Lawsuits, California Proposition 8 (2008)

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Six lawsuits seeking to invalidate Proposition 8 have been filed since the vote on Prop 8 was held on November 4, while Prop 8's supporters filed a January 2009 lawsuit in federal court seeking an injunction against California's campaign finance disclosure laws.[1]

The California Supreme Court heard oral arguments on March 5, 2009 on the lawsuits seeking to invalidate Proposition 8. The court has 90 days to issues its verdict in the matter. A court-watching reporter for the Los Angeles Times wrote after the March 5 hearing that the court "strongly indicated Thursday it would rule that Proposition 8 validly abolished the right for gays to marry but would allow same-sex couples who wed before the November election to remain legally married."[2],[3],[4],[5]

Over 60 amicus curiae ("Friend of the Court") briefs have been filed with the California Supreme Court, arguing for and against the constitutionality of Proposition 8, including a brief by internet goliath Google arguing that the measure denies basic rights to employees.[6],[7]

Is Prop 8 legal?

Although several different legal lines of attack against Proposition 8 have been made in the various lawsuits, the central issues are:

  • Whether Proposition 8 is a state constitutional amendment, which can be passed by initiative, or a constitutional revision, which can't.
  • Whether the right of a minority group should be decided by the voters (as in Proposition 8) or the courts or legislature.[8]

Proposition 8 was also at the center off three legal cases prior to the election:

  • A lawsuit by opponents seeking to strike Prop 8 from the ballot.
  • A lawsuit by supporters attempting to change the measure's ballot title.
  • A lawsuit by opponents seeking to strike an argument made by the pro-Prop 8 campaign in the official state voter's guide.

The lawsuits

  • The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a lawsuit, Strauss v. Horton, the basis of which is that Proposition 8 is invalid because it represents a fundamental alteration of the California Constitution; the suit says that fundamental alterations cannot be accomplished through a popular vote on an initiative.[9] This legal claim hinges on Article 18 of the constitution which says that it, the constitution, can be changed by amendment or by revision. "Amendments", according to Article 18, may be enacted by initiative with a majority vote, whereas "revisions" can only be enacted through a procedure that starts with the California State Legislature agreeing by a revision by a two-thirds vote in the legislature, followed by a statewide vote of the electorate. The lawsuit says that Prop 8, properly understood, is a "revision"; if the court agrees, then Prop 8 could be nullifed. Forty-three Democratic members of the state legislature filed a "friend of the court" brief supporting the ACLU lawsuit.[10],[11],[12],[13]
  • The governments of San Francisco, Los Angeles and Santa Clara County filed a lawsuit, San Francisco v. Horton, to invalidate the amendment. They argue, "Proposition 8 is invalid under the California Constitution because the initiative power does not permit voters to divest a politically unpopular group of rights conferred by the equal protection clause."[15]

Mark Horton, the named defendant in several of the lawsuits, is California's Registrar of Vital Statistics; the suits are filed against him in his official capacity.

Jerry Brown's role

Jerry Brown, as the California Attorney General, is legally required to defend state laws unless he cannot find reasonable legal grounds to do so. After Prop 8 passed, he initially said he would defend the measure in court. On December 19, he reversed himself, saying that in his view the amendment is "inconsistent with the guarantees of individual liberty" in the California Constitution and asking the state's highest court to overturn it.[19],[20]

In his 111-page brief urging that the court overturn Prop 8, Brown also rejected some of the principal legal theories put forth by gay marriage advocates in their bid to overturn the initiative. Specifically, the largest amount of space in his legal filing argues that Prop 8 opponents are wrong when they say that Prop 8 is a revision rather than an amendment.[21]

Some Proposition 8 supporters, such as John C. Eastman of the Center for Constitutional Jurisprudence at the Claremont Institute, say that although Brown has urged the court to overturn Prop 8, Brown's specific arguments in the area of whether Prop 8 is an amendment or a revision do more to undermine 8 than does Brown's position that the amendment fundamentally conflicts with the state's constitution.[21] In a mid-January filing with the court, backers of Prop 8 said that Brown's brief asking the court to overturn the measure “invented an entirely new theory", going on to say, "“We will not mince words. The attorney general is inviting this court to declare a constitutional revolution."[22]

Peter Hecht, a reporter at the Sacramento Bee, observed that Brown's reversal could be politically helpful for Brown if he faces San Francisco mayor and same-sex marriage proponent Gavin Newsom in a June 2010 Democratic primary for governor.[23]

Ken Starr

Ken Starr, the former Whitewater special prosecutor and now dean of Pepperdine University law school, is acting as the attorney for the "Yes on 8" campaign in defending Prop 8 in the California Supreme Court. He has argued that the court should preserve the people's lawmaking powers by upholding the initiative.[19]

Amendment versus revision

In the lawsuits filed to invalidate Proposition 8, one of the two main lines of reasoning about why the court should find Proposition 8 invalid is that it amounts to a revision of the California Constitution. Under Article 18 of California's laws governing the initiative process, citizen initiatives cannot be used to "revise" the constitution; they can only be used to "amend" the constitution.[24]

What is the difference between a "revision" and an "amendment"?

