Proposition 8, known informally as Prop 8, was a California ballot proposition and a state constitutional amendment intended to ban same-sex marriage. It passed in the November 2008 California state elections but was later overturned by the courts, which found the amendment unconstitutional in comparison to the U.S. Constitution. The proposition was created by opponents of same-sex marriage in advance of the California Supreme Court's May 2008 appeal ruling, In re Marriage Cases, which found the ban in 2000 on same-sex marriage (Proposition 22) unconstitutional. Proposition 8 was ultimately ruled unconstitutional in 2010 by a federal court on different grounds, although the ruling did not go into effect until June 26, 2013, following the conclusion of appeals.
Proposition 8 countermanded the May 2008 ruling by adding Proposition 22 wording as an amendment to the California Constitution, providing that "only marriage between a man and a woman is valid or recognized in California". 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"; in his dissent, Justice Carlos R. Moreno wrote 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.
Legal challenges to Prop 8 were presented quickly after its approval. Following affirmation of Prop 8 by the state courts, two same-sex couples filed a lawsuit 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 Prop 8 was unconstitutional under both the Due Process and Equal Protection Clauses of the U.S. Fourteenth Amendment, since Prop 8 purported to re-remove rights from a disfavored class only, with no rational basis. The official proponents' justifications for Prop 8 were analyzed in over fifty pages covering eighty findings of fact. The state government supported the ruling and refused to defend Prop 8. The ruling was stayed, pending appeal by the proponents of Prop 8. On February 7, 2012, the Ninth Circuit Court of Appeals, in a 2–1 decision, reached the same conclusion as the district court, but on narrower grounds. The court ruled that it was unconstitutional for California to take marriage rights away from same-sex couples shortly after having granted them. The ruling was stayed pending appeal to the United States Supreme Court.
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 Prop 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 vacated the decision of the Ninth Circuit, and remanded the case for further proceedings. The decision left the district court's 2010 ruling intact. On June 28, 2013, the Ninth Circuit, on remand, dismissed the appeal for lack of jurisdiction and dissolved their previous stay of the district court's ruling, enabling Governor Jerry Brown to order same-sex marriages to resume.
The passage of Prop 8 received widespread media coverage over its effect on the concurrent 2008 presidential and congressional elections, as well as the pre-election effects Prop 8 had on California's reputation as a historically LGBTQ-friendly state and the same-sex marriage debate that had started after same-sex marriage was legalized in Massachusetts through a 2004 court decision. After the results were certified and same-sex marriages ceased, supporters of Prop 8 were targeted by opponents with actions ranging from some opponents disclosing supporter donations and boycotting proponents' businesses, to others threatening supporters with death and vandalizing churches.
A ballot proposal to formally repeal Prop 8 from California's constitution, called Proposition 3, was passed by the California State Legislature in July 2023. The vote to formally repeal Prop 8 was passed by nearly 63% of voters in the 2024 election.
Proposition 8, known informally as Prop 8, was a California ballot proposition and a state constitutional amendment intended to ban same-sex marriage. It passed in the November 2008 California state elections but was later overturned by the courts, which found the amendment unconstitutional in comparison to the U.S. Constitution. The proposition was created by opponents of same-sex marriage in advance of the California Supreme Court's May 2008 appeal ruling, In re Marriage Cases, which found the ban in 2000 on same-sex marriage (Proposition 22) unconstitutional. Proposition 8 was ultimately ruled unconstitutional in 2010 by a federal court on different grounds, although the ruling did not go into effect until June 26, 2013, following the conclusion of appeals.
Proposition 8 countermanded the May 2008 ruling by adding Proposition 22 wording as an amendment to the California Constitution, providing that "only marriage between a man and a woman is valid or recognized in California". 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"; in his dissent, Justice Carlos R. Moreno wrote 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.
