AFER was launched in spring 2009 as the sole sponsor of Perry v. Schwarzenegger, the federal constitutional challenge to California's Proposition 8. The organization was co-founded by political consultants Chad Griffin and Kristina Schake.[2] The organization shut down in 2015.[3]
In January 2010, Theodore B. Olson published a cover essay in Newsweek magazine entitled "The Conservative Case for Gay Marriage," in which Olson argued:[6]
Legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation's commitment to equal rights. It is, some have said, the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation. This bedrock American principle of equality is central to the political and legal convictions of Republicans, Democrats, liberals, and conservatives alike.
Adam Nagourney and Brooks Barnes of The New York Times described approaches like AFER's as a:[7]
dramatic evolution of a behind-the-scenes fund-raising network whose goal is to legalize same-sex marriage from coast to coast. This emerging group of donors is not quite like any other fund-raising network that has supported gay-related issues over the past 40 years. They come from Hollywood, yes, but also from Wall Street and Washington and the corporate world; there are Republicans as well as Democrats; and perhaps most strikingly, longtime gay organizers said, there has been an influx of contributions from straight donors unlike anything they have seen before.
Freedom to Marry founder Evan Wolfson "credits conservatives like Ted Olson and former Republican National Committee chairman Ken Mehlman with accelerating th[e] trend" of increasing Republican support for marriage equality.[8]
AFER held a September 2010 event at the Mandarin Oriental Hotel in New York City co-hosted by prominent Republicans Ken Mehlman, Paul Singer, and Peter Thiel.[9]
California GovernorArnold Schwarzenegger and Attorney GeneralJerry Brown declined to defend Proposition 8, with Attorney General Brown conceding that Proposition 8 is unconstitutional.[11][12] In July 2009, the official proponents of Proposition 8—Dennis Hollingsworth, Gail J. Knight, Martin F. Guitierrez, Hak-Shing William Tam, and ProtectMarriage.com—were permitted to intervene to defend Proposition 8. The City and County of San Francisco was granted leave to intervene in support of Plaintiffs.
In January 2010, a 12-day trial was held before Chief Judge Walker. The trial proceedings were recorded on video. That video recording remains under seal as part of the case record. At trial, Plaintiffs presented 17 witnessed: eight lay witnesses, including the four plaintiffs, and nine expert witnesses. Proponents presented only two witnesses. Closing arguments were heard on June 16, 2010.
On August 4, 2010, the District Court found in favor of plaintiffs and declared Proposition 8 unconstitutional. The District Court concluded that Proposition 8 violated the Due Process Clause because it "unconstitutionally burdens the exercise of the fundamental right to marry"[13] and "cannot withstand rational basis review"[14] or the strict scrutiny required for a law that infringes on a fundamental rights. The District Court also concluded that Proposition 8 violates the Equal Protection Clause because it "creates an irrational classification on the basis of sexual orientation."[13] The court supported its conclusions of law with 80 detailed factual findings. The District Court concluded:[15]
Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.
On August 12, 2010, Chief Judge Walker denied Proponents' motion for a stay and entered a permanent injunction against the enforcement of Proposition 8.[16][17]
On August 4, 2010, Proponents noticed an appeal to the United States Court of Appeals for the Ninth Circuit. On August 16, 2010, the Ninth Circuit granted Proponents' motion for a stay pending appeal and set an expedited briefing schedule.[18]
The appeal was heard before a three-judge panel: Circuit Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith. The panel heard oral argument on December 6, 2010, and was broadcast on television and the Internet, becoming the most watched appellate court proceeding in American history.
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.
The Ninth Circuit certified the question because it "require[d] such an authoritative determination" of California law to "determine whether Proponents have standing to maintain this appeal."[20]
The California Supreme Court agreed to decide the Ninth Circuit's certified question in February 2011, heard oral argument in September 2011, and issued its decision in November 2011. The California Supreme Court's unanimous decision was authored by Chief JusticeTani Cantil-Sakauye. In answering the Ninth Circuit's certified question, the California Supreme Court held:[21]
that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state's interest in the initiative's validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
In April 2011, while the California Supreme Court was considering the Ninth Circuit's certified question, the proponents of Proposition 8 filed motions to return the video recordings of the trial and to vacate the District Court's judgment invalidating Proposition 8. Plaintiffs opposed both motions and cross-moved to unseal the video recordings. On June 14, 2011, Chief Judge James Ware of the United States District Court for the Northern District of California denied both of Proponents' motions.[22][23] On September 19, 2011, Chief Judge Ware granted Plaintiffs' cross-motion and ordered the digital video recording of the trial unsealed.[24] Proponents' appealed both decisions. On December 8, 2011, the Ninth Circuit heard another round of oral argument to consider Proponents' appeals regarding the trial recordings and motion to vacate judgment.
