Proposition 8’s long and winding road to legal defeat


SAN FRANCISCO — Supporters of gay marriage had just hired two famous lawyers to challenge Proposition 8 in federal court. Now they needed plaintiffs.

Secrecy was paramount. A lawsuit to overturn the ban on same-sex marriage was still pending in the California Supreme Court, and no one wanted to jeopardize that case.

From picking the plaintiffs to choosing the court where the federal suit would be filed, the strategists calculated each move on their drive to the Supreme Court. A series of decisions, both small and monumental, some well known and some obscure, shaped the course of the legal battle now bound for the history books.


Chad Griffin, the gay political strategist behind the federal challenge, was in charge of finding plaintiffs to be its public face. The lawyers wanted committed couples, eager to marry and willing to attend countless court hearings and put their private lives on display.

Ten were interviewed, and two were chosen: a gay male couple from Burbank and a lesbian couple from Berkeley.

Los Angeles was to be the venue for the suit. Most of the legal team lived there. But another federal lawsuit over gay marriage was languishing in Orange County, and the lawyers, concerned that the two suits might be consolidated, wanted complete control. They decided instead to file in San Francisco.

The federal suit was filed late on a Friday before the 2009 Memorial Day weekend. No one noticed. A few days later, the California Supreme Court ruled 6 to 1 that Proposition 8 was a valid state constitutional amendment.

Andy Pugno, chief counsel for the sponsors of Proposition 8, was stunned when he found out about the federal suit. He knew gay rights lawyers had opposed bringing one — fearing a major setback in the U.S. Supreme Court.

“It meant we had no time to celebrate our victory in the California Supreme Court,” Pugno said. “We had to start defending against another challenge.”


Chief U.S. District Judge Vaughn R. Walker was selected to hear the case in San Francisco. He was known as a conservative with a strong libertarian streak.

Theodore Boutrous Jr., a key lawyer on the legal team opposing Proposition 8, said some of the lawyers had appeared before Walker in the past. They considered him bold and iconoclastic, and they knew he was gay.

Pugno said his side knew little about the judge except that he was a Republican appointee.

The challengers hired the opposing counsel from Bush vs. Gore: Theodore Olson, known for his conservative political views, and David Boies, known for his liberal politics.

ProtectMarriage, the sponsors of Proposition 8, hired Charles Cooper, a highly regarded Supreme Court advocate.

Walker surprised both sides.

Instead of simply deciding constitutional questions, he wanted a trial to examine the evidence on whether same-sex marriage should be banned. Higher courts would have the final say on the legal questions, but as a trial judge he could make factual findings, he said.

The case started ominously for the challengers. The Supreme Court ruled 5 to 4 that the trial could not be broadcast.

That vote, along ideological lines, worried supporters of gay marriage. “You really don’t like to get a 5-4 smackdown at a trial in a case where you are thinking of going to the Supreme Court,” Boutrous said.

For ProtectMarriage, the ruling “gave us hope,” Pugno said.


During the trial, the procedural issue that would ultimately decide the case hovered in the background: ProtectMarriage’s legal right to defend Proposition 8.

State officials had decided not to defend the proposition, leaving the job to ProtectMarriage. The Supreme Court had suggested in previous cases that sponsors of ballot measures might not have standing — the legal right — to defend ballot measures in place of state officials charged with enforcing them.

ProtectMarriage wanted Imperial County, where voters had overwhelmingly backed Proposition 8, to be admitted to the case.

The county might be needed to defend the proposition in higher courts if ProtectMarriage was not allowed to do so.

The witnesses for the challengers — academic experts, gay men and lesbians — were poised and prepared. ProtectMarriage intensely cross-examined them, but in the end called only two witnesses of its own.

Pugno said his side’s witnesses backed out because “they felt targeted and unsafe.” He insisted that the trial — and Walker — would be irrelevant anyway.

“There is nothing more we could have done,” Pugno said. “Our fate in Judge Walker’s courtroom was sealed from the outset.”

Walker overturned Proposition 8 in August 2010 and denied Imperial County’s late attempt to intervene. The judge had allowed San Francisco to enter the case on the grounds the city had a financial stake in the tourist dollars gay marriage would bring.

“We were not worried because we knew ultimately that Judge Walker’s opinion on Proposition 8 would not decide the case,” Pugno said.

But the group fared no better with three judges on the U.S. 9th Circuit Court of Appeals.


The appeals panel indicated from the start that it was skeptical about whether ProtectMarriage had standing. Under federal law, a party could not appeal a judge’s order unless it was directly affected by it.

If ProtectMarriage lacked standing, then Walker’s order would become the final word in the case.

Walker had issued an injunction prohibiting state officials and the clerks of Alameda and Los Angeles counties, where the plaintiffs lived, from enforcing the marriage ban. During oral argument, the 9th Circuit judges grilled the lawyers about standing and about the scope of Walker’s injunction.

The judges wanted to know why the high-profile legal team had not filed its lawsuit as a class action and pressed them on whether clerks in the 56 other counties had to obey Walker’s order.

Boies told the court that although the injunction affected clerks only in Alameda and Los Angeles counties, state officials had the final say over marriage and Walker’s injunction clearly bound them.

Pugno said he knew at that moment that Boies’ admissions “would come to haunt them later.”

Boutrous also was troubled. “It was frustrating because it hadn’t been an issue put before the court,” he said.

Rather than grappling with the scope of Walker’s ruling, the 9th Circuit obtained a unanimous opinion from the California Supreme Court on standing. The state court said initiative proponents had the right under California law to defend their measures when state officials refused.

Based on that ruling, the 9th Circuit panel decided ProtectMarriage had standing and ruled 2 to 1 against Proposition 8. The decision was written by liberal Judge Stephen Reinhardt, whom ProtectMarriage had unsuccessfully sought to have thrown off the case.

When the U.S. Supreme Court finally held oral arguments in March, many of the justices focused again on standing. In the view of prominent law professors, Walker’s injunction could not be applied statewide if the high court dismissed the case on standing because the suit was not a class action.

“It was a lot of pressure,” recalled Boutrous. “There was all this analysis about whether we had done the right thing for our clients.”

The lawyers got in contact with aides to Gov. Jerry Brown and Atty. Gen. Kamala D. Harris to ensure that they viewed Walker’s injunction as a statewide mandate. Both supported same-sex marriage.

The Supreme Court, ruling last month on the final day of its term, said that ProtectMarriage might have standing under California law but that federal law was different. Its decision meant the group had no legal right to appeal Walker’s decision.

Brown, armed with a legal opinion from Harris, said he would direct clerks in each county to issue marriage licenses to same-sex couples. Two days later, with little warning, the 9th Circuit panel lifted a hold on Walker’s order, and the weddings began.

More litigation by ProtectMarriage remains likely, lawyers in the case say. But Boutrous said he knew Proposition 8 was gone for good once same-sex marriages resumed statewide.

“It put the nail on the coffin, “ he said.