The Proposition 8 Question:

The judge ruled that...there is no rational reason to believe that marriage between same-sex couples either harms the marriage of heterosexual couples or children in general.

The Proposition-8 Question

In November of 2009, California Voters passed Proposition 8 which amended the state Constitution to read that “only a marriage between a man and a woman is valid or recognized in California.” This effectively ended the right of same-sex couples to marry in the state.

In May 2010, Kristin Perry and Sandra Steir were denied a marriage license in Alameda County because both were women. Similarly, Paul Katami and Jeffrey Zarrillo were denied a marriage license in Los Angeles County because both were men.

The four filed suit in Federal Court against the State of California, claiming that their rights as United States citizens, according to the 14th amendment, had been violated. Naming the state’s chief executive as defendant, the case was so named, Perry v Schwarzenegger.

Both the governor and the state’s attorney general declined to defend the case, citing that they too believed it to be unconstitutional. The official proponents, or sponsors, of Proposition 8 were granted permission to intervene and defend Proposition 8.

The defendant’s sought to prove the claims they had made in the campaign to pass Proposition 8, that same-sex marriage was harmful. Specifically, the proponents of Proposition 8 had asserted that:

1. Denial of marriage to same-sex couples preserves marriage.
2. Denial of marriage to same-sex couples allows gays and lesbians to live privately without requiring others, including (perhaps especially) children, to recognize or acknowledge the existence of same-sex couples.
3. Denial of marriage to same-sex couples protects children.
4. The ideal child-rearing environment requires one male parent and one female parent.
5. Marriage is different in nature depending on the sex of the spouses, and an opposite-sex couple’s marriage is superior to a same-sex couple’s marriage.
6. Same-sex couples’ marriages redefine opposite-sex couples’ marriages.

The trial took place. Evidence was presented by both sides, and on August 12, 2010, Judge Vaughn Walker ruled that the proponents of Proposition 8 had failed to defend their claims. He found that, based on the evidence presented at trial, there is no rational reason to believe that marriage between same-sex couples either harms the marriage of heterosexual couples or children in general.

The issue is up for review by the 9th U.S. Circuit Court of Appeals. That court has put a stay on same-sex marriages in California until it has time to consider the case. Oral arguments are scheduled to begin December 18. Regardless of the ruling in the 9th Circuit Court, this case seems to be headed for the U.S. Supreme Court.

In this edition of 5-Minute Briefs, we talk to Professor Charles Doskow about the decision to overturn Proposition 8. Professor Doskow is Dean Emeritus and Professor of Law and University of La Verne College of Law where he teaches Constitutional Law.

Join us and listen, as Professor Doskow provides clear analysis of the decision and some perspective on what might be next in the appeals process.