On February 2, 2012, the three-judge panel unanimously reversed the District Court's decision to unseal the trial tapes.[25]
On February 7, 2012, the panel affirmed the District Court's judgment that found Proposition 8 unconstitutional. The panel's majority opinion was authored by Judge Stephen Reinhardt, and unanimously concluded that Proponents possess standing to maintain their appeal and that the District Court properly rejected Proponents' motion to vacate the judgment entered by former Chief Judge Walker. Judge Reinhardt, joined by Judge Hawkins, concluded that Proposition 8 violates the Equal Protection Clause. Judge Reinhardt wrote:[26]
Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California. The Constitution simply does not allow for "laws of this sort."
Judge N. Randy Smith filed a separate opinion concurring in part and dissenting in part. While Judge Smith agreed with the majority that Proponents have standing and that their motion to vacate judgment should be denied, he dissented from the majority's conclusion that Proposition 8 violates the Equal Protection Clause.[27]
On February 21, 2012, Proponents petitioned the Ninth Circuit for rehearing en banc, which Plaintiffs opposed. The Ninth Circuit denied Proponents' petition on June 5, 2012. Judge Diarmuid O'Scannlain filed a short opinion dissenting from the denial of rehearing en banc, which was joined by Judges Jay Bybee and Carlos Bea. Judges Reinhardt and Hawkins filed a joint statement concurring in the denial of rehearing en banc.[28]
On July 30, 2012, Proponents filed a petition for a writ of certiorari in the United States Supreme Court.[29] On December 7, 2012, the Court granted Proponents' petition in the case, now named Hollingsworth v. Perry.[30] The Court heard oral argument in Perry on Tuesday, March 26, 2013.[31]
On June 26, 2013, the U.S. Supreme Court ruled that the sponsors of Proposition 8 lacked legal standing to appeal the district court decision when the state of California refused to do so. The Ninth Circuit's judgment in Perry was vacated, and the case was remanded with instructions to dismiss the appeal. In a 5–4 opinion authored by Chief JusticeJohn G. Roberts. Jr., which JusticesAntonin Scalia, Ruth Bader Ginsburg, Stephen G. Breyer, and Elena Kagan joined, the Court concluded:[32]
For there to be ... a case or controversy [under Article III of the Constitution], it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have "standing," which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit.
Robert F. McDonnell, in his official capacity as Governor of Virginia, and Ken Cuccinelli, in his official capacity as Attorney General, were listed as defendants along with George E. Schaefer, III, in his official capacity as Clerk of Court for Norfolk Circuit Court. Tim Bostic and Tony London of Norfolk, Virginia, an unmarried couple, filed the initial complaint.[35]
The court dismissed Governor McDonnell and Attorney General Cuccinelli and an amended complaint was filed on September 3, 2013, that added Janet M. Rainey, in her official capacity as State Registrar of Vital Records, as a defendant.[36] The suit proceeded as Bostic v. Rainey.
The American Foundation for Equal Rights joined the lawsuit in September 2013[37] along with two additional plaintiffs, Carol Schall and Mary Townley of Richmond, who were married in California in 2008, were raising a teenage daughter in Virginia,[38] and sought to have their marriage officially recognized by law.[39]
In January 2014, Michele McQuigg, in her official capacity as Prince William County Clerk of Court, successfully intervened in the case as a defendant.
A hearing was held at the district court on February 4, 2014.[40] Ted Olson as well as Solicitor General Stuart Raphael, on behalf of the state, made arguments in favor of the plaintiffs. New-elected Attorney General Mark Herring announced his support for marriage equality ahead of oral arguments.[41] Newly elected Governor Terry McAuliffe announced his support soon after the district court decision.[42]
On February 13, 2014, Judge Wright Allen ruled that Virginia's statutory ban on same-sex marriage is unconstitutional.[43] The court held that the right to marry is a fundamental right, and therefore the limitation to such right is subject to strict scrutiny. Judge Wright Allen found the state's laws did not even pass rational basis review, the least demanding standard of review. The decision was stayed pending appeal by the state.
