Category Archives: Prop 8

National Organization for Marriage Denounces California Supreme Court Decision Not to Consider Viability of Proposition 8

Contact: Elizabeth Ray or Jen Campbell (703-683-5004)

"Same-sex marriage in California is illegitimate, imposed by judicial activists in opposition to the expressed will of the people. The nation, and the rule of law, are worse for it." — Brian Brown, NOM president —

National Organization for Marriage

Washington, D.C. — The National Organization for Marriage (NOM) today denounced the California Supreme Court's refusal to consider whether a single federal judge can invalidate a statewide vote enacting Proposition 8, which was adopted by over 7 million Californians.

"The ruling is very disappointing but not unexpected. Unfortunately, a million Californians, redefining marriage in direct contravention of the expressed will of the people. Same-sex marriage in California is illegitimate, imposed by judicial activists in direct opposition to the expressed will of the people. California, the nation, and the rule of law are worse for it," declared Brian Brown, NOM's president.

Proposition 8, amending California's State Constitution to define marriage as the union of one man and one woman, was passed in 2008 with over 7 million votes. It marked the second time Californians had voted to preserve the true definition of marriage. (In 2000, voters enacted Proposition 22, a statute.) Despite this, a homosexual federal judge engaged in a long-term gay relationship declared that the measure was unconstitutional. Because the state officials responsible for defending Proposition 8 abandoned their oath of office and refused to do so, it fell to the proponents of the measure to defend the initiative through the federal court system. However, the US Supreme Court decided that the proponents did not have legal standing to appeal the trail court ruling invalidating Prop 8. Yesterday the state Supreme Court declined to consider whether state law allows a single trail judge to invalidate the measure.

"The way that activist judges have dealt with Proposition 8 is a travesty of justice and undermines the rule of law and the democratic process itself," Brown said. "The legitimate votes of 7 million Californians, and their fair-minded, reasonable position that marriage should be defined as the union of one man and one woman, have been trampled underfoot by derelict politicians and activist judges. However, this is not the end of the debate. No judge or politician can redefine what God has created. NOM and our allies will work to make sure the people of California, and other states where marriage has been redefined have a voice speaking for true marriage. So-called same-sex 'marriage' is a political creation; it doesn't exist in reality. Eventually it will fall, and we will restore natural marriage in California."


To schedule an interview with Brian Brown, President of the National Organization for Marriage, please contact Elizabeth Ray (x130), [email protected], or Jen Campbell (x145), [email protected], at 703-683-5004.

Paid for by The National Organization for Marriage, Brian Brown, president. 2029 K Street NW, Suite 300 Washington, DC 20006, not authorized by any candidate or candidate's committee. New § 68A.405(1)(f) & (h).

Cheated: How the Courts’ Treatment of Prop 8 Robbed America of its Democratic Process

Frank Schubert, NOM’s national political director, published a commentary yesterday at The Witherspoon Institute’s Public Discourse blog, reflecting on the course of court events that led to the recent U.S. Supreme Court decisions and the consequences those decisions have engendered.

BB PROP 8 RALLY 056 Frank SchubertSchubert points out that the "legal circus" has not only effectively disenfranchised more than seven million California voters, and that this should upset all of us: “Regardless of whether you see voters defining marriage as the union of one man and one woman as the ‘good guy’ or the ‘bad guy’ in this political drama, the process that killed marriage in California should greatly concern anyone who cares even remotely about democracy and the rule of law.

Schubert goes on to answer an oft-asked question in the wake of the recent SCOTUS decision: “How do you feel?”

I feel like we were cheated. Just like I felt as a kid watching the bad guy put a sleeper hold on his opponent, or hitting him below the belt or with the brass knuckles while the referee had his back turned, so have the legal system and politicians cold-cocked the people of California—seven million of whom went to the polls to lawfully enact Prop 8. Only this time, I realize there’s not likely to be a rematch. The cheaters won.

I feel like the rule of law has been shredded, and conniving politicians have been rewarded for ignoring their sworn oath of office. Public confidence in the judicial system has been dealt a severe blow. Supporters of same-sex “marriage” may be happy with the result today, but hold on until the tables are turned and a conservative governor and attorney general refuse to defend a law they don’t personally support, and there’s nobody left with standing to defend it. …

I feel like a broadside has ripped a great hole in the initiative and referendum process itself. I have managed nearly 40 statewide ballot initiative campaigns in my career. The initiative process is one of the few viable ways to get a recalcitrant government to respond to legitimate issues that are not being addressed by the legislature or the state administration. By its nature, citizens are often pushing a law that is opposed by those in power.

