Is Prop 8 merely dead, or really most sincerely dead?

As you know, California’s Proposition 8 – which repealed and banned gay marriage in that state in 2008 – met a timely demise last week when the Supreme Court refused to rule on the case on appeal.


As a result, the appellate court removed the stay it had imposed on the earlier ruling striking down Prop 8 as unconstitutional, and gay marriage became legal again in California, which weddings immediately taking place in Los Angeles, San Francisco, and across the state.

The religious right, in its zeal to extract every last ounce of pain possible, initially tried to stop the appellate court from lifting its stay.  That failed.  And now they’re trying to argue that the decision striking down Prop 8 only applied to the two couples who were plaintiffs in that case, and to no other gay couples in California.

gay marriage prop 8 doma

Photo by ©John Aravosis.

Jon Davidson, the legal director of Lambda Legal (basically, the gay ACLU), weighs in via an email to a friend to say that this contention is absurd:

The argument being made by lawyers for the Prop 8 proponents that Judge Walker’s injunction against enforcement of the initiative only applies to the two plaintiff couples is totally lacking in merit for numerous reasons.

On its face, the injunction explicitly requires that California’s Governor, Attorney General, Director of Public Health (who is also the state Registrar of Vital Statistics) and Deputy Director of Health Information and Strategic Planning “and all persons under their control or supervision” no longer “apply or enforce Proposition 8.” The California Supreme Court previously held (in the litigation that followed San Francisco allowing same-sex couples to marry back in 2004) that county clerks and registrar/recorders are subject to the control and supervision of these state officials when it comes to the issuance of marriage licenses. Local officials are therefore bound to comply with the injunction by its express terms.

Judge Walker himself also ruled that county officials have no discretion relating to who may marry and that their duties are solely ministerial in nature and subject to the supervision of these state officials, and this ruling as well was never successfully appealed and therefore is binding as well.

In addition, the Prop 8 proponents never challenged the scope of the injunction before Judge Walker nor on appeal and they and Imperial County (whose officials sought to intervene) repeatedly told the courts reviewing Judge Walker’s ruling that the injunction would have statewide effect. They therefore have now waived any arguments that the injunction must apply more narrowly.

The Prop 8 proponents seem to fail to appreciate that the Perry case sought and obtained the facial invalidation of Prop 8, because there was nothing unique about the couples who sued that entitled them to prevail. Instead, there are no same-sex couples as to whom application of Prop 8 would be constitutional. In circumstances like this where a law has been held “unconstitutional on its face,” the Ninth Circuit has explained that the law’s provisions are “not unconstitutional as to [plaintiffs] alone, but as to any to whom they might be applied.”

sincerely-dead-featuredMoreover, additional controlling precedent allows federal district court judges to issue injunctions benefitting those who were not parties to a case whenever that is necessary to secure full relief to those who sued. The plaintiffs in the Perry case repeatedly (and correctly) argued in the case that they would not obtain full relief if only they were allowed to marry because such limited relief would perpetuate a stigmatizing two-tier system where same-sex couples in the state would continue in general to be denied the freedom to marry and they (like the 18,000 same-sex couples who married in 2008) would have to continually explain that they indeed are part of an exception to the ongoing marriage ban, which would continue to send the improper, demeaning state message that same-sex couples’ relationships are inferior to those of different-sex couples.

Furthermore, having Prop 8 not apply to the two plaintiff couples but continue to apply to everyone else would violate the requirement of the California Constitution that “All laws of a general nature have uniform operation.” Indeed if local officials were not bound, what would happen if the plaintiff couples traveled through San Diego or Oakland? Would they no longer have to be treated as married? Such a patchwork of treatment would perpetuate the inequality that the district court correctly ruled violates the U.S. Constitution, and thereby overrides all provisions of California law that the proponents of Prop 8 might try to use as a roadblock.

The argument being made by the proponents accordingly — to use a technical term (ha) — is pure malarkey.

The religious right is desperate at this point.  They’ve clearly lost the culture wars, at least in so far as gay rights is concerned, so now they’re striking out blindly – and striking out.

