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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.







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18,000 Couples

press materials

our argument

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.

petitions and briefs

Strauss v. Horton Petition and 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
Individuals

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:

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