Perry v. Schwarzenegger

Brief Filed: 10/10
Court: U.S. Court of Appeals for the Ninth Circuit
Year of Decision: 2012

Read the full-text amicus brief (PDF, 1.1MB)


Addresses a challenge to Proposition 8 (or the California Marriage Protection Act), a ballot proposition and constitutional amendment passed in the 2008 state elections which provides that “only marriage between a man and a woman is valid or recognized in California.”

Index Topic

Sexual Orientation (discrimination; same-sex marriage)


Perry v. Schwarzenegger is a lawsuit filed by two homosexual couples against California government officials and supporters of Proposition 8, a ballot initiative approved by a majority of California voters on Nov. 4, 2008 that modified California's Constitution to prohibit same-sex marriage. By restricting the definition of marriage to opposite-sex couples, the proposition overturned the California Supreme Court's ruling of In re Marriage Cases in which APA filed an amicus brief. California's State Constitution put Proposition 8 into immediate effect the day after the election.

The lawsuit was filed in federal district court in the Northern District of California in May, 2009, and the trial began in January 2010. Proponents of the constitutional amendment argued that exclusively heterosexual marriage was "an essential institution of society." Opponents argued that "the freedom to marry is fundamental to our society," that the California Constitution "should guarantee the same freedom and rights to everyone" and that the proposition "mandates one set of rules for gay and lesbian couples and another set for everyone else." They also argued that "equality under the law is a fundamental constitutional guarantee." On Aug. 4, 2010, a federal court judge ruled that the voter-approved Proposition 8 was unconstitutional, violating the Due Process and the Equal Protection clauses of the Fourteenth Amendment of the U.S. Constitution. Judge Walker issued an injunction against enforcing Proposition 8 and a stay to determine suspension of his ruling pending appeal. The Ninth Circuit Court of Appeals continued the stay, keeping Judge Walker's ruling on hold pending appeal. Following the ruling, an appeal was immediately filed with the Ninth Circuit Court of Appeals.

APA filed an amicus brief, along with the California Psychological Association, the American Psychiatric Association and the American Association for Marriage and Family Therapy in support of the appellees. 

APA’s Position

The amicus brief provided extensive psychological research on key points, including how sexual orientation is related to the gender of partners to whom one is attracted — meaning that prohibiting same-sex marriage discriminates on the basis of sexual orientation, rather than just imposing disparate burdens on gay people. The brief addressed how homosexuality is a normal expression of human sexuality and that sexual orientation is generally not chosen and is resistant to change. Also provided was current scientific research on the nature of same-sex relationships, the role of child-rearing and the stigma resulting from denying the label “marriage” to same-sex unions. For example, the brief cited psychological research showing that gay and lesbian parents are not any less fit or capable than heterosexual parents, and that their children are not less adjusted.


The Ninth Circuit panel, on Feb. 7, 2012, affirmed the District Court’s ruling that Proposition 8 is unconstitutional in a 2-1 decision. The panel was unanimous in their ruling that there was no evidence that Judge Walker, who presided over the District Court trial, was biased, or that he should have disclosed that he was gay and in a long-term relationship with another man. The panel was divided on the central issue: the constitutionality of Proposition 8 itself.

The majority opinion noted that "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples." However, unlike Judge Walker's ruling in the case, the Ninth Circuit did not find that same-sex couples had a constitutional right to marry. Instead, the narrowly-written decision only applies to couples in California because California is the only state within the Ninth Circuit Court of Appeals’ jurisdiction that has granted, and then rescinded, marriage equality.

The majority panel's final footnote forestalls the effect of the decision: "The stay pending appeal issued by this court on Aug. 16, 2010 remains in effect pending issuance of the mandate." The proponents now have to decide whether to seek further review from an en banc Ninth Circuit or to petition the U.S. Supreme Court.