BREAKING: Marriage-Equality Foes Ask Supreme Court To Review Prop 8 Decision

The sponsors of California’s Proposition 8 have petitioned the Supreme Court to overturn a February decision that struck down the anti-equality measure.

Calling the U.S. 9th Circuit Court of Appeals two-to-one decision “misguided,” the group’s petition admitted that the Constitution does not mandate one-man/one-woman marriage but claims “it leaves the definition of marriage in the hands of the people, to be resolved through the democratic process in each state.”

But Charles J. Cooper, lead attorney for Prop 8 sponsor Protect Marriage, said the Supremes have “made it very clear that the age-old definition of marriage as the union of one man and one woman is constitutional as a matter of state public policy.”  He chastened the lower court for “essentially reject[ing] all relevant Supreme Court and appellate court precedent while attacking the character and judgment of millions of Californians.”

The 9th Circuit’s ruling has been put on hold pending the outcome of this appeal for review, which requires four votes by the high court.

After the filing, Rick Jacobs, founder of the pro-equality Courage Campaign, is quick to call the haters out:

“The President of the United States, a majority of the American public, two federal courts and most of America’s NATO allies view marriage equality as a fact. But Brian Brown, Charles Cooper, Andy Pugno, and Mitt Romney continue to stampede over the cliff of historical irrelevance, insisting that America will cease to function if gays and lesbians can marry. The major problem with this thesis is that seven states and the District of Columbia welcome marriage for all and the country functions just fine, the sun still shines and the world still rotates on its axis.

We can only hope that the Supreme Court will once again act for all Americans on the right side of history, not for a few hysterical ones scared of love.”

Still, the Supremes better do what Mitt and company ask—or else they might take their toys and go home.

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  • Scott

    As I understand it, the court will not be deciding on the constitutionality of same sex marriage but the constitutionality of a majority taking rights away from a minority. If the justices find that it is constitutional I would think it paves the way for the repeal of the voting rights act, civil rights act, and gives the anti-abortion groups a plank to stand on. Am I missing misreading this?

  • B

    No. 1 · Scott wrote, “As I understand it, the court will not be deciding on the constitutionality of same sex marriage but the constitutionality of a majority taking rights away from a minority…. Am I missing misreading this?”

    Sort of – the ruling was with regard to the constitutionality of a change whose sole effect was to take away an existing right from a minority. Even if the Supreme Court
    upholds the challenge to Proposition Eight, a woman’s right to an abortion is not automatically ensured.

    With respect to Proposition Eight, there was what the computer industry calls a “race condition” – two processes running concurrently where the result depends on which completes first and with the timing of which completes first being indeterminate. Proposition Eight was introduced before the Supreme Court ruling that invalidated Proposition 22. Both had the same wording but Proposition 22 made it an ordinary law and Proposition Eight made it part of the state constitution. A case went through the courts, however, that resulted in Proposition 22 being invalidated before Proposition Eight was passed. If the timing was different, with Proposition Eight passing before the court case, we would not have had a window in which same-sex marriages were legal in California, and hence no existing right to take away – if Proposition Eight had been part of the state constitution at the time, the California Supreme Court would not have allowed same-sex marriages (the California Supreme Court did not invalidate Proposition Eight subsequently when it had a chance to do that).

    The clever thing for the pro-Prop-Eight people to argue might be that because Proposition Eight was introduced before same-sex marriages were temporarily made legal, it was not intended to take away an existing right. The counter argument of course is that it did in fact take away an existing right and that the campaign (the ads, etc. to influence voters) to get Proposition Eight passed started after same-sex marriages were legalized, and became an attempt to take away an existing right even though there was no such right when Proposition Eight was filed.

  • Jim H.

    @Scott: Yep. I think this one’s squarely within the holding of Romer v. Evans.

  • Ronn

    Does anyone know how soon or a deadline for the court to say yes or no if they are going to take the case?


    The USA is not a fucking Christian country and will never be. Christianity, is a mental illness! Christian are in mental poverty and ill.

  • Alex


    “The United States Of America is not in any sense founded on the Christian Religion.” George Washington and John Adams Treaty of Tripoli

  • B

    No. 4 · Ronn asked, “Does anyone know how soon or a deadline for the court to say yes or no if they are going to take the case?”

    Some news sources expect a decision by this fall as to whether the case will be heard.

  • jwrappaport


    SCOTUS will likely frame the question as narrowly as possible, which is to say that it will probably not address the constitutionality of same-sex marriage in general, but will address whether the people of CA can take away a right that a minority group formerly possessed. Some think Kennedy may join the four libs for a broader ruling and cement his legacy as a champion for gay rights, but I am doubtful.

