Professional Documents
Culture Documents
Marriage
Marriage
FOCUS - 3 of 3 DOCUMENTS
Positive
As of: Nov 06, 2008
1 City and County of San Francisco v. State of California (A110449 [Super. Ct.
S.F. City & County, No. CGC-04-429539]); Tyler v. State of California (A110450
[Super. Ct. L.A. County, No. BS-088506]); Woo v. Lockyer (A110451 [Super. Ct.
S.F. City & County, No. CPF-04-504038]); Clinton v. State of California
(A110463 [Super. Ct. S.F. City & County, No. CGC-04-429548]); Proposition 22
Legal Defense and Education Fund v. City and County of San Francisco
(A110651 [Super. Ct. S.F. City & County, No. CPF-04-503943]); Campaign for
California Families v. Newsom (A110652 [Super. Ct. S.F. City & County, No.
CGC-04-428794]).
S147999
43 Cal. 4th 757; 183 P.3d 384; 76 Cal. Rptr. 3d 683; 2008 Cal. LEXIS 5247
SUBSEQUENT HISTORY: Reported at Marriage P. Pugno and Andrew P. Pugno for Plaintiff and
Cases, In re, 2008 Cal. LEXIS 6155 (Cal., May 15, 2008) Appellant Proposition 22 Legal Defense and Education
Rehearing denied by, Request granted, in part, Request Fund.
denied by, in part, Stay denied by In re Marriage Cases,
2008 Cal. LEXIS 6807 (Cal., June 4, 2008) Jay Alan Sekulow, Stuart J. Roth, Laura B. Hernandez,
Vincent P. McCarthy, Kristina J. Wenberg; Schuler and
PRIOR-HISTORY: Brown and John D. Hardy for American Center for Law
Court of Appeal of California, First Appellate District, & Justice as Amicus Curiae on behalf of Plaintiff and
Division Three, Nos. A110449, A110450, A110451, Appellant Proposition 22 Legal Defense and Education
A110463, A110651, A110652, San Francisco County Fund.
JCCP No. 4365.
In re Marriage Cases, 143 Cal. App. 4th 873, 49 Cal. Stewart & Stewart and John Stewart for Jews Offering
Rptr. 3d 675, 2006 Cal. App. LEXIS 1542 (Cal. App. 1st New Alternatives to Homosexuality, Parents and Friends
Dist., 2006) of Ex-Gays & Gays and Evergreen International as Amici
Curiae on behalf of Plaintiff and Appellant Proposition
COUNSEL: Alliance Defense Fund, Benjamin W. Bull, 22 Legal Defense and Education Fund.
Glen Lavy, Timothy Donald Chandler, Christopher R.
Liberty Counsel, Mathew D. Staver, Rena M.
Stovall, Dale Schowengerdt; Advocates for Faith and
Lindevaldsen and Mary E. McAlister for Plaintiff and
Freedom, Robert Henry Tyler; Law Offices of Terry L.
Appellant Campaign for California Families.
Thompson, Terry L. Thompson; Law Offices of Andrew
Page 2
Kevin T. Snider and Matthew B. McReynolds for Pacific Alliance Church, Evangelical Free Church of San
Justice Institute and Capitol Resource Institute as Amici Francisco, San Francisco Agape Christian Church, HIS
Curiae on behalf of Plaintiffs and Appellants Proposition Foundation and Chinese Christians for Justice as Amici
22 Legal Defense and Education Fund and Campaign for Curiae on behalf of Defendant and Appellant State of
California Families. California.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys Jeffrey N. Daly for Professors of Law John Coverdale,
General, Manuel M. Medeiros, State Solicitor General, Scott Fitzgibbon, Martin R. Gardner, Kris W. Kobach,
David S. Chaney, Chief Assistant Attorney General, Earl M. Maltz, Laurence C. Nolan and John Randall
Louis R. Mauro, Stacy Boulware Eurie and Christopher Trahan as Amici Curiae on behalf of Defendant and
E. Krueger, Assistant Attorneys General, James M. Appellant State of California.
Humes, Douglas J. Woods, Kathleen A. Lynch, Hirem M.
Patel and Zackery P. Morazzini, Deputy Attorneys Wild, Carter & Tipton, Patrick J. Gorman; Thomas More
General, for Defendant and Appellant State of California. Society, Thomas Brejcha and Paul Benjamin Linton for
Knights of Columbus as Amicus Curiae on behalf of
Kenneth W. Starr; Kirton & McConkie and Alexander Defendant and Appellant State of California.
Dushku for The Church of Jesus Christ of Latter-Day
Saints, California Catholic Conference, National The Claremont Institute Center for Constitutional
Association of Evangelicals and Union of Orthodox Jurisprudence, John C. Eastman; Institute for Marriage
Jewish Congregations of America as Amici Curiae on and Public Policy and Joshua K. Baker for Legal and
behalf of Defendant and Appellant State of California. Family Scholars James Q. Wilson, Douglas Allen,
Hadley P. Arkes, David Blankenhorn, Steven G.
Marriage Law Foundation and Monte N. Stewart for Calabresi, Lloyd R. Cohen, David K. DeWolf, Edward J.
United Families International, Family Watch Erler, Robert P. George, Bernard E. Jacob, William H.
International and Family Leader Foundation as Amici Jeynes, Leon R. Kass, Charles Kesler, Douglas W.
Curiae on behalf of Defendant and Appellant State of Kmiec, Daniel Hays Lowenstein, David Popenoe,
California. Stephen B. Presser, Katherine Shaw Spaht and Thomas
G. West as Amici Curiae on behalf of Defendant and
Natalie A. Panossian for Professors of Law Douglas W. Appellant State of California.
Kmiec, Helen M. Alvare, George W. Dent, Jr., Stephen
G. Calabresi, Steven B. Presser and Lynn D. Wardle as Brian Chavez-Ochoa and Steven W. Fitschen for The
Amici Curiae on behalf of Defendant and Appellant State National Legal Foundation as Amicus Curiae on behalf of
of California. Defendant and Appellant State of California.
Mazur & Mazur, Janice R. Mazur and William E. Mazur, Derek L. Gaubatz and Roger Severino for The Beckett
Jr., for Leland Traiman and Stewart Blandon as Amici Fund for Religious Liberty as Amicus Curiae on behalf of
Curiae on behalf of Defendant and Appellant State of Defendant and Appellant State of California.
California.
Robert A. Destro and Lincoln C. Oliphant for
The Western Center for Law & Policy, Dean R. Broyles African-American Pastors in California Reverend Joshua
and James M. Griffiths for California Ethnic Religious Beckley, Pastor Dr. Timothy Winters, Pastor Chuck
Organizations for Marriage, National Hispanic Christian Singleton and Pastor Dr. Raymond W. Turner as Amici
Leadership Conference, African-American High Impact Curiae on behalf of Defendant and Appellant State of
Leadership Coalition, Korean Church Coalition for North California.
