Post-election events of Proposition 8 (2008)

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Proposition 8 is a ballot proposition and constitutional amendment passed in the November 2008, state elections. Due to the nature and controversy surrounding the initiative, several important post-election events occurred that sought to overturn the proposition through civil disobedience or through the judicial system.

A constitutional amendment passed by the electorate takes effect the day after the election. On the evening of November 4 the "Yes on 8" campaign issued a statement by Ron Prentice, the chairman of, saying "The people of California stood up for traditional marriage and reclaimed this great institution."[1] The organizers of the "No on Prop 8" campaign issued a statement on November 6 saying "Tuesday’s vote was deeply disappointing to all who believe in equal treatment under the law."[2] The counties of Los Angeles, San Francisco, Yolo, Kern, Santa Barbara, San Luis Obispo, Sonoma, San Diego, San Bernardino, Sacramento, and Tuolumne stopped issuing marriage licenses to same-sex couples the day after the election.[3][4][5][6]


Protesters against Proposition 8 demonstrate in front of the California State Capitol in Sacramento on November 9.

Following the passage of Proposition 8, mass protests took place across the state. These included protests outside a temple of The Church of Jesus Christ of Latter-day Saints in Westwood, Los Angeles;[7] a march through Hollywood that blocked traffic and elicited police intervention;[8] and a candlelight vigil in front of the Sacramento Gay and Lesbian Center.[9]

On Sunday November 9 an estimated crowd of 4,000 people protested in front of the California State Capitol.[10] In San Francisco, thousands gathered in front of the City Hall to protest the proposition and to perform a candlelit vigil. Speakers who voiced their opinion in opposition of Proposition 8 included state senator Mark Leno and mayor Gavin Newsom.[11]

Outside California, a protest at the headquarters of The Church of Jesus Christ of Latter-day Saints in Salt Lake City, Utah[12] was addressed by local gay rights supporters including former Salt Lake City Mayor Rocky Anderson and three gay members of the Utah Legislature: Senator Scott McCoy and Representatives Christine Johnson and Jackie Biskupski.[13] On November 12, 2008, more than 10,000 protesters gathered outside the Manhattan New York Temple to protest the support of The Church of Jesus Christ of Latter-day Saints for Proposition 8.[14] On November 15, 2008, tens of thousands of people in cities around the United States participated in rallies to protest the passage of Proposition 8 and to promote the expansion of civil marriage to same-sex couples throughout the nation.[15]

On November 7, 2008, a blogger revealed that Scott Eckern, then Artistic Director of California Musical Theatre, had made a personal donation of $1,000 to the "Yes on 8" campaign.[16] All campaign contributions of $1,000 or more required a name, home and occupation be listed. On November 10, gay artists called for a boycott of California Musical Theatre.[17] On November 11, Eckern issued an apology on the online site Playbill stating that a similar donation had been made to a human rights organization that includes gay rights as one of its causes.[18] On November 12, Eckern resigned from California Musical Theatre. Executive producer of the CMT Richard Lewis stated that Eckern was not forced to resign but did so of his own accord.[19]

Richard Raddon, Director of the Los Angeles Film Festival, also resigned due to boycotts by the gay community.[20]

Protests in California were marred by racial incidents. Due to their support of Proposition 8, reported as high as 70 percent, some African Americans attending events were allegedly subjected to racial epithets and felt threatened. California Assembly Speaker Karen Bass stated she was disturbed by the treatment of African Americans in the aftermath of the passage of the proposition. In reaction to the racial incidents, Evan Wolfson said, "In any fight, there will be people who say things they shouldn't say, but that shouldn't divert attention from what the vast majority are saying against this, that it's a terrible injustice."[21][22]


To protest the passage of Proposition 8, musical theatre composer Marc Shaiman wrote a satiric mini-musical called "Prop 8 — The Musical".[23] The three-minute video was distributed on the internet at The cast includes Jack Black (who plays Jesus), Nicole Parker, Neil Patrick Harris, John C. Reilly, Allison Janney, Andy Richter, Maya Rudolph, Margaret Cho, Rashida Jones, Kathy Najimy, Sarah Chalke, Jennifer Lewis, John Hill and other celebrities. It was directed by Adam Shankman. The video satirizes Christian churches that selectively pick and choose biblical doctrines to follow.[24] It received 1.2 million internet hits in its first day,[25][26] won the 2009 Webby Award category Comedy: Individual Short or Episode,[27] and won a GLAAD media award.[28]

In 2010, 8: The Mormon Proposition, a documentary alleging the involvement of The Church of Jesus Christ of Latter-day Saints in the passage of Proposition 8. Written by Reed Cowan and narrated by Dustin Lance Black, the film divided critics over a perceived heavy-handed approach to the church's involvement; it won the 2011 GLAAD Media Award for Outstanding Documentary. Attention to the Mormon involvement was justified given that, among other non-monetary efforts, Mormons and the Mormon Church spent over $20 million to support the passage of Proposition 8.[29]

In 2011, 8, a play re-enacting the proceedings of Perry v. Brown in a condensed manner of documentary theatre, was premiered on Broadway.

