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California Couples Have Waited Long Enough: Ninth Circuit Decision on Prop 8 Is A Victory For Marriage Everywhere

Marriage equality Prop 8 trial

This post is the first in our inaugural legal symposium we at are launching this week. We presented invited guests with the question: “Is it better for the LGBT rights and marriage equality movement if the Perry v. Brown case is or is not granted certiorari by the Supreme Court? Why?” Participants were asked to respond in 700 words or less.

If you’d like to submit a piece for our symposium, e-mail your piece with your name, title of your post, and a 1-2 sentence byline to: scottie AT couragecampaign DOT org. Enjoy the symposium!

By Chris Stoll

No Californian who shares a commitment to achieving the freedom to marry for same-sex couples can ever forget November 4, 2008. Even as we witnessed a historic barrier to equality fall in the presidential election, our hearts broke as Prop 8 brought the curtain down on California’s all-too-short tenure as the second state to offer full equality for same-sex couples.

For almost four years now, same-sex couples in California have been denied the freedom to make this important public commitment to each other and to their children. With a bittersweet mix of pride and heartache, they have stood on the sidelines as their brothers and sisters in Connecticut, Vermont, Iowa, D.C., New Hampshire, New York, Maryland, Washington, and two American Indian tribal nations joined Massachusetts in winning the freedom to marry. With each of these victories, Californians’ excitement was always tinged with the continued sting of Prop 8.

That history has made the extraordinary success of the Olson/Boies challenge to Prop 8 all the sweeter. We took in every moment of the historic trial that exposed the campaign of disinformation and fear-mongering that led to Prop 8. We marveled at Judge Walker’s systematic dismantling of the proponents’ threadbare arguments against equality. And we eagerly devoured Judge Reinhardt’s masterful constitutional analysis striking down Prop 8 – perhaps the capstone of his already legendary career.

In assessing the next steps for the Perry case, it’s important to remember where we are: This is a case that has already been won, and won resoundingly. If the Supreme Court does not take up the case, Prop 8 will be history and same-sex couples will be able to marry again before the end of this year. That is a historic victory for every Californian and a complete repudiation of the cynical and dishonest campaign that led to Prop 8. Ted Olson and David Boies understand that they have already achieved an astounding result for their clients and for all Californians – which is why they undoubtedly will ask the Supreme Court to let the Ninth Circuit’s decision stand.

The victory in Perry should be treasured, not given up for the uncertain hope of a larger prize – and not just because it’s possible to lose in the Supreme Court. For one thing, if the Ninth Circuit’s decision stands, the stage will be set in the best possible way for an eventual Supreme Court victory for marriage equality nationally.

This fall, the Supreme Court is very likely to take up the constitutionality of the so-called Defense of Marriage Act, which denies federal benefits to legally married same-sex couples. There are good reasons to think that the Court is ready to strike down this destructive law, which serves only to harm same-sex couples and their children while helping no one. A Supreme Court victory in the DOMA challenge can only help the cause of marriage equality, and the decision may provide important clues about the best way to bring a broad marriage equality case to the Court. And we should not have to wait long. Marriage equality cases are already pending in Illinois, Nevada, and New Jersey. Some of those cases include federal challenges that may find their way to the Court in the next few years.

But even beyond the strategy for achieving the freedom to marry nationally, there’s an even more basic reason to hope that the Supreme Court lets Judge Reinhardt’s opinion stand: California’s same-sex couples have simply waited long enough to be rid of Prop 8. They shouldn’t have to give up the landmark victory they have already achieved and endure another year of delay and uncertainty.

Dominic Zarrillo, the father of Perry plaintiff Jeff Zarrillo, wrote in the New York Times this weekend that when the subject of grandchildren came up, Jeff and his partner Paul Katami told him that they wanted to marry first, and they wanted for it to be legal. Jeff and Paul have won that right, and in the most spectacular way. They should be able to enjoy their victory now.

Christopher Stoll is a Senior Staff Attorney for the National Center for Lesbian Rights.

Twitter: @Chris_Stoll


  • 1. Adam Bink  |  June 25, 2012 at 9:13 am

    Thanks for posting here, Chris, and for your continued legal thoughts and guidance. Interesting piece!

    All, hope you enjoy the symposium this week. We'll have a variety of guests. As we wrote above, if you'd like to contribute, send in your piece to Scottie.

