Hollingsworth v. Perry was a series of United States federal court cases that reinstated same-sex marriage in the state of California. The case began in 2009 in the U.S. District Court for the Northern District of California, which found that banning same-sex marriage violates equal protection under the law. This decision overturned California ballot initiative Proposition 8, which had banned same-sex marriage. After the State of California refused to defend Proposition 8, the official sponsors of Proposition 8 intervened and appealed to the Supreme Court. The case was litigated during the governorships of both Arnold Schwarzenegger and Jerry Brown, and was thus known as Perry v. Schwarzenegger and Perry v. Brown, respectively. As Hollingsworth v. Perry, it eventually reached the United States Supreme Court, which held that, in line with prior precedent, the official sponsors of a ballot initiative measure did not have Article III standing to appeal an adverse federal court ruling when the state refused to do so.. The effect of the ruling was that same-sex marriage in California resumed under the district court trial decision from 2010.
Background In May 2008, the California Supreme Court held in the case In re Marriage Cases that state statutes limiting marriage to opposite-sex applicants violated the California Constitution. The following month, same-sex couples became able to marry in California. In November 2008, California's voters approved Proposition 8, an amendment to the state constitution that sought to restore a prior opposite-sex-couple limitation on marriage; but following its adoption, several lawsuits were filed that challenged the validity of the amendment, under various state constitutional provisions. On May 26, 2009, the California Supreme Court held, in Strauss v. Horton that (while Proposition 8 was a lawful enactment), all same-sex marriages that had been contracted before the proposition's passage remained valid.
The National Center for Lesbian Rights, Lambda Legal and American Civil Liberties Union had originally obtained the right to same-sex marriage in California, in In re Marriage Cases, and defended it in Strauss v. Horton. Three days before the Strauss decision occurred, the American Foundation for Equal Rights (AFER) filed suit in the U.S. District Court for the Northern District of California, to challenge the validity of Proposition 8 on behalf of two same-sex couples. The couples' legal team was led by David Boies and former U.S. Solicitor General Theodore Olson (who, incidentally, had previously represented opposite parties in Bush v. Gore, with Boies representing Al Gore and Olson representing George W. Bush, the case that, effectively, decided the 2000 U.S. presidential election). In the 2010 Time 100, they were listed, for "their nonpartisan and strong legal approach to challenging Proposition 8."
Lambda Legal and the American Civil Liberties Union (ACLU) opposed the filing because they felt a federal challenge at this time might do more harm than good. Olson and AFER rebuffed this argument and defended the timing of the lawsuit. Following a pre-trial hearing on July 2, 2009, the three legal groups moved to intervene in the lawsuit, as did the City of San Francisco in a separate filing. The plaintiffs opposed allowing the groups or the city to intervene. On August 19, Judge Walker denied the legal groups' motions to intervene, but granted the City's, albeit in a limited capacity. Despite the other groups' failed attempt to intervene in the lawsuit, they offered support to the legal team litigating the case, with James Esseks of the ACLU saying: "We are interested in doing whatever we can to make sure their case is as successful as possible".
Parties
Plaintiffs
In May 2009, the Alameda County Clerk-Registrar, Patrick O'Connell, denied Kristin Perry and Sandra Stier a marriage license because they are a same-sex couple. For the same reason, Dean Logan, the Los Angeles County Clerk, denied Paul Katami and Jeffrey Zarrillo a marriage license. The couples sued the two county clerks and several state officials: Governor Arnold Schwarzenegger, Attorney General Jerry Brown, and two officials in the Department of Public Health.
Several groups sought to intervene as plaintiffs, including the groups who had prosecuted the actions entitled In re Marriage Cases and Strauss v. Horton. San Francisco also filed a motion to intervene in the case. The City cited its work in the earlier cases that had provided "extensive evidence and proposed findings on strict scrutiny factors and factual rebuttals to long claimed justifications for marriage discrimination". City Attorney Dennis Herrera said that his office is "singularly well-prepared" to help "put anti-gay discrimination on trial based on the facts". Walker permitted only San Francisco to intervene, as it could speak to the impact of Proposition 8 on local governments. He also ordered the attorney general to assist San Francisco in analyzing Proposition 8's impact. Walker stated that necessary speed and swiftness "on an issue of this magnitude and importance" were required and that the intervention of additional groups would only complicate and stall the case.
Defendants
Attorney General Jerry Brown chose not to defend the lawsuit, saying that Proposition 8 violates the Fourteenth Amendment to the United States Constitution and should be struck down. Governor Arnold Schwarzenegger also declined to participate in the defense but said it was appropriate for the courts to hear the case and "resolve the merits of this action expeditiously" because it "presents important constitutional questions that require and warrant judicial determination." On November 2, 2010, Brown was elected governor and Kamala Harris was elected attorney general. Both ran on platforms promising not to defend the proposition,. and the state continued to decline defending Proposition 8 in court after they assumed office.
