Challenge to Proposition 8

Overview

On November 5, 2008, together with the City and County of San Francisco and the City of Los Angeles, the County filed a challenge to Proposition 8 in the California Supreme Court. Proposition 8, a statewide initiative, added a section to the California Constitution providing that “[o]nly marriage between a man and a woman is valid or recognized in California.” Proposition 8 thus eliminated the fundamental right of same-sex couples to marry in California—a right the state Supreme Court had recognized, in a May 2008 decision, as guaranteed by the State Constitution’s Equal Protection Clause. Our petition to the Court explained that the initiative process, established in 1911 through an amendment to the State Constitution, can be used to make amendments to the Constitution through a majority vote, but it cannot be used to revise principles like equal protection that are fundamental to our government structure. In May 2009, the Supreme Court ruled that Proposition 8’s elimination of the right of same-sex couples to marry did not constitute an invalid constitutional revision, but it also held that the initiative applies only prospectively, and does not affect the validity of the 18,000 marriages of same-sex couples that were solemnized prior to Proposition 8’s effective date.

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