Now those very people in power—the governor and attorney general—have been given a pocket veto over the initiative process itself. They can invalidate any measure they don’t personally support simply by refusing to defend it in federal court. Such power was never contemplated by the framers of the constitution, or by the people of California, but that is the practical result of the Supreme Court’s ruling on Prop 8. Again—it is marriage today, but tomorrow it could be any other issue on the political spectrum.

You can read the rest of Schubert’s insights here.

Blaze TV Video: Prof. Robert George Discusses SCOTUS and Marriage

Princeton Professor Robert George was on the Glenn Beck Program last week talking about the Supreme Court's decisions on marriage:

Peters: PA AG's Refusal to Defend Law is Result of Bad Prop 8 Ruling

Juliet Eilperin of The Washington Post:

Pennsylvania attorney general Kathleen Kane announced Thursday afternoon she will not defend the state in a federal lawsuit filed this week challenging the constitutionality of the state’s ban on same-sex marriage, calling the prohibition “wholly unconstitutional.”

...Thomas Peters, spokesman for the National Organization for Marriage, said Kane’s refusal to defend the ban represented a sort of “pocket veto” of the law.

“This is just one more example of how the Supreme Court set a bad precedent [last month] in allowing elected officials to not represent the will of the people when they find it expedient,” he said an in interview.

... Pennsylvania General Counsel James D. Schultz said in a statement he and his colleagues “are surprised that the Attorney General, contrary to her constitutional duty under the Commonwealth Attorneys Act, has decided not to defend a Pennsylvania statute lawfully enacted by the General Assembly, merely because of her personal beliefs.”

... the state GOP chairman Rob Gleason released a statement calling it “unacceptable for Attorney General Kathleen Kane to put her personal politics ahead of her taxpayer-funded job by abdicating her responsibilities.”

Davenport: Is Gay Marriage The Product Of Judicial Activism?

David Davenport, a fellow at the Hoover Institution, Stanford University's policy think tank, for Forbes:

Judicial Activism"...What is judicial activism? There are lots of opinions on that, but none is definitive. Apparently the origin of the term came not in a legal opinion at all, but in a 1947 Fortunemagazine article by historian Arthur Schlesinger in which he described the sitting U.S. Supreme Court as having 4 judicial activists, 3 judges who practiced “self-restraint,” and 2 in the middle. The distinction, Schlesinger argued, was based on their legal worldview, with the activists finding the law more malleable and subject to interpretation, whereas those engaged in self-restraint felt that legal terms had real meaning and it was not their place to provide a lot of interpretation.

... Since then, there have existed many understandings of judicial activism. Perhaps the most basic is when a court usurps the role of one of the other branches of government and takes up the work of the legislature or executive. Indeed, Justice William Rehnquist inRoe v. Wade found the majority of the Court engaged in judicial activism or “judicial legislation.” Another variation is when a judge is results-oriented, wanting to reach a particular conclusion and searching far and wide to find some strained legal interpretation to support it. Black’s LawDictionary says it is a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors to guide their decisions.” I would submit that when a Court becomes an engine of change, rather than a brake on the illegal actions of another branch, it is engaging in judicial activism.

Under virtually all of these definitions, it is fair to conclude that there was judicial activism, or at least what New Jersey Governor Chris Christie called “judicial supremacy,” in both of the same sex marriage cases. "

Eastman and Meese: Prop 8 Decision Imperils Initiative Process

Our chairman John Eastman published an op-ed in the Sacramento Bee over the weekend, co-authored by Edwin Meese, the 75th Attorney General of the United States, on what the Supreme Court has imperiled by ruling that the proponents of Prop 8 do not have standing to defend their law in court:

CourthouseThe "win at all cost" push by advocates of same-sex marriage in California has now yielded a Supreme Court decision that has done much more than leave in place a decision by a single federal judge invalidating the votes of more than 7 million Californians.

The decision invites further manipulation of the legal process that will cause serious damage to the cherished voter initiative in California. That is something that should concern all Californians, and indeed all Americans, whatever their individual views about same-sex marriage.

