In California, a ballot proposition can be a referendum or an initiative measure that is submitted to the electorate for a direct decision or direct vote. If passed, it can alter one or more of the articles of the Constitution of California, one or more of the 29 California Codes, or another law in the California Statutes by clarifying current or adding statute(s) or removing current statute(s).
A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, they can be appended to the constitution as supplemental additions (codicils), thus changing the frame of government without altering the existing text of the document.
Same-sex marriage is legal in the U.S. state of California, and first became so on June 16, 2008, when the state began issuing marriage licenses to same-sex couples as the result of the Supreme Court of California ruling in In re Marriage Cases, which found that barring same-sex couples from marriage violated the state's Constitution. The issuance of those licenses was halted during the period of November 5, 2008 through June 27, 2013 due to the passage of Proposition 8—a state constitutional amendment barring same-sex marriages. The granting of same-sex marriages recommenced following the United States Supreme Court decision in Hollingsworth v. Perry, which restored the effect of a federal district court ruling that overturned Proposition 8 as unconstitutional.
Proposition 8 countermanded the 2008 ruling by adding the same provision as in Proposition 22 to the California Constitution, providing that "only marriage between a man and a woman is valid or recognized in California", thereby superseding the 2008 ruling.[3][4][5] As an amendment, it was ruled constitutional by the California Supreme Court in Strauss v. Horton, in 2009, on the grounds that it "carved out a limited [or 'narrow'] exception to the state equal protection clause"; in his dissent, Justice Carlos R. Moreno wrote 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.
Strauss v. Horton 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48, was the consolidation of three lawsuits following the passage of California's Proposition 8 on November 4, 2008, which went into effect on November 5. The suits were filed by a number of gay couples and governmental entities. Three of these six were accepted by the Supreme Court of California to be heard together. The oral arguments were made in San Francisco on March 5, 2009. These cases were new to the California Supreme Court, and Justice Kathryn Mickle Werdegar stated that it will set precedent as "no previous case had presented the question of whether an initiative could be used to take away fundamental rights".
Carlos Roberto Moreno is a Mexican-American jurist who is the former United States Ambassador to Belize. Previously, he served as a Judge of the United States District Court for the Central District of California from February 4, 1998, to October 18, 2001, and as an Associate Justice of the Supreme Court of California from October 18, 2001, to February 28, 2011. Following his retirement from the bench in 2011, Moreno was counsel with Irell & Manella. Moreno was considered to be a leading candidate to replace retiring Justice David Souter on the United States Supreme Court.
Following affirmation by the state courts, two same-sex couples filed a lawsuit against the initiative in the United States District Court for the Northern District of California in the case Perry v. Schwarzenegger (later Hollingsworth v. Perry). In August 2010, Chief Judge Vaughn Walker ruled that the amendment was unconstitutional under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment,[6] since it purported to re-remove rights from a disfavored class only, with no rational basis. The official proponents' justifications for the measure were analyzed in over fifty pages covering eighty findings of fact. The state government supported the ruling and refused to defend the law.[7] The ruling was stayed pending appeal by the proponents of the initiative. On February 7, 2012, the Ninth 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.[8]
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San Mateo, Santa Clara, Santa Cruz, and Sonoma. The court hears cases in its courtrooms in Eureka, Oakland, San Francisco, and San Jose. It is headquartered in San Francisco.
Vaughn Richard Walker served as a United States District Judge of the United States District Court for the Northern District of California from 1989 to 2011. Walker presided over the original trial in Hollingsworth v. Perry, where he found California's Proposition 8 to be unconstitutional.
The Fifth and Fourteenth Amendments to the United States Constitution each contain a due process clause. Due process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law. The Supreme Court of the United States interprets the clauses more broadly, concluding that these clauses provide four protections: procedural due process, substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.
