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Perry v. Schwarzenegger

From lawbrain.com

Perry v. Schwarzenegger is a lawsuit filed by two homosexual couples against California government officials and supporters of Proposition 8, a ballot initiative approved by a majority of California voters on November 4, 2008 that modified California's constitution to prohibit same-sex marriage.

The lawsuit was filed in federal district court in the Northern District of California on May 22, 2009 and the trial began on January 11, 2010.

On August 4, 2010, a federal court judge ruled that the voter-approved Proposition 8 was unconstitutional, violating the Due Process and the Equal Protection clauses of the Fourteenth Amendment of the U.S. Constitution.[1]

Following Judge Walker's decision, an appeal was filed with the Ninth Circuit Court of Appeals. A randomly-selected three judge panel will hear this case. After the panel reaches a decision, an en banc hearing will likely be requested. [2]



Perry v. Schwarzenegger is notable for several reasons.  First, it is a high-profile challenge to a restriction on same-sex marriage under the Equal Protection Clause of the 14th Amendment to the United States Constitution. As such, there is a high likelihood that the case could will end up before the United States Supreme Court. This could turn Perry v. Schwarzenegger into a watershed civil rights case.

The plaintiffs in the case are represented by an unlikely pair of well-known attorneys. Theodore "Ted" Olson represented George W. Bush in Bush v. Gore, while David Boies represented Vice President Al Gore in the case.  Ted Olson later served as Solicitor General during the Bush presidency, and is a prominent conservative Republican. David Boies on the other hand is a famously liberal Democrat. Same-sex marriage supporters initially questioned Olson's motivations for taking the suit and expressed concern that his intention was to sabotage the lawsuit from the inside.

Legal Developments

Perry v. Schwarzenegger reignited the long-running debate on cameras inside of federal courtrooms.  Chief Judge Vaughn Walker, the presiding judge in the case, initially ruled that video recordings of the proceedings could appear on YouTube.  Supporters of Prop 8 filed an emergency appeal with the US Supreme Court, arguing that their witnesses would be subject to harassment based on their views and positions in the case. The U.S. Supreme Court issued a temporary restraining order prohibiting broadcasts of the trial on January 11, 2009.[3] On January 13, 2009 the Supreme Court split along ideological lines and issued a majority opinion upholding the temporary restraining order.

On August 4, 2010, Chief Judge Vaughn R. Walker issued a 136-page opinion[4] overturning Proposition 8 as a violation of the Due Process Clause and Equal Protection Clause of the United States Constitution. The court held that Proposition 8 unconstitutionally burdens the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

A stay was instituted against Judge Walker's opinion and this stay was subsequently lifted on August 12, 2010. Same-sex marriages may now resume after August 18, 2010, although proponents of Proposition 8 may obtain a stay from a higher federal court. If that fails, then a permanent stay may be obtained from the U.S. Supreme Court.[5]


  1. http://blogs.findlaw.com/courtside/2010/08/judge-overturns-californias-proposition-8.html
  2. http://blogout.justout.com/?p=20392
  3. http://www.mercurynews.com/samesexmarriage/ci_14165465
  4. http://blogs.findlaw.com/courtside/2010/08/judge-overturns-californias-proposition-8.html
  5. http://www.fresnobee.com/2010/08/12/2039353/capitol-alert-judge-removes-stay.html

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