Two groups, the official proponents of Proposition 8, ProtectMarriage.com, led by then-state-senator Dennis Hollingsworth, and a rival group, the Campaign for California Families, sought to intervene as defendants. The court allowed the official proponents to intervene, filling the void left by the state officials' acquiescence. The judge denied the request from the Campaign for California Families.
On December 15, Imperial County also filed a motion to intervene as a defendant despite the fact that the intervenor deadline had passed. They argued that the civil agencies named in the suit, the counties of Alameda and Los Angeles and the state government, were not actively defending the Proposition. They continued to argue that the case needed a proper governmental defendant. On August 4, along with the ruling, Judge Vaughn Walker denied Imperial County intervenor status.
District court trial
Pre-trial motions Plaintiffs filed a motion for a preliminary injunction that would have immediately restored same-sex marriage in California until the lawsuit was decided. Walker deferred a ruling on the motion and said he would instead "proceed directly and expeditiously to the merits".
During discovery, the plaintiffs requested that the campaign produce internal documents that related to the purpose and intent of the amendment and the development of political messages during the campaign. The Proposition 8 proponents objected to the request because of the potential adverse effect on political speech, among other grounds. On October 1, Walker rejected the contention that the First Amendment shielded all of those communications. The proponents appealed that decision to the United States Court of Appeals for the Ninth Circuit and separately moved to stay the proceedings in the district court. Stating that the proponents were unlikely to succeed in this appeal, Walker rejected the stay request on October 23. Regardless, the proponents continued to assert a First Amendment privilege over these documents, a sampling of which Walker reviewed privately.Perry v. Schwarzenegger, Discovery teleconference transcript , pp. 42–43. November 1, 2009. Retrieved November 14, 2009. On December 11, 2009, the Ninth Circuit overturned Walker's ruling, saying that the release of the documents "would likely have a chilling effect on political association and the formulation of political expression" in a unanimous opinion by Raymond C. Fisher with Kim McLane Wardlaw and Marsha Berzon.Perry v. Schwarzenegger, 591 F. 3d 1147 (9th Cir. 2010)
In September, Proposition 8 proponents filed a motion for summary judgment. Running more than 100 pages, the motion asked the court to rule that Proposition 8 did not offend the U.S. Constitution without the need to find facts at a trial. The motion asserted that Baker v. Nelson foreclosed any further review by the court. Failing that, the motion argued that all of the couples' claims failed as a matter of law. After a two-hour hearing on October 13, Walker denied the motion. He noted that the Supreme Court doctrine on sexual orientation and gender discrimination had changed since 1972. Resolving the amendment's validity, Walker noted, required hearing testimony at trial.
Broadcast and online coverage Perry would have been the first federal trial to be filmed and be shown live at public courthouses in San Francisco, Pasadena, Seattle, Portland, and Brooklyn, through an experimental new system developed by the Ninth Circuit. The trial would have also been shown on the video-sharing website YouTube. Walker noted that he had received 138,574 comments on the plans to broadcast the trial, and all but 32 were in favor.
On January 11, 2010, two days before the trial, the defendant-intervenors filed emergency papers with Supreme Court Circuit Justice Anthony Kennedy to bar telecasting the trial, with the court ruling 8–1 to temporarily stay live streaming until January 13, with the lone dissenter being Stephen Breyer.Hollingsworth v. Perry No. 09A648, 130 S.Ct. 1132 (2010) Although a coalition of media organizations, including CNN, Fox News, the Associated Press, and Court TV, filed an emergency amicus brief in support of live streaming and delayed broadcast, the court passed an unsigned 5–4 ruling in Hollingsworth v. Perry to indefinitely block live streams to various federal courthouses, although it refused to rule on plans to delay broadcasts on YouTube.Hollingsworth v. Perry No. 09A648, 130 S.Ct. 705 (2010) A dissenting opinion by Breyer that was joined by John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor reveals that the majority was formed by John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito.
Despite the ruling, the proceedings elicited unprecedented live coverage through social networking site Twitter from the gay-interest magazine The Advocate, the National Center for Lesbian Rights, an official feed from the group representing the plaintiffs (AFER), a California-based progressive organization Courage Campaign, and several independent parties including Chris Geidner, maintainer of the LGBT-oriented Law Dork blog, San Francisco-based attorney Chris Stoll, and others. Filmmakers John Ireland and John Ainsworth filmed and distributed a re-enactment of the trial. Actors participating in the project include Adrienne Barbeau, Arye Gross, and Tess Harper.
Hearing In scheduling a trial for January 11, 2010, to gather facts about the case, Walker largely surprised both the plaintiffs and defendants. The trial was intended to address issues such as how having same-sex parents affects children, whether same-sex marriages undermine opposite-sex marriages, the history of discrimination against gays, and the effects of prejudice against gays. Notable trial witnesses included historian George Chauncey, psychologist Gregory M. Herek, and philosopher Daniel N. Robinson.