On June 26, 2013, the Supreme Court of the United States issued its decision on the appeal in the case Hollingsworth v. Perry, ruling that proponents of initiatives such as Proposition 8 did not possess legal standing in their own right to defend the resulting law in federal court, either to the Supreme Court or (previously) to the Ninth Circuit Court of Appeals. Therefore, the Supreme Court vacated the decision of the Ninth Circuit, and remanded the case for further proceedings. The decision left the district court's 2010 ruling intact.[9][10][11] 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 Governor Jerry Brown to order same-sex marriages to resume.[12]
The Supreme Court of the United States is the highest court in the federal judiciary of the United States. Established pursuant to Article III of the U.S. Constitution in 1789, it has original jurisdiction over a small range of cases, such as suits between two or more states, and those involving ambassadors. It also has ultimate appellate jurisdiction over all federal court and state court cases that involve a point of federal constitutional or statutory law. The Court has the power of judicial review, the ability to invalidate a statute for violating a provision of the Constitution or an executive act for being unlawful. However, it may act only within the context of a case in an area of law over which it has jurisdiction. The Court may decide cases having political overtones, but it has ruled that it does not have power to decide nonjusticiable political questions. Each year it agrees to hear about 100–150 of the more than 7,000 cases that it is asked to review.
Hollingsworth v. Perry were a series of United States federal court cases that legalized same-sex marriage in the State of California. The case began in 2009 in the U.S. District Court for the Northern District of California, which found that banning same-sex marriage violates equal protection under the law. This decision overturned ballot initiative Proposition 8, which had banned same-sex marriage. After the State of California refused to defend Proposition 8, the official sponsors of Proposition 8 intervened and appealed to the Supreme Court. The case was litigated during the governorships of both Arnold Schwarzenegger and Jerry Brown, and was thus known as Perry v. Schwarzenegger and Perry v. Brown, respectively. As Hollingsworth v. Perry, it eventually reached the United States Supreme Court, which held that, in line with prior precedent, the official sponsors of a ballot initiative measure did not have Article III standing to appeal an adverse federal court ruling when the state refused to do so.
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. Standing exists from one of three causes:
The party is directly subject to an adverse effect by the statute or action in question, and the harm suffered will continue unless the court grants relief in the form of damages or a finding that the law either does not apply to the party or that the law is void or can be nullified. This is called the "something to lose" doctrine, in which the party has standing because they will be directly harmed by the conditions for which they are asking the court for relief.
The party is not directly harmed by the conditions by which they are petitioning the court for relief but asks for it because the harm involved has some reasonable relation to their situation, and the continued existence of the harm may affect others who might not be able to ask a court for relief. In the United States, this is the grounds for asking for a law to be struck down as violating the First Amendment to the Constitution of the United States, because while the plaintiff might not be directly affected, the law might so adversely affect others that one might never know what was not done or created by those who fear they would become subject to the law – the so-called "chilling effects" doctrine.
The party is granted automatic standing by act of law. Under some environmental laws in the United States, a party may sue someone causing pollution to certain waterways without a federal permit, even if the party suing is not harmed by the pollution being generated. The law allows them to receive attorney's fees if they substantially prevail in the action. In some U.S. states, a person who believes a book, film or other work of art is obscene may sue in their own name to have the work banned directly without having to ask a District Attorney to do so.
Proposition 8 sparked overwhelming domestic opposition from LGBT rights activists, celebrities, politicians, academics and the public. Ministries of The Church of Jesus Christ of Latter-day Saints were heavily vandalized, regularly picketed and received violent threats, individual supporters of the proposition had their homes and property defaced and damaged, and businesses who backed the proposition were publicly condemned, shamed, and boycotted by opponents of the proposition, leading to hundreds of thousands of dollars being lost by the businesses (though many of the boycotts ceased following pledges by the companies to apologize and donate to LGBT causes); at least four of the major boycotts were led by Fred Karger. The public backlash against supporters of Proposition 8 remains controversial, and the New York Timescalled the backlash a "Mob Veto", and urged the proposition's opponents to stay nonviolent with their protests.