  • 2. Sagesse  |  June 25, 2012 at 9:17 am


  • 3. atwookie - C. Atwood  |  June 25, 2012 at 9:22 am

    Fully agree. The Perry ruling was intentionally written narrow by Walker and maintained by Reinhardt. It's not meant for the national stage in the SCOTUS, but will make excellent precedent as other federal cases come up to overturn state-driven initiatives that resulted in laws or state constitutional amendments.

    Winning is knowing when something is useful — this is what the Perry case is crucial for. Especially with all the documented evidence on the stand. There is enough fodder to make many conservative judges go, "Huh?" and at least examine the question while we wait for DOMA to be taken out by the other cases in the Federal circuit.

  • 4. Gregory in SLC  |  June 25, 2012 at 10:16 am

    thx Chris! Pain was felt in 2008 in SLC too!


    What Gay Pride Looks Like around the world:

  • 5. AnonyGrl  |  June 25, 2012 at 10:34 am

    Thank you Chris. Absolutely, let this be finished!

  • 6. Mark M. (Seattle)  |  June 25, 2012 at 10:45 am

    Posted in Quick Hits as well……….

    I was given the chance to give a bit of a rant about marriage equality by one local news outlet at yesterdays pride parade. They editied out some of it but did manage to leave in a couple good powerful moments.
    I am a bit upset they made it appear our room mate was my husband, but at least they gave me a chance to speak out.

  • 7. Bob  |  June 25, 2012 at 10:54 am

    well done Mark,,,,, really great to see you and hubby,,,,,,, cheers from Canada

  • 8. Bob  |  June 25, 2012 at 10:55 am

    oops that wasn't your hubby,,, after all

  • 9. Mark M. (Seattle)  |  June 25, 2012 at 11:01 am

    During the interview I made sure they knew that Tom was NOT my husband, but the editor used the shot of us standing together while the narrative spoke about my 'partner' of 30 years.
    I SO wish Robert could have been there with me instead……

  • 10. Kathleen  |  June 25, 2012 at 11:09 am

    The notices that went out to the email list in Perry were just routine clerical matters. It's the district court placing on its docket the earlier 9th Circuit filings from the en banc denial – the order, concurrence and dissent. It's nothing new.

  • 11. AnonyGrl  |  June 25, 2012 at 11:59 am

    Thanks dearest!!

  • 12. Prop 8 Trial Tracker &raq&hellip  |  June 25, 2012 at 12:00 pm

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  • 13. Mykelbarber  |  June 25, 2012 at 12:17 pm

    So where is the lawsuit to strike down the injunction?

  • 14. Jamie  |  June 25, 2012 at 1:37 pm

    The only way to appeal the injunction at this point is to go to the Supreme Court.

  • 15. Kathleen  |  June 25, 2012 at 5:52 pm

    Do you mean the stay of the injunction? If so, I doubt anyone will file a motion to have that lifted before (and if) the Supreme Court grants cert.

  • 16. Str8Grandmother  |  June 25, 2012 at 3:14 pm

    If Chris is reading here perhaps he can tell us when these other lawsuits were filed? If I am not mistaken Perry was filed in May of 2009. A whole year was lost while we took a side trip to the California Supreme Court on Standing. That might not happen in every subsequent court cases.

    And we should not have to wait long. Marriage equality cases are already pending in Illinois, Nevada, and New Jersey

    And which ones of these are filed in Federal Court?

  • 17. Kathleen  |  June 25, 2012 at 4:15 pm

    The Nevada case is in federal court, filed 4/10/12. Illinois (filed 5/30/12) and New Jersey (filed 6/29/11) were filed in state courts. The Illinois cases only allege violations of the state constitution, but the NJ case alleges violations of both the state and federal constitution.

  • 18. Str8Grandmother  |  June 25, 2012 at 4:52 pm

    If I remember right though all 3 of these cases are based on, "Well we do have Civil Unions (Domestic Partnerships) but this is second class Marriage. We want first class marriage" I could be wrong but I don't think any 3 of these cases are straight up filed on the basis of the 14th Amendment in a State that has no Civil Unions nor Domestic Partnerships, which is most of the country.

    There is probably a case to be made that if any of these 3 cases win on that, then that would sure discourage any other state from offering Domestic Partnerships or Civil Unions.

  • 19. Tyler O.  |  June 25, 2012 at 6:49 pm

    Does the NJ case have a trial date yet? It's been almost a year.

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