About the Prop 8 Legal Challenge
On May 26, 2009, in a 6-1 decision, the California Supreme Court upheld Proposition 8, the ballot measure that eliminated the right of same sex couples to marry. At the same time, all of the 7 justices ruled that the more than 18,000 marriages that took place between June 16 and November 4, 2008 continue to be fully valid and recognized by the state of California. All of the 7 justices also affirmed the Court’s prior holding that sexual orientation is subject to the highest level of protection under the California Constitution.
On November 5, 2008, NCLR, the ACLU, Lambda Legal, Munger, Tolles & Olson, LLP, the Law Office of David C. Codell, and Orrick, Herrington & Sutcliffe LLP filed a petition asking the California Supreme Court to invalidate Proposition 8. Our petition argued that Proposition 8 is invalid because the California Constitution does not permit the constitutional rights of a minority to be stripped away by a simple majority vote.
A record-breaking number of religious organizations, civil rights groups, and labor unions, along with numerous California municipal governments, bar associations, leading legal scholars, and others filed briefs urging the Court to invalidate Proposition 8.
The Court heard oral argument on March 5, 2009.
Bio of Geoff Kors
Bio of James Esseks
Bio of Jennifer Pizer
Bio of Kate Kendell
Bio of Rev Art Cribbs
Bio of Shannon Minter
Statement of Lisa Cisneros
Prop 8 Legal Challenge List of Amici Mar 4
Prop 8 Legal Challenge Media Advisory
Prop 8 Legal Challenge Press Release
Prop 8 Legal Challenge Timeline
Statement of Eva Paterson
Statement of Geoff Kors
Statement of James Esseks
Statement of Jennifer Pizer
Statement of Kate Kendell
Statement of Rev Art Cribbs
Statement of Shannon Minter
We argue that Proposition 8 is invalid because the California Constitution does not permit the fundamental constitutional rights of a minority to be stripped away by a simple majority vote. The California Constitution establishes two ways that it can be altered. A substantial change to the principles or basic structure of the constitution, called a "revision," requires the involvement of the legislature and a more deliberative process. A less substantial change, called an "amendment," can be enacted by a simple majority vote of the people.
The California Supreme Court should strike down Proposition 8 because it is, in fact, a revision. The principle of equal protection, which prevents the majority from oppressing minority groups, is central to our constitution and our democratic system of government. Proposition 8 would limit that fundamental principle of equality for LGBT Californians and undermine the very purpose of equal protection for everybody.
Five additional petitions challenging Proposition 8 were filed by a number of cities and counties led by the City and County of San Francisco; a private attorney in Los Angeles representing two couples; a coalition of civil rights groups including the Asian Pacific American Legal Center, California State Conference of the NAACP, Equal Justice Society, MALDEF, and NAACP Legal Defense Fund, Inc.; prominent women’s groups; and a coalition of religious groups led by the California Council of Churches. (The Court deferred consideration of the petitions submitted by the civil rights groups, women’s groups, and religious groups, and invited those groups to submit amicus briefs instead.)
On November 19, the California Supreme Court granted review of our petition, agreeing to hear the case and setting an expedited briefing schedule. All briefs had to be submitted by January 21, and oral argument was March 5.
- writ petition and brief (pdf)
- Attorney General's answer brief
- Petitioners' reply brief
- Petitioners' answer to briefs of amici curiae
- Attorney General's response to amicus curiae briefs
Amicus Briefs Supporting Overturn of Proposition 8
The legal challenge to Proposition 8 is supported by hundreds of religious organizations, civil rights groups, and labor unions, along with numerous California municipal governments, bar associations, and leading legal scholars, who have collectively urged the California Supreme Court to strike down Proposition 8.
Read the amicus briefs, updated January 21, 2009 (all documents are pdf files):Organizations, Legal Scholars, and Clergy
- Alameda County Bar Association, et al. (Bar Associations and Non-profit Legal Advocacy Organizations)
- Reverend Dr. Frank M. Alton, et al. (Clergy who Performed Weddings)
- Amici Concerned with Gender Equality
- Anti-Defamation League, et al.
- Asian Pacific American Legal Center, et al. (Civil Rights Organizations)
- Association of Certified Family Law Specialists and American Academy of Matrimonial Lawyers, Northern Cal. Chapter
- Professors C. Edwin Baker, Robert A. Burt and Kermit Roosevelt III
- Beverly Hills Bar Association, et al.
- Billy DeFrank LGBT Community Center, et al. (LGBT Community Centers)
- California Council of Churches, et al. (Religious Organizations and Leaders)
- Clergy United, Inc., et al. (Nearly 900 religious organizations and leaders joining amicus brief of California Council of Churches, et al.)
- California Federation of Labor, et al. (Labor Unions)
- California National Organization for Women, et al.
- California Teachers Association
- Chapman University and Orange County Organizations and Individuals
- Children’s Law Center of Los Angeles, et al. (Children’s and LGBT Advocacy Organizations)
- The City of Berkeley, et al. (California Local Governments)
- Civil Rights Forum
- Constitutional and Civil Rights Law Professors
- The Constitutional Law Center of the Monterey College of Law
- Professors William N. Eskridge, Jr. and Bruce E. Cain
- Faith in America Inc.
- Human Rights Watch, et al.
- Jewish Family Service of Los Angeles
- League of Women Voters of California
- Legislative Amici Curiae (65 California Legislators)
- Log Cabin Republicans
- Love Honor Cherish
- Professor Karl M. Manheim
- Marriage Equality USA
- Our Family Coalition and COLAGE
- Pacific Yearly Meeting of the Religious Society of Friends, et al.
- Professors of Family Law
- Professors of State Constitutional Law
- Sacramento Lawyers for Equality of Gays and Lesbians (SacLEGAL)
- San Francisco Chamber of Commerce, et al. (Businesses)
- San Francisco La Raza Lawyers Association
- Archbishop Mark Steven Shirilau, Ph.D.
- Zakary Akin, et al.
- John Emmanuel Domine, et al.
- Erin Figueroa, Morgan Oliveira and Christina Demuth
- J. Rae Lovko and Jason E. Hasley
- James T. Linford
- Steven Mattos et. al.
Other Writ Petitions
Other petitioners have also filed writ petitions challenging Proposition 8 as an unconstitutional revision of the California Constitution. The Court decided to defer consideration of the petitions submitted by the civil rights groups, women’s groups, and religious groups, which were filed after November 5. The Court invited those groups to submit amicus briefs in support of the other petitions. These petitioners include:
- The City and County of San Francisco, joined by the City of Los Angeles and Santa Clara County
- Civil rights groups including the Asian Pacific American Law Center, the California State Conference of the NAACP, the Equal Justice Society, the Mexican American Legal Defense and Educational Fund, and the NAACP Legal Defense and Educational, Inc.;
- Women’s groups, including Equal Rights Advocates and the California Women’s Law Center
- Religious leaders and faith organizations, including the California Council of Churches, the General Synod of the United Church of Christ, two Episcopal Bishops (of California and Los Angeles), the Progressive Jewish Alliance, the Unitarian Universalist Association of Congregations and the Unitarian Universalist Legislative Ministry of California, and the Northern and Southern California Nevada Conferences of the United Church of Christ
- A private attorney in Los Angeles representing two same-sex couples.