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Proposition 8, known informally asProp 8, was aCalifornia ballot proposition and astate constitutional amendment intended to bansame-sex marriage. It passed in theNovember 2008 California state elections and was later overturned by the courts. The proposition was created by opponents ofsame-sex marriage in advance[3] of theCalifornia Supreme Court's May 2008 appeal ruling,In re Marriage Cases, which found the ban in 2000 on same-sex marriage (Proposition 22)unconstitutional. Proposition 8 was ultimately ruled unconstitutional in 2010 by a federal court on different grounds, although the ruling did not go into effect until June 26, 2013, following the conclusion of appeals.
Proposition 8 countermanded the May 2008 ruling by adding Proposition 22 wording as an amendment to theCalifornia Constitution, providing that "only marriage between a man and a woman is valid or recognized in California".[4][5][6] It was ruled constitutional by theCalifornia Supreme Court inStrauss v. Horton in 2009, on the grounds that it "carved out a limited [or 'narrow'] exception to the state equal protection clause"; in his dissent, JusticeCarlos R. Moreno wrote that exceptions to theequal protection clause could not be made by any majority, since its whole purpose was to protect minorities against the will of a majority.
Legal challenges to Prop 8 were presented quickly after its approval. Following affirmation of Prop 8 by the state courts, two same-sex couples filed a lawsuit in theUnited States District Court for the Northern District of California in the casePerry v. Schwarzenegger (laterHollingsworth v. Perry). In August 2010, Chief JudgeVaughn Walker ruled that Prop 8 was unconstitutional under both theDue Process andEqual Protection Clauses of theU.S. Fourteenth Amendment,[7] since Prop 8 purported tore-remove rights from a disfavored class only, with norational basis. The official proponents' justifications for Prop 8 were analyzed in over fifty pages covering eightyfindings of fact. The state government supported the ruling and refused to defend Prop 8.[8] The ruling wasstayed, pending appeal by the proponents of Prop 8. On February 7, 2012, theNinth Circuit Court of Appeals, in a 2–1 decision, reached the same conclusion as the district court, but on narrower grounds. The court ruled that it was unconstitutional for California to grant marriage rights to same-sex couples, only to take them away shortly after. The ruling was stayed pending appeal to the United States Supreme Court.[9]
On June 26, 2013, theSupreme Court of the United States issued its decision on the appeal in the caseHollingsworth v. Perry, ruling that proponents of initiatives such as Prop 8 did not possesslegal standing in their own right to defend the resulting law infederal court, either to the Supreme Court or (previously) to theNinth Circuit Court of Appeals. Therefore, the Supreme Court vacated the decision of the Ninth Circuit, and remanded the case for further proceedings. The decision left the district court's 2010 ruling intact.[10][11][12] On June 28, 2013, the Ninth Circuit, on remand, dismissed the appeal for lack of jurisdiction and dissolved their previous stay of the district court's ruling, enabling GovernorJerry Brown to order same-sex marriages to resume.[13]
The passage of Prop 8 received widespread media coverage over its effect on the concurrent2008 presidential andcongressional elections, as well as the pre-election effects Prop 8 had on California's reputation as ahistorically LGBT-friendly state and thesame-sex marriage debate that had started after same-sex marriagewas legalized in Massachusetts through a 2004 court decision. After the results were certified and same-sex marriages ceased, supporters of Prop 8 weretargeted by opponents with actions ranging from some opponents disclosing supporter donations andboycotting proponents' businesses, to othersthreatening supporters with death andvandalizing churches.
A ballot proposal to formally repeal Prop 8 fromCalifornia's constitution was passed by theCalifornia State Legislature in July 2023. The vote to formally repeal Prop 8 was passed by nearly 63% of voters in the2024 election.[14]
In 2000, theState of California adoptedProposition 22 which, as an ordinary statute, forbade recognition or licensing ofsame-sex marriages in the state. During February and March 2004,San FranciscoMayorGavin Newsom directed the licensing of same-sex marriages on the basis of the state'sequal protection clause, prompted also by recent events includingGeorge W. Bush'sproposed constitutional ban, a possible legal case by Campaign for California Families (CCF), and aSupreme Court of Massachusetts ruling deeming same-sex marriage bans unconstitutional and permitting them from May 2004. While only lasting a month before being overruled, this was supported by other cities such asSan Jose,[15] gained global attention, and led to the caseIn re Marriage Cases, in which Proposition 22 was found (San Francisco County Superior Court, March 14, 2005) and confirmed upon appeal (California Supreme Court, May 15, 2008) to be unconstitutional.
Proposition 8 was created by opponents of same-sex marriage prior to the final ruling onIn re Marriage Cases as a voter ballot initiative, and voted on at the time of theNovember 2008 elections. Its wording was precisely the same as Proposition 22, which as an ordinary statute, had been invalidated in 2008, but by re-positioning it as a stateconstitutional amendment rather than a legislativestatute, it was able to circumvent the ruling fromIn re Marriage Cases.[16] The proposition did not affectdomestic partnerships in California,[17] nor (following subsequent legal rulings) did it reverse same-sex marriages that had been performedduring the interim period May to November 2008 (i.e. afterIn re Marriage Cases but before Proposition 8).[18][19][20]
Proposition 8 came into immediate effect on November 5, 2008, the day after the elections. Demonstrations and protests occurred across the state and nation. Same-sex couples and government entities, including couples who had married before then, filed numerouslawsuits with theCalifornia Supreme Court challenging the proposition's validity and effect on previously administered same-sex marriages. InStrauss v. Horton, the California Supreme Court upheld Proposition 8, but allowed the existing same-sex marriages to stand (under thegrandfather clause principle). (JusticeCarlos R. Moreno dissented that exceptions to theequal protection clause could not be made by any majority since its whole purpose was to protect minorities against the will of a majority.)