Korea Freedom, Council of Korean Churches in Southern
California, Traditional Family Coalition, Chinese Family Mennemeier, Glassman & Stroud, Kenneth C.
Alliance, America Chinese Evangelical Seminary, The Mennemeier, Andrew W. Stroud and Kelcie M. Gosling
Lord's Grace Christian Church of Mountain View, Grace for Defendants and Appellants Governor Arnold
Gospel Christian Church at San Mateo, Mandarin Baptist Schwarzenegger and State Registrar of Vital Statistics
Church, Home of Christ Church at Saratoga, Fremont Teresita Trinidad.
Chinese Evangelical Free Church, West Valley Christian
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Sterling E. Norris for Judicial Watch, Inc., as Amicus Christopher F. Stoll, David J. Simon, Ryan R. Tacorda;
Curiae on behalf of Defendants and Appellants State of National Center for Lesbian Rights, Shannon Minter,
California and Governor Arnold Schwarzenegger. Vanessa H. Eisemann, Melanie Rowen, Catherine
Sakimura, Courtney Joslin; Lambda Legal Defense and
Dennis J. Herrera, City Attorney, Therese M. Stewart, Education Fund, Inc., Jon W. Davidson, Jennifer C.
Chief Deputy City Attorney, Danny Chou, Chief of Pizer; ACLU Foundation of Southern California,
Appellate Litigation, Julia M. C. Friedlander, Kathleen S. Christine P. Sun, Peter J. Eliasberg, Clare Pastore; ACLU
Morris, Sherri Sokeland Kaiser and Vince Chhabria, Foundation of Northern California, Tamara Lange, Alan
Deputy City Attorneys; Howard, Rice, Nemerovski, L. Schlosser, Alex M. Cleghorn; Steefel, Levitt & Weiss,
Canady, Falk & Rabkin, Bobbie J. Wilson and Amy Dena Narbaitz, Clyde J. Wadsworth; Law Office of
Margolin for Plaintiff and Respondent City and County David C. Codell and David C. Codell for Plaintiffs and
of San Francisco. Respondents Lancy Woo, Cristy Chung, Joshua Rymer,
Tim Frazer, Jewelle Gomez, Diane Sabin, Myra Beals,
R. Bradley Sears and Clifford J. Rosky for M. V. Lee Ida Matson, Arthur Frederick Adams, Devin Wayne
Badgett and Gary J. Gates as Amici Curiae on behalf of Baker, Jeanne Rizzo, Pali Cooper, Karen Shain, Jody
Plaintiff and Respondent City and County of San Sokolower, Janet Wallace, Deborah Hart, Corey Davis,
Francisco. Andre LeJeune, Rachel Lederman, Alexsis Beach, Stuart
Gaffney, John Lewis, Phyllis Lyon, Del Martin, Sarah
Aderson B. Francois; Altshuler Berzon, Michael Rubin
Conner, Gillian Smith, Margot McShane, Alexandra
and Barbara J. Chisholm for Howard University School
D'Amario, David Scott Chandler, Jeffery Wayne
of Law Civil Rights Clinic as Amicus Curiae on behalf of
Chandler, Theresa Michelle Petry, Cristal
Plaintiff and Respondent City and County of San
Rivera-Mitchel, Our Family Coalition and Equality
Francisco.
California.
Nanci L. Clarence; Law Offices of Amitai Schwartz and
Law Offices of Waukeen Q. McCoy, Waukeen Q.
Amitai Schwartz for Bar Association of San Francisco as
McCoy, Aldon L. Bolanos; Paul, Hanley & Harley and
Amicus Curiae on behalf of Plaintiff and Respondent
Jason E. Hasley for Plaintiffs and Respondents Gregory
City and County of San Francisco.
Clinton, Gregory Morris, Anthony Bernan, Andrew
Ronald A. Lindsay and Edward Tabash for Council for Neugenbauer, Stephanie O'Brien, Janet Levy, Joseph
Secular Humanism and Center for Inquiry as Amici Faulkner, Arthur Healey, Kristen Anderson, Michele
Curiae on behalf of Plaintiff and Respondent City and Bettega, Derrik Anderson and Wayne Edfors II.
County of San Francisco.
Natalie F. P. Gilfoyle; Jenner & Block, Paul M. Smith,
Michael Jenkins and J. Stephen Lewis for City of Los William M. Hohengarten and Anjan Choudhury for
Angeles, City of San Diego, City of San Jose, City of American Psychological Association, California
Long Beach, City of Oakland, City of Santa Rosa, City of Psychological Association, American Psychiatric
Berkeley, City of Santa Monica, City of Santa Cruz, City Association, National Association of Social Workers and
of Palm Springs, City of West Hollywood, City of Signal National Association of Social Workers, California
Hill, City of Sebastopol, Town of Fairfax, City of Chapter as Amici Curiae on behalf of Plaintiffs and
Cloverdale, County of Santa Clara, County of San Mateo, Respondents.
County of Santa Cruz and County of Marin as Amici
Keker & Van Nest and Jon B. Streeter for Professor Jesse
Curiae on behalf of Plaintiff and Respondent City and
H. Choper as Amicus Curiae on behalf of Plaintiffs and
County of San Francisco.
Respondents.
Allred, Maroko & Goldberg, Gloria Allred, Michael
O'Melveny & Myers, Peter Obstler, Nikhil Shanbhag,
Maroko and John Steven West for Plaintiffs and
Flora Vigo, Jee Young You; John D. Trasvina, Cynthia
Respondents Robin Tyler, Diane Olson, Troy Perry and
A. Valenzuela; Law Office of Ellen Forman Obstler and
Phillip De Blieck.
