Prop 8 Reversed in California

When Proposition 8 was approved by 52 percent of California voters in 2008, it added the following words to the state constitution: “Only marriage between a man and a woman is valid or recognized in California.” Over $39 million had been spent by proponents and over $44 million by opponents, the most money ever spent to date on a California ballot initiative for a social issue. Two years later, Prop 8 was overturned in court, ensuring the legal battle would continue.

The California Supreme Court had ruled in favor of same-sex marriages in May 2008 and such marriages were performed beginning from June 17. When Prop 8 passed the following November, the roughly 18,000 same-sex marriages contracted during the previous months remained valid, but the state immediately ceased issuing any new marriage licenses to same-sex couples.  A litigation decided in August 2010 overturned Prop 8 and cleared the way for these marriages to be performed again.

Due Process and Equal Protection

The plaintiffs argued – and Chief U.S. District Judge Vaughn R. Walker agreed – that the ban on same-sex marriage violated the Due Process and Equal Protection clauses of the 14th Amendment of the U.S. Constitution. The Due Process clause says that no state shall “deprive any person of life, liberty, or property, without due process of law.” The Equal Protection clause says the state cannot “deny to any person within its jurisdiction the equal protection of the laws.”  “Each challenge,” Judge Walker concluded, “is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”


Judge Walker was impressed by the scholarly credibility of the nine expert witnesses called by the plaintiffs. The proponents of Prop 8, on the other hand, ended up not calling most of their witnesses. On the first day of the trial – January 11, 2010 – the proponents informed the court they were withdrawing four expert witnesses, claiming that the witnesses feared for their personal safety because the judge intended to broadcast the trial. The cancellation of the planned broadcasting was announced in stages during the first week of the trial, yet the proponents still did not call up their witnesses. It turned out, as Judge Walker acknowledged, that two of these would-be witnesses had submitted deposition testimony that actually favored the other side to such a degree that the plaintiffs submitted it as evidence on their own behalf.

The proponents did successfully call David Blankenhorn and Kenneth P. Miller as witnesses. However, Judge Walker’s opinion found Blankenhorn to have “failed to provide cogent testimony” and to be unqualified to give opinion testimony anyway. Judge Walker repeatedly criticized Blankenhorn’s credibility, saying that he gave “inadmissible opinion testimony that should be given essentially no weight”; that he “relied on the quotations of others…and provided no explanation of the meaning of the passages he cited or other sources”; that he defined marriage by “ipse dixit” (i.e. on his own say-so); and that, for his own book The Future of Marriage, “an idea was written down if someone suggested it”. Miller’s testimony was not esteemed much more highly: it “sought to rebut only a limited aspect of plaintiffs’ equal protection claim relating to political power” and, besides, Miller admitted that he received the sources for his expert report from the proponents’ counsel. Judge Walker found Miller to be unaware of the general history of discrimination, harassment, and stereotypes affecting gays and lesbians and therefore to be “not sufficiently familiar with gay and lesbian politics specifically to offer opinions on gay and lesbian political power,” with the result that his opinions “are entitled to little weight”.

Additionally, Hak-Shing William Tam of the America Return to God Prayer Movement, which became an official part of the Prop 8 campaign, made claims about gay people that, as described by Judge Walker, were unsubstantiated, wrong, or purely theological in nature.


Proponents of Prop 8 said in the trial brief that they would show 23 harmful consequences of same-sex marriage. They produced only one witness, David Blankenhorn, to speak about the government interest in this topic, who unfortunately acknowledged at least 13 positive consequences of same-sex marriage. He admitted that same-sex marriage benefits gay families and their children, reduces discrimination, and champions “tolerance and inclusion,” yet he deemed these benefits to be outweighed by the possibility that same-sex marriage could nevertheless somehow weaken the institution of marriage.  Judge Walker found his testimony “unreliable” and lacking any “credible evidence to support any of the claimed adverse effects.” He added: “To the extent Blankenhorn believes that same-sex marriage is both a cause and a symptom of deinstitutionalization [i.e. the weakening of the institution of marriage], his opinion is tautological.”


