Perry v. Schwarzenegger
The plaintiffs in Perry seek to have the federal courts strike down Proposition 8 as contrary to the United States Constitution.
The case was filed on May 22, 2009 with the United States District Court for the Northern District of California. The non-jury trial began on January 11, 2010.
Appeal to the Ninth Circuit
The August 2010 federal district court ruling that Proposition 8 is unconstitutional under the U.S. Constitution was appealed. A 3-judge panel of the United States Court of Appeals for the Ninth Circuit heard from attorneys on both sides on December 7, 2010.
Imperial County removed
Attorneys for the pro-gay marriage side had argued that to have standing to participate in such a lawsuit, it would have to be shown that the county would have to shoulder responsibility for carrying out the policy or establish that it would receive concrete, personal injury. The 3-judge panel said that these conditions were not met by Imperial County.
Request to California Supreme Court
Also on January 4, 2011, the Ninth Circuit's 3-judge panel issued "an order certifying a question" to the California Supreme Court, requesting the state's high court to weigh in on the question of whether it is appropriate for ProtectMarriage.com, the organization that led the charge to enact Proposition 8, to participate in this federal lawsuit. The federal courts have not always allowed ballot measure proponents to join lawsuits seeking to invalidate the ballot measures they advocated for. The California Supreme Court, however, has set a precedent of allowing ballot measure proponents to defend measures in court.
The plaintiffs in the case say that they plan to establish that Proposition 8 is "irrational, indefensible and unconstitutional."
When the federal lawsuit was announced, several major groups opposed to Prop 8 denounced it, including:
In July, these same groups petitioned the court to be allowed to intervene on behalf of the plaintiffs.
Griffin of AFER asked that these groups not be allowed to intervene in the case. He wrote a letter to the groups in early July 2009 saying, "You have unrelentingly and unequivocally acted to undermine this case even before it was filed. In light of this, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening. Therefore, we will vigorously oppose any motion to intervene.”
Attorneys Olson and Boies also asked the court not to allow these groups to intervene, saying that their intervention "poses a substantial risk of interference and delay...Having declined to bring their own federal challenge to Proposition 8, Our Family Coalition and their counsel [the gay rights groups] should not be allowed to usurp plaintiffs' lawsuit now that it is under way and moving forward on an expedited basis."
Disclosure of campaign materials
A key early issue in the case was a request by plaintiffs that the court compel the "Yes on 8" campaign to release its internal campaign strategy documents. The reason for this request, according to one account, is that the plaintiffs believed that if they found evidence in these documents that the "Yes on 8" strategists were attempting "to sow fear and discrimination against gays and lesbians," this information would be relevant in helping a judge decide what the motivations were of those who voted in favor of Proposition 8.
Chief U.S. District Judge Vaughn Walker ordered that the documents be disclosed. In early December 2009, a three-judge panel of the Ninth U.S. Circuit of Appeals suspended Walker's order. In its decision, the 3-judge panel wrote, "The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the 1st Amendment."
On December 16, one of the 27 active judges on the Ninth Circuit called for a vote to rehear the issue with a full 11-member panel of judges. Attorneys on both sides of the dispute were requested to file briefs on the matter by December 24, 2009 On December 30, the court announced that it was re-affirming its original ruling not to order disclosure.
Video footage from the trial will be uploaded to YouTube daily.
Supporters of Proposition 8 argued that televising the trial is unwise and illegal, leaving open the possibility that they will appeal Judge Walker's decision to televise the proceedings.
- Sacramento Bee, "Judge rules Proposition 8 unconstitutional," August 4, 2010 (dead link)
- Fox Reno, "Proposition 8 Opponents To Tell Judge Lawsuit Is Irrational," December 8, 2009
- Wall Street Journal, "Judges Grill Attorneys on Gay Marriage Ban ," December 7, 2010
- Sacramento Bee, "Prop 8: Appeals court dumps Imperial County from case," January 4, 2011
- Arkansas Times, "From Wal-Mart to the White House," December 10, 2009
- San Francisco Chronicle, "Parties in Proposition 8 suit reject more plaintiffs," August 9, 2009
- On Top Magazine, "Gay Groups Not Welcome In Federal Marriage Suit," August 8, 2009
- Los Angeles Times, "Appeals court to vote on new hearing in Proposition 8 challenge," December 16, 2009
- San Francisco Chronicle, "Prop 8 backers likely to win disclosure fight," December 4, 2009
- Los Angeles Times, "Foes of California's gay-marriage ban lose federal appeal," December 12, 2009
- Ballot Access News, "9th Circuit Says Compelled Disclosure of Internal Campaign Communications Violates First Amendment," December 12, 2009
- San Francisco Chronicle, "Prop 8 campaign document ruling re-affirmed," December 31, 2009
- CNN, "Same-sex marriage trial to be shown on YouTube," January 7, 2010
- San Francisco Chronicle, "Prop 8 backers say TV coverage of trial unwise," December 30, 2009
- Blockbuster Democracy, "Should Prop 8 Federal Suit Be Televised?," January 5, 2010