California Proposition 8 (2008)

Proposition 8
Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment
Results Votes Of total 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% Voter turnout 79.42% Electorate 17,304,428
Results by county
Source: California Secretary of State[1]

Proposition 8, known informally as Prop 8, was a California ballot proposition and a state constitutional amendment passed in the November 2008 California state elections. The proposition was created by opponents of same-sex marriage in advance^[2] of the California Supreme Court's May 2008 appeal ruling, In re Marriage Cases, which followed the short-lived 2004 same-sex weddings controversy and found the previous ban on same-sex marriage (Proposition 22, 2000) unconstitutional. Proposition 8 was ultimately ruled unconstitutional by a federal court (on different grounds) in 2010, although the court decision did not go into effect until June 26, 2013, following the conclusion of proponents' appeals.

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"; 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.

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]

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]

Overview

In 2000, the State of California adopted Proposition 22 which, as an ordinary statute, forbade recognition or licensing of same-sex marriages in the state. During February and March 2004, San Francisco Mayor Gavin Newsom directed the licensing of same-sex marriage marriages on the basis of the state's equal protection clause, prompted also by recent events including George W. Bush's proposed constitutional ban, a possible legal case by Campaign for California Families (CCF), and a Supreme 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 as San Jose,^[13] gained global attention, and led to the case In 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 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 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 I. 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.

Pre-election legal challenges

Petition to remove proposition from ballot

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"^[37]

California Attorney General Jerry Brown explained that the changes were required to more "accurately reflect the measure" in light of the California Supreme Court's intervening In re Marriage Cases decision.^[38]

On July 22, 2008, Proposition 8 supporters mounted a legal challenge to the revised ballot title and summary, contending that Attorney General Brown inserted "language [...] so inflammatory that it will unduly prejudice voters against the measure".^[39] Supporters claimed that research showed that an attorney general had never used an active verb like “eliminates” in the title of a ballot measure in the past fifty years in which ballot measures have been used.^[39] Representatives of the Attorney General produced twelve examples of ballot measures using the word "eliminates" and vouched for the neutrality and accuracy of the ballot language.^[40][41]

On August 8, 2008, the California Superior Court turned down the legal challenge, affirming the new title and summary, stating, "[t]he 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

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

Proponents of the constitutional amendment argued that exclusively heterosexual marriage was "an essential institution of society", that leaving the constitution unchanged would "result in public schools teaching our kids that gay marriage is okay", and that gays "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

Republican presidential nominee and U.S. Senator John McCain released a statement of support for the proposed constitutional amendment.^[61] Former Speaker of the House Newt Gingrich released a video in support. Both characterized the court ruling requiring recognition of same sex marriage as being against the will of the people.^[62] A political action committee run by former Massachusetts governor Mitt Romney, who personally supported the proposition, donated $10,000 to the National Organization for Marriage during their campaign for the proposition.^[63]

Religious organizations

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

George Hugh Niederauer as Archbishop of San Francisco campaigned in 2008 in favor of the Proposition, and claimed to have been instrumental in forging alliances between Catholics and Mormons to support the measure.^[69] His successor, Salvatore Cordileone was regarded as instrumental in devising the initiative. Campaign finance records show he personally gave at least $6,000 to back the voter-approved ban^[70] and was instrumental in raising $1.5 million to put the proposition on the ballot.^[71] Subsequently as 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.^[72]