Although upheld in state court, Proposition 8 was ruled unconstitutional by the federal courts. InPerry v. Schwarzenegger,United States District Court JudgeVaughn Walker overturned Proposition 8 on August 4, 2010, ruling that it violated both theDue Process andEqual Protection clauses of theU.S. Constitution.[21] Walker issued a stay (injunction) against enforcing Proposition 8 and astay to determine suspension of his ruling pending appeal.[22][23] The State of California did not appeal the ruling (with which it had agreed anyway) leaving the initiative proponents and one county to seek an appeal.
On appeal, a Ninth Circuit Court of Appeals panel ruled the county had no right of appeal, and asked the California Supreme Court to rule whether the proponents of Prop 8 had the right to appeal (known as "standing") if the state did not do so. The California Supreme Court ruled that they did. The Ninth Circuit affirmed the federal district court's decision on February 7, 2012,[24] but the stay remained in place as appeals continued to theU.S. Supreme Court,[25] which heard oral arguments in the appealHollingsworth v. Perry on March 26, 2013.[26] On June 26, 2013, the Supreme Court dismissed the appeal and ruled that the Ninth Circuit had erred in allowing the previous appeal, since in line withArticle III of theConstitution andmany prior cases unanimous on the point, being an initiative proponents is not enough by itself to have federal court standing or appeal a ruling in federal court. This left the original federal district court ruling against Proposition 8 as the outcome, and same sex marriages resumed almost immediately afterwards.
In 2005, the siteProtectMarriage.com was created as the "Official website for the California Constitutional Marriage Amendment" and launched a campaign to pass aballot proposition to constitutionally prohibit same-sex marriage.[27] In 2007,ProtectMarriage.com tried and failed to get Initiative 1254, a proposed ballot proposition to constitutionally prohibit same-sex marriage on the 2008 California ballot.[28]
On November 29, 2007, was the official summary date forCalifornia Marriage Protection, also calledLimit On Marriage. Constitutional Amendment and numbered07-0068 by theAttorney General of California andInitiative 1298 byCalifornia Secretary of State. In order to qualify for the ballot, a measure needed 694,354 petition signatures, an amount equal to 8 percent of the votes cast during the2006 California gubernatorial election. In late April 2008, ProtectMarriage.com submitted a petition containing 1,120,801 signatures, which was 426,447 more signatures than was necessary to put the measure on the ballot. On June 2, 2008,California Secretary of StateDebra Bowen said arandom sample check of signatures submitted by the measure's sponsors showed that they had gathered enough names to qualify and certified it as theeighth initiative for the November 4, 2008, general election ballot.[29][30][31]
Proposition 8 (ballot title:Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment; originally titled the "California Marriage Protection Act")[32][33] 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."[4][5][6] 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 ofIn re Marriage Cases by "carving out an exception to the preexisting scope of the privacy anddue process clauses"[34] of the state constitution.
Proposition 8 consisted of two sections. Its full text was:[35]
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.[36] As a general rule, it is improper for courts to adjudicate pre-election challenges to a measure's substantive validity.[37] 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.[38]
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."[39][40]
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 petitionJansson v. Bowen[41] 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",[42] and that the change was valid because the measure did, in fact, eliminate a right upheld by the California Supreme Court.
California Attorney GeneralJerry Brown explained that the changes were required to more "accurately reflect the measure" in light of the California Supreme Court's interveningIn re Marriage Cases decision.[44]
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".[45] Supporters claimed that research showed that an attorney general had never used an active verb like "eliminates" in the title of aballot measure in the past fifty years in which ballot measures have been used.[45] 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.[46][47]
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 previousMarriages Cases ruling in which the California Supreme Court held that same-sex couples have aconstitutional right to marry under the California Constitution.[44][48] That same day, proponents of Prop. 8 filed an emergency appeal with the stateappeals court. The Court of Appeal denied their petition later that day and supporters did not seek a review by theSupreme Court of California.[49][50] The deadline for court action on the wording of ballot summaries and arguments in the voter pamphlet was August 11, 2008.[51]
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.[48]
The pro- and anti-Prop 8 campaigns spent a combined $106 million on the campaign.[52] This was not the most expensive California ballot proposition that year, however; the 2008 campaigns for and againstPropositions 94, 95, 96, and 97, dealing with the expansion ofNative American gambling, surpassed Prop 8, with combined expenditures of $172 million.[52]
By election day, volunteers on both sides spent thousands of hours getting their messages across to the state's 17.3 million registered voters.[53][54] 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,[55] from over 64,000 people in all 50 states and more than 20 foreign countries, setting a new record nationally for asocial policy initiative and more than for every other race in the country in spending except the presidential contest.[56] 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 toOpenSecrets.[57] AProtectMarriage.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.[58][59][60][61]
The California Fair Political Practices Commission fined theLDS 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.[62]
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.[63]
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".[65]
The ProtectMarriage.com organization sponsored the initiative that placed Proposition 8 on the ballot[66] and continues to support the measure. The measure also attracted the support of a number of political figures and religious organizations.
