Legal Periodical by George W. Dent: “Perry v. Schwarzenegger: Is Traditional Marriage Unconstitutional?”

George W. Dent, Perry v. Schwarzenegger: Is Traditional Marriage Unconstitutional?, 12 Engage (J. of Fed-Soc. Practice Groups) (Nov. 2011)

Until 2000 the legal institution of civil marriage was understood to be available only to one man and one woman. In 2000 Californians passed an initiative statute (Proposition 22) reaffirming that understanding. The California legislature then enacted a law authorizing domestic partnerships for same-sex couples that offer the same legal treatment as marriage under a different name.1 In 2008 the California Supreme Court nullified Proposition 22 and construed the state constitution to mandate that marriage be redefined to be available to same-sex couples.2

At the next opportunity, just five months later, the people of California approved Proposition 8, which added to the state constitution: “Only marriage between a man and a woman is valid or recognized in California.” The initiative did not affect domestic partnerships.

Two same-sex couples who were denied marriage licenses after passage of Proposition 8 sued, challenging its constitutionality. The Governor, Attorney General, and other state officials refused to defend the law. Sponsors of Proposition 8 intervened to defend it. Judge Vaughn Walker of the U.S. District Court for the Northern District of California held that the intervenors had standing to defend the law and that Proposition 8 violates both the Due Process and Equal Protection Clauses of the U.S. Constitution.3 The defendant-intervenors appealed to the U.S. Court of Appeals for the Ninth Circuit. A three-judge panel of that court heard oral argument on the case in December 2010.4