The decision let stand the 18,000 existing marriages because, the Court said, Proposition 8 did not include language specifically saying it was retroactive.

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In a spirited dissent, Justice Carlos Moreno deplored the majority ruling, saying that Proposition 8 "strikes at the core of the promise of equality that underlies our California Constitution." Upholding it, he said, "places at risk the state constitutional rights of all disfavored minorities."

Federal Challenge to Proposition 8

Soon after the announcement of the California Supreme Court's decision upholding the constitutionality of Proposition 8, acclaimed litigators Theodore Olson and David Boies, who had opposed each other in the bitterly contested Gore v. Bush Supreme Court case that decided the 2000 Presidential election, announced that they would take the battle for marriage equality to federal court.

Their announcement was initially greeted less than enthusiastically by some gay legal organizations and experts, who judged the move risky and premature, but the attorneys soon convinced most glbtq groups and individuals of their commitment.

One of the most intriguing aspects of the Boies-Olson suit is that it may make the cause of marriage equality less partisan than it has previously been perceived, since Olson, a former Solicitor General, is a prominent conservative Republican, while Boies is a well-connected liberal Democrat.

The Olson-Boies case, supported by the American Foundation for Equal Rights, was brought on behalf of one lesbian couple, Kris Perry and Sandy Stier, who have four children, and a gay male couple, Paul Katami and Jeff Zarrillo. Because the nominal defendants in the case include the Governor of California and one of the plaintiffs is named Perry, the case became known as Perry v. Schwarzenegger.

The case was filed in May 2009 in the Federal District Court for Northern California and was assigned to the court's Chief Judge, Vaughn R. Walker, who was appointed to the bench by President George H. W. Bush in 1989.

The trial began on January 11, 2010. Because Governor Schwarzenegger and California Attorney General Jerry Brown declined to defend Proposition 8, with Brown declaring that he considered Proposition 8 unconstitutional, the ban on same-sex marriage was defended by the proponents of Proposition 8, ProtectMarriage.com, led by chief counsel Charles Cooper.

In the course of the trial, which spanned twelve days in January and two days in June 2010, Olson and Boies systematically built their case around the history of marriage, the harm that denial of marriage rights does to gay and lesbian couples and their children, and the irrationality of the ban. Introducing a massive amount of evidence, they demonstrated that the ban was enacted out of animus against homosexuals and that it causes great harm to gay men and lesbians for no rational governmental purpose.

The defense was stymied by the fact that they were unable to argue against same-sex marriage on religious grounds or on the inferiority of homosexuals, since such arguments would not be admissible as appropriate governmental reasons for denying a fundamental right. Instead, they were reduced to arguing that the only purpose of marriage is procreation and that permitting same-sex couples to marry would in some unspecified way contribute to the "deinstitutionalization" of marriage.

On August 4, 2010, Judge Walker issued his decision. His 136-page opinion demolished the credibility of the defendants' witnesses, systematically outlined 80 findings of facts established by the plaintiffs, and concluded unambiguously that Proposition 8 is unconstitutional.