... The Supreme Court has repeatedly warned of the lawless manipulation of the judicial process that might result from such collusive suits, yet that is what we are left with in the wake of the ruling in the Proposition 8 case.

Abraham Lincoln, in one of his early speeches on the public stage, warned against another kind of lawlessness that in his day was pervading the country, noting that "if the laws be continually despised and disregarded … the alienation of (the people's) affections from the government is the natural consequence."

Those 7 million Californians who voted in favor of Proposition 8 and the basic policy judgment about marriage that that initiative represented deserved better than what should be a default judgment of limited score from a collusive suit. The rule of law requires more. And our nation ignores this new lawlessness at its peril – a peril that may well prove to be even more profound than the potential harms to society that will result from redefining an institution as core to civil society as marriage.

Anderson: What Three Dissents Signal for Marriage's Future

Good weekend reading from Ryan Anderson:

"Not only was the Supreme Court’s ruling on the Defense of Marriage Act baseless and just plain wrong, you won’t learn much from reading Justice Anthony Kennedy’s majority opinion. Except that he thinks only bigotry can explain support for marriage as it was until the year 2000—a male-female union.

You can learn something, however, from reading the three dissenting opinions closely. The conservative justices’ dissents are like flares signaling the path that marriage proponents must take from here.

... The most serious looming challenge is that the Supreme Court will rule in an overreaching way again to remove the authority to make marriage policy from the American people and our elected representatives—if it thinks it can get away with it.

The Court will be less likely to usurp the authority of citizens if it is clear that citizens are engaged in this democratic debate and care about the future of marriage." (Red State)

WaTimes: Critics Say Supreme Court’s Prop 8 Ruling Takes Power from Voters, Gives it to State Officials

Whatever your views on marriage -- the Prop 8 ruling is "fundamentally undemocratic":

The Supreme Court’s decision Wednesday on Proposition 8 unlocked the door for same-sex marriage in California but also may have stifled the voices of the state’s voters.

In its 5-4 decision, the high court ruled that the private group behind the citizen-initiated measure on the November 2008 ballot had no standing to defend Proposition 8 in federal court, even after California Gov. Jerry Brown and state officials refused to do so.

We the PeopleThe ruling on standing, while seemingly technical, has alarmed critics on both ends of the political spectrum, who worry that the decision effectively gives state officials the unchecked power to nullify ballot initiatives they dislike by refusing to enforce them or defend them in court.

“I think regardless of what anybody thinks about same-sex marriage, everyone who cares about democracy should be concerned about this decision,” said John Matsusaka, president of the Initiative and Referendum Institute at the University of Southern California. “It’s fundamentally undemocratic.”

The national revolt against higher taxes arguably began with a California citizen initiative: Howard Jarvis‘ Proposition 13 in 1978. Over the years, the state’s voters have weighed in on such hot-button issues as term limits, bilingual education, affirmative action, medical marijuana, punishment for crimes, government debt and, in 2008, same-sex marriage.

But the Supreme Court, in a 5-4 decision written by Chief Justice John G. Roberts Jr., essentially held that those who draft, finance and campaign for the initiatives can’t get into the courtroom to defend their handiwork. (The Washington Times)

Video: NOM's Appearances on the Sunday Shows

Prof. John Eastman, Chairman of NOM and Brian Brown, President of NOM were busy this weekend touring the Sunday shows and charting out the future of the marriage movement:

NBC: Nightly News with Lester Holt - John Eastman:

Visit for breaking news, world news, and news about the economy

CNN: State of the Union with Candy Crowly - John Eastman:

ABC: This Week with George Stephanopoulos  - Brian Brown:

Despite this week's rulings, which declared part of the Defense of Marriage Act unconstitutional and dismissed an appeal made by supporters of Proposition 8 banning same-sex marriage in California, Brown downplayed the victories claimed by gay marriage supporters, saying that the Court did not establish a constitutional right to same-sex marriage in Hollingsworth v. Perry , the case that considered the California ban passed in 2008.

"The court said, well, the proponents don't have standing. It did not say that there was a constitutional right to redefine marriage," Brown said on "This Week" Sunday.

President of the Human Rights Campaign Chad Griffin also joined "This Week" and said he's prepared to continue to "fight this battle on all fronts," through referenda, state legislation and federal court cases to expand same-sex marriage rights further.

