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Hollingsworth v. Perry

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Hollingsworth v. Perry
570 U.S. ___; 133 S.Ct. 2652
Decided: June 26, 2013

Hollingsworth v. Perry, (formerly Perry v. Brown and Perry v. Schwarzenegger) was a U.S. Supreme Court decision regarding the constitutionality of California Proposition 8. It is significant for being the first U.S. federal court case in which a constitutional right to same-sex marriage has been recognized. It didn't lead to a nation-wide legalization of same-sex marriage on itself (becoming the gay version of Loving v. Virginia) because the court opinion specifically ruled on the lack of standing for the plaintiffs, and thus the precedent didn't establish much.

History of same-sex marriage in California[edit]

Up until 2008, California had never recognized same-sex marriages, although same-sex couples were being accorded more and more rights through domestic partnerships. The state family code explicitly rejected same-sex marriages, and a ballot initiative called Proposition 22 was passed in 2000, which demanded adherence to the "one man one woman" standard. In 2004, Gavin Newsom, the mayor of some gay city San Francisco, issued an order to local officials to allow same-sex marriages. The Supreme Court of California quickly declared these marriages invalid because they violated state law.

However, the City and County of San Francisco then mounted a challenge to the constitutionality of all state laws prohibiting same-sex marriage, culminating in the 2008 California Supreme Court ruling called In re Marriage Cases, which established that:[1]

  • Under the California State Constitution's equal protection clause, sexual orientation is a suspect class, and therefore laws discriminating based on sexual orientation are subject to strict scrutiny.
  • Marriage is a basic civil right.
  • There was no compelling state interest in restricting marriage to opposite-sex couples.
  • Therefore, gay marriages for everyone! (or at least everyone who wants one)

The religious right was quite upset by decision, and mobilized a successful campaign to pass a state constitutional amendment instituting the "one man one woman" restriction, which was Proposition 8.

The constitutionality of Proposition 8 (under California's constitution) was then challenged, and the California Supreme Court held that:

  • Proposition 8 constituted an exception to the state's equal protection clause. Being a constitutional amendment that had been passed legally, it was by definition constitutional itself.
  • Sexual orientation was still a suspect class, and Proposition 8 only applied to the word "marriage", so California domestic partnerships were required to provide identical rights to marriages.
  • Proposition 8 was not retroactive, so the 18,000 same-sex couples that had already gotten married, were still considered married.

Federal challenge[edit]

Although previous court decisions have been based on California's state constitution, due to the supremacy clause of the U.S. Constitution those decisions can be overridden if they are found to violate the federal equal protection clause.

Two same-sex couples have therefore challenged Proposition 8 in federal court. These couples are Kristin Perry and Sandra Steir, and Paul Katami and Jeffrey Zarrillo. They have been counselled primarily by attorneys David Boies and Ted Olsen (the latter of which, notably, considers himself a conservative in favor of gay rights). The City and County of San Francisco has also gotten in on the action; they claim that Prop 8 costs them resources and income., which ran the campaign to pass Prop 8, is also managing its defense. While normally (former) Governor Arnold Schwarzenegger and then-Attorney General (now Governor) Jerry Brown would have been the defendants, they have refused to defend the law (in Brown's case, because he agreed that Prop 8 is unconstitutional). California's Imperial County also attempted to intervene, but missed the deadline for the original trial, and the 9th circuit ruled that they did not have standing to appeal. (None of the officials involved had authority over the issuance of marriage licenses independent of direction from the state government, and they could show no particular harm to the local government from same-sex marriage, so they were not considered to have a legitimate interest in the case.) is joined by other individuals who were a part of the Prop 8 campaign and thus have similar standing: Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, and Mark A. Jansson.