    As far as I’m concerned, so much of constitutional interpretation amounts to little more than rhetorical acrobatics (or in Scalia’s case, adding epicycles to make an already broken analysis fit his personal beliefs). Civil rights rulings are all policy dressed up in legal finery (not that legal finery isn’t incredibly important, because it is; rather that it is often a poor disguise for transparently political rulings – Marbury, anyone?).

    I predict that the court will do what it’s been best at: use judicial restraint as an excuse to drag its feet on matters of civil rights – Proposition 8 will be struck down on the grounds that it took rights away from a group as opposed to simply denying them in the first place; thus, it will conveniently (and falsely) distinguish CA from states that have always discriminated. I frankly don’t know what functional difference there is between the two other than that each probably fits into a different, equally fictional doctrinal box.

  • Michael

    “adding epicycles to make an already broken analysis fit his personal beliefs”


  • Scott

    @No. 8 · jwrappaport

    Thank you for your response. Why do you think the SCOTUS wouldn’t set a precedent and allow for rights to be taken away?

    Call me a conspiracy theorist but the radical right wants to do that and at least 2 justices are wined and dined by Tea Party founders the Koch brothers. We take away peoples’ rights when they’re convicted of a felony. The Prop 8 trial showed that while there’s no rational basis for discrimination against gays many people in this country still want to even when faced with the fallacy of their logic.

    My fear is that this case is a stepping stone to repealing civil rights legislation. Many businesses still argue they should be allowed to discriminate. Mississippi has almost completely stopped abortions even though the procedure is constitutionally protected so that right has almost been taken away in one state. A favorable ruling to Prop 8 opponents might allow a state to ban abortion by referendum.

  • Ronn

    @B: Thanks B. I sure hope they don’t take the case. I say tghat because there is a good chance that they will or could reverse the 9th Circuit’s ruling and that would be devastating. I would rather they pass on the case subsequently letting the appellate courts ruling stand. Also, I agree with jwrappaport, if they do take the case and do rule in our favor, it would be a narrow ruling. I just dont see the current court making a widespread general ruling that would make marriage equality legal nationwide.

  • B

    No. 8 · jwrappaport wrote, “thus, it will conveniently (and falsely) distinguish CA from states that have always discriminated. I frankly don’t know what functional difference there is between the two other than that each probably fits into a different, equally fictional doctrinal box.”

    The lower court ruling was not merely that a right was taken away, but that it was taken away with no rational reason, but rather out of animus towards gays. That’s different than merely sitting on one’s ass and not getting something done that should be done.

    If you read the ruling from the 9th Circuit Court, it states, “For the reasons stated in the sections that follow, the evidence presented at trial fatally undermines the premises
    underlying proponents’ proffered rationales for Proposition 8. An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.”

    The decision in full is at

  • Jaroslaw

    Much good information in the posts here – my comment is simple. To Charles Cooper – so he says “millions of Californian’s judgement(s) were questioned” (obviously referring to those who support discrimination…..what about the millions who voted against Prop 8? It is not like this was 99% for to 1% against.

    Situations like this are why this country is in such a mess. The losing side cannot lose gracefully. Ever. I hope it isn’t wishful thinking on my part, but it seems like there was a time when people would more often than not, think of the greater good, NOT sue for everything, not sue for such huge amounts. Everything is so vicious and the truth be damned. Selfishness rules the day. What a sad state of affairs.

  • jwrappaport

    @B: I also read the ruling. I was referring to what I think SCOTUS will do in the event that they grant cert. They will have to circumscribe Perry very narrowly or else every marriage ban stands to be invalidated should they apply strict scrutiny (or even rational basis scrutiny, should they agree with the 9th Circuit’s analysis) to marriage bans in general. I sincerely doubt they will do that. Instead, I predict they will go through their usual acrobatics to avoid the issue by either denying cert or limiting Perry to CA on the grounds that CA once granted the right and then took it away without a rational basis (unlike the states that simply never granted the right in the first place).

    @Scott: Proposition 8 will likely be struck down because the four libs and Kennedy would likely vote that way. I keep wondering if Roberts came out of the liberal closet with the ACA ruling, but it’s more wishful thinking than anything real. The others (i.e., His Eminence, Thomas, and probably Alito) will do anything they can to stymie gay rights in the name of federalism and judicial restraint.

  • Diana

    DOMA will be upheld. Marriage should only be between a man and a woman. The majority of voters passed Yes on Prop 8. The majority always wins in most cases.

  • jwrappaport

    @Diana: Justify why it should be between a man and woman only, but do so using logical, secular arguments. Also, an appeal to popularity is not logical. Please try again.

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