Brown said the precedent set in California, where state officials refused to defend Proposition 8 - a law passed by popular referendum - is "horrific for our republic."

"If the governor and attorney general don't to want defend that law, you've just gutted the initiative and referendum process. This is not an American value," Brown said.

Brown called Justice Anthony Kennedy's majority decision in the DOMA case an "absolute travesty" and "incoherent."

He added that Justice Kennedy "says something that is patently untrue," that a person who believes "this truth, that marriage is the union of a man and a woman is somehow motivated by animus and discrimination."

Such an assumption, Brown said, "leads to discrimination against those of us who know that there's something unique and special about husbands and wives, mothers and fathers coming together in marriage."

"There will be a lot of attempts to use this decision to redefine marriage in other states. And we will stand for the truth wherever it is," Brown said.

Fox News: America’s News Headquarters with Shannon Bream – Brian Brown:
[Link forthcoming.]

Ed Whelan on the Lawless Project of SSM

Legal scholar Ed Whalen in NRO's Bench Memos:

Who has better displayed fidelity to the ideals of our constitutional republic, the supporters of traditional marriage (formerly known simply as marriage) or the proponents of same-sex marriage? Consider the histories of DOMA and Prop 8.

...The battle for marriage in California displays a similar pattern. In 2000, California voters adopt Proposition 22 to affirm that marriage in California remains what it has always been—the union of a man and a woman. In May 2008, the state supreme court, in a novel opinion and by a 4-3 vote, strikes down Proposition 22 as supposedly violative of the state constitution. Marriage supporters respond with Prop 8, which the voters of California adopt in November 2008. Intense and vicious bullying of supporters of Prop 8 ensues.

Proponents of same-sex marriage then run to their favorite federal courthouse to challenge Prop 8 on federal constitutional grounds. They draw as the judge in the case Vaughn Walker, who proceeds to engage in what is probably the most egregious course of misconduct ever by a federal district judge (and who discloses only after his retirement from the bench that he is in a long-term same-sex relationship and thus was ruling on his own right to marry his same-sex partner).

...As reprehensible is the unprecedented refusal of California officials to defend Prop 8—a refusal that ultimately leads five members of the Supreme Court (including Kagan, the decisive vote once again) to rule that the Court has no jurisdiction over the case.

Now I of course understand that those who somehow believe that there is a never-before-recognized constitutional right to same-sex marriage will perceive supporters of marriage to be the unjust aggressors in these episodes. But I would hope that even they would acknowledge that supporters of marriage have pursued their objectives democratically and peacefully and, adhering to established constitutional principles (rather than imagined new ones), have ample cause to feel terribly cheated.

Emergency Alert: Lawlessness Continues – Same-sex ‘Marriages’ Resume in California

National Organization for Marriage

Dear Marriage Supporter,

In a case that has been marked by judicial arrogance and, frankly, lawlessness since the beginning, three judges of the Ninth Circuit Court of Appeals late Friday lifted their stay which had been in effect since a trial judge had ruled against Proposition 8.

Same-sex couples began being 'married' in California when state officials illegitimately declared Proposition 8 was no longer in force and ordered county clerks to issue marriage licenses to gay and lesbian couples immediately!

This, despite the fact that the US Supreme Court decision does not take effect for three more weeks.

It's another sad example of the utter disregard for the rule of law and judicial propriety by those who swear an oath to uphold the laws of California, and the nation.

We need your support to respond to this unparalleled act of lawlessness.

After Proposition 8 was challenged, both the governor and attorney general refused to defend it. Proposition 8 was invalidated by a homosexual judge in San Francisco who was engaged in a long-term same-sex relationship, something the judge refused to disclose during the trial.

Then the Ninth Circuit Court of Appeals weighed in to declare that Prop 8 is invalid in a decision written by Senior Judge Stephen Reinhardt, a judge whose wife actually advised the attorneys challenging Prop 8. He similarly refused to recuse himself from the case despite the apparent conflict of interest.

And then a majority of the US Supreme Court rewarded them all by deciding that the only defenders of Proposition 8, the official proponents, lacked standing to appeal the trial judge's decision.

It would appear that the desire to impose same-sex marriage by some public officials trumps integrity, fairness, propriety, and even the rule of law. All Americans should be outraged!

Despite the circus that is playing out in California, we will not be deterred from our goal of preserving marriage as it was designed and intended by its Creator.

