:


September 6, 2011: The California Supreme Court hears oral arguments on

the Ninth Circuit Court of Appeals’ certified question regarding “standing.”


November 11, 2011: The California Supreme Court rules that the non-

governmental proponents of Prop 8 do have standing to defend it.


February 7, 2012: The three-judge panel of the Ninth Circuit Court of

Appeals issues a 2-1 ruling declaring Prop 8 unconstitutional.


The three-judge panel unanimously agree that Judge Walker did not need to

recuse himself from trying the case.


Judge Reinhardt: Although Judge Walker had held that Prop 8 is

unconstitutional because “it deprives same-sex couples of the fundamental right to marry” and violates the Equal Protection Clause by excluding same-sex couples to the “honored status” otherwise permitted to different-sex couples, the federal appellate court

states it will reach its decision on “the narrowest ground.”


Judge Reinhardt: “Proposition 8 singles out same-sex couples for

unequal treatment by taking away from them alone the right to marry”, a

“distinct constitutional violation” in that it subjects a minority group to “the

deprivation of an existing right without a legitimate reason.”


“The People of California may not, consistent with the Federal Constitution,

add to their state constitution a provision that has no more practical

effect than to strip gays and lesbians of their right to use the official designation

that the State and society give to committed relationships, thereby adversely affecting the status and

dignity of the members of a disfavored class.”


Dissenting Judge Smith: “The majority dispenses with Baker in a

footnote. . . . [however, even though] the precedential effect of Baker v. Nelson is not challenged by this

decision, such precedent is distinguishable from the decision of the

district court here.”


“Proposition 8 is subject to rational basis review rather than to any

heightened scrutiny. . . . Our task is to determine whether Proposition 8

rationally relates to any independent legitimate governmental interest. . . .”


The California Supreme Court [has] indicated that the responsible

procreation theory [“justifying the inducement of marital recognition only

for opposite-sex couples, because it ‘steers procreation into marriage’

because opposite-sex couples are the only couples who can procreate children

accidentally or irresponsibly”] is a legitimate governmental interest.”


“The optimal parenting theory [justifying the inducement of marital

recognition only for opposite-sex couples, because the family structure of two committed biological parents--one man and one woman--is the optimal

partnership for raising children] could conceivably be a legitimate

governmental interest.”


“I cannot conclude that Proposition 8 is ‘wholly irrelevant’ to any legitimate

governmental interests.”


On February 21, 2012, Proposition 8 supporters requested an en banc review by 11 of the Ninth Circuit’s judges. If the

Ninth Circuit refuses, they have the option of asking the U.S. Supreme Court

to review the decision. If the Ninth Circuit grants en banc review, its

decision could be appealed to the U.S. Supreme Court by an aggrieved party.

proposition 8 in california

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