Republicanpresidential nominee andU.S. SenatorJohn McCain released a statement of support for the proposed constitutional amendment.[67] FormerSpeaker of the HouseNewt 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.[68] A political action committee run by former Massachusetts governorMitt Romney, who personally supported the proposition, donated $10,000 to theNational Organization for Marriage during their campaign for the proposition.[69]
TheRoman Catholic Church,[70] as well as a Roman Catholiclayfraternal organization, theKnights of Columbus,[71] firmly supported the measure. The bishops of the California Catholic Conference released a statement supporting the proposition,[72] a position met with mixed reactions among church members, including clergy.[73][74]
George Hugh Niederauer as Archbishop ofSan Francisco campaigned in 2008 in favor of the Proposition, and claimed to have been instrumental in forging alliances between Catholics andMormons to support the measure.[75] 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[76] and was instrumental in raising $1.5 million to put the proposition on the ballot.[77] 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.[78]
In California's 2008 election theKnights of Columbus attracted media attention when they donated more than $1.4 million to Proposition 8.[79] 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.[80]
The Church of Jesus Christ of Latter-day Saints[81][82][83] (LDS Church) also publicly supported the proposition. TheFirst 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".[81] 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.[84] Local church leaders set organizational and monetary goals for their membership—sometimes quite specific—to fulfill this call.[85][86] The response of church members to their leadership's appeals to donate money and volunteer time was very supportive,[87] such thatLatter-day Saints provided a significant source for financial donations in support of the proposition, both inside and outside the State of California.[88] LDS members contributed over $20 million,[89] about 45% of out-of-state contributions to ProtectMarriage.com came fromUtah, over three times more than any other state.[90]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.[91]
Other religious organizations that supported Proposition 8 include theUnion of Orthodox Jewish Congregations of America,[92]Eastern Orthodox Church,[93] a group ofEvangelical Christians led byJim Garlow andMiles McPherson,[94]American Family Association,Focus on the Family[95] and theNational Organization for Marriage.[96]Rick Warren, pastor ofSaddleback Church, also endorsed the measure.[97]
TheGrossmont Union High School District inSan 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.[98]
The Asian Heritage Coalition held a rally in support of Proposition 8 in downtown San Diego on October 19, 2008.[99]
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.[100]
TheSan Diego branch of theChurch of Scientology publicly supported the proposition by signing anonline petition asking for Prop 8. This led to award-winning director, producer and writerPaul Haggis to call onTommy Davis to denounce the signature.[101]
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."[101]
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."[102] 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.[103]
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."[101][104]
In the months leading up toElection Day, Proposition 8 supporters released a commercial featuring San FranciscoMayorGavin 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."[105] 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.[106][107][108]
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" (seeEqual Protection Clause).[65]
Equality for All was the lead organization opposed to Proposition 8.[109] They also ran the NoOnProp8.com campaign.[110] 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.
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Democraticpresidential nominee and U.S. SenatorBarack Obama stated that while he personally considered marriage to be between a man and woman,[111] and supportedcivil unions that confer comparable rights rather than gay marriage,[112] he opposed "divisive and discriminatory efforts to amend the California Constitution... the U.S. Constitution or those of other states".[113] Democraticvice-presidential candidateJoseph Biden also opposed the proposition.[114]RepublicanCalifornia GovernorArnold Schwarzenegger stated that although he opposed and twicevetoed legislative bills that would recognizesame-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.[115][116] TheU.S. House Speaker, California Representative (8th District),Nancy Pelosi[117] along with other members of the California congressional delegation and both of California's U.S. senators,Dianne Feinstein andBarbara Boxer, voiced their opposition to Proposition 8.[118] Also voicing their opposition were theLieutenant Governor, State ControllerJohn Chiang, former governor andAttorney GeneralJerry Brown, 42 of 80 members of thestate assembly, half of the state senators, and the mayors of San Francisco, Los Angeles, and San Diego:Gavin Newsom,Antonio Villaraigosa, andJerry Sanders, respectively.[119][120][121][122]
All sixEpiscopal diocesan bishops in California jointly issued a statement opposing Proposition 8 on September 10, 2008.[123] Southern California's largest collection of rabbis, the Board of Rabbis of Southern California, voted to oppose Proposition 8.[124] Other Jewish groups who opposed Proposition 8 includeJewish Mosaic,[125] theAmerican Jewish Committee,Progressive Jewish Alliance,National Council of Jewish Women, and theAnti-Defamation League (ADL).[92] The ADL filedamicus briefs urging theSupreme Court of California,Ninth Circuit, and theSupreme Court to invalidate Prop 8.[126] Los Angeles Jews were more opposed to Prop 8 than any otherreligious group orethnic 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.[127] The legislative ministry of theUnitarian Universalists opposed Proposition 8, and organized phone banks toward defeating the measure.[128] 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 thefreedom of religion for churches who wish to bless same-sex unions.[129]
TheLeague of Women Voters of California opposed Proposition 8 because "no person or group should suffer legal, economic or administrative discrimination".[130] Additionally, all but two of theNational Association for the Advancement of Colored People's local chapters in California and NAACP national chairmanJulian Bond and PresidentBenjamin Jealous opposed Proposition 8.[131]Amnesty International also condemned Proposition 8, saying that "states should never withhold rights based on minority status".[132]
A coalition ofSilicon Valley executives urged a 'No' vote on Proposition 8.[133]Google officially opposed Proposition 8 "as an issue of equality", and its founders donated $140,000 to the No on 8 campaign.[134][135][136]Apple Inc. also opposed Proposition 8 as a "fundamental"civil rights issue, and donated $100,000 to the No on 8 campaign.[136][137] Biotech leaders warned of potential damage to the state's $73 billion industry, citing Massachusetts as a top competitor for employees.[138]
Many members of the entertainment industry were opposed to Proposition 8.[139] ActorTom Hanks, a strong supporter ofsame-sex marriage, was extremely outspoken about his opposition to the bill.Brad Pitt andSteven Spielberg each donated different amounts of money to the opposition campaign "No on 8".[140] In 2010, the documentary film8: The Mormon Proposition premiered to sell-out audiences at theSundance Film Festival.