Ellen Forman Obstler for Asian American Justice Center,
Heller Ehrman, Stephen V. Bomse, Richard DeNatale, Asian Pacific American Bar Association, Asian Pacific
American Legal Center, Asian and Pacific Islander
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Lesbian, Bisexual Women and Transgender Network, Association of Northern California, South Asian Bar
Asian Pacific Islander Pride Council, Disability Rights Association of San Diego, South Asian Bar Association
Education and Defense Fund, Equal Justice Society, of Southern California, Southern California Chinese
Japanese American Bar Association, Lawyers' Lawyers Association, Vietnamese American Bar
Committee for Civil Rights of the San Francisco Bay Association of Northern California, Asian Equality,
Area, Multicultural Bar Alliance of Los Angeles, People Asian Pacific Islander Legal Outreach, API Equality, API
for the American Way Foundation, United Lesbians of Equality-SF, Asian Communities for Reproductive
African Heritage, Ventura Black Attorneys Association, Justice, Asian Law Alliance, Asian Law Caucus, Asian
Mexican American Legal Defense and Educational Fund, Pacific American Labor Alliance-Alameda, Asian Pacific
Aguilas, Bienestar Human Services, Coalition for Islander Family Pride, Asian Pacific Islander Wellness
Humane Immigrant Rights, La Raza Centro Legal, Center, Asian Women's Shelter, Chinese for Affirmative
National Black Justice Coalition, National Lawyers Guild Action, Chinese Progressive Association, Filipinos for
of San Francisco and Zuna Institute as Amici Curiae on Affirmative Action, Gay Asian Pacific Alliance, Institute
behalf of Plaintiffs and Respondents. for Leadership Development and Study of Pacific Asian
North American Religion, Korean Community Center of
Sideman & Bancroft and Diana E. Richmond for the East Bay, My Sister's House, Asian Pacific American
American Academy of Matrimonial Lawyers, Northern Legal Center, Asian/Pacific Bar of California, API
California Chapter of the American Academy of Equality-LA, Asian American Institute, Asian American
Matrimonial Lawyers and California District of the Justice Center, Asian Pacific American Legal Center of
American Academy of Pediatrics as Amici Curiae on Southern California, Asian American Legal Defense and
behalf of Plaintiffs and Respondents. Education Fund, Asian American Psychological
Association, Asian American Queer Women Activists,
Covington & Burling, Sonya D. Winner, David M. Jolley Asian and Pacific Islander American Health Forum,
and Erin C. Smith for American Psychoanalytic Asian and Pacific Islander Lesbian, Bisexual Women and
Association, American Anthropological Association and Transgender Network, Asian and Pacific Islander Parents
Lawyers' Committee for Civil Rights of the San and Friends of Lesbians and Gays, Asian Pacific AIDS
Francisco Bay Area as Amici Curiae on behalf of Intervention Team, Asian Pacific American Labor
Plaintiffs and Respondents. Alliance-Los Angeles, Asian Pacific Americans for
Progress-Los Angeles, Asian Pacific Islander Pride
Proskauer Rose, Clifford S. Davidson, Scott P. Cooper,
Council, Asian Pacific Policy & Planning Council, Asian
Bert H. Deixler, Gil N. Peles, Lary Alan Rappaport and
Pacific Women's Center, Center for the Pacific Asian
Lois D. Thompson for Anti-Defamation League, Los
Family, Asian Youth Promoting Advocacy and
Angeles Gay and Lesbian Center, Sacramento Gay and
Leadership, Conference of Asian Pacific American Law
Lesbian Center, San Diego Lesbian Gay, Bisexual and
Faculty, Gay Asian Pacific Support Network, Japanese
Transgender Community Center, San Francisco LGBT
American Citizens League, Khmer Girls in Action,
Community Center, Billy DeFrank Center, The Gay and
Korean Resource Center, Koreatown Immigrant Workers
Lesbian Center of Greater Long Beach, Desert Pride
Alliance, National Asian Pacific American Law Student
Center, Lighthouse Community Pride Center, The Pacific
Association, National Asian Pacific American Women's
Center and Stanislaus Pride Center as Amici Curiae on
Forum, National Korean American Service & Education
behalf of Plaintiffs and Respondents.
Consortium, Orange County Asian Pacific Islander
Pillsbury Winthrop Shaw Pittman, Kevin M. Fong; Daisy Community Alliance, Organization of Chinese
J. Hung, Victor M. Hwang; Karin H. Wang and Julie Su Americans San Francisco Chapter, Satrang, South Asian
for Asian American Bar Association of the Greater Bay American Leaders of Tomorrow, South Asian Network,
Area, Asian Pacific American Bar Association of Los Southeast Asian Community Alliance, Southeast Asian
Angeles County, Asian Pacific Bar Association of Silicon Community Center and Southeast Asia Resource Action
Valley, Japanese American Bar Association of Greater Center as Amici Curiae on behalf of Plaintiffs and
Los Angeles, Korean American Bar Association of Respondents.
Southern California, National Asian Pacific American
Munger, Tolles & Olson, Jerome C. Roth and Daniel J.
Bar Association, Pan Asian Lawyers of San Diego,
Powell for Bay Area Lawyers for Individual Freedom,
Philippine American Bar Association, South Asian Bar
Page 5
Professors of International Law Mayo Moran, Brenda of Congregations, Unitarian Universalist Ministers
Cossman, Sujit Choudhry, Robert Wintemute, Paul Schiff Association, United Centers of Spiritual Living,
Berman, Kenji Yoshino, Beth van Schaack, William Universal Fellowship of Metropolitan Community
Aceves, Margaret Satterthwaite and Barbara Cox as Churches, Association of Welcoming & Affirming
Amici Curiae on behalf of Plaintiffs and Respondents. Baptists (Bay Area), California Church IMPACT,
California Council of Churches, California Faith for
Noah B. Novogrodsky; Morrison & Foerster, Ruth N. Equality, Council of Churches of Santa Clara County,
Borenstein, Paul S. Marchegiani and Vincent J. Novak Friends Committee on Legislation of California, Jews for
for The University of Toronto, Faculty of Law Marriage Equality (Southern California), Metropolitan
International Human Rights Clinic, Professors of Community Church (California/Region One), More Light
International Law William Aceves, Brenda Cossman, Presbyterian Chapter of Pacific Presbytery, Pacific
Sujit Choudhry, Chai Feldblum, Hari Osofsky, Jaya Central District Chapter of the Unitarian Universalist
Ramji-Nogales and Beth van Schaack as Amici Curiae on Ministers Association, Pacific Central West Council of
behalf of Plaintiffs and Respondents. the Union for Reform Judaism, Pacific Southwest
Council of the Union for Reform Judaism, Pacific
McManis Faulkner & Morgan, James McManis and Southwest District Chapter of the Unitarian Universalist
Christine Peek for Santa Clara County Bar Association as Ministers Association, Progressive Christians Uniting,
Amicus Curiae on behalf of Plaintiffs and Respondents. Progressive Jewish Alliance-California, Reconciling
Ministries Clergy of the California-Nevada Conference of
Caldwell Leslie & Proctor, Christopher G. Caldwell and
the United Methodist Church, Unitarian Universalist
Linda M. Burrow for Professor William N. Eskridge, Jr.,
Legislative Ministry-California, United Church of
as Amicus Curiae on behalf of Plaintiffs and
Christ-Southern California/Nevada Conference, All
Respondents.
