American Foundation for Equal Rights

American Foundation for Equal Rights
AFER logo
Type 501(c)3
Focus Hollingsworth v. Perry, Proposition 8
Area served United States
Key people
Revenue $5,835,440 (2010)[1]
Employees 4 (2010)[1]
Volunteers about 25 (2010)[1]

The American Foundation for Equal Rights (AFER) is a nonprofit organization established in 2009 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.[2]

AFER, along with Broadway Impact, an organization of theater artists and fans, sponsors "


AFER was launched in Spring 2009 as the sole sponsor of Perry v. Schwarzenegger, the federal constitutional challenge to California's Proposition 8. The Foundation was co-founded by political consultants Chad Griffin and Kristina Schake.[3]


AFER is governed by a seven-member board of directors. The board president is Academy Award-winning producer Bruce Cohen, and the treasurer is Michele Reiner. Other board members include Academy Award-winner Dustin Lance Black; Human Rights Campaign (HRC) president Chad Griffin (who served as AFER's board president prior to his position at HRC); philanthropist Jonathan D. Lewis; former Republican National Committee chairman Kenneth B. Mehlman; and actor and director Rob Reiner.[4] Co-founder Kristina Schake was a board member until December 2010, when she joined the White House staff as Special Assistant to the President and Communications Director to First Lady Michelle Obama.

AFER's staff is headed by Executive Director Adam Umhoefer.

AFER’s advisory board is 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, Lt. Dan Choi, Margaret Hoover, Dolores Huerta, Cleve Jones, David Mixner, Stuart Milk, Hilary Rosen, and Judy Shepard.[5]

Nonpartisan Approach

Olson & Boies

AFER believes that the case for marriage equality transcends partisan and ideological boundaries. Plaintiffs' lead attorneys in the Perry litigation, Theodore B. Olson and David Boies, hail from opposition sides of the political spectrum. Olson is a longtime [3]

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.”[6]


AFER’s fundraising activities illustrate its nonpartisan approach to winning marriage equality. Adam Nagourney and Brooks Barnes of The New York Times have 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.”[7]

And 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.[8]

AFER’s fundraising activities include:

  • 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.[9][10]
  • A January 2011 private benefit concert with Elton John.[7][11]
  • A September 2011 Broadway world premiere reading of “8” the play at the Eugene O’Neill Theatre in New York City starring Ellen Barkin, and Christine Lahti.
  • A February 2012 Los Angeles reading of “8” the play at the Wilshire Ebell Theatre starring Martin Sheen, and Kevin Bacon. The event was live streamed on YouTube, the first for a non-profit.

Hollingsworth v. Perry

Main article: Hollingsworth v. Perry

Federal District Court

The complaint in Perry v. Schwarzenegger was filed on May 22, 2009 in United States District Court for the Northern District of California.[12] 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.[13][14] In July 2009, the official proponents of Proposition 8—Dennis Hollingsworth, Gail J. Knight, Martin F. Guitierrez, Hak-Shing William Tam, and—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: 8 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”[15] and “cannot withstand rational basis review”[16] 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.”[15] The court supported its conclusions of law with 80 detailed factual findings. The District Court concluded:

"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."[17]

On August 12, 2010, Chief Judge Walker denied Proponents’ motion for a stay and entered a permanent injunction against the enforcement of Proposition 8.[18][19]

Ninth Circuit Court of Appeals

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.[20]

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:

"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."[21]

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."[22]

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:

"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."[23]

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.[24][25] On September 19, 2011, Chief Judge Ware granted Plaintiffs' cross-motion and ordered the digital video recording of the trial unsealed.[26] 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.[27]

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:

"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.'"[28]

Judge N. Randy Smith filed a separate opinion concurring in part and dissenting in part. While Judge Smith agreed with the majority that Proponents have standing and that their motion to vacate judgment should be denied, he dissented from the majority's conclusion that Proposition 8 violates the Equal Protection Clause.[29]

On February 21, 2012, Proponents petitioned the Ninth Circuit for rehearing en banc, which Plaintiffs opposed. The Ninth Circuit denied Proponents’ petition on June 5, 2012. Judge Diarmuid O'Scannlain filed a short opinion dissenting from the denial of rehearing en banc, which was joined by Judges Jay Bybee and Carlos Bea. Judges Reinhardt and Hawkins filed a joint statement concurring in the denial of rehearing en banc.[30]

United States Supreme Court

On July 30, 2012, Proponents filed a petition for a writ of certiorari in the United States Supreme Court.[31] On December 7, 2012, the Court granted Proponents' petition in the case, now named Hollingsworth v. Perry.[32] The Court heard oral argument in Perry on Tuesday, March 26, 2013.[33]

On June 26, 2013, the U.S. Supreme Court ruled that the sponsors of Proposition 8 lacked legal standing to appeal the district court decision when the state of California refused to do so. The Ninth Circuit's judgment in Perry was vacated, and the case was remanded with instructions to dismiss the appeal. In a 5–4 opinion authored by Chief Justice John G. Roberts. Jr., which Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen G. Breyer, and Elena Kagan joined, the Court concluded:

"For there to be ... a case or controversy [under Article III of the Constitution], it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have 'standing,' which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit."[34]

Justice Anthony M. Kennedy filed a dissenting opinion, which was joined by Justices Clarence Thomas, Samuel A. Alito, Jr., and Sonia Sotomayor. The dissent would have found that the Proponents of Proposition 8 possessed legal standing.[35]

"8" the Play

Main article: 8 (play)

AFER, along with Broadway Impact, an organization of theater artists and fans, sponsors “8,” a play reenacting the trial of Perry v. Schwarzenegger. “8” was written by Dustin Lance Black in light of efforts by the proponents of Proposition 8 to prevent public broadcast of the trial and the release of video recordings from the trial.[36]

“8” had its world premiere reading on September 19, 2011 at the [39]

AFER and Broadway Impact also license “8” for free to college and community theaters worldwide.

