The California Supreme Court reversed a judgment. The court held that California statutory provisions limiting marriage to opposite-sex couples are unconstitutional.
The Proposition 22 Legal Defense and Education Fund, the Campaign for California Families (CCF) and others sued the City and County of San Francisco to stop it from issuing marriage licenses to same-sex couples.
The city thereafter filed a complaint for declaratory relief and a petition for writ of mandate against the state, challenging the validity of Family Code provisions limiting marriage in California to unions between a man and a woman.
Three groups of same-sex couples filed similar actions, alleging they were wrongfully prevented from marrying in California or from having their out-of-state marriages recognized in California. The cases were coordinated for hearing.
The trial court concluded the marriage statutes’ opposite-sex requirement did not pass strict scrutiny, or even the more deferential review accorded under the rational basis test, because it did not further any legitimate state interest. Accordingly, the court declared Family Code §§300 and 308.5 unconstitutional under the California Constitution and entered judgment accordingly. The Fund, CCF, and the state appealed.
The court of appeal reversed in part, holding that the state’s marriage laws were not unconstitutional.
Marriage, the appellate court noted, has traditionally been recognized as the union between a man and a woman. In California, civil marriage is based entirely on statute recognizing it as such. At issue, here, the court found, was whether the statutes limiting civil marriage to heterosexual couples violated a fundamental right to marriage. The court found that they did not.
The court of appeal reasoned that, although the right to marry is fundamental, the right to same-sex marriage is not. Because marriage in this state has always been defined, implicitly or explicitly, as the union of opposite-sex individuals, the right to marry means only that everyone has a fundamental right to enter a public union with an opposite-sex partner.
The California Supreme Court reversed, holding that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.
The court clarified at the outset that the legal issue it had to resolve was not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether the state Constitution prohibited the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple was officially designated a “marriage” whereas the union of a same-sex couple was officially designated a “domestic partnership.”
The question to be addressed was whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violated the California Constitution.
The court noted first that, although, as an historical matter, civil marriage and the rights associated with it traditionally have been afforded only to opposite-sex couples, the court’s landmark decision 60 years ago in Perez v. Sharp (1948) 32 Cal.2d 711 made clear that history alone was not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee. Perez held that California’s statutory provisions prohibiting interracial marriages were inconsistent with the fundamental constitutional right to marry.
Looking to the numerous California decisions which have examined the underlying bases and significance of the constitutional right to marry, the court found that, under this state’s Constitution, the constitutionally based right to marry must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.
These core substantive rights include, most fundamentally, the opportunity of an individual to establish - with the person with whom the individual has chosen to share his or her life - an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.
As past cases established, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own - and, if the couple chooses, to raise children within that family - constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society. The court found further that, in contrast to earlier times, the state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation.
The state also recognizes, more generally, that an individual’s sexual orientation - like a person’s race or gender - does not constitute a legitimate basis upon which to deny or withhold legal rights. Accordingly, in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.
The court rejected the Attorney General’s argument that even if the constitutional right to marry under the California Constitution applies to same-sex couples as well as to opposite-sex couples, this right should not be understood as requiring the Legislature to designate a couple’s official family relationship by the term “marriage,” as opposed to another term, such as “domestic partnership,” so long as the rights which attach thereto are the same.
The court explained that one of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families.
Assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples the equal dignity and respect to which they are entitled.
Thus, although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.
Also, the current California statutes’ assignment of different names to the different relationships raises constitutional concerns not only under the state constitutional right to marry, but also under the state constitutional equal protection clause. In determining which standard of review should be applied to the statutory classification at issue, the court explained that it did not agree that the applicable statutes should be seen as discriminating on the basis of sex or gender and thus be subjected to strict scrutiny on that ground.
Nonetheless, the court found, strict scrutiny was still applicable here because the statutes in question classified or discriminated on the basis of sexual orientation. Sexual orientation, the court held, is a characteristic which represents - like gender, race, and religion -a constitutionally suspect basis upon which to impose differential treatment. Further, the differential treatment at issue impinges upon a same-sex couple’s fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.
Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only was a constitutionally legitimate interest, but was a compelling state interest, and (2) that the differential treatment not only was reasonably related to but was necessary to serve that compelling state interest.
Applying this standard to the statutory classification here at issue, the court concluded that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes - the interest in retaining the traditional and well-established definition of marriage - could not properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest. First, the court explained, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples. Permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.
Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.
Third, because of the widespread disparagement that gay individuals historically have faced, the court found it all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.
Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise - now emphatically rejected by this state - that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.
Under these circumstances, the court could not find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, the court concluded, to the extent the current California statutory provisions limit marriage to opposite-sex couples, those statutes are unconstitutional.
Justice Kennard concurred, writing separately to explain how this decision is consistent with Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, which held that local officials had acted unlawfully by issuing gender-neutral marriage licenses to same-sex couples after the officials made a legal determination that depriving same-sex couples of the right to marry was unconstitutional. In Lockyer, Justice Kennard explained, the court did not decide whether the California Constitution’s equal protection guarantee afforded a right of marriage to same-sex couples. Rather, the court decided only that local officials lacked authority to decide the constitutional validity of the state marriage statutes and instead should have submitted that question to the judiciary for resolution. Now that the court has authoritatively and conclusively resolved the underlying constitutional question by holding that state marriage laws are constitutionally invalid insofar as they discriminate on the basis of sexual orientation, the issuance of marriage licenses to same-sex couples is lawful, and indeed constitutionally required.
Justice Baxter, joined by Justice Chin concurred in part, but dissented from the majority’s conclusion that the California Constitution gives same-sex couples a right to marry. In reaching this decision, Justice Baxter opined, the majority violated the separation of powers, and thereby committed profound error.
Justice Corrigan concurred in part and dissented in part, finding that the majority, by its decision, overruled the vote of the people, which it lacked the power to do unless compelled by the California Constitution. In Proposition 22, Justice Corrigan explained, California voters voted to recognize as “marriage” only those unions between a man and a woman. The single issue presented in this case was whether domestic partners have a constitutional right to the name of “marriage.” Justice Corrigan found that they do not.
George, C.J., joined by Kennard, Werdegar and Moreno, JJ.; Kennard, J., concurring; Baxter, J., joined by Chin, J., concurring and dissenting; and Corrigan, J., concurring and dissenting.