Nearly four years after a constitutional challenge was quietly filed in federal court in San Francisco late on a Friday afternoon, California’s ban on same-sex marriage will go before the U.S. Supreme Court on Tuesday.

“We are very excited to have the end in sight,” said plaintiff Kristin Perry last week.

Perry, 48, and her partner, Sandra Stier, 50, of Berkeley, joined gay couple Paul Katami, 40, and Jeffrey Zarrillo, 39, of Burbank, in filing the lawsuit challenging Proposition 8 on May 22, 2009.

The two couples, who want to marry, claim the 2008 voter initiative violates their constitutional rights to equal treatment and due process.

The measure’s sponsors and their committee, Protect Marriage, argue that California voters were entitled to choose a traditional definition of marriage and that each state should be allowed to define marriage within its territory.

On Tuesday, the Supreme Court justices will hear an hour of arguments in Washington, D.C., on the sponsors’ appeal of a ruling by a federal appeals court in San Francisco last year striking down the initiative.
The panel is due to issue its decision by the end of June.

Proposition 8, enacted by 52 percent of state voters in November 2008, banned same-sex marriage by providing that “only marriage between a man and a woman is valid or recognized in California.”

From the start of the federal lawsuit, both sides predicted the case was likely to end up in the Supreme Court.

When the court announced in December that it would hear the appeal, Protect Marriage attorney Andrew Pugno said, “Every one of the numerous legal steps we have taken for the past four years has been in anticipation of this moment.

“Arguing this case before the Supreme Court finally gives us a chance at a fair hearing,” Pugno maintained.
The federal lawsuit, known as the Perry case because Perry’s name was listed first, surfaced just as a five-year battle in the state court system was ending.

That battle began in February 2004 when then-Mayor Gavin Newsom authorized city clerks to issue marriage licenses to gay and lesbian couples.

Later that year, the California Supreme Court ruled that Newsom lacked the authority to take that action.

But the court left the door open to lawsuits challenging state marriage laws that prohibited gay marriage.

Several cases subsequently filed in San Francisco Superior Court in 2004 worked their way up to the California Supreme Court, which said by a 4-3 vote in May 2008 that the state Constitution provided a right to same-sex marriage.

But the following November, Proposition 8 overturned that decision by amending the state Constitution.

Finally, on May 26, 2009, the California Supreme Court ended the state law disputes by upholding Proposition 8 by a 6-1 vote, ruling that voters had the power to amend the California Constitution in that way. At the same time, the court said the 18,000 gay and lesbian marriages enacted in mid-2008 remained legal.

The Perry lawsuit, filed by prominent attorneys Theodore Olson and David Boies, took a different tack by arguing that Proposition 8 violated the federal rather than the state constitution.

Olson, of Washington, D.C., and Boies, of Armonk, N.Y., who were on opposite sides of the Bush v. Gore Supreme Court case in the 2000 election, were hired by the newly formed American Foundation for Equal Rights in Los Angeles to represent the four plaintiffs.

Although they did not announce it until May 27, 2009, they filed the suit five days earlier as a precaution in case the California Supreme Court upheld Proposition 8.

The timing strategy enabled the Perry case to be first in line if similar federal lawsuits were filed. As it happened, the case proceeded alone through the U.S. District Court in San Francisco, where Judge Vaughn Walker struck down Proposition 8 on broad grounds in 2010, and then through the 9th U.S. Circuit Court of Appeals, which also overturned the initiative, but on narrower grounds, in 2012.

At the time the lawsuit was filed, civil rights groups were urging same-sex marriage advocates to avoid federal courts for fear of ending up with an adverse U.S. Supreme Court ruling, and to work in state courts instead.

But many gay rights groups came to support the Perry lawsuit through friend-of-the-court briefs filed in the federal courts.

“Since that time, we have come together. All the groups are on the same page,” Perry said last week.

Shannon Minter, legal director of the San Francisco-based National Center for Lesbian Rights, said, “We strongly support the federal Proposition 8 challenge and are thrilled it is now before the Supreme Court.

“Both the case and the public education that has accompanied it have played a critical role in transforming public opinion and especially in building bipartisan support for marriage equality,” Minter said.

At Tuesday’s hearing, each side will have 30 minutes to argue its case. Attorney Charles Cooper, of Washington, D.C., will represent the Proposition 8 sponsors.

The plaintiffs’ time will be divided between Olson, who will have 20 minutes, and U.S. Solicitor General Donald Verrilli, who will have 10 minutes to argue the Obama Administration’s position that Proposition 8 should be overturned.

The justices will have a complex array of options before them, since there could be at least five different outcomes of the case.

One outcome could be to uphold Proposition 8. Alternatively, if the court strikes down the initiative, it could do so in a way that affects either California alone, eight states, or all 50 states.

A California-only outcome could follow the reasoning of the 9th Circuit, which said that because same-sex marriage was legal in California for several months in 2008, it was unconstitutional for the initiative to withdraw that right.

The so-called eight-state solution, which has been advocated by Verrilli, would find that states violate the right to equal treatment when they allow domestic partnerships or civil unions but prohibit gay marriage. That would apply to California and seven other states.

A nationwide outcome would result from a finding that the Constitution grants gays and lesbians a fundamental right to marry. That conclusion was reached by Walker in his 2010 decision and was argued by the plaintiffs in their brief to the Supreme Court.

“We believe a 50-state result is the right result under the equal protection and due process clauses,” Boies said last week.

A fifth possible outcome is that the court could rule that the Proposition 8 sponsors have no standing, or legal authority, to appeal because the California officials named as defendants in the lawsuit have declined to defend the initiative.

In that event, the appeal would be dismissed, but the two sides disagree about what would happen next. The Proposition 8 sponsors contend that only the four original plaintiffs would have a right to marry, while the plaintiffs maintain there would be a statewide right.

At the time the California Supreme Court issued its short-lived 2008 decision finding a state constitutional right to marry, only one other state, Massachusetts, allowed same-sex marriage.

Now, nine states and Washington, D.C., permit gay and lesbian marriage, while 41 states do not.

The plaintiffs’ lawyers and other gay rights advocates have cited that trend and recent polls as indications that the time may be right for their case.

Theodore Boutrous, a lawyer for the plaintiffs, said last week, “Since we filed our case four years ago, there really has been a transformation. Everything seems to be breaking in support of marriage equality.”

Proposition 8’s lawyers have argued that the ongoing controversy supports their position that marriage should be defined by the people of each state, acting through their legislatures or ballot measures.

“This court … should allow the public debate to continue through the democratic process, both in California and the nation,” Cooper wrote in a brief to the court.

Julia Cheever, Bay City News

Elsewhere: San Francisco archbishop slams same-sex marriage [ABC7]

Supreme Court Gay Marriage Cases To Define Legacy [Reuters vis HuffPo]

‘I’ve Got A Couple Of Protein Bars … And A Lot Of Layers’ [HuffPo]

Supreme Court will take up California’s same-sex marriage ban [ABC7]

Potential Gay Marriage Court Outcomes Vary [AP via HuffPo]

Chief justice’s lesbian cousin will attend Prop. 8 hearing [LA Times]

the author

Eve Batey is the editor and publisher of the San Francisco Appeal. She used to be the San Francisco Chronicle's Deputy Managing Editor for Online, and started at the Chronicle as their blogging and interactive editor. Before that, she was a co-founding writer and the lead editor of SFist. She's been in the city since 1997, presently living in the Outer Sunset with her husband, cat, and dog. You can reach Eve at

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