Protests against Proposition 8 supporters in California took place starting in November 2008. These included prominent protests against the Roman Catholic church and The Church of Jesus Christ of Latter-day Saints, which supported a stance in favor of California's Proposition 8. The proposition was a voter referendum that amended the state constitution to recognize marriage only as being between one man and one woman, thus banning same-sex marriage, which was legal in the state following a May 2008 California Supreme Court case.
The Church of Jesus Christ of Latter-day Saints, often informally known as the LDS Church or Mormon Church, is a nontrinitarian, Christian restorationist church that is considered by its members to be the restoration of the original church founded by Jesus Christ. The church is headquartered in Salt Lake City, Utah in the United States, and has established congregations and built temples worldwide. According to the church, it has over 16 million members and 67,000 full-time volunteer missionaries. In 2012, the National Council of Churches ranked the church as the fourth-largest Christian denomination in the United States, with over 6.5 million members reported by the church, as of January 2018. It is the largest denomination in the Latter Day Saint movement founded by Joseph Smith during the period of religious revival known as the Second Great Awakening.
A boycott is an act of voluntary and intentional abstention from using, buying, or dealing with a person, organization, or country as an expression of protest, usually for moral, social, political, or environmental reasons. The purpose of a boycott is to inflict some economic loss on the target, or to indicate a moral outrage, to try to compel the target to alter an objectionable behavior.
San Francisco, officially the City and County of San Francisco, is the cultural, commercial, and financial center of Northern California. San Francisco is the 13th-most populous city in the United States, and the fourth-most populous in California, with 884,363 residents as of 2017. It covers an area of about 46.89 square miles (121.4 km2), mostly at the north end of the San Francisco Peninsula in the San Francisco Bay Area, making it the second-most densely populated large US city, and the fifth-most densely populated U.S. county, behind only four of the five New York City boroughs. San Francisco is also part of the fifth-most populous primary statistical area in the United States, the San Jose–San Francisco–Oakland, CA Combined Statistical Area.
The Mayor of the City and County of San Francisco is the head of the executive branch of the San Francisco city and county government. The officeholder has the duty to enforce city laws, and the power to either approve or veto bills passed by the San Francisco Board of Supervisors, the legislative branch. The Mayor serves a four-year term and is limited to two successive terms. Because of San Francisco's status as a consolidated city-county, the mayor also serves as the head of government of the county; both entities have been governed together by a combined set of governing bodies since 1856. In March 2019 as part of the run up to St Patricks day parade the Mayor honoured the late Martin McGuiness for his "military service." Martin McGuiness was the second in command of the IRA, an organisation that murdered and bombed innocent civilians and members of the security forces. This naturally angered many of the families of the victims of the IRA.
Proposition 8 was created by opponents of same-sex marriage prior to the final ruling on In re Marriage Cases as a voter ballot initiative, and voted on at the time of the November 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 State constitutional amendment rather than a legislative statute, it was able to circumvent the ruling from In re Marriage Cases.[14] The proposition did not affect domestic partnerships in California,[15] nor (following subsequent legal rulings) did it reverse same-sex marriages that had been performed during the interim period May to November 2008 (i.e. after In re Marriage Cases but before Proposition 8).[16][17][18]
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 numerous lawsuits with the California Supreme Court challenging the proposition's validity and effect on previously administered same-sex marriages. In Strauss v. Horton, the California Supreme Court upheld Proposition 8, but allowed the existing same-sex marriages to stand (under the grandfather clause principle). (Justice Carlos R. 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.)
Although upheld in State court, Proposition 8 was ruled unconstitutional by the federal courts. In Perry v. Schwarzenegger, United States District Court Judge Vaughn Walker overturned Proposition 8 on August 4, 2010 ruling that it violated both the Due Process and Equal Protection clauses of the U.S. Constitution.[19] Walker issued a stay (injunction) against enforcing Proposition 8 and a stay to determine suspension of his ruling pending appeal.[20][21] 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,[22] but the stay remained in place as appeals continued to the U.S. Supreme Court,[23] which heard oral arguments in the appeal Hollingsworth v. Perry on March 26, 2013.[24] 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 with Article III of the Constitution and many 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 final outcome, and same sex marriages resumed almost immediately afterwards.