The essence of the proponents’ argument was that all opposite-sex sexual relations should be encouraged to take place within marriage because this bolsters a social norm that makes procreation more likely to occur within marriage. Indeed, Blankenhorn found procreation to be the only difference between opposite-sex and same-sex marriage. On this view, the state would have no interest in same-sex marriage because same-sex sexual relations are never procreative. 

During oral arguments, the proponents’ counsel first tried to claim that the question of how same-sex marriage impairs the state’s interest in procreation wasn’t “legally relevant” but finally admitted “Your honor, my answer is: I don’t know. I don’t know.” During closing arguments, proponents said that “responsible procreation is really at the heart of society’s interest in regulating marriage,” and counsel added, “you don’t have to have evidence of this point.”

The studies cited by Blankenhorn were found not to effectively support his claim that biological parenting is superior because those studies did not isolate the family biological relationships. Judge Walker implied it would have been better if he’d found studies comparing “married biological parents” to “married adoptive parents” or “married parents who conceived using an egg or sperm donor”. (Anyway, Blankenhorn admitted that adoptive parents have been shown, by some measures, to be better caregivers.) Judge Walker concluded that the proponents failed to explain “why the government may use sexual orientation as a proxy for fertility or why the government may need to take into account fertility when legislating.”


Judge Walker found Prop 8 to discriminate on the basis of sex as well as on the basis of sexual orientation. Same-sex marriage is, he wrote, “an evolution in the understanding of gender rather than a change in marriage…the exclusion [of same-sex couples] exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.” He added later, “California has eliminated all legally-mandated gender roles, except the requirement that a marriage consist of one man and one woman.”

Civil Marriage

Judge Walker wrote: “The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.”  Therefore, while the voters’ initiative should be respected, it should also be supported by evidence, especially if a class of people is put at risk. He found that Prop 8 was supported only by moral disapproval, not by hard evidence, and as such, it is unconstitutional.

Historian George Chauncey, for example, testified that references to homosexuality’s threat to children hearkens back to the criminalization of sodomy and appeals to unsubstantiated fears of pedophilia. Judge Walker made a similar claim that “[m]any of the purported interests identified by proponents are nothing more than a fear of unarticulated dislike of same-sex couples…by every available metric, opposite-sex couples are not better than their same-sex counterparts…” Belief to the contrary “is not a proper basis on which to legislate.”

Judge Walker clarified that legalizing same-sex marriage does not create any First Amendment impact on those who disagree with same-sex marriage.  “Marriage in the United States has always been a civil matter,” he wrote. “Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.” 

Additional arguments in favor of same-sex marriage

Various other arguments in favor of same-sex marriage were summarized, including: 

 – Domestic partnerships are inadequate because they aren’t recognized by other states or by the federal government and because marriage is still seen as “the definitive expression of love and commitment”. 

– About 18 percent of same-sex couples in California are raising children who would benefit if their parents are married. Excluding same-sex couples from marriage forces their parenting “to occur outside marriage”. 

 – Studies show that neither the gender of the parent nor the existence of a biological relationship affects the child’s adjustment. Even if gays made poor parents, Prop 8 “does not affect who can or should become a parent under California law.” 

 – Data from Massachusetts showed four years of same-sex marriage to have had no impact on marriage in general.

 – California state and local governments suffer financially because of Prop 8.  

Judge Walker issued his 136-page opinion in San Francisco on August 4, 2010. The quotations above are all taken from that ruling.

Gov. Arnold Schwarzenegger and Attorney General Edmund (Jerry) Brown requested that the decision be implemented immediately. Some proponents of Prop 8 alleged that Judge Walker has a conflict of interest because he himself is gay. At the time of the ruling, the controversial case was expected to move on to the 9th Circuit U.S. Court of Appeals and eventually to the U.S. Supreme Court.