TheLos Angeles Unified School DistrictBoard of Education voted unanimously for a resolution to oppose Proposition 8.[141] TheCalifornia Teachers Association donated one million dollars to fight Proposition 8.[142] ChancellorRobert Birgeneau ofUC Berkeley urged a vote against the measure, claiming a likely threat to California's academic competitiveness if Proposition 8 is passed.[143]
All ten of the state's largest newspapers editorialized against Proposition 8, including theLos Angeles Times,[144] and theSan Francisco Chronicle.[145][146][147][148][149][150][151][152][153] Other papers to have editorialized in opposition includeThe New York Times,[154]La Opinión (Los Angeles),[155] andThe Bakersfield Californian.[156]
After the election, a number of protests were held against the referendum's passing. These includedcandlelight vigils outside organizations such as LDS churches that promoted the proposition.[157][158] Rallies against the amendment took place in California and across the country, with participants numbering in thousands.[159][160][161][162][163][164]
Boycotts were also a feature of public response to the outcome of the election. LGBTQ 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.[165][166][167] Targets of the boycotts included theSundance Film Festival in Utah,El Coyote Cafe,California Musical Theatre, and theManchester Grand Hyatt Hotel.[167][168][169]
Some supporters of Proposition 8 reported receivingdeath threats, some of which claimed to be "stemming from Prop 8".[170][171] Some LDS churches were vandalized withspray paint.[172][173]
Fresno-area supporters of gay marriage were also harassed; "No On 8" signs at the ClovisUnitarian Universalist Church were torn up, with Reverend Bryan Jessup alleging that his church experiencedvandalism "every night".[170]Santa Clara County DeputyDistrict Attorney (DDA) Jay Boyarsky attributed a surge inanti-gay hate crimes, from 3 in 2007 to 14 in 2008, to controversy over Proposition 8.[174]
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 (seestatistical 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 aprogressive social issue like same-sex marriage."[175]
| Date of opinion poll | Conducted by | Sample size (likely voters) | In favor | Against | Undecided | Margin | Margin of Error |
|---|---|---|---|---|---|---|---|
| October 29–31, 2008[176] | SurveyUSA | 637 | 47% | 50% | 3% | n.s. | ±4% |
| October 18–28, 2008[177] | The Field Poll | 966 | 44% | 49% | 7% | 5% con | ±3.3% |
| October 12–19, 2008[178] | Public Policy Institute of California | 1,186 | 44% | 52% | 4% | 8% con | ±3% |
| October 15–16, 2008[179] | SurveyUSA | 615 | 48% | 45% | 7% | n.s. | ±4% |
| October 4–5, 2008[180][181] | SurveyUSA | 670 | 47% | 42% | 10% | 5% pro | ±3.9% |
| September 23–24, 2008[182][183] | SurveyUSA | 661 | 44% | 49% | 8% | 5% con | ±3.9% |
| September 9–16, 2008[184] | Public Policy Institute of California | 1,157 | 41% | 55% | 4% | 14% con | ±3% |
| September 5–14, 2008[185] | The Field Poll | 830 | 38% | 55% | 7% | 17% con | ±3.5% |
| August 12–19, 2008[186][187] | Public Policy Institute of California | 1,047 | 40% | 54% | 6% | 14% con | ±3% |
| July 8–14, 2008[20][188] | The Field Poll | 672 | 42% | 51% | 7% | 9% con | ±3.9% |
| May 17–26, 2008[189] | The Field Poll | 1,052 | 42% | 51% | 7% | 9% con | ±3.2% |
| May 22, 2008[190] | Los Angeles Times/KTLA | 705 | 54% | 35% | 11% | 19% pro | ±4% |
| For 70%–80% 60%–70% 50%–60% | Against 70%–80% 60%–70% 50%–60% |
| Choice | 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 |
| Proposition 8 results (excluding invalid votes) | |
|---|---|
| Yes 7,001,084 (52.2%) | No 6,401,482 (47.8%) |
| ▲ 50% | |
On the early morning hours of November 5, 2008,KGO-TV reported, with 92% of all precincts reporting, andThe Associated Press (AP) reported, with 95% of all precincts reporting, that Proposition 8 had passed. According to the AP, with some provisional and absentee ballots were yet to be counted, but based on trends and the locations of outstanding votes, that Proposition 8's margin of support was secure.[192][193][194][195][196]
Amending the California Constitution by voterinitiative requires asimple majority to be enacted.[197]
Edison/Mitofsky conducted anexit poll on behalf of theNational Election Pool which is the only source of data on voter demographics in California in the 2008 election.[198][199] 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 singledemographic 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.[200] 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 ofBarack Obama on the ballot.[201] Polls by both theAssociated Press andCNN mirrored this data, reporting support among black voters to be at 70%[202] and 75%,[203] respectively. A later study by theNational 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%.[204][205]
Hispanic and Latino voters also voted for Proposition 8.[206]