History of the ballot initiative
Proposition 8 (ballot title: Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment; originally titled the "California Marriage Protection Act")[25][26] was a California ballot proposition that changed the California Constitution to add a new section 7.5 to Article I, which reads: "Only marriage between a man and a woman is valid or recognized in California."[3][4][5] This change restricted the definition of marriage to opposite-sex couples, and eliminated same-sex couples' right to marry, thereby overriding portions of the ruling of In re Marriage Cases by "carving out an exception to the preexisting scope of the privacy and due process clauses"[27] of the state constitution.
To qualify for the ballot, Proposition 8 needed 694,354 valid petition signatures, equal to 8% of the total votes cast for governor in the November 2006 general election. The initiative proponents submitted 1,120,801 signatures, and on June 2, 2008, the initiative qualified for the November 4, 2008 election ballot through the random sample signature check.[28]
Full text
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]
Challenge to title and summary
The measure was titled: "Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment." The ballot summary read that the measure "changes the California Constitution to eliminate the right of same-sex couples to marry in California."[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"
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]
Campaign
Campaign funding and spending
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 the nonpartisan National Institute on Money in State Politics.[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]
In 2010, the California Fair Political Practices Commission fined the LDS church for failing to follow campaign disclosure policies during the last two weeks leading up to the election, which amounted to $37,000 in non-monetary contributions. They were fined $5,538.[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]
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.
Political figures
Republicanpresidential nominee and U.S. SenatorJohn McCain released a statement of support for the proposed constitutional amendment.[61] Former Speaker 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.[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]
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 Cardinal 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.[citation needed]
In California's 2008 election the Knights of Columbus attracted media attention when they donated more than $1.4 million to Proposition 8.[72] 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.[73]
The Church of Jesus Christ of Latter-day Saints[74][75][76] (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".[74] 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.[77] Local church leaders set organizational and monetary goals for their membership—sometimes quite specific—to fulfill this call.[78][79] The response of church members to their leadership's appeals to donate money and volunteer time was very supportive,[80] 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.[81] LDS members contributed over $20 million,[82] about 45% of out-of-state contributions to ProtectMarriage.com came from Utah, over three times more than any other state.[83] 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.[84]
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.[91]
The Asian Heritage Coalition held a rally in support of Proposition 8 in downtown San Diego on October 19, 2008.[92]
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.[93]
"Whether You Like It or Not" advertisement
Gay marriage press conference, 2008
In the months leading up to Election Day, Proposition 8 supporters released a commercial featuring San Francisco MayorGavin 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."[94] 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.[95][96][97]
Opponents
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.[98] They also ran the NoOnProp8.com campaign.[99] 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.
All six Episcopal diocesan bishops in California jointly issued a statement opposing Proposition 8 on September 10, 2008.[112] Southern California's largest collection of rabbis, the Board of Rabbis of Southern California, voted to oppose Proposition 8.[113] Other Jewish groups who opposed Proposition 8 include Jewish Mosaic,[114] the American Jewish Committee, Progressive Jewish Alliance, National Council of Jewish Women, and the Anti-Defamation League (ADL).[85] The ADL filed amicus briefs urging the Supreme Court of California, Ninth Circuit, and the Supreme Court to invalidate Prop 8.[115] 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.[116] The legislative ministry of the Unitarian Universalists opposed Proposition 8, and organized phone banks toward defeating the measure.[117] They see opposition to the proposition as a civil rights and social justice issue and their actions against it as a continuation of their previous works in civil rights.