A revision is a fundamental change in the Constitution and a revision cannot be accomplished solely through a citizen initiative like Proposition 8. The legal issue, therefore, is whether Proposition 8 amounts to such a fundamental change to the constitution that it should be considered a revision, not an amendment.

Lawsuits similar to this have been filed against previous California initiatives. In two cases, the lawsuits succeeded in overturning an initiative. In several other cases--for example, a lawsuit to invalidate Proposition 13--similar lawsuits failed.

Relevant legal cases

In these cases, the initiatives in question were found to be amendments, not unconstitutional revisions.

In McFadden in 1948, the California Supreme Court struck down an initiative as an unconstitutional revision on the grounds that it added 21,000 words to what was then a 55,000-word Constitution. The 1948 court said the initiative was 'revisory rather than amendatory in nature,' because of the 'far reaching and multifarious substance of the measure ...; (p. 332) which dealt with such varied and diverse subjects as retirement pensions, gambling, taxes, oleomargarine, healing arts, civic centers, senate reapportionment, fish and game, and surface mining. We noted that the proposal would have repealed or substantially altered at least 15 of the 25 articles which then comprised the Constitution."[26]

Other states

There have been lawsuits in two other states contending that bans in those states on same-sex marriage passed via the initiative process were unconstitutional revisions rather that amendments:

Supporters ask for campaign finance injunction

See Boycotts related to California Proposition 8.

"Protect Marriage", sponsors of the amendment, filed an unsuccessful lawsuit in January in the United States District Court for the Eastern District of California in which they sought a preliminary injunction of a California election law that requires donors of $100 or more to disclose their names, addresses, occupations and other personal information. The lawsuit sought a preliminary injunction prior to January 31, which is when the campaign's final finance filing was due. The lawsuit's attorney is James Bopp Jr., a lawyer from Indiana who is frequently involved in political speech cases, who said that what he refers to as harassment of Proposition 8 supporters before and after the campaign is a violation of their constitutional rights of free speech and assembly.[27]

Oral arguments in the case were heard by U.S. District Judge Morrison C. England, Jr., on Thursday, January 29. He rejected the plaintiff's position; although an appeal is pending, the donors were disclosed by the February 2 disclosure deadline.[28]

The mandatory disclosure of contributors to Proposition 8 on the website of the California Secretary of State has led to acts of vandalism, boycotts and death threats, according to the lawsuit.

"This harassment is made possible because of California's unconstitutional campaign finance disclosure rules as applied to ballot measure committees where even donors of as little as $100 must have their names, home addresses and employers listed on public documents," according Ron Prentice, who is the chairman of the Yes on 8 committee.[29]

The suit seeks to:

  • Eliminate all campaign disclosure requirements for ballot measures after an election.
  • Bar the state from requiring any additional contribution reports.
  • Require officials to purge all pre-election reports from their public files.

Tim Chandler of the Alliance Defense Fund, a Christian legal organization helping with the lawsuit, said, "Citizens shouldn't have to choose between being involved in the democratic process and subjecting themselves to acts of vengeance."

Fred Karger of Californians Against Hate disagrees, saying, "They started this fight in 30 states by going to the ballot and winning. Now the gay community is fighting back and seeing who gave the money. People are choosing who they want to give their business to."

Widespead interest

Observers around the country have weighed in on the issue of protecting donor confidentiality raised by the federal lawsuit with, for example, the Albany Democrat Herald in Oregon editorizing that:

"Campaign contributions are listed publicly on the theory that we should know who pays for politicians’ campaigns and gains influence over them when they’re in office. But on ballot measures, nobody can buy a single voter, no matter how much money he donates to that kind of campaign. We’ll have to figure out how to protect citizens’ right to participate in the democratic process. One way is to allow contributors to remain anonymous in ballot measure campaigns.[30]

Opposition to lawsuit

Attorney General Jerry Brown, Secretary of State Debra Bowen and the Fair Political Practices Commission filed a brief in late January with the court opposing the lawsuit filed by the Proposition 8 campaign.