Those who described themselves as religious were the strongest supporters of Prop 8.[207] According to the NGLTF study, self-identifiedCatholics andProtestants supported Prop 8 by measures of 55% and 66%, respectively,[208] whileJews overwhelmingly opposed it, with support at only 17%.[209][210] 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.[211]
| County | Yes | Votes | No | Votes |
|---|---|---|---|---|
| Kern | 75.3% | 175,167 | 24.7% | 57,496 |
| Tulare | 75.1% | 78,578 | 24.9% | 26,113 |
| Modoc | 74.2% | 3,279 | 25.8% | 1,142 |
| Kings | 73.7% | 25,821 | 26.3% | 9,244 |
| Madera | 73.5% | 30,906 | 26.5% | 11,193 |
| Glenn | 73.3% | 7,235 | 26.7% | 2,644 |
| Tehama | 72.8% | 17,777 | 27.2% | 6,675 |
| Colusa | 71.6% | 4,556 | 28.4% | 1,815 |
| Lassen | 71.3% | 8,021 | 28.7% | 3,241 |
| Merced | 70.8% | 44,800 | 29.2% | 18,520 |
| Sutter | 70.4% | 23,032 | 29.6% | 9,707 |
| Shasta | 69.7% | 55,698 | 30.3% | 24,224 |
| Imperial | 69.7% | 27,048 | 30.3% | 11,783 |
| Fresno | 68.7% | 185,993 | 31.3% | 83,122 |
| Stanislaus | 67.9% | 108,988 | 32.1% | 51,598 |
| Yuba | 67.6% | 14,323 | 32.4% | 6,868 |
| San Bernardino | 66.8% | 404,762 | 33.2% | 202,227 |
| San Joaquin | 65.5% | 135,728 | 34.5% | 71,747 |
| Riverside | 64.7% | 417,133 | 35.3% | 228,449 |
| Sierra | 64.2% | 1,273 | 35.8% | 711 |
| Amador | 64.0% | 11,945 | 36.0% | 6,725 |
| Calaveras | 63.9% | 14,624 | 36.1% | 8,588 |
| Tuolumne | 62.6% | 16,964 | 37.4% | 10,163 |
| Mariposa | 62.1% | 5,961 | 37.9% | 3,640 |
| Inyo | 60.6% | 5,116 | 39.4% | 3,334 |
| Del Norte | 60.1% | 5,658 | 39.9% | 3,770 |
| Siskiyou | 60.0% | 12,668 | 40.0% | 8,475 |
| Plumas | 60.0% | 6,576 | 40.0% | 4,401 |
| Placer | 59.8% | 102,977 | 40.2% | 69,444 |
| El Dorado | 58.3% | 53,837 | 41.7% | 38,534 |
| Orange | 57.7% | 659,037 | 42.3% | 484,015 |
| Trinity | 56.2% | 3,563 | 43.8% | 2,785 |
| Butte | 56.1% | 54,822 | 43.9% | 43,045 |
| Solano | 55.9% | 89,292 | 44.1% | 70,680 |
| San Benito | 54.8% | 10,657 | 45.2% | 8,794 |
| Sacramento | 53.9% | 289,378 | 46.1% | 248,444 |
| San Diego | 53.8% | 655,625 | 46.2% | 565,054 |
| Ventura | 52.9% | 178,719 | 47.1% | 159,284 |
| Lake | 52.0% | 13,036 | 48.0% | 12,080 |
| San Luis Obispo | 51.1% | 67,304 | 48.9% | 64,555 |
| Los Angeles | 50.1% | 1,624,672 | 49.9% | 1,622,287 |
| Nevada | 50.1% | 27,617 | 49.9% | 27,614 |
| Monterey | 48.4% | 62,251 | 51.6% | 66,191 |
| Santa Barbara | 46.4% | 80,117 | 53.6% | 92,305 |
| Contra Costa | 44.6% | 198,713 | 55.4% | 246,753 |
| Napa | 44.4% | 26,227 | 55.6% | 32,742 |
| Mono | 44.2% | 2,425 | 55.8% | 3,050 |
| Santa Clara | 44.2% | 291,347 | 55.8% | 367,053 |
| Alpine | 43.6% | 293 | 56.4% | 379 |
| Yolo | 41.3% | 32,816 | 56.4% | 46,537 |
| Humboldt | 39.9% | 25,296 | 60.1% | 37,963 |
| San Mateo | 38.2% | 114,695 | 61.8% | 185,127 |
| Alameda | 38.0% | 232,923 | 62.0% | 378,692 |
| Mendocino | 36.8% | 14,649 | 63.2% | 25,072 |
| Sonoma | 33.5% | 76,143 | 66.5% | 150,763 |
| Santa Cruz | 28.7% | 36,163 | 71.3% | 89,793 |
| Marin | 24.9% | 34,324 | 75.1% | 103,341 |
| San Francisco | 24.8% | 92,536 | 75.2% | 280,491 |
In California, a constitutional amendment passed by the electorate takes effect the day after the election.[197] 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."[212] 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."[213] The counties ofLos Angeles,San Francisco,Yolo,Kern,Santa Barbara,San Luis Obispo,Sonoma,San Diego,San Bernardino,Sacramento, andTuolumne stopped issuing marriage licenses to same-sex couples the day after the election.[214][215][216][217]
Following an audit by theCalifornia Franchise Tax Board, the proponents of Proposition 8 faced 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.[218]
Following the passage of Proposition 8, mass protests took place across the state. These included protests outside theLos Angeles California Temple of The Church of Jesus Christ of Latter-day Saints inWestwood, Los Angeles;[219] a march throughHollywood that blocked traffic and elicited police intervention;[220] and acandlelight vigil in front of theSacramento Gay and Lesbian Center, along with a protest in front of the California State Capitol.[221][222]
InSan 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 senatorMark Leno andMayor of San FranciscoGavin Newsom.[223]
Outside California, a protest at the headquarters of The Church of Jesus Christ of Latter-day Saints inSalt Lake City,Utah[224] was addressed by localgay rights supporters including formerSalt Lake City MayorRocky Anderson and three gay members of the Utah Legislature: SenatorScott McCoy and RepresentativesChristine Johnson andJackie Biskupski.[225] On November 12, 2008, more than 10,000 protesters gathered outside theManhattan New York Temple to protest the support of The Church of Jesus Christ of Latter-day Saints for Proposition 8.[226] 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.[227]
