Lawsuits, California Proposition 8 (2008)

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California Proposition 8 has been involved in three sets of lawsuits:

  • 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.

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.[1]
  • 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"[2]

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."[3] 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."[4]

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.[5],[6]

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.[7] 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.[8],[9],[10]

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.[11],[12]

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,'"[13],[14],[15]

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."[16]

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.[17]

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.)[18]

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".[19]

See also


  1. San Francisco Chronicle, Gay marriage backers want ban issue off ballot, June 21, 2008
  2. Bay City News, Marriage Equality Group Asks California Supreme Court to remove November Same-Sex Marriage Ban Initiative
  3. Mercury News, Civil rights groups seek to block California gay marriage ballot initiative, June 20, 2008
  4. KTVU-TV, Proponents Urge Court To Leave Marriage Initiative On Nov. Ballot, July 1, 2008
  5. Associated Press, "Calif. court rejects gay-marriage-initiative case", July 16, 2008
  6. San Francisco Chronicle, "Challenge tossed, gay marriage ban on ballot", July 17, 2008
  7. CNA, "Lawsuit filed to challenge California ballot’s ‘inflammatory’ rewording of marriage amendment", August 1, 2008
  8. Judge upholds summary of gay marriage ban
  9. San Francisco Chronicle, "Prop. 8 backers sue to change ballot wording", July 30, 2008
  10. Judge puts off ruling on marriage measure, August 8, 2008
  11. Thomas Elias: A ballot of words describing Prop. 8, August 7, 2008
  12. July 3 ballot title for Proposition 8
  13. Los Angeles Times, "Opponents of gay marriage say they'll sue over changed wording", July 29, 2008
  14. Jerry Brown's cynical ploy on gay rights, Dan Walters, Sacramento Bee, July 30, 2008
  15. Experts expound: Is Jerry Brown playing politics?
  16. Mercury News, "Gay marriage opponents decry new Prop. 8 language as 'inflammatory'", July 30, 2008
  17. Hearings Set In California's Proposition 8 Same Gender Marriage Battle
  18. Arguments in favor of Prop 8 proposed for official ballot book
  19. Judge refuses to order change in Prop. 8 title, August 9, 2008