Saints Episcopal Church, All Saints Independent Catholic
Manning & Marder, Kass, Ellrod, Ramirez, Scott Wm. Parish, All Saints Metropolitan Community Church, Bay
Davenport, Darin L. Wessel and Jason J. Molnar for The Area American Indian Two-Spirits, Berkeley Fellowship
Southern Poverty Law Center as Amicus Curiae on of Unitarian Universalists, Buena Vista United Methodist
behalf of Plaintiffs and Respondents. Church, Chalice Unitarian Universalist Congregation,
Christ the Shepherd Lutheran Church, Church of the
Raoul D. Kennedy, Elizabeth Harlan, Nelson R. Brethren of San Diego, College Avenue Congregational
Richards, Joren S. Bass, Philip A. Leider, Michael D. Church United Church of Christ, Community Church of
Meuti, Stephen Lee; HoenningerLaw, Jo Ann Atascadero United Church of Christ, Community
Hoenninger; Eric Alan Isaacson; and Reverend Silvio Presbyterian Church, Conejo Valley Unitarian
Nardoni for Affirmation: Gay and Lesbian Mormons, Universalist Fellowship, UCC Community Church of
Al-Fatiha Foundation, Dignity USA, Alliance of Baptists, Atascadero, Congregation Beth Chayim Chadashim,
Brethren Mennonite Council for Lesbian, Gay, Bisexual Congregation Kol Ami, Congregation Sha'ar Za'hav,
and Transgender Interests, Clergy United, Inc., Executive Congregation Shir Hadash, Conejo Valley Unitarian
Committee of the American Friends Service Committee, Universalist Fellowship Faith in Action Committee,
Gay and Lesbian Vaishnava Association, General Synod Diamond Bar United Church of Christ, Dolores Street
of the United Church of Christ, Hebrew Union Baptist Church, Emerson Unitarian Universalist Church,
College-Institute for Judaism and Sexual Orientation, First Christian Church of San Jose Disciples of Christ,
Integrity USA, Jewish Reconstructionist Federation, First Congregational Church, First Congregational United
Lutherans Concerned/North America, More Light Church of Christ, First Mennonite Church of San
Presbyterians, Muslims for Progressive Values, National Francisco, First Presbyterian Church, First Unitarian
Coalition of American Nuns, Network of Spiritual Church of Oakland, First Unitarian Universalist Church
Progressives, New Ways Ministry, of San Diego, First Unitarian Church of San Jose, First
Religion-Outside-The-Box, Religious Institute on Sexual Unitarian Universalist Church of Stockton, First
Morality, Justice, and Healing, Seventh-day Adventist Unitarian Universalist Society of San Francisco,
Kinship, International Inc., Soka Gakkai Humboldt Unitarian Universalist Fellowship, Inner Light
International-USA, The Rabbinical Assembly, The Union Ministries, Kol Hadash Community for Humanistic
for Reform Judaism, Unitarian Universalist Association Judaism, Lutherans Concerned/Los Angeles,
Page 7
Metropolitan Community Church in the Valley, Universalist Fellowship of Stanislaus County, Unitarian
Metropolitan Community Church of San Jose, Universalist Fellowship of Visalia, Unitarian
Metropolitan Community Church Los Angeles, Monte Universalists of San Mateo, Unitarian Universalists of
Vista Unitarian Universalist Congregation Board of Santa Clarita, Unitarian Universalist Society of
Trustees, Mt. Diablo Unitarian Universalist Church, Mt. Sacramento, United Church of Christ in Simi Valley,
Hollywood Congregational Church United Church of Unity in the Gold Country, Universalist Unitarian Church
Christ, Neighborhood Unitarian Universalist Church of Santa Paula, University Lutheran Chapel, Valley
Board of Trustees, Niles Congregational Church United Ministries Metropolitan Community Church, Rabbi
Church of Christ, Pacific School of Religion, Pacific Mona Alfi, Reverend Dr. Pam Allen-Thompson,
Unitarian Church, Parkside Community Church, United Reverend Rachel Anderson, Reverend Sky Anderson,
Church of Christ, Peninsula Metropolitan Community Rabbi Camille Angel, Rabbi Melanie Aron, Reverend Joy
Church, Pilgrim United Church of Christ, Religious Atkinson, Reverend Dr. Brian Baker, Reverend Elizabeth
Society of Friends/Quakers Pacific Yearly Meeting, San O'Shaughnessy Banks, Reverend K. G. Banwart, Jr.,
Leandro Community Church, Sierra Foothills Unitarian Reverend Canon Michael Barlowe, William H. Bartosh,
Universalist Congregation, Berkeley Unitarian Rabbi Haim Dov Beliak, Reverend Chris Bell, Reverend
Universalist Fellowship Social Justice Committee, Social JD Benson, Rabbi Linda Bertenthal, Pastor LeAnn
Justice Ministry at First Church, St. Bede's Episcopal Blackert, Reverend Dr. Dorsey O. Blake, Reverend
Church, St. Francis Lutheran Church, St. John Evangelist James E. Boline, Pastor Kenny A. Bowen, Reverend
Episcopal Church, St. John's Presbyterian Church, St. Susan Brecht, Pastor Paul Brenner, Rabbi Rick Brody,
Matthew's Lutheran Church, St. Paul's United Methodist Reverend Dr. Ken Brown, Reverend Kevin Bucy,
Church, Starr King School for the Ministry, Starr King Reverend Jim Burklo, Nancy Burns, Reverend Dr. R. A.
Unitarian Universalist Church, Temple Beth Hillel, The Butziger, Reverend Becky Cameron, Reverend Canon
Center for Spiritual Awareness, The Church for the Grant S. Carey, Reverend Matthew M. Conrad, Reverend
Fellowship of All Peoples, The Ecumenical Catholic Helen Carroll, Rabbi Ari Cartun, Reverend Lauren
Church, The Session (Governing Body) of West Chaffee, Reverend Craig B. Chapman, Reverend Barbara
Hollywood Presbyterian Church, Trinity Lutheran M. Cheatham, Reverend Jan Christian, Reverend Bea
Church, Unitarian Society of Santa Barbara, Unitarian Chun, Reverend June M. Clark, Reverend Anne G.
Universalist Church of Anaheim Board of Trustees, Cohen, Rabbi Helen T. Cohn, Reverend Carolyn Colbert,
Unitarian Universalist Church of Berkeley Board of Reverend Kenneth W. Collier, Reverend Dr. Gary B.
Trustees, Unitarian Universalist Church of Davis, Collins, Reverend Mary P. Conant, Rabbi Susan S.