Clerk of Court for Norfolk Circuit Court George E. Schaefer, III, appealed the district court decision on February 24, 2014, to the United States Court of Appeals for the Fourth Circuit.[44] Defendant McQuigg filed a separate appeal.[45] Seeking a swift conclusion to the case in favor of the plaintiffs, defendant Janet M. Rainey also appealed the decision on behalf of the state of Virginia.[46]
On March 10, 2014, the Fourth Circuit Court of Appeals allowed a class of individuals in another case, Harris v. McDonnell, to intervene in Bostic.[47]
On July 28, 2014, the Fourth Circuit affirmed the district court's decision in a 2-1 ruling.[50] Judge Henry Floyd wrote the majority opinion in which Judge Gregory joined.[51] Judge Niemeyer wrote a separate dissenting opinion. The mandate of the court's judgment was scheduled to issue on August 21, 2014.[52]
Michele McQuigg asked the Fourth Circuit to stay its mandate in the case. On August 13, 2014, Judge Floyd, with the concurrence of Judge Gregory, denied the intervening defendant's motion. Judge Niemeyer voted to grant the motion. Judge Henry Floyd wrote the majority opinion in which Judge Gregory joined.[53] McQuigg petitioned the U.S. Supreme Court to stay the Fourth Circuit's order pending the outcome of petitions to the high court for writ of certiorari.[54]
U.S. Supreme Court Chief Justice John Roberts, circuit justice for the Fourth Circuit, referred the matter to the full court, which stayed enforcement of the ruling on August 20, 2014.[55]
Seeking swift guidance on the constitutional question of marriage equality, Janet M. Rainey petitioned the U.S. Supreme Court for writ of certiorari, or petition for review, on behalf of the state of Virginia on August 8, 2014.[56] Defendants Schaefer and McQuigg filed their own separate petitions with the high court.
Amicus briefs, of friends of the court briefs, were filed in favor of the plaintiffs by companies such as Nike, Inc., Amazon.com, and Oracle Corporation.[57] Attorneys General of fifteen states where marriage equality was legal also urged the court via an amicus brief to review the important constitutional question of marriage equality and rule in favor of the Bostic plaintiffs.[58]
All three petitions in the Bostic case were reviewed by the Supreme Court at the court's Long Conference on September 29, 2014.[59][60]
On October 6, 2014, the court denied all three petitions for writ of certiorari officially and immediately making marriage equality law of the land in Virginia.[61]
Petitions for writ of certiorari in marriage equality cases from Oklahoma, Utah, Wisconsin, and Indiana were also denied on October 6.[62]
AFER, along with Broadway Impact, an organization of theater artists and fans, sponsors 8, a play reenacting the trial of Perry v. Schwarzenegger. 8 was written by Dustin Lance Black in light of efforts by the proponents of Proposition 8 to prevent public broadcast of the trial and the release of video recordings from the trial.[63]
8 had its world premiere reading on September 19, 2011 at the Eugene O'Neill Theatre in New York City, starring Morgan Freeman and John Lithgow.[64][65]8 had its West Coast premiere reading on March 3, 2012, at the Wilshire Ebell Theatre starring Brad Pitt, George Clooney, Martin Sheen, and Kevin Bacon. The Los Angeles performance was broadcast live on YouTube, a first for a non-profit.[66]
AFER and Broadway Impact also license 8 for free to college and community theaters worldwide.
The Supreme Court of California is the highest and final court of appeals in the courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts. Since 1850, the court has issued many influential decisions in a variety of areas including torts, property, civil and constitutional rights, and criminal law.
Same-sex marriage has been legal in California since June 28, 2013. The U.S. state first issued marriage licenses to same-sex couples on June 16, 2008 as a result of the Supreme Court of California finding in the case of In re Marriage Cases that barring same-sex couples from marriage violated the Constitution of California. The issuance of such licenses was halted from November 5, 2008 through June 27, 2013 due to the passage of Proposition 8—a state constitutional amendment barring same-sex marriages. The granting of same-sex marriages recommenced following the U.S. Supreme Court's decision in Hollingsworth v. Perry, which restored the effect of a federal district court ruling that overturned Proposition 8 as unconstitutional.
2006 Virginia Question 1, the Marshall-Newman Amendment is an amendment to the Constitution of Virginia that defines marriage as solely between one man and one woman and bans recognition of any legal status "approximat[ing] the design, qualities, significance, or effects of marriage". The amendment was ratified by 57% of the voters on November 7, 2006. It became part of the state Constitution as Section 15-A of Article 1. In 2014, the amendment was ruled unconstitutional in Bostic v. Schaefer.