The early stages of the trial involved a degree of controversy regarding cameras in the courtroom. Walker had intended to allow the trial to be broadcast live to other courtrooms, as part of a pilot program already underway in his district. The defendant-intervenors objected, claiming that their witnesses felt threatened after the post-Prop 8 protests, and did not want their testimony shown. (This despite the fact that none were anonymous, all had pictures readily available to anyone capable of using Google, several live-bloggers wrote down summaries of their testimony during the trial, and full transcripts of all testimony were entered into the public record.) This matter was appealed all the way to the U.S. Supreme Court, which overrode Walker in saying that any video of the trial should not be broadcast live outside the courtroom (although it could be broadcast to overflow rooms within the building).

Nonetheless, video was taken and stored, and Judge Walker and the parties to the case were allowed to review it, reference it and show clips at the trial itself. These tapes were placed in the record and under seal at the end of the trial, but parties to the case were allowed to access it in order to prepare an appeal, so long as they did not distribute the tapes or display them publicly.

The original District Court trial[edit]

The trial began on January 11, 2010, and closing arguments were given on June 16 of that year.

The defense made an exceedingly poor showing; out of six witnesses who were deposed, four were retracted before the beginning of the trial. In addition, William Tam, who was originally a defendant-intervenor in the case, was such an openly ignorant bigot that the plaintiffs then called him as a witness, in order to demonstrate that the Prop 8 campaign was built on prejudice and deception rather than any rational interest. Both of the defense's remaining witnesses were criticized heavily by the district judge for not possessing the expertise they claimed. Interesting to see how lawyers for Prop 8 were hobbled by having to leave "Because God says so" out of their arguments.

The plaintiffs called a wide range of witnesses, most of whom were expert witnesses testifying about relevant history, psychology, and law. Among their main points were that same-sex relationships were substantially the same as straight ones, that gay and lesbian parents were as effective as straight parents, and that Proposition 8 harmed same-sex couples and their children. Some witnesses also testified to secondary issues, such as the ineffectiveness of reparative therapy, the economic impact of same-sex marriage, the history of LGBT discrimination, and the history of the institution of marriage (particularly with regard to the gradual elimination of gender roles from marriage law).

On August 4, Judge Vaughn Walker struck down Proposition 8.[2] In doing so, he used three main lines of reasoning:

  • Sexual orientation qualifies as a suspect class, and thus Proposition 8 is subject to strict scrutiny under the federal constitution. This is arguably the first time that sexual orientation has been unambiguously declared to be a suspect class in a federal court. Walker also refers to sex-based discrimination, which is subject to strict scrutiny lite.
  • Marriage is a fundamental right, and therefore cannot be removed by any democratic process without compelling reason. He dismisses the argument that same-sex marriage is somehow a new right, different from straight marriage.
  • Even if the previous two points failed to hold, Proposition 8 would still be unconstitutional because the defense could provide no rational basis for the law. Claiming that Prop 8 preserves the definition of marriage that it establishes is no more than a tautology, the definition of marriage it creates is based on anachronistic gender norms and prejudice, and the state interest in marriage extends far beyond mere procreation. With no legitimate purpose behind Prop 8, and given that it damages the rights of LGBTs, the law cannot stand.

Reaction to the original ruling[edit]

The Mormon Church commented: "this decision represents only the opening of a vigorous debate over the rights of the people to define and protect this most fundamental institution – marriage..."


The defense immediately appealed Judge Walker's ruling, and obtained a stay on the decision from the Ninth Circuit's U.S. Court of Appeals. As a result Proposition 8 remains in effect until the appeal is resolved. Imperial County desired to intervene in defense of Prop 8, but were considered to lack proper standing to appeal.

After the Ninth Circuit, any further appeals would be directed to the federal Supreme Court.