Unitarian Universalist Church of the Desert, Unitarian Conforti, Reverend Meghan Conrad, Rabbi Laurie
Universalist Church of Fresno, Unitarian Universalist Coskey, Reverend Lyn Cox, Reverend Sofia Craethnenn,
Church of Long Beach Board of Trustees, Unitarian Reverend Susan Craig, Reverend Robbie Cranch,
Universalist Church of the Monterey Peninsula, Unitarian Reverend Alexie Crane, Reverend Matthew Crary,
Universalist Church of Palo Alto, Universalist Unitarian Reverend Robert Crouch, Reverend Dr. Donald J.
Church of Riverside Board of Trustees, Unitarian Dallmann, Reverend Cinnamon Daniel, Reverend Diann
Universalist Church of Ventura Board of Trustees, Davisson, Pastor Jerry De Jong, Rabbi Lavey Derby,
Unitarian Universalist Community of the Mountains, Reverend Susan Wolfe Devol, Reverend Frances A. Dew,
Unitarian Universalist Community Church of Reverend Brian K. Dixon, Rabbi Elliot Dorff, Reverend
Sacramento, Unitarian Universalist Community Church Terri Echelbarger, Rabbi Lisa A. Edwards, Reverend
of Santa Monica, Unitarian Universalist Community Leroy Egenberger, Rabbi Denise Eger, Reverend Michael
Church of South County, Unitarian Universalist Ellard, Diana Elrod, Reverend Stefanie Etzbach-Dale,
Congregation of Marin, Unitarian Universalist Pastor Brenda Evans, Interim Minister Mark Evens,
Congregation of Santa Rosa, Unitarian Universalist Reverend Renae Extrum-Fernandez, Reverend John
Fellowship of Kern County, Unitarian Universalist Fanestil, Reverend Jerry Farrell, Reverend Lydia
Fellowship of Laguna Beach, Unitarian Universalist Ferrante-Roseberry, Reverend Michelle Favreult,
Fellowship of Redwood City, Unitarian Universalist Reverend Jeanne Favreau-Sorville, Rabbi Joel Fleekop,
Fellowship of San Dieguito Welcoming Congregation Reverend Dr. Yvette Flunder, Reverend Dr. John Forney,
Committee, Unitarian Universalist Fellowship of San Reverend Jerry Fox, Reverend Canon Winifred B.
Luis Obispo County Board of Trustees, Unitarian Gaines, Reverend Ronn Garton, Rabbi Laura Geller,
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Reverend Diana Gibson, Reverend Dr. Robert Goldstein, John Millspaugh, Reverend Dr. Curt Miner, Rabbi
Reverend Dr. Robert Goss, Reverend Dr. June Goudey, Michelle Missaghieh, Reverend Sarah
Reverend Robert C. Grabowski, Reverend Constance L. Moldenhauer-Salazar, Reverend Douglas J. Monroe,
Grant, Reverend James Grant, Rabbi Bruce DePriester Reverend John Morehouse, Reverend Amy Zucker
Greenbaum, Reverend William Greer, Reverend Dr. Ron Morgenstern, Reverend David Moss, Reverend James A.
Griffen, Thomas Grogan, Reverend Clyde E. Grubbs, Nelson, Reverend Drew Nettinga, Reverend Canon James
Reverend Sara Haldeman-Scarr, Reverend Caroline Hall, A. Newman, Reverend Julia Older, Reverend Dr.
Reverend Dr. Susan Hamilton, Reverend Bill Claudene F. Oliva, Reverend Elaine O'Rourke, Reverend
Hamilton-Holway, Reverend Barbara Hamilton-Holway, Donna Owen, Reverend Dr. Carolyn S. Owen-Towle,
Reverend Bet Hannon, Reverend Dr. Andrew F. Reverend Tom Owen-Towle, Reverend Kathleen Owens,
Headden, Reverend Dr. Kathy Hearn, Reverend Jane Reverend Nancy Palmer Jones, Reverend Dr. Rebecca
Heckles, Rabbi Alan Henkin, Reverend Erika Hewitt, Parker, Reverend Ken Pennings, Reverend John Perez,
Rabbi Jay Heyman, Reverend Carol C. Hilton, Reverend Reverend Hannah Petrie, Reverend Jay K. Pierce,
Anne Felton Hines, Reverend Katie Hines-Shah, Reverend Ernest Pipes, Reverend Mary Elizabeth
Reverend Martha Hodges, Reverend Jackie Holland, Pratt-Horsley, Reverend Georgia Prescott, Reverend Dr.
Reverend Marcia Hootman, Reverend Laura Lisa Presley, Reverend Carolyn Price, Reverend Sherry
Horton-Ludwig, Reverend Sherri Hostetler, Reverend Prud'homme, Reverend Jane Quandt, Reverend Fred
Ricky Hoyt, Reverend Kathy Huff, Minister Victoria Rabidoux, Reverend Lindi Ramsden, Rabbi Lawrence
Ingram, Reverend Keith Inouye, Reverend Steve Raphael, Reverend George F. Regas, Reverend Dr. Mark
Islander, Reverend Alyson E. Jacks, Rabbi Steven B. Richardson, Reverend Scott Richardson, Reverend Bear
Jacobs, Berget Jelane, Reverend Bryan D. Jessup, Ride, Philip Boo Riley, Cantor Aviva Rosenbloom,
Reverend Jeff Johnson, Reverend Beth Johnson, Reverend John Robinson, Reverend Carol Rudisill,
Reverend Deborah L. Johnson, Reverend Nancy Palmer Reverend Susan Russell, Reverend Gerald Sakamoto,
Jones, Reverend Alan H. Jones, Reverend Roger Jones, Reverend David Sammons, Lee Marie Sanchez,
Reverend Julie Kain, Reverend Kathryn Kandarian, Reverend William C. Sanford, Reverend Charles
Rabbi Jim Kaufman, Reverend John M. Kauffman, Schepel, Reverend Michael Schiefelbein, Reverend Dr.
Reverend Canon Kathleen Kelly, Rabbi Paul Kipnes, Rick Schlosser, Reverend Brian Scott, Reverend Thomas
Reverend John Kirkley, Reverend Benjamin A. Schmidt, Reverend Craig Scott, Reverend Wayna
Kocs-Meyers, Rabbi Douglas Kohn, Reverend Vicky Scovell, Reverend Michael Schuenemeyer, Reverend Dr.
Kolakowski, Reverend Douglas C. B. Kraft, Reverend Steven Shepard, Dr. John M. Sherwood, Reverend Mark
Kurt Kuhwald, Joel L. Kushner, Reverend Richard Shirilau, Reverend Robert Shively, Reverend Madison
Kuykendall, Reverend Peter Laarman, Rabbi Susan Shockley II, Reverend Grace Simons, Reverend Bruce J.