According to Ross Johnson, the FPPC's chairman, the lawsuit is "out to destroy campaign finance disclosure by a death-of-a-thousand cuts" and "I don't intend to let that happen on my watch."[31]

FPPC complaint

Californians Against Hate filed a complaint with the California Fair Political Practices Commission (FPPC) which says that the LDS (Mormon) Church failed to report nonmonetary contributions to the Yes on Proposition 8 campaign.

Fred Karger, the leader of Californians Against Hate, said in the complaint that The Church of Jesus Christ of Latter-day Saints failed to report money it invested to "organize phone banks, send out direct mailers, provide transportation to California, mobilize a speakers bureau, send out satellite simulcasts and develop Web sites as well as numerous commercials and video broadcasts."[32]

A spokesperson for the LDS Church said that the church had "fully complied with the reporting requirements of the California Political Reform Act" and that "any investigation would confirm the church's full compliance with applicable law." The church spokesperson also said Karger's complaint had "many errors and misstatements."[32]

If the FPPC determines that a violation occurred it can levy a fine of up to $5,000 per violation and can also file a civil lawsuit, which could lead to remedies amounting to three times the amount of unreported or misreported contributions.

The New York Times editorialized in favor of the FPPC investigation.[33]

Robocall lawsuit

In late January 2009, Turlock City Councilwoman Mary Jackson filed a lawsuit in Stanislaus County to find out who paid for a robocall in the county in the last week of the Proposition 8 campaign. The voice on the robocall was represented as being Jackson's voice. The caller urged voters to vote against Proposition 8. However, as the lawsuit alleges, the robocall was a fraudulent misrepresentation, since the recorded voice did not belong to Mary Jackson, nor was she aware of or in anyway involved with the calls.

The lawsuit alleges "unfair business practices" and seeks as much as $10,000 in damages and possibly more in punitive damages.

Jackson is a journalism instructor at Merced College. According to Jackson, her campaign did not record or pay for the call urging a "no" vote on Prop 8.[34]

Pre-election lawsuits

Lawsuit filed to strike from ballot

On June 20, Equality California in a 55-page petition asked the California Supreme Court to strike the initiative from the November ballot. In the brief presented to the court, the reasons given for striking it are:

  • The measure would be a state constitutional revision, not an amendment, and would therefore require more elaborate procedures for passage.
  • The initiative petitions circulated to voters before the court ruling were misleading because they declared that the measure would make no change in the marriage laws and would have no fiscal impact.[35]
  • While a constitutional amendment can be enacted by a voter initiative alone, a proposed revision must be approved by two-thirds of each house of the Legislature before being submitted to state voters.
  • Attorneys who filed the lawsuit said the initiative is a revision because it would "alter the underlying principles on which the California Constitution is based."
  • Also, the measure would have the effect of "severely compromising the core constitutional principle of equal citizenship (and) depriving a vulnerable minority of fundamental rights";
  • And, "We filed this lawsuit because the sponsors of the initiative haven’t followed the very constitution they’re trying to change. For good reason, there’s a strict process for making revisions to our constitution and it’s more involved than simply collecting petition signatures"[36]

A pro-initiative attorney, Glen Lavy who works with the Alliance Defense Fund, who was quoted in the press about the lawsuit said, "Equality California and its allies are desperate to evade democracy."[37] Five proponents of Prop. 8 filed a brief with the court asking it to reject the attempt to remove the initiative from the ballot, saying that removal would be an "inexcusable incursion into the right of the people to amend their constitution."[38]

The California Supreme Court had three options with respect to the lawsuit:

  • Hold a hearing on the lawsuit
  • Act on the petition without holding a hearing
  • Send the case to a lower court.

