Challenging Proposition 8: Hollingsworth v. Perry

March 25, 2013

Tomorrow, the Supreme Court will be hearing oral arguments in the case of Hollingsworth v. Perry.  This case, famously, challenges California’s Constitutional ban on marriages between same-sex couples, most commonly referred to as Proposition 8.


California is only one of thirty states to constitutionally define marriage as being between one man and one woman. It’s possible that all of these amendments would be overturned by a Supreme Court decision invalidating California’s ban.


One of the most interesting things to me about Proposition 8 is that, like most other bans on same-sex marriage, it was passed by referendum.  This is where it gets its name (presumably, there were 7 other propositions preceding it, and a few more following it).


These propositions can sometimes pose problems for researchers because their eventually statutory or constitutional cite might be unrelated to the proposition number used in the popular press to describe them.  (For example, very few people would know what you were talking about if you said “Article 1, Section 7.5 of the California Constitution,” even though it’s the same thing as Prop. 8).


The citation for Prop. 8 on Westlaw is CA CONST Art. 1, § 7.5.  It currently has a red flag, reflecting the 9th Circuit’s holding that the ban is unconstitutional (See Perry v. Brown, 671 F.3d 1052).




The Reference Attorney Blog last covered the Prop. 8 litigation way back in August of 2010, when it was just leaving the District Court.


To find all of the same-sex marriage bans on WestlawNext, I did an advanced search on the Statute & Court Rules page with All States selected as my jurisdiction.  I entered the following: “Constitution” in the Preliminary field and “Marriage & Man & Woman” in the Statutory Text field.  This yields 31 results for 30 states, as the Arkansas amendment is spread across 2 sections.


For most states, if an amendment was added by ballot initiative, there’s a note in the Credits line.  To find them, just search for “Constitution” in the preliminary field, and in the credits field, try “amendment”  “election” “Initiative” “initiated” “measure” “prop.” “proposal” “petition”.  This method can also work for non-constitutional popular initiatives if you just take out the preliminary field restriction.


Some states include the proposal or initiative number in the credits field.  To find where Washington State’s I-1000 (a locally notable ballot initiative from 2008 concerning the right to die) was codified, I just used the following search in Washington State: advanced: CR(“amendment” “election” “Initiative” “initiated” “measure” “prop.” “proposal” “petition” /s 1000).


Finally, if you’re interested in the Perry case, as I mentioned above, the 9th Circuit opinion, Perry v. Brown, is available at 671 F.3d 1052. The original District Court opinion, Perry v. Schwarzenegger, can be found at 704 F.Supp.2d 921. A Writ of Cert was granted in Hollingsworth v. Perry (I personally love how the case name has changed at each stage of the litigation, just to make it extra-hard to follow), it can be found at 133 S.Ct. 786.  Much of the Supreme Court and lower court briefing is available at that cite as well.  The Supreme Court is expected to hand down a decision in June.