Perry v. Brown

At issue in this marriage equality case is whether California’s Proposition 8, which amended the state Constitution to prohibit same-sex couples from marrying, violates the U.S. Constitution. In August 2010, U.S. District Judge Vaughn Walker, after a full trial on the merits, held in an historic ruling that it does, and struck down Prop 8 as a violation of the equal protection and due process rights of gay men and lesbians under the Fourteenth Amendment. The proponents of Prop 8, who had defended the ballot measure in the District Court when the state declined to do so, appealed to the Ninth Circuit.

Constitutional Accountability Center filed a brief in the Ninth Circuit in support of Judge Walker’s ruling invalidating Prop 8. Our brief demonstrates that the text and history of the Fourteenth Amendment guarantee equality under the law and equality of rights for all persons. In addition, as we show, the Framers of the Amendment’s Equal Protection Clause recognized the right to marry the person of one’s choosing as a protected civil right inherent in liberty and freedom. By denying same-sex couples the right to marry, Prop 8 violates this original meaning and clear text of the Fourteenth Amendment.

A three-judge panel of the Ninth Circuit heard oral argument in Perry on December 6, 2010. CAC “live blogged” the argument for Huffington Post, here, and our post-argument analysis can also be found on Huffington Post, here. As we noted then, the argument went well for supporters of marriage equality, although the court was also concerned about a jurisdictional issue – whether the Prop 8 proponents have the legal right (“standing”) to pursue an appeal.

On January 4, 2011, the Ninth Circuit, concluding that resolution of the standing question turned on an open question of state law, formally certified that question to the California Supreme Court. On November 17, 2011, the California Supreme Court decided that the Prop 8 propnents do have standing to pursue an appeal. The Ninth Circuit proceeded to hear oral argument in the case on December 8, 2011.

On February 7, 2012, the U.S. Court of Appeals for the Ninth Circuit upheld a lower court ruling that California’s Proposition 8, which limits marriage to heterosexual couples in the state, is unconstitutional. The proponents of Proposition 8 have filed a motion for the Ninth Circuit to rehear the case en banc.