One religious right leader even suggested that southern California secede from northern California as a result of the legalization of same-sex marriages in that state.  (As you know, historically, American bigots are big fans of secession.)

Another religious right leader is now claiming that the Supreme court’s ruling striking down the anti-gay Defense of Marriage Act (DOMA – which forbade the federal government from providing the over 1,100 federal benefits of marriage to legally-wed gay couples), will lead to the disintegration of society.  More from Right Wing Watch:

On his radio show today, Focus on the Family founder James Dobson discussed the Supreme Court’s marriage equality rulings with Family Research Council president Tony Perkins and Bill Becker, an attorney affiliated with right-wing groups such as the Alliance Defense Fund and the Discovery Institute.

As you could imagine, Dobson was aghast at the decisions, arguing that same-sex marriages “threaten the entire superstructure” of society. “I believe it can come down,” Dobson warned. “This has been devastating. Even if eventually legally we somehow walk it back a bit, I don’t see our ever completely recovering from what has happened here.”

Becker went even further, saying that civilization crumbled the day the court released its rulings: “We’re talking here about the foundation of civilization and I wrote today that I believe we’ve seen the collapse of Western civilization in one day.”

And another top religious right leader is claiming that the court’s DOMA ruling is akin to earlier rulings in favor of slavery, and the internment of Japanese.  Like these people would understand civil rights if it hit them in the ass (and it just did).

I will say this about the religious right’s latest extremist language: It is a sign of the end-times, just not the end-times they were expecting.

The advent of legal gay unions now spreading across the globe is not a sign of the end of America, or the end of the world.  It’s simply a sign of the end of their influence, the end of them.

Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

Share This Post

70 Responses to “Is Prop 8 merely dead, or really most sincerely dead?”

  1. Anti Kate says:

    It is the end of the world for someone, somewhere, every day. Maybe it is time for the end for these angry, frightened and flailing bigots?

  2. matt227 says:

    The US Constitution is very clear on the subject matter jurisdiction of federal courts in Article III Sec. 2 The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.” Therefore, the hierarchical structure of California’s Department of Health is not a matter of law and equity under federal law. Walker has the authority to enjoin clerks but not to tell California how its hierarchy works. If Davidson thinks otherwise, he is mistaken.

  3. rmthunter says:

    From Jon Davidson’s (Lambda Legal) statement:

    “Judge Walker himself also ruled that county officials have no discretion
    relating to who may marry and that their duties are solely ministerial
    in nature and subject to the supervision of these state officials, and
    this ruling as well was never successfully appealed and therefore is
    binding as well.”

  4. rmthunter says:

    Because that’s all they have. That, and desperation. Not a winning combination.

  5. Dakotahgeo says:

    This is what you get when you have a state full of people with the IQ of room temperature on Celsius scale!

  6. Dakotahgeo says:

    These Prop 8 proponents are remarkably stupid! Thank God they don’t realize what fools they make of themselves. It is not almost laughable… it is belly-aching painful laughing at them. I smell implosion coming on fast… one implosion per person, per lifetime, please!!!

  7. BeccaM says:

    Meanwhile, House Republicans are gonna try again for the Constitutional amendment to make anti-gay discrimination permanent.

    Representative Tim Huelskamp (R-KS) and 28 other House Republicans have introduced a constitutional amendment to prohibit same-sex marriage nationwide.

    Thankfully, this has zero chance of passing in either chamber.

  8. Butch1 says:

    Ha! I mean, they never give up even when they’ve lost.

  9. tomtallis says:

    From your lips to whomever-is-in-charge’s ears!

  10. tomtallis says:

    Congratulations and best wishes. My husband and I got California-married when it was legal. We’ve been very fortunate since my husband has been able to get his work-visa (O-1) renewed since we’ve been together (15 years). I’m working on getting the paperwork together for his green card application.

  11. tomtallis says:

    “One religious right leader even suggested that southern California secede from northern California
    as a result of the legalization of same-sex marriages in that state.
    (As you know, historically, American bigots are big fans of secession.)”

    They should all gather in Imperial County (AKA hell’s half acre) and seceed from the state. They certainly wouldn’t be missed.

