California Proposition 8 (2008)

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Proposition 8
Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment
Election results
Yes or no Votes Percentage
Yes check.svg Yes 7,001,084 52.24%
X mark.svg 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
Election 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 of[2] 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 also ultimately ruled unconstitutional by a federal court (on different grounds) in 2010, although only confirmed on June 26, 2013 following the conclusion of proponents' appeals.

Proposition 8 would have circumvented 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", which would not be vulnerable to 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 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 both dismissed the appeal and directed the Ninth Circuit to vacate (withdraw) its decision, which had upheld the district court ruling. The decision left the district court's 2010 ruling intact.[8][9][10] On June 28, 2013, the Ninth Circuit lifted its stay of the district court's ruling, enabling Governor Jerry Brown to order same-sex marriages to resume.[11]


In 2000, the State of California adopted Proposition 22 which, as an ordinary statute, forbad 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,[12] 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.[13] The proposition did not affect domestic partnerships in California,[14] 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).[15][16][17]

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.[18] Walker issued a stay (injunction) against enforcing Proposition 8 and a stay to determine suspension of his ruling pending appeal.[19][20] 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,[21] but the stay remained in place as appeals continued to the U.S. Supreme Court,[22] which heard oral arguments in the appeal Hollingsworth v. Perry on March 26, 2013.[23] On June 26, 2013 the Supreme Court dismissed the appeal and ruled that the Ninth Circuit had erred in allowing the previous%2