In re Marriage Cases, 43 Cal. 4th 757 was a California Supreme Court case where the court held that laws treating classes of persons differently based on sexual orientation should be subject to strict judicial scrutiny, and that an existing statute and initiative measure limiting marriage to opposite-sex couples violate the rights of same-sex couples under the California Constitution and may not be used to preclude them from marrying.
Proposition 8, known informally as Prop 8, was a California ballot proposition and a state constitutional amendment intended to ban same-sex marriage; it passed in the November 2008 California state elections and was later overturned in court. The proposition was created by opponents of same-sex marriage in advance of the California Supreme Court's May 2008 appeal ruling, In re Marriage Cases, which followed the short-lived 2004 same-sex weddings controversy and found the previous ban on same-sex marriage unconstitutional. Proposition 8 was ultimately ruled unconstitutional by a federal court in 2010, although the court decision did not go into effect until June 26, 2013, following the conclusion of proponents' appeals.
Same-sex marriage has been legally recognized in West Virginia since October 9, 2014. On July 28, 2014, a ruling by the Fourth Circuit Court of Appeals in Bostic v. Schaefer found Virginia's ban on same-sex marriage unconstitutional. On October 6, 2014, the U.S. Supreme Court denied certiorari in Bostic, allowing the ruling to take effect. As a result, on October 9, 2014, Governor Earl Ray Tomblin announced he was ordering state agencies to act in compliance with the controlling precedent in the Virginia case. Even though West Virginia's ban was not explicitly declared unconstitutional, the Fourth Circuit precedent made it certain the state's statutory ban would be overturned. The state started issuing marriage licenses to same-sex couples that same day. The U.S. District Court for the Southern District of West Virginia officially ruled the state's same-sex marriage ban unconstitutional on November 7, 2014.
Hollingsworth v. Perry was a series of United States federal court cases that re-legalized same-sex marriage in the state of California. The case began in 2009 in the U.S. District Court for the Northern District of California, which found that banning same-sex marriage violates equal protection under the law. This decision overturned California ballot initiative Proposition 8, which had banned same-sex marriage. After the State of California refused to defend Proposition 8, the official sponsors of Proposition 8 intervened and appealed to the Supreme Court. The case was litigated during the governorships of both Arnold Schwarzenegger and Jerry Brown, and was thus known as Perry v. Schwarzenegger and Perry v. Brown, respectively. As Hollingsworth v. Perry, it eventually reached the United States Supreme Court, which held that, in line with prior precedent, the official sponsors of a ballot initiative measure did not have Article III standing to appeal an adverse federal court ruling when the state refused to do so.
ProtectMarriage.com was a collection of conservative and religious American political activist groups aligned in opposition to same-sex marriage. The coalition's stated goal is to "defend and restore the definition of marriage as between a man and a woman." Beginning in 2001 as Proposition 22 Legal Defense and Education Fund holding the domain name protectmarriage.com, the organization reformed in 2005 as a coalition to sponsor California Proposition 8, called the California Marriage Protection Act, and was successful in placing it on the ballot in 2008. Proposition 8 amended the California Constitution, putting a halt to same-sex marriages in California for nearly two years until the proposition was overturned as unconstitutional. While it was in effect, ProtectMarriage.com defended the amendment in a series of legal challenges. Ron Prentice is the executive director.
United States v. Windsor, 570 U.S. 744 (2013), is a landmark United States Supreme Court civil rights case concerning same-sex marriage. The Court held that Section 3 of the Defense of Marriage Act (DOMA), which denied federal recognition of same-sex marriages, was a violation of the Due Process Clause of the Fifth Amendment.
Chad Hunter Griffin is an American political strategist best known for his work advocating for LGBT rights in the United States.
8 is an American play that portrays the closing arguments of Perry v. Schwarzenegger, a federal trial that led to the overturn of Proposition 8, an amendment banning same-sex marriages in California. It was created by Dustin Lance Black in light of the court's denial of a motion to release a video recording of the trial and to give the public a true account of what transpired in the courtroom.
Sevcik v. Sandoval is the lead case that successfully challenged Nevada's denial of same-sex marriage as mandated by that state's constitution and statutory law. The plaintiffs' complaint was initially filed in the U.S. District Court for the District of Nevada on April 10, 2012, on behalf of several couples denied marriage licenses. These couples challenged the denial on the basis of the U.S. Constitution's Fourteenth Amendment guarantee of equal protection.
