The American Foundation for Equal Rights (AFER) was a nonprofit organization active in the United States from 2009 through 2015. The organization was established to support the plaintiffs in Hollingsworth v. Perry (formerly Perry v. Brown or Perry v. Schwarzenegger), a federal lawsuit challenging California's Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. AFER retained former United States Solicitor General Theodore B. Olson and David Boies (who worked on opposite sides in Bush v. Gore) to lead the legal team representing the plaintiffs challenging Proposition 8.
History
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. The organization shut down in 2015.
Leadership
AFER was governed by a seven-member board of directors. The board president was Bruce Cohen, and the treasurer was Michele Singer Reiner. Other board members included Dustin Lance Black, Chad Griffin, Jonathan D. Lewis, Ken Mehlman, and Rob Reiner.
AFER's advisory board was co-chaired by Robert A. Levy, chairman of the Cato Institute, and John Podesta, chair and counselor of the Center for American Progress. Advisory board members include Julian Bond, Dan Choi, Margaret Hoover, Dolores Huerta, Cleve Jones, David Mixner, Stuart Milk, Hilary Rosen, and Judy Shepard.
Activities
In January 2010, Theodore B. Olson published a cover essay in Newsweek magazine entitled "The Conservative Case for Gay Marriage," in which Olson argued: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:
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.
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.
Hollingsworth v. Perry
The plaintiffs' lead attorneys in the Perry litigation, Theodore B. Olson and David Boies, were from opposite sides of the political spectrum. Olson is a longtime Republican who served as Solicitor General under President George W. Bush and as an Assistant Attorney General in charge of the Office of Legal Council in the United States Department of Justice under President Ronald Reagan. Boies is a prominent Democratic trial lawyer. The two men represented George W. Bush and Al Gore, respectively, during the 2000 Florida presidential election recount. AFER co-founder Chad Griffin described the Perry case as an effort that "could make same-sex marriage be seen as a nonpartisan issue—forget bipartisan." The complaint in Perry v. Schwarzenegger was filed on May 22, 2009 in United States District Court for the Northern District of California.Complaint for Declaratory, Injunctive, or Other Relief, Perry v. Schwarzenegger, No. 3:09-cv-02292-VRW (Doc. 1-1) (N.D. Cal. May 22, 2009) The case was assigned to Chief Judge Vaughn R. Walker.
California Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to defend Proposition 8, with Attorney General Brown conceding that Proposition 8 is unconstitutional.Answer of Attorney General Edmund G. Brown Jr., Perry v. Schwarzenegger, No. 3:09-cv-02292-VRW (Doc. 39) (N.D. Cal. Jun. 12, 2009)The Administration's Answer to Complaint for Declaratory, Injunctive, or Other Relief, Perry v. Schwarzenegger, No. 3:09-cv-02292-VRW (Doc. 46) (N.D. Cal. Jun. 16, 2009) 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"Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 991 (Doc. 708 at 109) (N.D. Cal. Aug. 4, 2010) and "cannot withstand rational basis review"Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 995 (Doc. 708 at 117) (N.D. Cal. Aug. 4, 2010) 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." The court supported its conclusions of law with 80 detailed factual findings. The District Court concluded:Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1003 (Doc. 708 at 135) (N.D. Cal. Aug. 4, 2010)
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.Perry v. Schwarzenegger, 702 F. Supp. 2d 1132 (Doc. 727) (N.D. Cal. Aug. 12, 2010)Perry v. Schwarzenegger, (Doc. 728) (N.D. Cal. Aug. 12, 2010)
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.Perry v. Schwarzenegger, Order (9th Cir. Aug. 16, 2010)
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.
On January 4, 2011, the panel issued an order certifying the following question to the Supreme Court of California:Perry v. Schwarzenegger, 628 F.3d 1191, 1193 (Certification Order at 2) (9th Cir. Jan. 4, 2011)
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."Perry v. Schwarzenegger, 628 F.3d 1191, 1199 (Certification Order at 16) (9th Cir. Jan. 4, 2011)
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 Justice Tani Cantil-Sakauye. In answering the Ninth Circuit's certified question, the California Supreme Court held:Perry v. Brown, 52 Cal.4th 1116, 1165 (Slip Op. at 61) (Nov. 17, 2011)
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.Perry v. Schwarzenegger, 790 F. Supp. 2d 1119 (Doc. 797) (N.D. Cal. Jun. 14, 2011)Perry v. Schwarzenegger , Order (Doc. 798) (N.D. Cal. Jun. 14, 2011) On September 19, 2011, Chief Judge Ware granted Plaintiffs' cross-motion and ordered the digital video recording of the trial unsealed.Perry v. Schwarzenegger, Order (Doc. 812) (N.D. Cal. Sep. 19, 2011) 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.Perry v. Brown, 667 F.3d 1078 (9th Cir. Feb. 2, 2012)
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:Perry v. Brown, 671 F.3d 1052, 1063-64 (Slip Op. at 5) (9th Cir. Feb. 7, 2012)(quoting Romer v. Evans, 517 U.S. 620, 633 (1996))
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."