The passage of Proposition 8 led to opponents responding by publiclyshaming its supporters asbigots andboycotting supporters' businesses and employers. On November 7, 2008, ablogger revealed that Scott Eckern, thenArtistic Director ofCalifornia Musical Theatre, had made a personal donation of $1,000 to the "Yes on 8" campaign.[228] 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.[229] On November 11, Eckern issued an apology on the online sitePlaybill stating that a similar donation had been made to ahuman rights organization that includes gay rights as one of its causes.[230] 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.[231]
Richard Raddon, Director of theLos Angeles Film Festival, also resigned due to boycotts by thegay community.[232]
Protests in California were marred by racial incidents. Due to their support of Proposition 8, reported as high as 70 percent, someAfrican Americans attending events were allegedly subjected toracial epithets and felt threatened.California Assembly SpeakerKaren 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."[233][234]
To protest the passage of Proposition 8,musical theatre composerMarc Shaiman wrote a satiric mini-musical called "Prop 8 — The Musical".[235] The three-minute video was distributed on the internet atFunnyOrDie.com. The cast includesJack Black (who playsJesus),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 byAdam Shankman. The video satirizesChristian churches that selectivelypick and choose biblical doctrines to follow.[236] It received 1.2 million internet hits in its first day,[237][238] won the 2009Webby Award category Comedy: Individual Short or Episode,[239] and won aGLAAD media award.[240]
In 2010,8: The Mormon Proposition, a documentary alleging the involvement ofthe Church of Jesus Christ of Latter-day Saints in the passage of Proposition 8. Written byReed Cowan and narrated byDustin Lance Black, the film divided critics over a perceived heavy-handed approach to the church's involvement; it won the 2011GLAAD Media Award for Outstanding Documentary.
In 2011,8, a play re-enacting the proceedings ofPerry v. Brown in a condensed manner ofdocumentary theatre, was premiered on Broadway.
On November 13, 2008, Fred Karger of the group Californians Against Hate filed a complaint with theCalifornia Fair Political Practices Commission thatcampaign finance reports filed by The Church of Jesus Christ of Latter-day Saints under-reported its actual Proposition 8 campaign expenses as $2,078.97.[241][242] Karger charged that the Church's failure to report "non-monetary contributions" placed it in violation of California's PoliticalReform Act. Church spokesman Scott Trotter denied the charges, saying the church had "fully complied with the reporting requirements" and a "further report will be filed on or before [...the] due date, Jan. 30, 2009."[243]
In a report filed with the California Secretary of State's office January 30, 2009, the LDS Church reported its non-monetary expenditures as $189,903.58.[244] On January 31, theSan Francisco Chronicle stated, "While the deadline for the report, which covers the period from July 1 to Dec. 31, is [February 2], many campaign contributions by major donors and independent committees must be reported within days after they're made." The article further stated that the executive director of the FPPC stated that the LDS church was still under investigation, and "In general, however, 'cases like these hinge over what had to be reported and when it had to be reported.' A late report covering disputed filings 'wouldn't remove the obligation to file on time' but would be considered by investigators."[245]
TheBoston Herald reported on February 2, 2009:[246]
While many church members had donated directly to the Yes on 8 campaign—some estimates of Mormon giving range as high as $20 million—the church itself had previously reported little direct campaign activity.But in the filing made Friday, the Mormon church reported thousands in travel expenses, such asairline tickets, hotel rooms andcar rentals for the campaign. The church also reported $96,849.31 worth of 'compensated staff time'—hours that church employees spent working to pass the same-sex marriage ban.
In a statement issued February 2, 2009, the LDS Church responded to "erroneous news reports", saying its subsequent disclosure was "in no way prompted by an investigation by the California Fair Political Practices Commission," that "We believe we have complied with California law," and that the report'sfiling date met the January 31, 2009 deadline:[247]
The Church, like other organizations on both sides of the ballot issue, was required to publicly file these donations by the 31 January deadline. The Church has been filing required contribution reports throughout the campaign. Those earlier donations 'initially stated' were filed for specific time periods prior to this last reporting period, as required by law. Other groups are also filing their final contribution reports to meet the same deadline.