Laemmle, Rabbi Howard Laibson, Reverend Darcey Simpson, Reverend Dan Smith, Reverend Linda Snyder,
Laine, Pastor Scott Landis, Rabbi Moshe Levin, Reverend Jeffrey Spencer, Reverend June
Reverend Tom Lewis, Reverend Catherine Linesch, Stanford-Clark, Reverend Dr. Betty Stapleford, Reverend
Rabbi Michael Lotker, Reverend Marguerite Lovett, Stanley Stefancic, Rabbi Ron Stern, Reverend Gregory L.
Reverend Carol Lowe, Rabbi Barry Lutz, Reverend Max Stewart, Reverend Bob Stiles, Reverend Janine Stock,
Lynn, Reverend Ken MacLean, Rabbi Tamar Malino, Dr. Reverend Arvid Straube, Reverend Dr. Archer Summers,
Anthony Manousos, Reverend Luther J. Martell, Reverend Steven Swope, Reverend Paul Tellstrom,
Reverend Elder Debbie Martin, Pastor Michael-Ray Reverend Margo Tenold, Reverend Byrd Tetzlaff,
Mathews, Reverend Russell Matteson, Rabbi Brian Reverend Neil Thomas, Reverend David Thompson,
Zachary Mayer, Reverend Gregory W. McGonigle, Reverend Mary Lynn Tobin, Mary A. Tolbert, Reverend
Reverend Joseph McGowan, Reverend Janet Gollery Tarah Trueblood, Reverend Lynn Ungar, Reverend Nada
McKeithen, Reverend Margo McKenna, Reverend Velimirovic, Reverend Jane E. Voigts, Reverend Canon
William McKinney, Reverend Susan Meeter, Rabbi Lynell Walker, Reverend Greg Ward, Rabbi Arthur
Norman Mendel, Pastor Ross D. Merkel, Reverend Eric Waskow, Reverend Theodore A. Webb, Reverend Dr.
H. Meter, Charles Metz, Reverend Judith Meyer, Petra Weldes, Reverend Vail Weller, Reverend Roger
Reverend Barbara F. Meyers, Reverend Elisabeth Wharton, Reverend Bets Wienecke, Reverend Lee
Middleberg, Reverend Beth Miller, David Miller, Williamson, Reverend Elder Nancy Wilson, Rope Wolf,
Reverend Diane Miller, Reverend Terri Miller, Reverend Reverend Ned Wright, Rabbi Bridget Wynne and
Page 9
Reverend Michael Yoshi as Amici Curiae on behalf of N.Y.3d 338 [855 N.E.2d 1, 821 N.Y.S.2d 770]; Baker v.
Plaintiffs and Respondents. State (1999) 170 Vt. 194 [744 A.2d 864]; Andersen v.
King County (2006) 158 Wn.2d 1 [138 P.3d 963];
Thomas J. Kuna-Jacob as Amicus Curiae. Standhardt v. Superior Court (Ct.App. 2003) 206 Ariz.
276 [77 P.3d 451]; Morrison v. Sadler (Ind.Ct.App.
JUDGES: Opinion by George, C. J., with Kennard, 2005) 821 N.E.2d 15.) These courts, often by a one-vote
Werdegar, and Moreno, JJ., concurring. Concurring margin (see, post, at p. 853 fn. 70), have ruled upon the
opinion by Kennard, J. Concurring and dissenting validity of statutory schemes that contrast with that of
opinion by Baxter, J., with Chin, J., concurring. California, which in recent years has enacted
Concurring and dissenting opinion by Corrigan, J. comprehensive domestic partnership legislation under
which a same-sex couple may enter into a legal
OPINION BY: George relationship that affords the couple virtually all of the
same legal benefits and privileges, and imposes upon the
OPINION couple virtually all of the same legal obligations and
duties, that California law affords to and imposes upon a
GEORGE, C. J.--In Lockyer v. City and County of
married couple. 2 Past California cases explain that the
San Francisco (2004) 33 Cal.4th 1055 [17 Cal. Rptr. 3d
constitutional validity of a challenged statute or statutes
225, 95 P.3d 459] (Lockyer), this court concluded that
must be evaluated by taking into consideration all of the
public officials of the City and County of San Francisco
relevant statutory provisions that bear upon how the state
acted unlawfully by issuing marriage licenses to
treats the affected persons with regard to the subject at
same-sex couples in the absence of a judicial
issue. (See, e.g., Brown v. Merlo (1973) 8 Cal.3d 855,
determination that the California statutes limiting
862 [106 Cal. Rptr. 388, 506 P.2d 212].) Accordingly,
marriage to a union between a man and a woman are
the legal issue we must resolve is not whether it would be
unconstitutional. Our decision in Lockyer emphasized,
constitutionally permissible under the California
however, that the substantive question of the
Constitution for the state to limit marriage only to
constitutional validity of the California marriage statutes
opposite-sex couples while denying same-sex couples
was not before this court in that proceeding, and that our
any opportunity to enter into an official relationship with
decision was not intended to reflect any view on that
all or virtually all of the same substantive attributes, but
issue. (Id. at p. 1069; see also id. at p. 1125 (conc. opn. of
rather whether our state Constitution prohibits the state
Moreno, J.); id. at pp. 1132-1133 (conc. & dis. opn. of
from establishing a statutory scheme in which both
Kennard, J.); id. at p. 1133 (conc. & dis. opn. of
opposite-sex and same-sex couples are granted the right
Werdegar, J.).) The present proceeding, involving the
to enter into an officially recognized family relationship
consolidated appeal of six cases that were litigated in the
that affords all of the significant legal rights and
superior court and the Court of Appeal in the wake of this
obligations traditionally associated under state law with
court's decision in Lockyer, squarely presents the
the institution of marriage, but under which the union of
substantive constitutional question that was not addressed
an opposite-sex couple is officially designated a
in Lockyer.