We are counting on your support to stand up for marriage and the rule of law that has made this country great.

Standing up for what is right,

Brian S. Brown

Peters Interviewed by HuffPo on the New Momentum in the Pro-Marriage Fight

Our Communications Director Thomas Peters was interviewed yesterday by Lila Shaprio of The Huffington Post about what the Supreme Court's decisions mean positively for the pro-marriage movement:

"...[Peters] wasn't expecting the huge influx of supportive calls and donations that came in to his organization, the group leading the fight throughout the United States against same-sex marriage legalization efforts.

"A not-insignificant part of our base expected us to lose it all at the Supreme Court," Peters told The Huffington Post on Thursday. "I think this does put new momentum into our fight."

On Wednesday, the court, in two separate cases, ruled that the federal government must recognize gay couples married in states where it is legal and returned same-sex marriages to California. But the justices stopped short of declaring it a constitutional right for all gay couples to marry.

..."A lot of our people are ecstatic. We've been in a waiting game since the court decided to take Proposition 8," Peters said of California's voter-approved ban on same-sex marriage that the court's ruling nullified. "There was always a question about whether the court would just change it all unilaterally. Now, these state-level rights really matter."

While efforts are already in the works to reintroduce a Federal Marriage Amendment, a measure NOM supports that would define marriage as between one man and one woman, Peters feels that the state fights over gay marriage are at the top of his organization's agenda."

Brian Brown Responds to Supreme Court Rulings in the Washington Post

This op-ed by our President Brian Brown appeared online and will appear in the print edition of The Washington Post:

Brian BrownIt was outrageous for the Supreme Court to invalidate Section 3 of the Defense of Marriage Act and allow the potential invalidation of California’s Proposition 8, a law passed with the support of more than 7 million voters. Although Wednesday was a sad day for democracy and for marriage, this is not the end of the battle.

The vast majority of states recognize marriage solely as the union of one man and one woman. Only 13 states and the District of Columbia recognize same-sex “marriage,” and nothing the Supreme Court just did changes that fact. If anything, the court’s opinion in United States v. Windsor, the DOMA case, shows that the federal government must respect the decision of states to define marriage as they choose.

The National Organization for Marriage intends to vigorously urge Congress to safeguard the remaining portion of DOMA, which protects the right of states to refuse to recognize same-sex “marriages” performed elsewhere.

Continue reading here.

Mother Jones Blogger Worried About Court's Prop 8 Precedent

Kevin Drum of Mother Jones -- a liberal outlet -- admits that he is unsettled by what the Supreme Court did (or rather, chose not to do) on Prop 8:

"In California, it's routine for the people to pass initiatives that neither the governor nor the legislature supports. In fact, that was the whole point of the initiative process when it was created. In cases like these, of course the governor and legislature are going to decline to defend the law in court. With today's decision, the Supreme Court is basically gutting the people's right to pass initiatives that elected officials don't like and then to defend them all the way to the highest court in the land.

To me, this has neither the flavor of justice nor of democratic governance, regardless of whether I like the outcome."

George, Anderson & Girgis: The Supreme Court, You and Me, and the Future of Marriage

In the Public Discourse today, Prof. Robert George, Ryan Anderson and Sherif Girgis argue that "what happened yesterday at the courthouse matters, and we must keep up our witness to the truth about marriage, by word and deed, until it is safely beyond judicial overreach":

Here’s the least reported fact about yesterday’s rulings on marriage: the Supreme Court refused to give Ted Olson and David Boies, the lawyers suing to overturn Prop 8, what they wanted. The Court refused to redefine marriage for the entire nation. The Court refused to "discover" a constitutional right to same-sex marriage. Citizens and their elected representatives remain free to discuss, debate, and vote about marriage policy in all fifty states. Citizens and their elected representatives still have the right to define marriage in civil law as the union of one man and one woman.

And we should continue doing so. Already, in the wake of yesterday’s ruling, Governor Mike Pence of Indiana has called on his state to pass a constitutional amendment defining marriage as the union of a man and a woman. Marriage matters for children, for civil society, and for limited government. Marriage is the institution that unites a man and a woman as husband and wife to be father and mother to any children that their union produces. And that’s why the government is in the marriage business. Not because it cares about adult romance, but because it cares about the rights of children. (Public Discourse)