In addition, the California Council of Churches urged the "immediate removal of Proposition 8"—saying that it infringes on the freedom of religion for churches who wish to bless same-sex unions.[118]
A coalition of Silicon Valley executives urged a 'No' vote on Proposition 8.[122]Google officially opposed Proposition 8 "as an issue of equality", and its founders donated $140,000 to the No on 8 campaign.[123][124][125]Apple Inc. also opposed Proposition 8 as a "fundamental" civil rights issue, and donated $100,000 to the No on 8 campaign.[125][126] Biotech leaders warned of potential damage to the state's $73 billion industry, citing Massachusetts as a top competitor for employees.[127]
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.[146][147] Rallies against the amendment took place in California and across the country, with participants numbering in thousands.[148][149][150][151][152][153]
Some supporters of Proposition 8 reported receiving death threats, some of which claimed to be "stemming from Prop 8".[159][160] Some LDS churches were vandalized with spray paint.[161][162]
Various opinion polls were conducted to estimate the outcome of the proposition. Those margins with differences less than their margins of error are marked as "n.s.", meaning not significant (see Statistical significance). Those margins considered statistically significant are indicated with the percentage points and the side favored in the poll, as either "pro" for in favor of the proposition's passage (e.g., 1% pro), or "con" for against its passage (e.g., 1% con).
According to the director of the Field Poll, the discrepancy between the pre-election polls and ballot results is because "regular church-goers... were more prone than other voters to be influenced by last-minute appeals to conform to orthodox church positions when voting on a progressive social issue like same-sex marriage."[164]
Edison/Mitofsky conducted an exit poll on behalf of the National Election Pool which is the only source of data on voter demographics in California in the 2008 election.[181][182] The statistical trends from the exit poll of 2,240 voters suggested that an array of voters came out both in opposition to and in support of Proposition 8, with no single demographic group making up most of either the Yes or No vote. The National Election Pool poll showed that support for Proposition 8 was strong amongst African American voters, interviewed in the exit poll with 70% in favor, more than any other racial group.[183] Their support was considered crucial to the proposition's passing, since African Americans made up an unusually larger percentage of voters that year, due to the presence of Barack Obama on the ballot.[184] Polls by both the Associated Press and CNN mirrored this data, reporting support among black voters to be at 70%[185] and 75%,[186] respectively. A later study by the National Gay and Lesbian Task Force (NGLTF), examining the black vote only from five counties within the state, suggested that black support was closer to 58%.[187][188]
Those who described themselves as religious were the strongest supporters of Prop 8.[190] According to the NGLTF study, self-identified Catholics and Protestants supported Prop 8 by measures of 55% and 66%, respectively,[191] while Jews overwhelmingly opposed it, with support at only 17%.[192][193] 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.[194]
In California, a constitutional amendment passed by the electorate takes effect the day after the election.[180] 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."[195] 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."[196] 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.[197][198][199][200][201]
Following the passage of Proposition 8, mass protests took place across the state. These included protests outside the LDS's Los Angeles California Temple in Westwood, Los Angeles;[202] a march through Hollywood that blocked traffic and elicited police intervention;[203] a candlelight vigil in front of the Sacramento Gay and Lesbian Center and a large demonstration in front of the state capitol.[204] 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.[205]
Fines
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.[206]
Legal challenges
Following the passing of Proposition 8 in 2008, and the subsequent mass protests, several lawsuits were filed in both the State Supreme Court and in the Federal District Court.
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.[207] 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."[208] 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."[209] 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.[210][211] 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.[212]
Perry v. Brown (on appeal)
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.[213] On February 16, 2011, the California Supreme Court unanimously agreed to address the Ninth Circuit's request.[214] The court set an expedited schedule for the hearing[215] and heard oral arguments on September 6, 2011.[216] 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.[217][218]
Ninth Circuit ruling
Seal of the United States Court of Appeals for the Ninth Circuit
On February 7, 2012, a three-judge panel on the Ninth Circuit Court of Appeals issued a 2–1 majority opinion affirming the judgment in Perry v. Schwarzenegger, which declared Proposition 8 unconstitutional, saying it violated the Equal Protection Clause. The opinion, written by Judge Stephen Reinhardt and joined by Judge Michael Hawkins, states that Proposition 8 did nothing more than lessen the status and dignity of gays and lesbians, and classify their relationships and families as inferior to those of opposite-sex couples.[219] 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.[220]
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.[221] 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.[222] 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".[223][224]
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.[225] 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.[225] 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.[225] He urged judicial restraint, that the justices should refrain from striking down Proposition 8.[226]
En banc review denied
On February 21, 2012, proponents requested to have to the case reviewed en banc by the Ninth Circuit Court of Appeals.[227] If granted, en banc review could have taken a year or more, which would have delayed possible U.S. Supreme Court review.[227] Pending the appeal, a stay was continued, barring any marriages from taking place.[228] 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.[229]
The Ninth Court's ruling was subsequently vacated (withdrawn) although it affirmed the district court ruling, since the Supreme Court later determined that the proponents of Proposition 8 had not had standing to appeal the district court's ruling.