On January 7, 2009, supporters of Proposition 8 filed a federal lawsuit to block public disclosure of their donations. Alleging threats against their lives as well as other forms of harassment, the lawsuit also requested apreliminary injunction that ordered the California Secretary of State to remove information about donations posted on its website. Opponents of Proposition 8 called it "hypocritical" that its supporters would refer to their support of the measure as the "will of the people" while seeking to overturn voter-approved campaign disclosure laws.[248]U.S. District Judge Morrison England Jr. denied that request on January 29; he said that the public had the right to know about donors of political causes, that he did not agree that the plaintiffs had a probability of success in court, and that they had not proven they would suffer "irreparable injury" if he did not grant the preliminary injunction.[249]
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, theCalifornia Supreme Court asked California Attorney GeneralJerry 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.[250] 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."[citation needed] The court also held that "Proposition 8 must be understood as creating a limited exception to the state equal protection clause."[251] 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.[252] Proposition 8 has noretroactive effect. TheCalifornia Supreme Court ruled unanimously on May 26, 2009, that the approximately 18,000same-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 thesame-sex marriages performed before it took effect.[252]
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 GovernorArnold Schwarzenegger on October 11, 2009.[253]
Immediately following the passage of Proposition 8, Arthur Smelt and Christopher Hammer filed suit in the Southern Division of theUnited States District Court for the Central District of California, inOrange County. In the case,Smelt v. United States, the couple argued that Proposition 8 and theFederal Defense of Marriage Act violated theEqual Protection Clause of the Americanconstitution.[254] TheUnited States Justice Department filed amotion to dismiss the case because the "plaintiffs are married, and their challenge to the federalDefense of Marriage Act ("DOMA") poses a different set of questions."[255] 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.[256] The remainder of the case was heard on August 3, 2009, in an Orange County district court.[257] 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.[258]
On the day ofStrauss v. Horton's decision, theAmerican 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, theACLU, and theNational Center for Lesbian Rights have since announced their support for the lawsuit.[259]San Francisco filed a motion to and was granted intervenor status in the case, saying that their work inIn re Marriage Cases andStrauss v. Horton provided them with "extensive evidence and proposed findings onstrict scrutiny factors and factual rebuttals to long claimed justifications for marriage discrimination".[260]
California Attorney General, and former and later again GovernorJerry Brown backed the lawsuit, saying that Proposition 8 violates the U.S. Constitution and should be struck down.[261] GovernorArnold Schwarzenegger took a more neutral path,[262] 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,[263] the proponents of Proposition 8's campaign were granted the right to intervene as defendants.[264] The case was first heard on July 2, 2009, in theUnited States District Court for the Northern District of California inSan Francisco, JudgeVaughn R. Walker presiding.[265]
In an act unprecedented in California history both the Governor and Attorney General refused to defend a constitutional amendment.[266]
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.[267] Walker lifted the stay on August 12, 2010, thus allowing same-sex marriages to be performed as of August 18, 2010.[268]
On August 16, 2010, theUnited 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.[269] Before the appeal trial begins, there will be a December 6, 2010[needs update] hearing on who haslegal standing to appeal the District Court's decision and whether the proposition violates equal protection rights.[270]
Following the passing of Proposition 8 in 2008, and the subsequent mass protests, several lawsuits were filed in both theState Supreme Court and in theFederal District Court.
In considering the cases within the state courts, on November 13, 2008, theCalifornia Supreme Court asked California Attorney GeneralJerry 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 intoStrauss v. Horton.[271] 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 theequal 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 byHollingsworth 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 (laterHollingsworth v. Perry), was filed in aFederal District Court in San Francisco. On August 4, 2010, U.S. District Chief JudgeVaughn Walker overturned Proposition 8, stating it is "...unconstitutional under theDue Process Clause because no compelling state interest justifies denying same-sex couples the fundamental right to marry."[272] The court also determined that "Proposition 8 violated theEqual Protection Clause because there is no rational basis for limiting the designation of 'marriage' to opposite-sex couples."[273] The court alsostayed the ruling; the voter initiative was to remain in effect pending appeal.[22] On August 12, Walker announced his decision to lift thestay (which would have allowed same-sex marriages to be performed) as of August 18, 2010[update].[274][275]However, on August 16, 2010, theUnited 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.[276]
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). TheNinth Circuit Court of Appeals considered the question ofstanding first. On January 4, 2011, the Ninth Circuit ruled thatImperial County did not havestanding to intervene in the lawsuit (by now calledPerry 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 Circuitcertified a question to theCalifornia 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 aninitiative have standing to appeal when the State is no longer willing to defend it.[277] On February 16, 2011, the California Supreme Court unanimously agreed to address the Ninth Circuit's request.[278] The court set an expedited schedule for thehearing[279] and heardoral arguments on September 6, 2011.[280] On November 17, 2011, the California Supreme Court issued anadvisory opinion that the proponents of Proposition 8 did havestanding, and could defend it.[281][282]
On February 7, 2012, athree-judge panel on the Ninth Circuit Court of Appeals issued a 2–1majority opinion affirming the judgment inPerry v. Schwarzenegger, which declared Proposition 8 unconstitutional, saying it violated theEqual Protection Clause. The opinion, written byJudge Stephen Reinhardt and joined byJudge 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.[283] The court found that the people of California, by using their initiative power to target aminority group and withdraw the right to marry they once possessed under theCalifornia State Constitution, violated the federal Constitution.[284]
The court concluded that the trial court had correctly found Proposition 8 to have no purpose other than to impose the majority's privatedisapproval of gays, lesbians, and their relationships through thepublic law, and to take away from them the designation ofmarriage and its recognized societal status.[285] Thefindings of fact andexpert witness testimony inDistrict Court played an important role in this appellate decision, emphasizing that it is unreasonable to believe Proposition 8 was enacted to: promotechildrearing by biological parents, encourage procreation, be cautious insocial change, protectreligious liberty, or control children's education.[286] 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".[287][288]
The dissenting judge,Judge N. Randy Smith, noted in his dissent that states do legitimately prohibit sexual relationships condemned by society such asincest,bigamy, andbestiality, and impose age limits for marriage without violating constitutional rights.[289] 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.[289] 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.[289] He urgedjudicial restraint, that the justices should refrain from striking down Proposition 8.[290]
On February 21, 2012, proponents requested to have to the case revieweden banc by the Ninth Circuit Court of Appeals.[291] If granted,en banc review could have taken a year or more, which would have delayed possible U.S. Supreme Court review.[291] Pending the appeal, astay was continued, barring any marriages from taking place.[292] 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.[293]
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 hadstanding to appeal the district court's ruling.