  12. matt227 says:

    I am aware of federal preemption. I am referring to any possible attempts by Pugno et al. to challenge marriages in state court based on the relationship between state officials and clerks. That, however, is still a long shot.

  13. BeccaM says:

    I would, but my broom is in the shop and our Prius lacks the cargo capacity.

  14. BeccaM says:

    We could use one of those stand mixers with the dough-kneading attachment. 8-D

  15. tomtallis says:

    No, not these questions. The previous decision had to do with the constitutionality of putting Prop H8 on the ballot at all. The scope of Judge Walker’s order hasn’t been addressed, nor should it be, because the law is clear, but that won’t stop Pugno from making as much trouble as he can, no matter how frivolous his actions may be.

  16. Butch1 says:


  17. Butch1 says:

    Would someone drop a house on these fools once and for all?

  18. karmanot says:

    Congrats peter and spouse!

  19. BeccaM says:

    Congrats! I’m so very happy for you.

  20. karmanot says:

    And a bust I say, in the Hall of Fame!

  21. In honor of the decisions of SCOTUS, I am again watching “Sommer Sturm”, or Sumer Storm (2004). I just wish I could get the subtitles in German, for my ear can’t catch the language. By the way, Robert Stadlober speaks English like an American. Like you, John, I admire polyglots!

  22. AnitaMann says:

    Mazel tov.

  23. FLL says:

    Spot on. It is about fundraising. In their declining years, the Religious Right is proving to be just plain greedy and venal. $

  24. Julien Pierre says:

    It’s actually 37 states left to get, not 33.

  25. Julien Pierre says:

    Yes. We have 37 states and 183 countries to go, until same-sex marriage is recognized worldwide.

  26. ericxdc says:

    It’s looking better than it was two weeks ago.

    Make no mistake: this is historic. Savor it. We are energized and ready to carry this struggle forward until everyone, in every state, has equality.

  27. ericxdc says:

    I disagree. Although I’ll admit, for the dead-ender group of self-righteous bigots, it will never be over. But, for those of us who choose to inhabit the real world, it is very much over: there is no realistic prospect of going back . The only remaining question is how quickly we’ll be able to continue moving forward.

  28. cole3244 says:

    the right will not let this die but that is a good thing for the left.

  29. nicho says:

    Right — and neither can federal rulings be addressed by state courts. There’s no issue for them to request an injunction on. It would be like you asking for an injunction to prevent Jews from marrying gentiles. You’d be laughed out of court.

  30. Stratplayer says:

    I hope they get socked with massive Rule 11 monetary sanctions for wasting everyone’s time and resources with this mind-bogglingly frivolous argument.

  31. Peter says:

    Thank you, we have been waiting for this moment for 10 years.

  32. Mike_in_the_Tundra says:


  33. Mike_in_the_Tundra says:

    Hasn’t it already been through the state courts?

  34. rand503 says:

    I really hope so!

  35. rand503 says:

    I’m very glad the religious right is so shrill and victimized. When their predictions prove false, within a few years, everyone will finally see them to be false prophets who can’t get anything right. The new generation of kids nowadays isn’t fooled by them in any case, and this will just be the last nail in their coffin.

    It’s fun to see Ralph Reed trying to recreate the Christian majority group again. Apparently he plans to fight SSM in every state and is already talking with big donors.

  36. Peter says:

    Speaking as the American half of a bi-national couple who just got married today in California, I am glad that it is over and we have won. These religious zealots have nothing better to do with themselves other than spout irrational ideas that the US is a christian nation and must have laws that reflect such. Why is it that they point at the scribblings of ancient times as if it somehow has some relevance to today. They need to crawl back under their respective rocks and take their inane ramblings with them.

  37. ” There is a real posibility that they might get that injunction, depending on which county they file in.”

    No, there is not.

  38. Jon Maas says:

    Let’s hope they go broke from legal fees.

  39. karmanot says:

    Oh Christ, you did have to bring that up and expose my collection of Fondue pots, waffle makers and BBQ sets.

  40. BeccaM says:

    It was a federal district court that overturned Prop 8, which trumps state courts — and the ruling could not have been more clear: It applied to Prop 8 itself and not just to two couples.