Legal challenges to Prop 8 were presented quickly after its approval. Following affirmation of Prop 8 by the state courts, two same-sex couples filed a lawsuit 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 Prop 8 was unconstitutional under both the Due Process and Equal Protection Clauses of the U.S. Fourteenth Amendment, since Prop 8 purported to re-remove rights from a disfavored class only, with no rational basis. The official proponents' justifications for Prop 8 were analyzed in over fifty pages covering eighty findings of fact. The state government supported the ruling and refused to defend Prop 8. The ruling was stayed, pending appeal by the proponents of Prop 8. On February 7, 2012, the Ninth Circuit Court of Appeals, in a 2–1 decision, reached the same conclusion as the district court, but on narrower grounds. The court ruled that it was unconstitutional for California to take marriage rights away from same-sex couples shortly after having granted them. The ruling was stayed pending appeal to the United States Supreme Court.
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 Prop 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 vacated the decision of the Ninth Circuit, and remanded the case for further proceedings. The decision left the district court's 2010 ruling intact. On June 28, 2013, the Ninth Circuit, on remand, dismissed the appeal for lack of jurisdiction and dissolved their previous stay of the district court's ruling, enabling Governor Jerry Brown to order same-sex marriages to resume.
The passage of Prop 8 received widespread media coverage over its effect on the concurrent 2008 presidential and congressional elections, as well as the pre-election effects Prop 8 had on California's reputation as a historically LGBTQ-friendly state and the same-sex marriage debate that had started after same-sex marriage was legalized in Massachusetts through a 2004 court decision. After the results were certified and same-sex marriages ceased, supporters of Prop 8 were targeted by opponents with actions ranging from some opponents disclosing supporter donations and boycotting proponents' businesses, to others threatening supporters with death and vandalizing churches.
A ballot proposal to formally repeal Prop 8 from California's constitution, called Proposition 3, was passed by the California State Legislature in July 2023. The vote to formally repeal Prop 8 was passed by nearly 63% of voters in the 2024 election.
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. The proposition did not affect domestic partnerships in California, 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).
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 Carlos R. 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. Walker issued a stay (injunction) against enforcing Proposition 8 and a stay to determine suspension of his ruling pending appeal. 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, but the stay remained in place as appeals continued to the U.S. Supreme Court, which heard oral arguments in the appeal Hollingsworth v. Perry on March 26, 2013. On June 26, 2013, the Supreme Court dismissed the appeal and ruled that the Ninth Circuit had erred in allowing the previous appeal, since in line with Article III of the Constitution and many prior cases unanimous on the point, being an initiative proponents is not enough by itself to have federal court standing or appeal a ruling in federal court. This left the original federal district court ruling against Proposition 8 as the outcome, and same sex marriages resumed almost immediately afterwards.
History of the ballot initiative
In 2005, the site ProtectMarriage.com was created as the "Official website for the California Constitutional Marriage Amendment" and launched a campaign to pass a ballot proposition to constitutionally prohibit same-sex marriage. In 2007, ProtectMarriage.com tried and failed to get Initiative 1254, a proposed ballot proposition to constitutionally prohibit same-sex marriage on the 2008 California ballot.
On November 29, 2007, was the official summary date for California Marriage Protection, also called Limit On Marriage. Constitutional Amendment and numbered 07-0068 by the Attorney General of California and Initiative 1298 by California Secretary of State. In order to qualify for the ballot, a measure needed 694,354 petition signatures, an amount equal to 8 percent of the votes cast during the 2006 California gubernatorial election. In late April 2008, ProtectMarriage.com submitted a petition containing 1,120,801 signatures, which was 426,447 more signatures than was necessary to put the measure on the ballot. On June 2, 2008, California Secretary of StateDebra Bowen said a random sample check of signatures submitted by the measure's sponsors showed that they had gathered enough names to qualify and certified it as the eighth initiative for the November 4, 2008, general election ballot.
Proposition 8 (ballot title: Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment; originally titled the "California Marriage Protection Act") was a California ballot proposition that changed the California Constitution to add a new section 7.5 to Article I, which reads: "Only marriage between a man and a woman is valid or recognized in California." This change restricted the definition of marriage to opposite-sex couples, and eliminated same-sex couples' right to marry, thereby overriding portions of the ruling of In re Marriage Cases by "carving out an exception to the preexisting scope of the privacy and due process clauses" of the state constitution.