Lawsuit fails

On July 16, the California Supreme Court announced that is was declining to consider the request for a hearing. The decision was unanimous. The court did not announce a reason for its decision.[39],[40]

Ballot title lawsuit

On July 29, supporters of Proposition 8 filed a lawsuit, Jansen v. Bowen, against California Attorney General Jerry Brown. The lawsuit sought to have the Sacramento County Superior Court order a different ballot title for Prop. 8 than the title chosen by Brown. Prop. 8 supporters asked for an expedited hearing on their lawsuit, since the state ballot booklets were to go to the printers on August 11. Protect Marriage, in its brief, cited research that the attorney general had not used a negative active verb like "eliminates" in the title of a ballot measure in the fifty years in which ballot measures have been used.[41] On Friday, August 8, Sacramento County Superior Court Judge Timothy Frawley ruled against Prop. 8 supporters in a 8-page ruling that said the ballot title is an accurate representation of what Prop. 8 will do.[42],[43],[44]

Prop. 8 supporters argued in the lawsuit that the new title chosen by Brown is "inherently argumentative and highly likely to create prejudice". The two specific requests in the lawsuit were that the ballot title be changed to:

  • Use the wording, "Limit on Marriage," because that is the language used on the initiative petitions that were circulated and signed by 1.2 million registered voters.
  • Or, use the title, "Only marriage between a man and a woman is valid or recognized in California."

When the initiative wording for what eventually became Prop. 8 was filed many months ago, the title that Brown conferred on it at that time was consistent with what supporters of Prop. 8 are asking for. However, Brown changed the ballot title on July 3, 2008 to a short description and summary that Prop. 8 supporters, as well as a number of political pundits in California, believe is adverse to the pro-8 cause. The July 3 ballot title describes the measure as "Eliminates the Right of Same-Sex Couples to Marry". Voters in California, according to ballot pundit Thomas Elias, historically "rarely opt to take away rights" and the revised ballot title frames Prop. 8 as taking away a right.[45],[46]

The new ballot summary also says that the measure will cost local governments "tens of millions of dollars" of "potential revenue loss", mainly in lost sales taxes.

Brown criticized, defended for change

Brown was criticized for changing the ballot title. Tony Quinn, a political pundit and consultant generally for Republican causes, said, Brown "is delivering something . . . that is very important to the gay community, and that is a title and summary that is more likely to lead you to vote 'No,'"[47],[48],[49]

Brown defended the new ballot title, saying:

  • The petitions bearing the "Limit on Marriage" title were circulated before the California Supreme Court ruled in May that gay and lesbian couples have the same right to marry as opposite-sex couples in California.
  • Brown says that therefore, "What has happened is the Supreme Court found that the right to marriage includes same-sex couples. This happened after the original title was approved. ... Now same-sex couples have a right that's recognized and supporters of the proposition want to eliminate that right."
  • Brown said that supporters of Prop. 8 "can't say with a straight face that this isn't about eliminating the right to gay marriage, so what's their problem with this? This is a political lawsuit, not one about serious legal issues."

In its lawsuit, Protect Marriage, supporters of Prop. 8, say that research they conducted "found that never in the 50-year history of statewide ballot measures has the attorney general used an active verb like 'eliminates' in the title of a ballot measure."[50]

Lawsuit over pro-8 argument in ballot booklet

Opponents of Proposition 8 filed a lawsuit, Jenkins v. Bowen, in late July asking that a pro-8 argument set to appear in the official ballot booklet that will be printed on August 11 and made available both on state websites and at polling places be removed.[51]

The pro-8 arguments that anti-8 groups want removed from the booklet say:

  • "It [Prop 8] protects our children from being taught in public schools that 'same-sex marriage' is the same as traditional marriage".
  • "In health education classes, state law requires teachers to instruct children as young as kindergartners about marriage. (Education Code 51890). If the gay marriage ruling is not overturned, TEACHERS WILL BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage." (Emphases and capitalization from original text.)[52]

Change ordered in wording

On August 8, 2008, in response to the lawsuit, Superior Court Judge Timothy Frawley found that supporters of Prop. 8, in the ballot arguments they wrote for inclusion in the state's voter guide, did overstate the extent to which Prop. 8 would have an impact on what is taught in public schools, because public schools are not required to provide instruction on marriage and parents can withdraw their children.

Frawley's ruling requests that the ballot argument be re-worded to state that teachers "may" or "could" be required to tell children there is no difference between same-sex and opposite-sex marriage, rather than "will be".[53]