DeBoer v. Snyder is a lawsuit that was filed by April DeBoer and Jayne Rowse on January 23, 2012 in federal district court, challenging Michigan's ban on adoption by same-sex couples so they can jointly adopt their children. In August 2012, Judge Bernard A. Friedman invited the couple to amend their suit to challenge the state's ban on same-sex marriage, "the underlying issue". Following a hearing on October 16, 2013, Friedman scheduled a trial that ran from February 25 to March 7, 2014. On March 21, Judge Friedman issued his ruling overturning the ban. On March 22, the United States Court of Appeals for the Sixth Circuit placed a temporary hold on Judge Friedman's ruling. The appeal was argued on August 6. On November 6, the Sixth Circuit reversed Judge Friedman and upheld Michigan's ban on same-sex marriage.
Kitchen v. Herbert, 961 F.Supp.2d 1181, affirmed, 755 F.3d 1193 ; stay granted, 134 S.Ct. 893 (2014); petition for certiorari denied, No. 14-124, 2014 WL 3841263, is the federal case that successfully challenged Utah's constitutional ban on marriage for same-sex couples and similar statutes. Three same-sex couples filed suit in March 2013, naming as defendants Utah Governor Gary R. Herbert, Attorney General John Swallow, and Salt Lake County Clerk Sherrie Swensen in their official capacities.
Same-sex marriage has been legal in Virginia since October 6, 2014, following the decision of the U.S. Supreme Court not to hear an appeal of the Fourth Circuit Court of Appeals' ruling in Bostic v. Schaefer. Same-sex marriages subsequently began at 1:00 p.m. on October 6 after the Fourth Circuit issued its mandate, and since then Virginia has performed legal marriages of same-sex couples and recognized out-of-state same-sex marriages. Previously, the state had passed a statute prohibiting same-sex marriage in 1975, and further restrictions were added in 1997 and 2004, which made "void and unenforceable" any arrangements between same-sex couples bestowing the "privileges or obligations of marriage". Voters approved an amendment to the Constitution of Virginia reinforcing the existing laws in 2006. On January 14, 2014, a U.S. district court judge ruled in Bostic that Virginia's statutory and constitutional ban on the state recognition of same-sex marriages were unconstitutional, a decision upheld by the Fourth Circuit on July 28, 2014.
Bostic v. Schaefer is a lawsuit filed in federal court in July 2013 that challenged Virginia's refusal to sanction same-sex marriages. The plaintiffs won in U.S. district court in February 2014, and the Fourth Circuit Court of Appeals upheld that ruling in July 2014. On August 20, 2014, the U.S. Supreme Court stayed enforcement of the Fourth Circuit's ruling pending the outcome of further litigation. State officials refused to defend the state's constitutional and statutory bans on same-sex marriage.
Burns v. Hickenlooper is a lawsuit filed on July 1, 2014, in federal district court in Colorado, challenging that state's denial of marriage rights to same-sex couples. The plaintiffs' complaint alleged that the defendants have violated the Fourteenth Amendment by denying plaintiffs the fundamental right of marriage. The defendants agreed with the substance of the plaintiffs' case, but asked the district court to stay implementation of any order requiring Colorado to alter enforcement of its ban pending the outcome of other litigation. After the district court declined to grant more than a one-month stay on July 23, the state's governor and attorney general appealed and won a stay from the Tenth Circuit Court of Appeals on August 21. Following U.S. Supreme Court action in other cases, on October 8 they asked the Tenth Circuit to dismiss their appeal and lift the stay, which would effectively legalize same-sex marriage in Colorado.
In Brenner v. Scott and its companion case, Grimsley v. Scott, a U.S. district court found Florida's constitutional and statutory same-sex marriage bans unconstitutional. On August 21, 2014, the court issued a preliminary injunction that prevents that state from enforcing its bans and then stayed its injunction until stays are lifted in the three same-sex marriage cases then petitioning for a writ of certiorari in the U.S. Supreme Court–Bostic, Bishop, and Kitchen–and for 91 days thereafter. When the district court's preliminary injunction took effect on January 6, 2015, enforcement of Florida's bans on same-sex marriage ended.
In the United States, the history of same-sex marriage dates from the early 1940s, when the first lawsuits seeking legal recognition of same-sex relationships brought the question of civil marriage rights and benefits for same-sex couples to public attention though they proved unsuccessful. However marriage wasn't a request for the LGBTQ movement until the Second National March on Washington for Lesbian and Gay Rights in Washington (1987). The subject became increasingly prominent in U.S. politics following the 1993 Hawaii Supreme Court decision in Baehr v. Miike that suggested the possibility that the state's prohibition might be unconstitutional. That decision was met by actions at both the federal and state level to restrict marriage to male-female couples, notably the enactment at the federal level of the Defense of Marriage Act.
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