    There is no standing to appeal the federal ruling, period.

  41. matt227 says:

    In state court they do have standing. State determination of standing in state court is not a federal question, so it was not, and cannot be addressed by federal courts.

  42. BeccaM says:

    That I do agree with — PropH8 is over. For everyone. And personally I am somewhat amused by their repeated attempts to use the same old failed arguments to try to keep it going.

  43. rand503 says:

    Agree. We still have ENDA to pass, and we still have 33 states to get. Many of them have constitutional amendments, so that usually is a longer and more difficult process to undo all that. IT’s going to take another 5 years at least before we get the majority of that.

    After that, it’s banning reparative therapy for any minors, and eventually for everyone. Then I think we can start to rest easy.

    But this is all good and going in the right direction.

  44. MyrddinWilt says:

    The fight is not over but I suspect the gravy train is.

    The bigots make a very good living out of hate. They send out direct mail appeals to raise funds which go into more direct mail appeals. And all the fundraising is funneled through a firm they control so they get a kickback on every dollar donated.

  45. nicho says:

    I’ve been to weddings like that. The bride and/or her mother pretty much just set up a cash register and scope out the gifts — ka-ching, ka-ching, ka-ching — to make sure they get enough loot.

  46. tomtallis says:

    I predict that the proponents will, before the end of the week, file a suit asking for an injunction against further marriages while they argue this nonsense through state court. There is a real posibility that they might get that injunction, depending on which county they file in. This isn’t over. It will never be over as long as the Christian hate machine has the veriest wisp of a straw to grasp.

  47. SomeYankInRio says:


    I’m sorry that you misunderstood my post.

    I was speaking solely of the patently absurd idea that the Prop 8 ruling only applied to the named plaintiffs.

    This, to me, deserves no bandwidth when there are, as you noted, still other real fights to fight.

  48. Hue-Man says:

    Especially if one of them is a Bridezilla, complaining about the wedding gift!

  49. BeccaM says:

    Sorry, but no, it’s not over.

    Not until it’s illegal to fire a person or evict them from their homes or to discriminate against a person because they’re lesbian, gay, bisexual or transgendered. Not until marriage equality is the law throughout America. Not until anti-gay hate crimes are prosecuted.

    And not until it becomes as socially unacceptable to present anti-gay animus as merely another point of view on national TV as it would be to ask the Grand Wizard of the KKK for his views on racial discrimination.

    And even then, it won’t be over because we will need to remain vigilant to protect the rights for which we fought so hard — because haters won’t stop hating.

  50. BeccaM says:

    The fight is far from over for us. The DOMA section 3 overturn and PropH8’s dismissal were huge losses for the bigots. But now there’ll be a whole lot more litigation to come, and probably more state-level battles.

    Still, things are looking a whole lot better for LGBT civil rights than they were just five or six years ago.

  51. BeccaM says:

    The total lack of evidence was the most devastating revelation of the Prop 8 case.

    That, and their ridiculous more recent attempts to claim that marriage exists only for breeders. I think by that point, even people who were on the fence realized there was no rational justification, only animus.

    As Rachel Maddow pointed out yesterday on one of the Sunday morning talking-heads programs, gay and lesbian couples have already created families and many of them have kids. Discriminating against them isn’t going to cause fewer of these families and their children to exist.

    There’s the irony of the bigots’ hypocrisy: They say they oppose same-sex marriage because it’s bad for kids — the result being actual discrimination against the children already being raised by gay and lesbian parents. Real, tangible, court-provable harm deemed acceptable in lieu of unprovable, undefined, theoretical, and irrationally reasoned harm to ‘society.’

  52. dcinsider says:

    As their greatest fundraising tool slips from their grasp, they freak out at the possibility of having to sell the Ferrari and get a real job.

  53. samizdat says:

    The fascists will not let up.

    Fixed it for ya’, nicho.

  54. BeccaM says:

    As MyrddinWilt notes, at this point it doesn’t matter at all what the PropH8 proponents argue: They have no standing to appeal Walker’s ruling nor to argue that it’s being wrongly implemented as a full-on overturning of California’s ban on same-sex marriage. Or anything else related to the case.