Controversies about campaign financing and donations[edit]

On November 13, 2008, Fred Karger of the group Californians Against Hate filed a complaint with the California Fair Political Practices Commission that campaign finance reports filed by The Church of Jesus Christ of Latter-day Saints under-reported its actual Proposition 8 campaign expenses as $2,078.97.[30][31] Karger charged that the Church's failure to report "non-monetary contributions" placed it in violation of California's Political Reform Act. Church spokesman Scott Trotter denied the charges, saying the church had "fully complied with the reporting requirements" and a "further report will be filed on or before [...the] due date, Jan. 30, 2009."[32]

In a report filed with the California Secretary of State's office January 30, 2009, the LDS Church reported its non-monetary expenditures as $189,903.58.[33] On January 31, the San Francisco Chronicle stated, "While the deadline for the report, which covers the period from July 1 to Dec. 31, is [February 2], many campaign contributions by major donors and independent committees must be reported within days after they're made." The article further stated that the executive director of the FPPC stated that the LDS church was still under investigation, and "In general, however, 'cases like these hinge over what had to be reported and when it had to be reported.' A late report covering disputed filings 'wouldn't remove the obligation to file on time' but would be considered by investigators."[34]

The Boston Herald reported on February 2, 2009:

While many church members had donated directly to the Yes on 8 campaign—some estimates of Mormon giving range as high as $20 million—the church itself had previously reported little direct campaign activity. But in the filing made Friday, the Mormon church reported thousands in travel expenses, such as airline tickets, hotel rooms and car rentals for the campaign. The church also reported $96,849.31 worth of 'compensated staff time'—hours that church employees spent working to pass the same-sex marriage ban.[35]

In a statement issued February 2, 2009, the LDS Church responded to "erroneous news reports", saying its subsequent disclosure was "in no way prompted by an investigation by the California Fair Political Practices Commission," that "We believe we have complied with California law," and that the report's filing date met the January 31, 2009 deadline.

The Church, like other organizations on both sides of the ballot issue, was required to publicly file these donations by the 31 January deadline. The Church has been filing required contribution reports throughout the campaign. Those earlier donations 'initially stated' were filed for specific time periods prior to this last reporting period, as required by law. Other groups are also filing their final contribution reports to meet the same deadline.[36]

On January 7, 2009, supporters of Proposition 8 filed a federal lawsuit to block public disclosure of their donations. Alleging threats against their lives as well as other forms of harassment, the lawsuit also requested a preliminary injunction that ordered the California Secretary of State to remove information about donations posted on its website. Opponents of Proposition 8 called it "hypocritical" that its supporters would refer to their support of the measure as the "will of the people" while seeking to overturn voter-approved campaign disclosure laws.[37] U.S. District Judge Morrison England, Jr. denied that request on January 29; he said that the public had the right to know about donors of political causes, that he did not agree that the plaintiffs had a probability of success in court, and that they had not proven they would suffer "irreparable injury" if he did not grant the preliminary injunction.[38]


California Supreme Court cases[edit]

Protesters at the "Day of Decision" rally marched up Market Street in downtown San Francisco following the California Supreme Court ruling.
Pro and Anti-Proposition 8 protesters rally in front of the San Francisco City Hall on the day of the Supreme Court hearings.

After the passage of Proposition 8, a number of lawsuits were filed by against the state and state officials with the intent of overturning the measure and arguing that Proposition 8 should not have retroactive effect on existing same-sex marriages. On November 13, 2008, the California Supreme Court asked California Attorney General Jerry Brown for an opinion on whether the Court should accept these cases for review and whether the measure should be suspended while they decide the case. On November 19, the Court accepted three lawsuits challenging Proposition 8 but denied the requests to stay its enforcement.[39] The Court asked for final briefs by January 5, 2009. Oral arguments were held on March 5, 2009.

On Tuesday May 26 the court ruled that "The Amendment to the State Constitution referred to as Proposition 8 is valid and enforceable from the moment it was passed."[citation needed] The court also held that "Proposition 8 must be understood as creating a limited exception to the state equal protection clause."[40] Justice Moreno in his lone dissenting opinion, argued that such a change to the Constitution should only be implemented "by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons" and not by a simple majority vote.