Defense briefs[edit]

The defense has filed their appeal briefs in favor of Proposition 8. For the most part their arguments are the same as the ones made in the original trial. They rely heavily on "procreation" as the distinguishing factor between same-sex and opposite-sex couples. A quick breakdown of this argument:

  • Marriage exists to "channel" sexual desires into a certain type of social arrangement, in which children are raised by their biological parents.
  • We let infertile straight people marry because it's too much trouble and too intrusive to sort out who is or isn't capable of having children.
  • But if we let same-sex couples marry, people might forget that the point of marriage is baby-making, leading to baby-making outside of marriage (and probably also straight marriages without baby-making).
  • Of course same-sex couples are having kids (or adopting kids, or bringing in kids from previous marriages) anyway, but
  • Because opposite-sex couples can have kids by accident, they need marriage, whereas anyone who can't have kids by accident really doesn't need to be married.
  • Also, same-sex couples might have fewer kids if they can't get married, which is good because they are worse parents than "a mother and a father". This assertion is not backed up by any studies comparing same-sex and opposite-sex parents, but is instead backed up by the irrelevant comparison of single-parent and two-parent households.
  • Also, biological relatedness is claimed to have some special importance, but only insofar as this argument can be pushed without insulting adoptive families too grossly.

It's notable that this is the argument that even the very conservative and Catholic Antonin Scalia said that he didn't buy, in his Lawrence v. Texas dissent. It's also worth noting that this is not a legal argument, as it merely appeals to the emotions of stupid people.

Aside from that, the defense mostly relies on older decisions to claim that a) same-sex marriage is a different right from regular marriage (due to the procreation argument) and b) GLBTs are too hard to identify as a discrete group, and/or too politically powerful to deserve suspect classification. It's difficult to know what to make of this second set of arguments; the same argument might be made about ethnically Jewish people.

Episode 1 - the Ninth Circuit Court of Appeals[edit]

In a move that is considered somewhat pre-emptive, the Prop 8 proponents has tried and failed to unseat the lead judge for the argument that the lead judge is married to one of the Executive Director at the ACLU, thus having perception of conflict of interest issues.

Oral arguments were heard by a three judge panel from the 9th Circuit on December 6, 2010, and broadcast on C-SPAN. The three judges involved were Stephen Reinhardt (liberal husband of an ACLU director), Michael Daly Hawkins (liberal-ish moderate), and N. Randy Smith (conservative graduate of Brigham Young University).

On January 4th, this panel certified part of the standing question to the California Supreme Court. Basically they asked whether the supporters of a ballot initiative were considered to have an interest in said initiative under state law. This is important because the Proposition 8 supporters could not show that the law granted them any particular benefit or protection, and because the State of California itself has not defended the provision. Only parties with a "particularized" interest in the outcome of a trial can appeal the result of that trial. The California Supreme Court on November 17, 2011 responded that the proponents have standing.

On February 7, 2012, a panel of the United States Court of Appeals for Ninth Circuit upheld the District Court's decision on appeal by a 2-1 vote,[3] However all three judges agreed that the prop 8 proponents have standing to defend the case. And so goes episode 2 in the Supreme Court.

Episode 2 - The US Supreme Court[edit]

The Supreme Court granted certiorari in the case on December 7, 2012, ordering the parties to brief and argue the additional question of whether supporters of Prop. 8 have standing.[4] Olson and Boies stated that they would "address all the issues, focused on the fundamental constitutional right to marry of all citizens" before the Supreme Court, while defenders of Proposition 8 stated they would now have their first chance at a fair trial since they began defending Proposition 8.[5] Said argument are held on n March 26, 2013.[6][7]

On June 26, 2013, The Supreme Court ruled 5-4 (NOT along ideological lines!!) that the Prop 8 proponents do not have standing for appeal. Therefore, the first appeal in the Ninth Circuit Appeals Court (reaffirming the decision to overturn Proposition 8) is vacated and the decision of the original Federal court trial (overturning Proposition 8) is reaffirmed. Since the Supreme Court declined to discuss the underlying merits, it fails to set a legal precedent for the underlying issue in states other than in California. The issue of lack of standing might be of interest because should the states decline to defend these propositions, it would be much easier to overturn them.

Online court records[edit]

The most up-to-date and trustworthy sources of information about official filings, briefs, rulings, opinions, and so on are the official records of the various courts: