Defining Sexuality Through the Courts in California’s Proposition 8

This article provides a discourse analysis of the three major cases—Perry v. Schwarzenegger, the later Perry v. Brown (2012), and Hollingsworth et al. v. Perry et al. (2013)—against California’s Proposition 8, which banned same-sex marriage in the state constitution. Based on analysis of the briefs, transcripts, and decisions from the proceedings, this article discerns how the discourses that were deployed during the Proposition 8 campaigns from 2008–2013 were filtered through the court system. The article looks at how both sides defined sexuality in making the case that homosexuals are or are not an identifiable suspect class in need of the rights and protections of marriage. The article argues the plaintiffs’ efforts to demonstrate the coherence of the suspect class produced an exclusionary definition of sexuality, while the defendants co-opted queer discourses to destabilize the plaintiffs’ claim to suspect class.