American Foundation for Equal Rights

Official AFER Statement: CA Supreme Court Rules; Prop. 8 Lawsuit Back on Fast Track

California Supreme Court Issues Opinion in Prop. 8 Case;
9th Circuit Can Now Swiftly Rule on Marriage Equality

San Francisco, CA – Today, the Supreme Court of California issued an advisory opinion in Perry v. Brown that will move the state – and the nation – one step closer to marriage equality for gay and lesbian couples.  The opinion, stating that the proponents of Proposition 8 have “standing” to defend Proposition 8, paves the way for the U.S. Court of Appeals for the Ninth Circuit to issue a ruling on the merits of the case, whether gay and lesbian couples have a fundamental right to the freedom to marry.

The U.S. District Court found Proposition 8 unconstitutional on August 4, 2010.  The anti-marriage proponents immediately appealed the decision to the Ninth Circuit.  The Governor and Attorney General of California both declined to appeal the District Court’s decision.

“We are pleased that the California Supreme Court has now responded to the Ninth Circuit’s request for advice regarding a question of California procedural law,” said Theodore B. Olson, lead co-counsel for the plaintiffs.  “Important questions of federal law remain pending before the Ninth Circuit, including, most significantly, the constitutionality of Proposition 8.  We now anticipate a prompt and thorough resolution of those questions by the federal appeals court, which, we expect, will affirm the trial court’s comprehensive and compelling decision that Proposition 8 violates the Due Process and Equal Protection Clauses.  We hope that the long wait for justice by gay and lesbian Californians will soon be over.”

The American Foundation for Equal Rights (AFER) is the sole sponsor of the Perry lawsuit.

“Our plaintiffs’ historic lawsuit is now back on the fast track,” said AFER Board President Chad Griffin.  “We are back in federal court and on the cusp of victory for loving, committed gay and lesbian couples whose constitutional rights are being violated every minute of every day.  The anti-marriage Proponents have no case. We are confident that the higher courts will uphold the District Court’s opinion that Proposition 8 is unconstitutional.”

Plaintiffs will be back before the Ninth Circuit on December 8, 2011, for a hearing regarding proponents’ appeal of the district court’s decision granting plaintiffs’ motion to unseal the digital recording of the trial.

In January 2010, the U.S. District Court held a 12-day public trial on the constitutionality of Proposition 8.  The video recording of the trial is now part of the case record.  Earlier this year, plaintiffs moved the district court to unseal the recording, citing the presumption of access to judicial records under the First Amendment and common law.

On September 19, 2011, U.S. District Chief Judge James Ware agreed with plaintiffs, emphasizing that “Transparency is pivotal to public perception of the judiciary’s legitimacy and independence.”  Chief Judge Ware further explained, “Foremost among the aspects of the federal judicial system that foster public confidence in the fairness and integrity of the process are public access to trials and public access to the record of judicial proceedings.”

Recently, The New York Times and Los Angeles Times published editorials calling for the release of the video recording of the trial, and the Reporters Committee for Freedom of the Press published an op-ed in the Los Angeles Times advocating for the public’s right to see the video recording.



Elizabeth Riel 323.892.2081 or
Brandon Hersh 202.412.9766 or

About the American Foundation for Equal Rights

The American Foundation for Equal Rights is the sole sponsor of the Perry case. After bringing together Theodore B. Olson and David Boies to lead its legal team, AFER successfully advanced the Perry case through federal district court and is now leading it through the 9th Circuit Court of Appeals before the case is brought to the United States Supreme Court. The Foundation is committed to achieving full federal marriage equality.