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

Rally for Yes on Prop 8 in Fresno

The Church of Jesus Christ of Latter-day Saints^[75][76][77] (the LDS Church or, informally, the Mormon Church), also publicly supported the proposition. The First Presidency of the church announced its support for Proposition 8 in a letter intended to be read in every congregation in California. In this letter, church members were encouraged to "do all you can to support the proposed constitutional amendment by donating of your means and time."^[75] The church produced and broadcast to its congregations a program describing the support of the Proposition, and describing the timeline it proposes for what it describes as grassroots efforts to support the Proposition.^[78] Local church leaders set organizational and monetary goals for their membership—sometimes quite specific—to fulfill this call.^[79][80] The response of church members to their leadership's appeals to donate money and volunteer time was very supportive,^[81] such that Latter-day Saints provided a significant source for financial donations in support of the proposition, both inside and outside the State of California.^[82] LDS members contributed over $20 million,^[83] about 45% of out-of-state contributions to ProtectMarriage.com came from Utah, over three times more than any other state.^[84] ProtectMarriage, the official proponent of Proposition 8, estimates that about half the donations they received came from Mormon sources, and that LDS church members made up somewhere between 80% and 90% of the volunteers for early door-to-door canvassing.^[85]

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

Others

The Grossmont Union High School District in San Diego County, California, publicly voted on a resolution endorsing Proposition 8. The Governing Board voted 4–0 to endorse the amendment of the California State Constitution.^[92]

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

During the November 2008 election campaign, Porterville's City Council was the only City Council in California that passed a Resolution in favor of Proposition 8.^[94]

"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 Mayor Gavin Newsom stating in a speech regarding same-sex marriage: "This door's wide open now. It's going to happen, whether you like it or not."^[95] 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.^[96][97][98]

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.^[99] They also ran the NoOnProp8.com campaign.^[100] 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.

Political figures

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

While Democratic presidential nominee and U.S. Senator, Barack Obama stated that while he personally considered marriage to be between a man and woman,^[101] and supported civil unions that confer comparable rights rather than gay marriage,^[102] he opposed "divisive and discriminatory efforts to amend the California Constitution... the U.S. Constitution or those of other states."^[103] Democratic vice-presidential candidate Joseph Biden also opposed the proposition.^[104] Republican California Governor Arnold Schwarzenegger stated that although he opposed and twice vetoed legislative bills that would recognize same-sex marriage in California, he respected and would uphold the court's ruling and oppose the initiative and other attempts to amend the state's constitution.^[105][106] The U.S. House Speaker, California Representative (8th District), Nancy Pelosi^[107] along with other members of the California congressional delegation and both of California's U.S. senators, Dianne Feinstein and Barbara Boxer, voiced their opposition to Proposition 8.^[108] Also voicing their opposition were the Lieutenant Governor, State Controller John Chiang, former governor and Attorney General Jerry Brown, 42 of 80 members of the state assembly, half of the state senators, and the mayors of San Francisco, Los Angeles, and San Diego: Gavin Newsom, Antonio Villaraigosa, and Jerry Sanders, respectively.^{[109][110][111][112]}

Religious organizations

All six Episcopal diocesan bishops in California jointly issued a statement opposing Proposition 8 on September 10, 2008.^[113] Southern California's largest collection of rabbis, the Board of Rabbis of Southern California, voted to oppose Proposition 8.^[114] Other Jewish groups who opposed Proposition 8 include Jewish Mosaic,^[115] the American Jewish Committee, Progressive Jewish Alliance, National Council of Jewish Women, and the Anti-Defamation League (ADL).^[86] The ADL filed amicus briefs urging the Supreme Court of California, Ninth Circuit, and the Supreme Court to invalidate Prop 8.^[116] 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.^[117] The legislative ministry of the Unitarian Universalists opposed Proposition 8, and organized phone banks toward defeating the measure.^[118] 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.^[119]

Others

The League of Women Voters of California opposed Proposition 8 because "no person or group should suffer legal, economic or administrative discrimination."^[120] Additionally, all but two of the National Association for the Advancement of Colored People's local chapters in California and NAACP national chairman Julian Bond and President Benjamin Jealous opposed Proposition 8.^[121] Amnesty International also condemned Proposition 8, saying that "states should never withhold rights based on minority status".^[122]

