• Prop. 8 Challenge Filing
• District Court
• Ninth District Court of Appeals
• California Supreme Court
• Motion to Vacate

Prop. 8 Challenge Filing

In May 2008, the California Supreme Court held that the state’s denial of marriage for gay and lesbian couples violated California’s Constitution.  Prior to the adoption of Proposition 8, more than 18,000 gay and lesbian couples were married in California.

Proposition 8 was enacted in November 2008 by a narrow majority of California voters.  The initiative measure amended the California Constitution to eliminate the right of gay and lesbian couples to marry.  On May 26, 2009, the California Supreme Court rejected a state constitutional challenge to Proposition 8.

The Perry case was filed on May 22, 2009 in Federal District Court on behalf of two California couples.  Plaintiffs are represented by an all-star legal team led by Theodore B. Olson and David Boies, who notably faced-off in Bush v. Gore.

Both the Governor and Attorney General of California declined to defend Proposition 8, with the Attorney General conceding that Proposition 8 is unconstitutional.  The official proponents of Proposition 8 were permitted to intervene to defend their discriminatory law.  The City and County of San Francisco was granted leave to intervene in support of Plaintiffs.

District Court

In January 2010, a twelve-day public trial was held before Chief Judge Vaughn R. Walker of the United States District Court for the Northern District of California.  Plaintiffs presented 17 witnesses—including the world’s leading experts in history, economics, political science, psychology, sociology, anthropology, child development and epidemiology.  Proponents presented just two witnesses.  Their star witness, David Blankenhorn, testified under oath that “we would be more American on the day we permitted same-sex marriage than we were on the day before.”  Closing arguments were heard in June 2010.

Shunning our nation’s tradition of transparency and public access, Proponents vigorously objected to a television and Internet broadcast of the trial proceedings.  Nevertheless, the district court, without objection from any party, recorded the proceedings on video.  That digital recording is now under seal as part of the case record.

• Read the official hearing transcripts >

District Court Ruling

On August 4, 2010, the district court found in favor of Plaintiffs and declared Proposition 8 unconstitutional.  In an historic 136-page decision, Chief Judge Walker issued 80 carefully reasoned factual findings that systematically dismantled Proponents’ discriminatory arguments in favor of Proposition 8.  The district court concluded,

“Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

• Read Judge Walker’s Decision which ruled Prop. 8 unconstitutional >

Proponents’ Appeal

The anti-marriage proponents of Proposition 8 immediately appealed the district court’s ruling to the United States Court of Appeals for the Ninth Circuit.  The Governor and Attorney General of California declined to appeal Chief Judge Walker’s decision.  After an expedited briefing schedule, a three-judge panel heard oral arguments on December 6, 2010 that were broadcast live on television and the Internet.  The oral arguments were the most watched appellate court proceeding in American history.

On February 7, 2012, the Appeals Court ruled:

““Proposition 8 serves no purpose … other than to lessen the status and human dignity of gays and lesbians in California.”

Part One

Part Two

Press Release:

• 02/07/2012 U.S. Court of Appeals Upholds Federal District Court Ruling that Proposition 8 is Unconstitutional

Advisory Opinion From the California Supreme Court

On January 4, 2011, the Ninth Circuit issued an order certifying a question to the California Supreme Court concerning the rights under state law of the official proponents of a ballot initiative.  The Ninth Circuit required such clarification to determine whether the Proponents possess legal “standing” to maintain their appeal.  After hearing oral arguments in September 2011, the California Supreme Court issued a decision on November 17, 2011, concluding:

“[W]hen the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.”

• The Issue of Standing: Frequently Asked Questions >

Press Releases:

• 09/6/2011 California Supreme Court Hears Standing Issue in Prop. 8 Case

• 07/28/2011 California Supreme Court Sets Date for Prop. 8 Hearing

• 02/16/2011 California Supreme Court to hear Prop. 8 Case

Court Documents

• 09/6/2011 Transcript of California Supreme Court Oral Arguments on Standing (Rough)

• 04/4/2011 AFER Brief to California Supreme Court on Standing Issue

Proponents Attack District Court Judge

Unable to defend Proposition 8 on its merits, in April 2011 Proponents launched a series of desperate and widely denounced attacks on the integrity of the federal judiciary.  Proponents claim that the now-retired Chief Judge Walker was disqualified from ruling on Proposition 8 because he is gay and in a same-sex relationship.  Since Chief Judge Walker did not recuse himself, Proponents argue that his historic decision should be vacated.  Their baseless attack on Chief Judge Walker was roundly rejected by United States District Chief Judge James Ware in June 2011, who observed that “we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.”

• Read news coverage of the Prop. 8 defense’s motion to vacate the decision >

Press Releases:

• 06/28/2011 Chief Judge James Ware’s Decision Appealed

• 06/14/2011 US District Court Denies Anti-Marriage Forces’ Motion to Vacate Prop. 8 Decision

• 06/13/2011 US District Court Hears Offensive Motion by Prop. 8 Anti-Marriage Forces

• 05/13/2011 AFER Files Brief Opposing Motion to Vacate the Decision Finding Prop. 8 Unconstitutional

• 05/4/2011 New York Times Editorial Says Attempts by Prop. 8 Supporters to Toss Out Court Ruling are “Preposterous” and “Bogus”

• 04/25/2011 Prop. 8 Proponents File Motion to Vacate Trial Decision

Court Documents

• 06/14/2011 Distict Court Denies Motion to Vacate Prop. 8 Ruling

• 06/14/2011 Hearing Transcript of Motions to Vacate the Decision and Seal Trial Video

• 05/26/2011 BALIF et al. Amicus Brief Opposing the Motion to Vacate the Decision

• 05/13/2011 Lambda Legal, ACLU-NC, EQCA & NCLR’s Opposition to the Motion to Vacate

• 05/13/2011 AFER’s Opposition to the Motion to Vacate

• 05/13/2011 Calif. Governor and Attorney General Oppose to the Motion to Vacate

• 05/12/2011 City & County of San Francisco’s Opposition to the Motion to Vacate

“8”: An Unprecedented Account of an Historic Trial

In order to ensure that the public would be able to experience what happened at trial, AFER teamed up with Broadway Impact to produce “8,” a play chronicling the historic twelve-day trial.  Written by AFER Founding Board Member and Academy Award-winning writer Dustin Lance Black, “8” had its much-heralded Broadway world premiere on September 19, 2011, at the sold-out Eugene O’Neill Theatre in New York City.  The production brought in over one million dollars to support AFER’s efforts to achieve full federal marriage equality.

“8” is set to have its West Coast premiere at the Wilshire Ebell Theatre on Saturday, March 3, 2012, in Los Angeles, for an exclusive, one-night-only fundraiser to benefit AFER.  The West Coast premiere will feature an all-star cast, including Academy Award-winning actor, producer, screenwriter and director George Clooney and Emmy and Golden Globe Award-winning actor Martin Sheen; and be directed by AFER Founding Board Member and acclaimed actor and director Rob Reiner.

In addition to its Broadway and Los Angeles productions, AFER and Broadway Impact are licensing “8” to colleges and community theatres nationwide in order to spur action, dialogue and understanding.