California Proposition 8 is an amendment to the California state constitution that prohibited the state from recognizing same-sex marriages. The proposition, only four lines total when originally submitted to the state in 2007, consisted of a title and one line of text copied from a defeated proposition from 2000: “Only marriage between a man and a woman is valid or recognized in California.”
Same-sex marriage has had an on-again-off-again history in California, first being outlawed by the State Legislature in 1977 and again by the aforementioned Proposition 22 from 2000. In 2008, the California Supreme Court ruled in a 4–3 decision, In re Marriage Cases, that marriage is a fundamental right according to the state’s constitution and creating a precedent that any law discriminating on the basis of sexual orientation is to be held to a stronger standard than others. This overturned both statutes and allowed for same-sex marriages in California.
Proposition 8, drafted before In re Marriage Cases was decided, exceeded the number of votes required to make it on the 2008 general election ballot. Proposition 8 then passed with 52.3 percent of the vote, according to the California secretary of state. Only a simple majority is required to pass a constitutional amendment in California. Numerous lawsuits were filed, and three were consolidated and heard in March 2009 as Strauss v. Horton under the state Supreme Court. It upheld the validity of Proposition 8 two months later, but said the law would not affect gay couples who had already married before its passage. This case would be the one eventually overturned by Hollingsworth v. Perry.
The next year in August 2010, a federal district court case — Perry v. Schwarzenegger — overturned Proposition 8 on the basis of the due process and equal protection clauses of the 14th Amendment but allowed the law to stay in place until appeals could be heard. The U.S. Court of Appeals, Ninth Circuit, after two years of legal wrangling, upheld the previous decision to overturn Proposition 8. Supporters of Proposition 8 filed a petition with the U.S. Supreme Court to hear the case, which was granted at the same time as United States v. Windsor: in December 2012.
The opponents of Proposition 8 were represented at the Supreme Court by Theodore Olson and David Boies, who previously argued against each other during the 2000 presidential election recount in Florida. Olson represented President Bush and Boies represented Al Gore.
Oral arguments were also heard for Hollingsworth v. Perry around the same time as United States v. Windsor and decided last Wednesday to dismiss the case, saying the supporters had no legal right to appeal. This also cleared every ruling down to Perry v. Schwarzenegger on the same grounds, meaning Proposition 8 remained overturned. Two days later, the Ninth Circuit Court began to allow same-sex marriages to continue in California.