Full text
Proposition 8 consisted of two sections. Its full text was:
SECTION 1. Title
This measure shall be known and may be cited as the "California Marriage Protection Act."
SECTION 2. Article I, Section 7.5 is added to the California Constitution, to read:
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.
Pre-election legal challenges
Petition to remove proposition from ballot
On July 16, 2008, the California Supreme Court denied a petition calling for the removal of Proposition 8 from the November ballot. The petition asserted the proposition should not be on the ballot on the grounds it was a constitutional revision that only the legislature or a constitutional convention could place before voters. Opponents also argued that the petitions circulated to qualify the measure for the ballot inaccurately summarized its effect. The court denied the petition without comment. As a general rule, it is improper for courts to adjudicate pre-election challenges to a measure's substantive validity. The question of whether Proposition 8 is a constitutional amendment or constitutional revision was ruled on by the California Supreme Court on May 26, 2009, and found that it was not a revision and therefore would be upheld. They also declared that the same-sex marriages performed prior to the passing of Prop 8 would remain valid.
Challenge to title and summary
The measure was titled: "Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment." The ballot summary read that the measure "changes the California Constitution to eliminate the right of same-sex couples to marry in California."
Proponents of the measure objected to the wording of the ballot title and summary on the grounds that they were argumentative and prejudicial. The resulting legal petition Jansson v. Bowen was dismissed August 7, 2008, by California Superior Court Judge Timothy M. Frawley, who ruled that "the title and summary includes an essentially verbatim recital of the text of the measure itself", and that the change was valid because the measure did, in fact, eliminate a right upheld by the California Supreme Court.
California Attorney General Jerry Brown explained that the changes were required to more "accurately reflect the measure" in light of the California Supreme Court's intervening In re Marriage Cases decision.
On July 22, 2008, Proposition 8 supporters mounted a legal challenge to the revised ballot title and summary, contending that Attorney General Brown inserted "language [...] so inflammatory that it will unduly prejudice voters against the measure". Supporters claimed that research showed that an attorney general had never used an active verb like "eliminates" in the title of a ballot measure in the past fifty years in which ballot measures have been used. Representatives of the attorney general produced twelve examples of ballot measures using the word "eliminates" and vouched for the neutrality and accuracy of the ballot language.
On August 8, 2008, the California Superior Court turned down the legal challenge, affirming the new title and summary, stating, "the title and summary is not false or misleading because it states that Proposition 8 would 'eliminate the right of same-sex couples to marry' in California." The Superior Court based their decision on the previous Marriages Cases ruling in which the California Supreme Court held that same-sex couples have a constitutional right to marry under the California Constitution. That same day, proponents of Prop. 8 filed an emergency appeal with the state appeals court. The Court of Appeal denied their petition later that day and supporters did not seek a review by the Supreme Court of California. The deadline for court action on the wording of ballot summaries and arguments in the voter pamphlet was August 11, 2008.
While turning down the challenge to the title and summary, the California Superior Court also found that the Yes on 8 campaign had overstated its ballot argument on the measure's impact on public schools and ordered a minor change in wording. The original arguments included a claim that the Supreme Court's legalization of same-sex marriage requires teachers to tell their students, as young as kindergarten age, that same-sex marriage is the same as opposite-sex marriage. The court said the Yes on 8 argument was false because instruction on marriage is not required and parents can withdraw their children. The court said the ballot argument could be preserved by rewording it to state that teachers "may" or "could" be required to tell children there is no difference between same-sex and opposite-sex marriage.
Campaign
Campaign funding and spending
The pro- and anti-Prop 8 campaigns spent a combined $106 million on the campaign. This was not the most expensive California ballot proposition that year, however; the 2008 campaigns for and against Propositions 94, 95, 96, and 97, dealing with the expansion of Native American gambling, surpassed Prop 8, with combined expenditures of $172 million.