"marriage" whereas the union of a same-sex couple is
In considering this question, we note at the outset officially designated a "domestic partnership." The
that the constitutional issue before us differs in a question we must address is whether, under these
significant respect from the constitutional issue that has circumstances, the failure to designate the official
been addressed by a number of other state supreme courts relationship of same-sex couples as marriage violates the
and intermediate appellate courts that recently have had California Constitution. 3
occasion, in interpreting the applicable provisions of their
2 We note that although much of the academic
respective state constitutions, to determine the validity of
literature discussing the legal recognition of
statutory provisions or common law rules limiting
same-sex relationships frequently uses the term
marriage to a union of a man and a woman. (See, e.g.,
"domestic partnership" to describe a legal status
Conaway v. Deane (2007) 401 Md. 219 [932 A.2d 571];
that accords only comparatively few legal rights
Goodridge v. Department of Public Health (2003) 440
or obligations to same-sex couples, the current
Mass. 309 [798 N.E.2d 941]; Lewis v. Harris (2006) 188
California statutes grant same-sex couples who
N.J. 415 [908 A.2d 196]; Hernandez v. Robles (2006) 7
Page 10
choose to become domestic partners virtually all the Supreme Judicial Court of Massachusetts, by a
of the legal rights and responsibilities accorded closely divided (four-to-three) vote, declared that
married couples under California law. (The few the proposed legislation would violate the equal
relatively minor differences that remain are protection and due process clauses of the
described below (post, at pp. 805-806, fn. 24).) In Massachusetts Constitution. (802 N.E.2d at pp.
light of the comprehensive nature of the rights 569-572.)
afforded by California's domestic partnership
legislation, the status of such partnership in A similar issue also is currently pending
California is comparable to the status designated before the Connecticut Supreme Court in
as a "civil union" in statutes enacted in recent Kerrigan v. Commissioner of Public Health (No.
years in Connecticut, New Hampshire, New SC17716, argued May 14, 2007). In Kerrigan, the
Jersey, and Vermont. (See, e.g., Conn. Gen. Stat., court is expected to determine whether a
§ 46b--38nn (2006); N.H. Rev. Stat. Ann., § Connecticut statute that limits marriage to
457-A (2007); N.J. Stat. Ann., § 37:1-29 (2006); opposite-sex couples is unconstitutional under the
Vt. Stat. Ann., tit. 15, § 1201 (1999).) We note Connecticut Constitution, notwithstanding the
that recently Oregon also enacted domestic existence of a recently enacted Connecticut statute
partnership legislation under which same-sex that permits same-sex couples to enter into a civil
couples may obtain rights comparable to those union a status that, under the applicable
conferred upon married couples (2007 Or. Laws, legislation, affords same-sex couples the same
ch. 99). The District of Columbia, Hawaii, Maine, legal benefits and obligations possessed by
and Washington have adopted domestic married couples under Connecticut law.
partnership or reciprocal beneficiaries legislation
It also is important to understand at the outset that
that affords same-sex couples the opportunity to
our task in this proceeding is not to decide whether we
obtain some of the benefits available to married
believe, as a matter of policy, that the officially
opposite-sex couples. (See 2006 D.C. Law 16-79
recognized relationship of a same-sex couple should be
(Act 16-265) [Domestic Partnership Equality
designated a marriage rather than a domestic partnership
Amendment Act of 2006]; Haw. Rev. Stat., §
(or some other term), but instead only to determine
572C-2; 2004 Me. Legis. Serv., ch. 672 (H.P.
whether the difference in the official names of the
1152; L.D. 1579) [financial security of families
relationships violates the California Constitution. We are
and children]; 2001 Me. Legis. Serv., ch. 347
aware, of course, that very strongly held differences of
(H.P. 1256; L.D. 1703) [access to health
opinion exist on the matter of policy, with those persons
insurance]; Wash. Rev. Code, ch. 26.60.)
who support the inclusion of same-sex unions within the
3 The only out-of-state high court decision to
definition of marriage maintaining that it is unfair to
address a comparable issue is the decision in
same-sex couples and potentially detrimental to the fiscal
Opinions of the Justices to the Senate (2004) 440
Mass. 1201 [802 N.E.2d 565]. In that proceeding, interests of the state and its economic institutions to
reserve the designation of marriage solely for
brought under a provision of the Massachusetts
opposite-sex couples, and others asserting that it is vitally
Constitution that permits a branch of the state
important to preserve the long-standing and traditional
legislature to seek an advisory opinion on an
definition of marriage as a union between a man and a
important question of law, the Massachusetts
woman, even as the state extends comparable rights and
Senate asked that state's high court to render an
responsibilities to committed same-sex couples.
opinion as to the constitutionality of a then
Whatever our views as individuals with regard to this
pending bill, introduced in response to the court's
question as a matter of policy, we recognize as judges
earlier decision in Goodridge v. Department of
and as a court our responsibility to limit our consideration
Public Health, supra, 798 N.E.2d 941, that
of the question to a determination of the constitutional
proposed to establish the institution of "civil
validity of the current legislative provisions.
union" under which "spouses in a civil union"
would have all of the rights and responsibilities As explained hereafter, the determination whether
afforded by that state's marriage laws. In its the current California statutory scheme relating to
decision in Opinions of the Justices to the Senate,
Page 11
marriage and to registered domestic partnership is individual has chosen to share his or her life--an officially
constitutionally valid implicates a number of distinct and recognized and protected family possessing mutual rights
significant issues under the California Constitution. and responsibilities and entitled to the same respect and
dignity accorded a union traditionally designated as
First, we must determine the nature and scope of the marriage. As past cases establish, the substantive right of
"right to marry"--a right that past cases establish as one of two adults who share a loving relationship to join
the fundamental constitutional rights embodied in the together to establish an officially recognized family of
California Constitution. Although, as a historical matter, their own--and, if the couple chooses, to raise children
civil marriage and the rights associated with it within that family--constitutes a vitally important
traditionally have been afforded only to opposite-sex attribute of the fundamental interest in liberty and
couples, this court's landmark decision 60 years ago in personal autonomy that the California Constitution
Perez v. Sharp (1948) 32 Cal.2d 711 [198 P.2d 17] secures to all persons for the benefit of both the
4 --which found that California's statutory provisions
individual and society.
prohibiting interracial marriages were inconsistent with
the fundamental constitutional right to marry, Furthermore, in contrast to earlier times, our state
notwithstanding the circumstance that statutory now recognizes that an individual's capacity to establish a
prohibitions on interracial marriage had existed since the loving and long-term committed relationship with
founding of the state--makes clear that history alone is another person and responsibly to care for and raise
not invariably an appropriate guide for determining the children does not depend upon the individual's sexual
meaning and scope of this fundamental constitutional orientation, and, more generally, that an individual's
guarantee. The decision in Perez, although rendered by a sexual orientation--like a person's race or gender--does
deeply divided court, is a judicial opinion whose not constitute a legitimate basis upon which to deny or
legitimacy and constitutional soundness are by now withhold legal rights. We therefore conclude that in view
universally recognized. of the substance and significance of the fundamental
constitutional right to form a family relationship, the
4 To avoid possible confusion, we note that the California Constitution properly must be interpreted to
decision in Perez v. Sharp was reported in the guarantee this basic civil right to all Californians,
unofficial regional reporter as Perez v. Lippold whether gay or heterosexual, and to same-sex couples as
(1948) 198 P.2d 17, and judicial decisions in well as to opposite-sex couples. 5
other states sometimes have referred to the
decision by that title. We shall refer to the 5 For convenience and economy of language, in
decision under its correct official title of Perez v. this opinion we shall use the term "gay," with
Sharp. reference to an individual, to relate either to a
lesbian or to a gay man, and the term "gay
As discussed below, upon review of the numerous couple" to refer to a couple consisting of either
California decisions that have examined the underlying two women or two men.