Hollingsworth v. Perry (U.S. Supreme Court)
The proposition's proponents filed a petition for certiorari with the U.S. Supreme Court on July 30, 2012, requesting that the Supreme Court review the case.[230] 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.[231] On December 7, 2012, the Supreme Court granted the proponents' petition for certiorari[232] and asked to be briefed for arguments concerning the petitioners' Article III standing,[233] amid considerable anticipation of a finding of a lack of justiciability in order to avoid a holding on the merits.[234] Oral arguments were heard on March 26, 2013.[24]
The Supreme Court issued a 5–4 decision on June 26, 2013.[235]Chief JusticeRoberts wrote for the majority, and was joined by JusticesScalia, Ginsburg, Breyer, and Kagan.[235] Justices Kennedy, Thomas, Alito, and Sotomayor were in the minority.[236] 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
Aftermath
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.[237]
There were two legal challenges made to the implementation of the ruling, both subsequently denied:
Federal court legal challenge to removal of stay
On June 29, 2013, the proponents of Proposition 8 filed an emergency motion with the U.S. Supreme Court to vacate the Ninth Circuit's lifting of its stay, claiming it had been "premature".[238] The next day, June 30, 2013, U.S. Supreme Court Justice Anthony Kennedy, responsible for overseeing the Ninth Circuit, denied the motion without comment.[239]
State court legal challenges to statewide implementation of ruling
Even before the Ninth Circuit lifted its stay, Proposition 8 proponents had expressed the intent to fight on, by asserting that the ruling only applies to the persons or counties involved and would be unlawful for other couples or counties to comply with it.[240]
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 a San 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 in Perry, 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 a class, 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[241] ordered the change to license issuance, according to the ruling.[242] California's Attorney General Kamala 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."[240]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".[241] Twenty-four County 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.[243]
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.[244] On August 14, 2013, the California Supreme Court unanimously rejected the challenge by Proposition 8 proponents.[245]
United States v. Windsor—a 2013 U.S. Supreme Court case, decided along with Hollingsworth v. Perry, that struck down Section 3 of the Defense of Marriage Act, thereby granting federal benefits to same sex couple who are married under state law
8 (or 8 the Play)—an American play that portrays the closing arguments of Perry v. Schwarzenegger, the federal trial that led to the overturn of Proposition 8
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↑ Sayre, Ben; Bode, Leticia; Shah, Dhavan; Wilcox, Dave; and Shah, Chirag (2010) "Agenda Setting in a Digital Age: Tracking Attention to California Proposition 8 in Social Media, Online News and Conventional News", Policy & Internet: Vol. 2: Iss. 2, Article 2, Page 11. DOI: 10.2202/1944-2866.1040
↑ "Text of Proposed Laws"(PDF). Official Voter Information Guide. State of California. p.128. Retrieved August 28, 2012. SECTION 1. Title: This measure shall be known and may be cited as the "California Marriage Protection Act."
↑ Thorson, Kjerstin; Brian Ekdale; Porismita Borah; Kang Namkoong; Chirag Shah (2010). "YouTube and Proposition 8: A case study in video activism". Information, Communication & Society. 13 (3): 325. doi:10.1080/13691180903497060.
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