The proposition's proponents filed a petition forcertiorari with theU.S. Supreme Court on July 30, 2012, requesting that the Supreme Court review the case.[294] 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.[295] On December 7, 2012, the Supreme Court granted the proponents' petition for certiorari[296] and asked to be briefed for arguments concerning the petitioners' Article IIIstanding,[297] amid considerable anticipation of a finding of a lack of justiciability in order to avoid a holding on the merits.[298] Oral arguments were heard on March 26, 2013.[26]
Parties who lodgedamicus briefs with the court included: Judge Georg Ress and the Marriage Law Foundation;William N. Eskridge Jr.,et al.; the Center for Constitutional Jurisprudence; thePublic Advocate of the United States,et al.; theNational Association of Evangelicals,et al.; theAmerican Civil Rights Union;Judicial Watch, Inc.,et al.; theEagle Forum Education & Legal Defense Fund, Inc.; theFoundation for Moral Law; and the state ofIndiana,et al.[295]
The Supreme Court issued a 5–4 decision on June 26, 2013.[299]Chief JusticeRoberts wrote for the majority, and was joined byJusticesScalia,Ginsburg,Breyer, andKagan.[299] JusticesKennedy,Thomas,Alito, andSotomayor were in the minority.[300] 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".[12] 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.
JusticeKennedy, writing for the minority, said the views of the California Supreme Court on the proponents' standing should have been respected,[12] 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".[8]: 13
On June 28, 2013, the Ninth Circuit lifted its stay of the district court's ruling, enabling same-sex marriages to resume;[13] 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 GeneralKamala Harris officiating at the ceremony.[301]
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
Two petitions to this effect were filed with the California Supreme Court, by proponents (Hollingsworth v. O'Connell and Brown, July 12, 2013) and—against county policy—by aSan Diego County Clerk (Dronenburg, July 19, 2013: dropped August 2 as duplicative). The proponents' petition challenged the state and county clerk responses to the ruling inPerry, asserting that, in their view, only two counties were affected by the ruling and other counties had no legal capacity to discretionally do likewise; that the plaintiffs, not representing aclass, had their relief while others who were not plaintiffs had no change to their position within the law; and that county clerks were not in fact covered by the ruling and were therefore bound to comply with the law as it stood.
This position was rejected by California's governor, who on legal advice[305] ordered the change to license issuance, according to the ruling.[306] California's Attorney GeneralKamala Harris noted that "state officials are obligated to govern marriage equally in all counties and that [United States District Court for the Northern District of California Chief Judge Vaughn] Walker's ruling specifically covers those officials."[304]San Francisco's city attorney stated that it was "the most basic concepts of American law ... that a state court will not overrule the federal judiciary".[305] Twenty-fourCounty Clerks stated, through their lawyer, that their role was "ultimately state supervised" and it would be unfeasible to have a "patchwork" of different marriage criteria varying between the counties of a single state.[307]
On July 15, the California Supreme Court unanimously declined the request to order an immediate halt to same-sex marriages in the state pending a decision on the petition. The court requested arguments from the parties on the points raised in their petition.[308] On August 14, 2013, the California Supreme Court unanimously rejected the challenge by Proposition 8 proponents.[309]On April 30, 2009, the members of 'Yes! on Equality' submitted a ballot initiative dubbed "California Marriage Equality Act" to theAttorney General's office, requesting a title and summary. The text of the ballot would repeal Article I; Section 7.5 of the Californian Constitution as well as clarifying that no school curriculum will be changed and noclergy will be forced to perform any "service or duty incongruent with their faith". Yes! on Equality had until August 17, 2009, to gather 694,354 signatures in order to qualify for theJune 2010 ballot.[310][311] A petition for initiative for theNovember 2010 ballot also failed to obtain enough signatures.[312][313]
Several LGBTQ groups of color (including API Equality-LA, HONOR PAC, and the Jordan/Rustin Coalition) published a statement "Prepare to Prevail,"[314] in which they argue that the ballot repeal effort should be delayed until 2012. As of February 2012, the repeal effort was canceled in light of victorious court cases.[315]
On February 14, 2023, following comments byClarence Thomas in the U.S. Supreme Court decisionDobbs v. Jackson Women's Health Organization that called for the court to reviewObergefell v. Hodges, lawmakerEvan Low introduced ACA-5 into the California legislature.[316] Alegislatively referred constitutional amendment repealing the ban on same-sex marriage was proposed for the2024 California elections; activists stated that 2024 would be the appropriate time for a ballot measure to prevent public competition for attention with2022 California Proposition 1.[317][318]
In June 2023, theCalifornia State Assembly passed ACA-5 in a unanimous vote, and the following month another unanimous vote took place in theCalifornia State Senate, therefore placing the proposal to repeal Proposition 8 on the ballot in 2024.[319] The measure was approved by over 61% of voters. The text of the Constitution was changed to read: "the right to marry is a fundamental right".[320]
SECTION 1. Title: This measure shall be known and may be cited as the "California Marriage Protection Act."
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