See also


  1. ^ a b c "IRS Form 990". AFER. Retrieved 12 May 2012. 
  2. ^ "American Foundation for Equal Rights, About Us: Legal Team,". 
  3. ^ a b Svetvilas, Chuleenan (Jan 2010). "Challenging Prop. 8: The Hidden Story". CAL. LAWYER. 
  4. ^ "American Foundation for Equal Rights, About Us: Leadership: Board of Directors". 
  5. ^ "American Foundation for Equal Rights, About Us: Leadership: Advisory Board". 
  6. ^ Olson, Theodore B. (Jan 8, 2010). "The Conservative Case for Gay Marriage". NEWSWEEK. 
  7. ^ a b Adam Nagourney, Brooks Barnes (Mar 23, 2012). "Gay Marriage Effort Attracts a Novel Group of Donors". N.Y. TIMES. 
  8. ^ Hirshman, Linda (Mar 26, 2012). "How the New Hampshire GOP voted to keep gay marriage". SALON. 
  9. ^ Lattman, Peter (Sep 23, 2010). "Gay Marriage Gets Boost From Wall Street". N.Y. TIMES. 
  10. ^ Johnson, Corey (Sep 23, 2010). "Ken Mehlman, Peter Thiel, and Paul Singer Host Manhattan Fundraiser for Team Challenging Proposition 8". TOWLEROAD. 
  11. ^ "American Foundation for Equal Rights, Elton John in Concert". 
  12. ^ 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)
  13. ^ 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)
  14. ^ 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)
  15. ^ a b Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 991 (Doc. 708 at 109) (N.D. Cal. Aug. 4, 2010)
  16. ^ Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 995 (Doc. 708 at 117) (N.D. Cal. Aug. 4, 2010)
  17. ^ Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1003 (Doc. 708 at 135) (N.D. Cal. Aug. 4, 2010)
  18. ^ Perry v. Schwarzenegger, 702 F. Supp. 2d 1132 (Doc. 727) (N.D. Cal. Aug. 12, 2010)
  19. ^ Perry v. Schwarzenegger, (Doc. 728) (N.D. Cal. Aug. 12, 2010)
  20. ^ Perry v. Schwarzenegger, Order (9th Cir. Aug. 16, 2010)
  21. ^ Perry v. Schwarzenegger, 628 F.3d 1191, 1193 (Certification Order at 2) (9th Cir. Jan. 4, 2011)
  22. ^ Perry v. Schwarzenegger, 628 F.3d 1191, 1199 (Certification Order at 16) (9th Cir. Jan. 4, 2011)
  23. ^ Perry v. Brown, 52 Cal.4th 1116, 1165 (Slip Op. at 61) (Nov. 17, 2011)
  24. ^ Perry v. Schwarzenegger, 790 F. Supp. 2d 1119 (Doc. 797) (N.D. Cal. Jun. 14, 2011)
  25. ^ Perry v. Schwarzenegger, Order (Doc. 798) (N.D. Cal. Jun. 14, 2011)
  26. ^ Perry v. Schwarzenegger, Order (Doc. 812) (N.D. Cal. Sep. 19, 2011)
  27. ^ Perry v. Brown, 667 F.3d 1078 (9th Cir. Feb. 2, 2012)
  28. ^ 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))
  29. ^ Perry v. Brown, 671 F.3d 1052, 1097 (Slip Op. at 1) (N.R. Smith, J., concurring in part and dissenting in part) (9th Cir. Feb. 7, 2012)
  30. ^ Perry v. Brown, 681 F.3d 1065 (9th Cir. Jun. 5, 2012)
  31. ^ Petition for a Writ of Certiorari, Hollingsworth v. Perry, No. 12-144 (U.S. Jul. 30, 2012)
  32. ^ Order List, 568 U.S. ___ (Dec. 7, 2012)
  33. ^ Argument Calendar, Supreme Court of the United States, O.T. 2012, Session Beginning March 18, 2013
  34. ^ Hollingsworth v. Perry, 570 U.S. ___, ___ (2013) (Slip Op. at 2)
  35. ^ Hollingsworth v. Perry, 570 U.S. ___, ___ (2013) (Slip Op. at 1-2) (Kennedy, J., dissenting)
  36. ^ Healy, Patrick (Jul 18, 2011). "Illuminating California’s Proposition 8 Trial, Onstage". N.Y. TIMES. 
  37. ^ Morris, Bob (Sep 21, 2011). "‘Hey, You Look Familiar’". NY TIMES. 
  38. ^ Schulman, Michael (Oct 3, 2011). "Do-Over". The New Yorker. 
  39. ^ McNulty, Charles (Mar 5, 2012). "Hollywood embraces Dustin Lance Black’s Prop. 8 drama". LA TIMES. 

External links

  • American Foundation for Equal Rights official website
  • Watch: “8” (play) L.A. World Premiere
  • 8 the Play official website
  • American Foundation for Equal Rights's channel on YouTube
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