A coalition of Silicon Valley executives urged a 'No' vote on Proposition 8.^[123] Google officially opposed Proposition 8 "as an issue of equality", and its founders donated $140,000 to the No on 8 campaign.^{[124][125][126]} Apple Inc. also opposed Proposition 8 as a "fundamental" civil rights issue, and donated $100,000 to the No on 8 campaign.^[126][127] Biotech leaders warned of potential damage to the state's $73 billion industry, citing Massachusetts as a top competitor for employees.^[128]

Many members of the entertainment industry were opposed to Proposition 8.^[129] Actor Tom Hanks, a strong supporter of same-sex marriage, was extremely outspoken about his opposition to the bill. Brad Pitt and Steven Spielberg each donated different amounts of money to the opposition campaign "No on 8."^[130] In 2010, the documentary film 8: The Mormon Proposition premiered to sell-out audiences at the Sundance Film Festival.

The Los Angeles Unified School District Board of Education voted unanimously for a resolution to oppose Proposition 8.^[131] The California Teachers Association donated one million dollars to fight Proposition 8.^[132] Chancellor Robert Birgeneau of UC Berkeley urged a vote against the measure, claiming a likely threat to California's academic competitiveness if Proposition 8 is passed.^[133]

Newspaper editorials

All ten of the state's largest newspapers editorialized against Proposition 8, including the Los Angeles Times,^[134] and the San Francisco Chronicle.^{[135][136][137][138][139][140][141][142][143]} Other papers to have editorialized in opposition include The New York Times,^[144] La Opinión (Los Angeles),^[145] and The Bakersfield Californian.^[146]

Actions against supporters and opponents

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.^[147][148] Rallies against the amendment took place in California and across the country, with participants numbering in thousands.^{[149][150][151][152][153][154]}

Boycotts were also a feature of public response to the outcome of the election. LGBT rights groups published lists of donors to the Yes on 8 campaign and organized boycotts of individuals or organizations who had promoted or donated to it.^{[155][156][157]} Targets of the boycotts included the Sundance Film Festival in Utah, El Coyote Cafe, California Musical Theatre, and the Manchester Grand Hyatt Hotel.^{[157][158][159]}

Some supporters of Proposition 8 reported receiving death threats, some of which claimed to be "stemming from Prop 8".^[160][161] Some LDS churches were vandalized with spray paint.^[162][163]

Fresno-area supporters of gay marriage were also harassed; "No On 8" signs at the Clovis Unitarian Universalist Church were torn up, with Reverend Bryan Jessup alleging that his church experienced vandalism "every night".^[160] Santa Clara County Deputy District Attorney (DDA) Jay Boyarsky attributed a surge in anti-gay hate crimes, from 3 in 2007 to 14 in 2008, to controversy over Proposition 8.^[164]

Pre-decision opinion polls

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."^[165]

Date of opinion poll	Conducted by	Sample size (likely voters)	In favor	Against	Undecided	Margin	Margin of Error
October 29–31, 2008[166]	SurveyUSA	637	47%	50%	3%	n.s.	±4%
October 18–28, 2008[167]	The Field Poll	966	44%	49%	7%	5% con	±3.3%
October 12–19, 2008[168]	Public Policy Institute of California	1,186	44%	52%	4%	8% con	±3%
October 15–16, 2008[169]	SurveyUSA	615	48%	45%	7%	n.s.	±4%
October 4–5, 2008[170][171]	SurveyUSA	670	47%	42%	10%	5% pro	±3.9%
September 23–24, 2008[172][173]	SurveyUSA	661	44%	49%	8%	5% con	±3.9%
September 9–16, 2008[174]	Public Policy Institute of California	1,157	41%	55%	4%	14% con	±3%
September 5–14, 2008[175]	The Field Poll	830	38%	55%	7%	17% con	±3.5%
August 12–19, 2008[176][177]	Public Policy Institute of California	1,047	40%	54%	6%	14% con	±3%
July 8–14, 2008[18][178]	The Field Poll	672	42%	51%	7%	9% con	±3.9%
May 17–26, 2008[179]	The Field Poll	1,052	42%	51%	7%	9% con	±3.2%
May 22, 2008[180]	Los Angeles Times/KTLA	705	54%	35%	11%	19% pro	±4%

