Prop 8 Motion for Federal Trial 050109

May 01, 2009

American Foundation for Equal Rights

Perry v. Schwarzenegger

An integral part of our nation’s character and laws is the principle that all Americans are entitled to be treated equally by their government. And more than 30 years ago, in its landmark decision to strike down bans on interracial marriage, the Supreme Court of the United States recognized that marriage is one of the basic civil rights of man.

Proposition 8 amended the California Constitution to eliminate marriage rights for same-sex couples.

As a result, the State of California is in violation of the United States Constitution, the “Supreme Law of the Land.”

The United States Constitution guarantees every American basic fundamental rights, including the right to equal protection under the law.

As its first step in its mission to advance equal rights for every American, The Foundation filed a federal court challenge against Proposition 8 in May 2009.

The case’s significance has seen it move swiftly toward trial, which will begin on January 11, 2010.

Specifically, Proposition 8:
• Violates the Equal Protection Clause of the Fourteenth Amendment.
• Violates the Due Process Clause by impinging on fundamental liberties.
• Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
• Discriminates on the basis of gender.
• Discriminates on the basis of sexual orientation.

And while separate is never equal, under Proposition 8, California distinguishes its residents into 4 separate and unequal groups:
• Opposite-sex couples who have full marriage rights
• Same-sex couples who have no marriage rights.
• Same-sex couples who were married between June and November 2008 whose marriages are recognized by the state; however, they have no right to remarry if divorced or widowed.
• Same-sex couples married in another state who may petition for state recognition of their marriage.

Because the suit challenges California law, the named defendants in the case are Gov. Arnold Schwarzenegger, Attorney General Jerry Brown, and various other State and County officials with jurisdiction over California marriages.

Gov. Schwarzenegger, however, did not challenge the Foundation’s position against Proposition 8, and Attorney General Brown went so far as to file papers with the court agreeing that Proposition 8 is unconstitutional. Accordingly, Proposition 8 is being defended by the group that led the campaign to pass it.

The Foundation hired attorneys Theodore Olson and David Boies (who notably faced-off against each other in Bush v. Gore), who are leading a team of lawyers from their firms, Gibson, Dunn & Crutcher and Boies, Schiller & Flexner, to litigate the case against Proposition 8. The plaintiffs in the case are two same sex couples – Kris Perry & Sandy Stier and Paul Katami & Jeff Zarrillo – who wish to marry but cannot because of Proposition 8.

The case is being heard in the United States District Court for the Northern District of California by its Chief Judge, Vaughn R. Walker. The Foundation is committed to pursuing this case to the United States Supreme Court.

The ACLU, Lambda Legal, and National Center for Lesbian Rights (NCLR) are participating in the case as amici (friends of the court) in support of the plaintiffs. The City and County of San Francisco, led by City Attorney Dennis Herrera and Chief Deputy City Attorney Therese Stewart, are supporting the plaintiffs’ team as co-counsel, with a specific focus on the negative impact Proposition 8 has on government services and budgets. Herrera and Stewart led the legal battle toward the California Supreme Court decision that struck down California’s previous same-sex marriage ban.