The Court did rule that their decision cannot be applied to retroactively annul marriages that were transacted while the practice was legal in the state of California.[41] Proposition 8 has no retroactive effect. The California Supreme Court ruled unanimously on May 26, 2009, that the approximately 18,000 same-sex marriages that had occurred prior to Proposition 8's passage would still be valid and must continue to be recognized in the state, since the amendment does not state explicitly that it would nullify the same-sex marriages performed before it took effect.[41]

Later legislation clarified that same-sex couples who married out-of-state within the window of legality would also retain their legal marriage rights. The bill was signed by Governor Arnold Schwarzenegger on October 11, 2009.[42]

Federal challenges[edit]

Smelt v. United States[edit]

Immediately following the passage of Proposition 8, Arthur Smelt and Christopher Hammer filed suit in the Southern Division of the United States District Court for the Central District of California, in Orange County. In the case, Smelt v. United States, the couple argued that Proposition 8 and the Federal Defense of Marriage Act violated the Equal Protection Clause of the American constitution.[43] The United States Justice Department filed a motion to dismiss the case because the "plaintiffs are married, and their challenge to the federal Defense of Marriage Act ("DOMA") poses a different set of questions."[44] On July 15, 2009, District Judge Carter dismissed the part of Smelt that challenged Proposition 8, finding that the fact that the plaintiffs were already legally married in California meant they had no standing to challenge Proposition 8. The challenge to the Defense of Marriage Act, however, remained intact.[45] The remainder of the case was heard on August 3, 2009, in an Orange County district court.[46] The lawsuit was thrown out because the two men had filed suit against the federal government in a state court, a technicality which meant the suit needed to be re-filed.[47]

Perry v. Schwarzenegger[edit]

On the day of Strauss v. Horton's decision, the American Foundation for Equal Rights (AFER) filed suit in U.S. District Court for the Northern District of California to challenge the validity of Proposition 8. Lambda Legal, the ACLU, and the National Center for Lesbian Rights have since announced their support for the lawsuit.[48] San Francisco filed a motion to and was granted intervenor status in the case, saying that their work in In re Marriage Cases and Strauss v. Horton provided them with "extensive evidence and proposed findings on strict scrutiny factors and factual rebuttals to long claimed justifications for marriage discrimination".[49]

California Attorney General Jerry Brown backed the lawsuit, saying that Proposition 8 violates the U.S. Constitution and should be struck down.[50] Governor Arnold Schwarzenegger took a more neutral path,[51] saying that he supported the lawsuit because the Proposition 8 conflict asks "important constitutional questions that require and warrant judicial determination." Because this means that the Californian government will not defend the law in court,[52] the proponents of Proposition 8's campaign were granted the right to intervene as defendants.[53] The case was first heard on July 2, 2009, in the United States District Court for the Northern District of California in San Francisco, Judge Vaughn R. Walker presiding.[54]

In an act unprecedented in California history both the Governor and Attorney General refused to defend a constitutional amendment.[55]

In August, Judge Walker heard further requests for intervenor status and ordered a trial set for January 2010. On August 4, 2010, U.S. District Chief Judge Vaughn R. Walker ruled Proposition 8 unconstitutional, but at the same time temporarily provided for a suspension of the ruling while he considered whether to grant an indefinite suspension pending appeal.[56] Walker lifted the stay on August 12, 2010, thus allowing same-sex marriages to be performed as of August 18, 2010[57]

On August 16, 2010, the United States Court of Appeals for the Ninth Circuit imposed a stay of all new same-sex marriages in the State of California. It also scheduled an accelerated time table for hearing an appeal of Judge Walker's ruling.[58] Before the appeal trial begins, there will be a December 6, 2010[needs update] hearing on who has legal standing to appeal the District Court's decision and whether the proposition violates equal protection rights.[59]

Ballot repeal effort[edit]

On April 30, 2009, the members of 'Yes! on Equality' submitted a ballot initiative dubbed "California Marriage Equality Act" to the Attorney General's office, requesting a title and summary. The text of the ballot would repeal Article I; Section 7.5 of the Californian Constitution as well as clarifying that no school curriculum will be changed and no clergy will be forced to perform any "service or duty incongruent with their faith". Yes! on Equality had until August 17, 2009, to gather 694,354 signatures in order to qualify for the June 2010 ballot,[60][61] A petition for initiative for the November 2010 ballot also failed to obtain enough signatures.[62][63]

Several LGBT groups of color (including API Equality-LA, HONOR PAC, and the Jordan/Rustin Coalition) published a statement "Prepare to Prevail,"[64] in which they argue that the ballot repeal effort should be delayed until 2012. As of February 2012, the repeal effort was canceled in light of victorious court cases.[65]


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