Results

Proposition 8[1]
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

Amending the California Constitution by voter initiative requires a simple majority to be enacted.^[181]

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.^[182][183] 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.^[184] 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.^[185] Polls by both the Associated Press and CNN mirrored this data, reporting support among black voters to be at 70%^[186] and 75%,^[187] 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%.^[188][189]

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]

County breakdown

Breakdown of voting by county^[1]

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

Post-election events

Immediate response

A post Prop 8 demonstration at the State Capitol

In California, a constitutional amendment passed by the electorate takes effect the day after the election.^[181] 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.

State court: Strauss v. Horton

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.

Federal court

Perry v. Schwarzenegger

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]

Note: 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]

Parties who lodged amicus briefs with the court included: Judge Georg Ress and the Marriage Law Foundation; William N. Eskridge, Jr., et al.; the Center for Constitutional Jurisprudence; the Public Advocate of the United States, et al.; the National Association of Evangelicals, et al.; the American Civil Rights Union; Judicial Watch, Inc., et al.; the Eagle Forum Education & Legal Defense Fund, Inc.; the Foundation for Moral Law; and the state of Indiana, et al.^[231]

The Supreme Court issued a 5–4 decision on June 26, 2013.^[235] Chief Justice Roberts wrote for the majority, and was joined by Justices Ginsburg, Kagan, Breyer, and Scalia.^[235] Justices Kennedy, Sotomayor, Alito, and Thomas 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 or rule whether or not 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 Harris officiating at the ceremony.^[237]

There were two legal challenges to the implementation of the ruling, both 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] but on 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 the ruling only applies to the persons or counties involved and would be unlawful for other couples or counties.^[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 Aug 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 and 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 issue,^[242] California's Attorney General Kamala Harris, who noted that "state officials are obligated to govern marriage equally in all counties and that Walker's ruling specifically covers those officials",^[240] San Francisco's city attorney who stated that it was "the most basic concepts of American law ... that a state court will not overrule the federal judiciary",^[241] and by 24 defendant County Clerks who through their lawyer stated 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 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, the court unanimously rejected the challenge by Proposition 8 proponents.^[245]

See also

• San Francisco 2004 same-sex weddings – a prior controversy that sparked In re Marriage Cases and led to Proposition 8
• Briggs Initiative
• LGBT rights in California
• List of former U.S. state constitutional amendments banning same-sex unions by type
• Obergefell v. Hodges – a 2015 U.S. Supreme Court case holding that the right to marry is guaranteed to same-sex couples.
• SaveCalifornia.com
• 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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External links

Media related to California Proposition 8 (2008) at Wikimedia Commons

• The District Court's decision in Perry v Schwarzenegger (Prop 8 Unconstitutional)
• The Ninth Circuit Court of Appeals Decision Affirming Perry v Schwarzenegger (Prop 8 Unconstitutional)
• Video – Ninth Circuit Appeals Court Trial on the Merits
• Video – Ninth Circuit Appeals Court Trial on Recusal
• ProtectMarriage.com: Organizational sponsor of Proposition 8
• No On Prop. 8: Organizational opponent to Proposition 8
• California Official Voter Information Guide on Proposition 8, Title and summary, analysis, arguments and rebuttals, and the text of the proposition.
• Scan of Initiative from California Attorney General website
• The Money Behind the 2008 Same-Sex Partnership Ballot Measures – National Institute on Money in State Politics
• Proposition 8 map a detailed hyper-linked map on David Leips election atlas.
• Hollingsworth v. Perry at SCOTUSblog
• Amicus briefs filed in Hollingsworth v. Perry from City Attorney of San Francisco