See also

External links


  1. New York Times, "Marriage Ban Donors Feel Exposed by List", January 18, 2009
  2. Los Angeles Times, "California Supreme Court looks unlikely to kill Proposition 8", March 6, 2009
  3. Mercury News, "California Supreme Court to decide fate of Prop. 8 same-sex marriage ban", November 19, 2008
  4. New York Times, "Top Court in California Will Review Proposition 8", November 19, 2008
  5. San Francisco Chronicle, "State Supreme Court rejoins Prop. 8 battle", November 20, 2008
  6. Catholic News Agency, "Google sides with anti-Prop. 8 lawsuits in amicus briefs", January 19, 2009
  7. MSNBC, "Legal Groups File Brief in Support of Same-Sex Marriage", January 2009
  8. San Francisco Chronicle, "Prop. 8 hinges on who decides: judges or voters", November 19, 2008
  9. Text of Strauss v. Horton
  10. Text of lawsuit filed by ACLU, Lambda Legal, others
  11. Desert Sun, "Lawsuits could mount in Prop 8 battle", November 6, 2008
  12. Los Angeles Times, "The law and Prop. 8", November 10, 2008
  13. Los Angeles Times, "Democratic legislators ask state Supreme Court to void Prop. 8", November 11, 2008
  14. Tyler v. California]
  15. Pasadena Star News, "Prop. 8 spawns slew of lawsuits", November 5, 2008
  16. Asian Pacific Legal Center v. Horton
  17. Equal Rights Advocates v. Horton
  18. California Council of Churches v. Horton
  19. 19.0 19.1 San Francisco Chronicle, "Brown asks state high court to overturn Prop. 8", December 20, 2008
  20. Findlaw's Writ, "The California Attorney General’s Brief in the California Supreme Court Case Challenging Proposition 8: The Questions It Raised, and Why It Surprised Many Observers", January 2, 2009
  21. 21.0 21.1 Los Angeles Times, "Jerry Brown's Proposition 8 stance faults legal arguments of gay marriage backers", December 23, 2008
  22. Gay and Lesbian Times, "Prop. 8 backers blast Calif. Attorney General", January 15, 2009
  23. Sacramento Bee, "Jerry Brown wins praise, criticism for stance on Proposition 8", January 20, 2009
  24. Article 18 of the California Constitution
  25. Volokh Conspiracy, "Is the Proposed California Same-Sex Marriage Ban an Unconstitutional "Revision" by Initiative?", June 23, 2008
  26. Stephen Bainbridge
  27. New York Times, "Marriage Ban Donors Feel Exposed by List", January 18, 2009
  28. Ballot Access News, "Judge Denies Injunctive Relief in California Disclosure of Contributors Case
  29. San Francisco Chronicle, "Prop. 8 supporters want donors anonymous", January 9, 2009
  30. Albany Democrat Herald, "Editorial: Finance data expose donors to retaliation", December 29, 2008
  31. Sacramento Bee, "Proposition 8 donor disclosure urged", January 23, 2009
  32. 32.0 32.1 Salt Lake Tribune, "Probe into LDS Church's Prop 8 donations going forward", November 25, 2008
  33. New York Times, "The Prop 8 Campaign Money", November 29, 2008
  34. Modesto Bee, "Robocalls trigger lawsuit", January 30, 2009
  35. San Francisco Chronicle, Gay marriage backers want ban issue off ballot, June 21, 2008
  36. Bay City News, Marriage Equality Group Asks California Supreme Court to remove November Same-Sex Marriage Ban Initiative
  37. Mercury News, Civil rights groups seek to block California gay marriage ballot initiative, June 20, 2008
  38. KTVU-TV, Proponents Urge Court To Leave Marriage Initiative On Nov. Ballot, July 1, 2008
  39. Associated Press, "Calif. court rejects gay-marriage-initiative case", July 16, 2008
  40. San Francisco Chronicle, "Challenge tossed, gay marriage ban on ballot", July 17, 2008
  41. CNA, "Lawsuit filed to challenge California ballot’s ‘inflammatory’ rewording of marriage amendment", August 1, 2008
  42. Judge upholds summary of gay marriage ban
  43. San Francisco Chronicle, "Prop. 8 backers sue to change ballot wording", July 30, 2008
  44. Judge puts off ruling on marriage measure, August 8, 2008
  45. Thomas Elias: A ballot of words describing Prop. 8, August 7, 2008
  46. July 3 ballot title for Proposition 8
  47. Los Angeles Times, "Opponents of gay marriage say they'll sue over changed wording", July 29, 2008
  48. Jerry Brown's cynical ploy on gay rights, Dan Walters, Sacramento Bee, July 30, 2008
  49. Experts expound: Is Jerry Brown playing politics?
  50. Mercury News, "Gay marriage opponents decry new Prop. 8 language as 'inflammatory'", July 30, 2008
  51. Hearings Set In California's Proposition 8 Same Gender Marriage Battle
  52. Arguments in favor of Prop 8 proposed for official ballot book
  53. Judge refuses to order change in Prop. 8 title, August 9, 2008

Additional reading