Strauss v. Horton


On November 5, 2008, Lambda Legal, along with the American Civil Liberties Union and the National Center for Lesbian Rights, filed a writ petition in the California Supreme Court. The petition urges the court to hold invalid Proposition 8, an antigay ballot measure that improperly was used in an attempt to undo the California Constitution’s core commitment to equality for everyone by eliminating lesbian and gay couples’ fundamental right to marry. The groups had filed a similar writ petition in California’s high court before the election because they believed the measure’s proponents used the wrong procedure to bring their proposal before the voters. As is common, however, the court dismissed that petition without addressing its merits, leaving the groups to renew their arguments if the voters approved Prop 8. After the groups filed their writ petition, two other petitions were filed in the Supreme Court the same day making similar arguments. The Supreme Court agreed on November 19 to hear all three petitions challenging Prop 8, setting an expedited briefing schedule.


According to the California Constitution, significant changes to the fundamental organizing principles of state government cannot be made through the initiative process, which involves petition signatures and then a simple majority vote. Instead, such changes first require the support of 2/3 of the state legislature, and then approval by a majority of voters. This would not be the first time the court has voided an improper initiative. In 1990, the court struck down a measure that would have stripped California’s courts of their role as independent interpreters of the state’s constitution.

Lambda Legal's Impact

A fundamental purpose of the California Constitution is to ensure that everyone has the same rights, and that majorities cannot abuse their voting power to eliminate minority rights. The courts must remain empowered in their essential constitutional role of protecting minorities. A victory would send a clear message that everyone must follow the rules when attempting to change laws to make one group unequal to everyone else, and especially to change a constitution to replace equal protection with mandatory government discrimination against a vulnerable minority.


  • May 2009 In a 6-1 decision, the California Supreme Court upholds Prop 8. The court also upholds the rights of the 18,000 same-sex couples who married between June 16 and November 4, 2008.
  • November 2008 Case is filed in the California Supreme Court the morning after Election Day.
  • November 2008 Court agrees two weeks later to review the validity of Prop 8, denying an immediate stay but setting an expedited briefing schedule. Court allows the proponents of Prop 8 to participate as interveners and poses three questions for all parties to answer.
  • December 2008 California Attorney General Jerry Brown files a brief explaining why Prop 8 is invalid. The brief also explains why Prop 8 would not affect marriages gay and lesbian couples celebrated before the election, even if it were to bar same-sex couples from marrying in the future. Schwarzenegger Administration officials Horton and Scott file brief only addressing pre-election marriages, agreeing with the Attorney General that those marriages remain valid. The proponents of Prop 8 file brief arguing that it is both valid and prevents legal recognition of same-sex couples’ marriages from Election Day forward.
  • January 2009 Lambda Legal files reply brief in support of writ petition. The proponents of Prop 8 file a brief arguing against the Attorney General’s conclusion that Prop 8 is invalid.
  • January 2009 Hundreds of religious organizations, civil rights groups and labor unions, along with numerous California municipal governments, scores of bar associations and dozens of leading legal scholars collectively urge the California Supreme Court to strike down Proposition 8 by submitting more than 40 friend-of-the-court briefs.
  • January 2009 Lambda Legal files reply brief in response to the far fewer friend-of-the-court briefs submitted by those who believe Prop 8 is valid.
  • March 2009 The California Supreme Court hears oral arguments. The Court is expected to issue a ruling within 90 days.
  • May 2009 In a 6-1 decision, the California Supreme Court upholds Prop 8, the ballot measure that changed the California Constitution to eliminate same-sex couples' fundamental right to marry in the state. The Court also upholds the rights of the 18,000 same-sex couples who married between June 16 and November 4, 2008 — a position Lambda Legal and our co-counsel pressed to protect those couples' expectations, and to allow them and their families and friends to show that marriage equality respects personal dignity and strengthens communities.

Case Information

Status: Closed


Karen L. Strauss, Ruth Borenstein, Brad Jacklin, Dustin Hergert, Eileen Ma, Suyapa Portillo, Gerardo Marin, Jay Thomas, Sierra North, Celia Carter, Desmund Wu, James Tolen and Equality California


Lambda Legal
Jennifer C. Pizer, Jon W. Davidson, Tara Borelli

Co-counsel/Cooperating Attorneys
Gregory D. Phillips, Jay M. Fujitani, David C. Dinielli, Michelle Friedland, Lika C. Miyake and Mark R. Conrad of Munger, Tolles & Olson, LLP; Stephen V. Bomse of Orrick, Herrington & Sutcliffe LLP; Shannon P. Minter, Melanie Rowen, Catherine Sakimura, Ilona M. Turner, Shin-Ming Wong and Christopher F. Stoll of the National Center for Lesbian Rights; Alan L. Schlosser and Elizabeth O. Gill of the ACLU Foundation of Northern California; Mark Rosenbaum, Clare Pastore and Lori Rifkin of the ACLU Foundation of Southern California; David Blair-Loy of the ACLU Foundation of San Diego and Imperial Counties and David C. Codell