American Foundation for Equal Rights

California Supreme Court Hears Standing Issue in Prop. 8 Case


Elizabeth Riel 213.785.5352 or
Brandon Hersh 202.412.9766 or

Plaintiffs Move One Step Closer to Marriage Equality after Proposition 8 Hearing before California Supreme Court

Proposition 8 is “Hanging by a Thread”

San Francisco, CA – Today, plaintiffs in Perry v. Brown presented arguments before the Supreme Court of California regarding whether proponents of a ballot initiative possess “standing.” Proponents must demonstrate why they should be allowed to defend the constitutionality of Prop. 8, where the Governor and Attorney General exercised their discretion not to appeal.  The plaintiffs maintain that the proponents of Proposition 8 do not have standing to appeal Chief Judge Walker’s opinion invalidating the proposition. As described in the California Constitution, the Attorney General is granted exclusive authority to represent the interests of the State in judicial proceedings and to make decisions regarding the defense of state laws.”

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

“There is ample authority that individuals do not have a right to defend a law unless they would suffer a direct and immediate harm from its invalidation,” said attorney Theodore B. Olson, who represents the Plaintiffs in the Perry case. “The proponents of Proposition 8 will not suffer any harm from a decision that grants gay and lesbian Californians their fundamental civil right to marry. It is the Attorney General who has the exclusive authority to make litigation decisions on behalf of the State, and here the Attorney General has made the sound decision that the discriminatory provisions of Proposition 8 do not warrant defense on appeal. Proponents cannot second-guess that exercise of discretion.”

If the Supreme Court of California decides proponents do not have standing, then proponents’ appeal would likely be dismissed and marriage equality would return to California in short order. If the Supreme Court decides proponents do have standing under state law, then the Ninth Circuit would still have to determine whether proponents have standing under federal law. If the Ninth Circuit finds standing, it will then rule on the constitutionality of Prop. 8 on the merits. No matter what the Ninth Circuit decides, its ruling is likely to be challenged in the U.S. Supreme Court.

“This morning’s hearing before the California Supreme Court marks a seminal moment in our Plaintiffs’ case,” said AFER Board President Chad Griffin. “Today, we have moved one important step closer to marriage equality for all gay and lesbian couples across California. Proposition 8 is hanging by a thread and soon the historic federal court decision that ruled Prop. 8 unconstitutional will be realized.”

The anti-marriage proponents of Prop. 8 have been trying to hide what happened in that historic federal court trial. Not only was their defense of Prop. 8 ruled unconstitutional, but they are refusing to let the public see the videotapes that were taken during trial.

Plaintiffs and AFER were back in the District Court on August 29 to urge Chief Judge James Ware to unseal the video recordings of the Proposition 8 trial, citing the strong presumption of public access to judicial records and the lack of any basis to keep the video secret.

Proponents have been utterly unable to explain why the public should be barred from seeing and hearing for themselves what happened in a public trial potentially affecting the rights of millions of Americans. Proponents do not want the world to see the powerful evidence Plaintiffs submitted showing that Proposition 8 flatly violates the Constitution and the extraordinarily weak case that they put on trying to defend this discriminatory law.

Recently, The New York Times and Los Angeles Times editorial boards published editorials calling for the release of the Prop. 8 trial tapes, 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 recordings. Judge Ware’s decision is expected in the near future.

In an effort to make certain that the American public knows what happened at the Prop. 8 trial, AFER is teaming up with Broadway Impact to produce “8,” a play chronicling the historic trial, written by AFER Founding Board Member and Academy-Award winning writer Dustin Lance Black and directed by Tony Award-winning actor and director Joe Mantello.

The all-star cast includes Anthony Edwards, Morgan Freeman, Cheyenne Jackson, Christine Lahti, Rob Reiner, Marisa Tomei, and Yeardley Smith, with more casting announcements to come.

Black, who penned the Academy-Award winning feature film “Milk,” based “8″ on the actual words of the trial transcripts, first-hand observations of the courtroom drama and interviews with the plaintiffs and their families. It is set to premiere at the Eugene O’Neill Theatre in New York City on Monday, September 19, 2011 for an exclusive, one-night-only fundraiser to benefit AFER.


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.