    There is, at present, only one legally empowered defendant who would have standing to argue about any facet of the Judge Walker’s ruling: The government of the State of California. And California’s governor and attorney general decided that they would accept Walker’s ruling, as is their prerogative under the law.

    The bigots have only two options: Attempt to lobby the California legislature to pass a new anti-equality law. Or to put another anti-equality proposition on the ballot. Of course, at this point attempting to do so would probably be subject to court challenge, given the accepted precedent of Walker’s ruling.

    Prop H8 is most sincerely dead. Moreover, given the arc of history having bent inexorably and swiftly towards acceptance of same-sex marriage, the likelihood of any bastard zombie offspring in the state of California is nil.

  55. SomeYankInRio says:

    In the immortan words of Nancy Pelosi when asked about Michelle Bachman’s statement:

    “WHO CARES?”

    It’s over.

    We won.

    Don’t let these fools suck any more oxygen from our conversations

  56. nicho says:

    The biggest threat for me: wedding presents. I thought I was done buying wedding presents for friends. Now, it’s starting all over again.

  57. nicho says:

    Heck, they’re still trying to chip away at — if not overturn — Roe, The Voting Rights Act, Desegregation, etc. The haters will not let up.

  58. karmanot says:


  59. JC says:

    Every day more and more Americans see how these spiteful bigots hate the many hard working, law abiding, loving gay couples.
    Maybe they would be happier living in Russia, Iran or some of the African countries.

  60. PeteWa says:

    the “religious” right are just employing a few of their favorite tactics, lying, grasping at straws, misdirection and bigotry.
    same as it ever was.

  61. nicho says:

    Note to the bigots: “When you bend down to tie your wedgies, and you smell the peanuts and see the confetti, then you know that the “big parade” has passed you by.” (h/t to Wayland Flowers and Madame)

  62. caphillprof says:

    While we’re at it, why was Tony Perkins on Face the Nation yesterday. It was like inviting the Ku Klux Klan to weigh in on Brown vs. Board of Education.

  63. Hue-Man says:

    “…same-sex marriages “threaten the entire superstructure” of society.” Please list the threats in order of importance. “Cuz I said so” and “Magic!” aren’t acceptable answers. The total lack of evidence was the most devastating revelation of the Prop 8 case.

  64. Badgerite says:

    I don’t think they are winning themselves any supporters among the young or anyone else by taking this ‘chicken little- the sky is falling’ approach. I watched some of those marriages on the internets and I can’t help but wonder, are they watching the same thing I am watching or are they wearing apocalyptic eyeglasses?

  65. BeccaM says:

    What comes to mind: A vision of a small bundle of crumbling, decaying straws, and a palsied hand grasping spastically at them.

  66. And Citizen’s United is the only corporation granted personhood.

    Shorter Religious Right:
    Why, Ms. Rosa Parks, of course you don’t have to sit in the back of that bus there no more.

  67. MyrddinWilt says:

    The proponents were found to lack standing. So it really does not matter what they argue, the precedent set by the Supreme Court is that they do not have standing to argue it.

    The plaintiffs sought and were granted a permanent injunction against implementation of Prop 8 in any form. What the bigots argued has no relevance now. They were found to lack standing to argue it.

    Even if they did have standing, they have no way to stop the state from recognizing marriages. It would be slightly different if the Governor was on their side but not by much.

    It will be interesting to see how far they push this argument and what sanctions the judge imposes.

  68. douglas01 says:

    Let the religious right continue with the vitriol as it’s driving people away from them and toward our side. The ugliness behind the mask is showing through. . . and that’s a good thing.

  69. Ron Robertson says:

    What sick mentalities the gay haters have to think they should be able to control the recognition of our relationships. One lovely thing about their overreach is that Judge Walker’s more sweeping ruling still stands.

  70. matt227 says:

    If the proponents argued in court that it would have statewide effect, then they are estopped from claiming otherwise at a later time.

© 2020 AMERICAblog Media, LLC. All rights reserved. · Entries RSS