bases and significance of the constitutional right to marry
(and that illuminate why this right has been recognized as In defending the constitutionality of the current
one of the basic, inalienable civil rights guaranteed to an statutory scheme, the Attorney General of California
individual by the California Constitution), we conclude maintains that even if the constitutional right to marry
that, under this state's Constitution, the constitutionally under the California Constitution applies to same-sex
based right to marry properly must be understood to couples as well as to opposite-sex couples, this right
encompass the core set of basic substantive legal rights should not be understood as requiring the Legislature to
and attributes traditionally associated with marriage that designate a couple's official family relationship by the
are so integral to an individual's liberty and personal term "marriage," as opposed to some other nomenclature.
autonomy that they may not be eliminated or abrogated The Attorney General, observing that fundamental
by the Legislature or by the electorate through the constitutional rights generally are defined by substance
statutory initiative process. These core substantive rights rather than by form, reasons that so long as the state
include, most fundamentally, the opportunity of an affords a couple all of the constitutionally protected
individual to establish--with the person with whom the substantive incidents of marriage, the state does not
Page 12
violate the couple's constitutional right to marry simply only under the state constitutional right to marry, but also
by assigning their official relationship a name other than under the state constitutional equal protection clause. In
"marriage." Because the Attorney General maintains that analyzing the validity of this differential treatment under
California's current domestic partnership legislation the latter clause, we first must determine which standard
affords same-sex couples all of the core substantive rights of review should be applied to the statutory classification
that plausibly may be guaranteed to an individual or here at issue. Although in most instances the deferential
couple as elements of the fundamental state constitutional "rational basis" standard of review is applicable in
right to marry, the Attorney General concludes that the determining whether different treatment accorded by a
current California statutory scheme relating to marriage statutory provision violates the state equal protection
and domestic partnership does not violate the clause, a more exacting and rigorous standard of
fundamental constitutional right to marry embodied in the review--"strict scrutiny"--is applied when the distinction
California Constitution. drawn by a statute rests upon a so-called "suspect
classification" or impinges upon a fundamental right. As
We need not decide in this case whether the name we shall explain, although we do not agree with the claim
"marriage" is invariably a core element of the state advanced by the parties challenging the validity of the
constitutional right to marry so that the state would current statutory scheme 6 that the applicable statutes
violate a couple's constitutional right even if--perhaps in properly should be viewed as an instance of
order to emphasize and clarify that this civil institution is discrimination on the basis of the suspect characteristic of
distinct from the religious institution of marriage--the sex or gender and should be subjected to strict scrutiny on
state were to assign a name other than marriage as the that ground, we conclude that strict scrutiny nonetheless
official designation of the formal family relationship for is applicable here because (1) the statutes in question
all couples. Under the current statutes, the state has not properly must be understood as classifying or
revised the name of the official family relationship for all discriminating on the basis of sexual orientation, a
couples, but rather has drawn a distinction between the characteristic that we conclude represents--like gender,
name for the official family relationship of opposite-sex race, and religion--a constitutionally suspect basis upon
couples (marriage) and that for same-sex couples which to impose differential treatment, and (2) the
(domestic partnership). One of the core elements of the differential treatment at issue impinges upon a same-sex
right to establish an officially recognized family that is couple's fundamental interest in having their family
embodied in the California constitutional right to marry is relationship accorded the same respect and dignity
a couple's right to have their family relationship accorded enjoyed by an opposite-sex couple.
dignity and respect equal to that accorded other officially
recognized families, and assigning a different designation 6 As noted below (post, at pp. 785-786), four of
for the family relationship of same-sex couples while the six actions in this coordination proceeding
reserving the historic designation of "marriage" were filed by parties (the City and County of San
exclusively for opposite-sex couples poses at least a Francisco and same-sex couples, and
serious risk of denying the family relationship of organizations supporting these parties) who
same-sex couples such equal dignity and respect. We challenge the constitutional validity of the current
therefore conclude that although the provisions of the California marriage statutes, and two of the
current domestic partnership legislation afford same-sex actions were filed by parties (the Proposition 22
couples most of the substantive elements embodied in the Legal Defense and Education Fund (hereafter
constitutional right to marry, the current California Fund or Proposition 22 Legal Defense Fund) and
statutes nonetheless must be viewed as potentially the Campaign for California Families
impinging upon a same-sex couple's constitutional right (Campaign)) who maintain that the current
to marry under the California Constitution. statutes are constitutional. For convenience and
ease of reference, in this opinion we shall refer
Furthermore, the circumstance that the current collectively to the parties who are challenging the
California statutes assign a different name for the official constitutionality of the marriage statutes as
family relationship of same-sex couples as contrasted plaintiffs. Because the various parties defending
with the name for the official family relationship of the marriage statutes (the state, represented by the
opposite-sex couples raises constitutional concerns not Attorney General, the Governor, the Fund, and the
Page 13
Campaign) have advanced differing legal view that their committed relationships are of lesser
arguments in support of the statutes, this opinion stature than the comparable relationships of opposite-sex
generally will refer to such parties individually. In couples. Finally, retaining the designation of marriage
those instances in which the opinion refers to the exclusively for opposite-sex couples and providing only a
parties defending the marriage statutes separate and distinct designation for same-sex couples
collectively, those parties will be referred to as may well have the effect of perpetuating a more general
defendants. premise--now emphatically rejected by this state--that
gay individuals and same-sex couples are in some
Under the strict scrutiny standard, unlike the rational respects "second-class citizens" who may, under the law,
basis standard, in order to demonstrate the constitutional be treated differently from, and less favorably than,
validity of a challenged statutory classification the state heterosexual individuals or opposite-sex couples. Under
must establish (1) that the state interest intended to be these circumstances, we cannot find that retention of the
served by the differential treatment not only is a traditional definition of marriage constitutes a compelling
constitutionally legitimate interest, but is a compelling state interest. Accordingly, we conclude that to the extent
state interest, and (2) that the differential treatment not the current California statutory provisions limit marriage
only is reasonably related to but is necessary to serve that to opposite-sex couples, these statutes are
compelling state interest. Applying this standard to the unconstitutional.
statutory classification here at issue, we conclude that the
purpose underlying differential treatment of opposite-sex I
and same-sex couples embodied in California's current
marriage statutes--the interest in retaining the traditional On February 10, 2004, the Mayor of the City and
and well-established definition of marriage--cannot County of San Francisco (City) sent a letter to the county
properly be viewed as a compelling state interest for clerk, directing that official to determine what changes
purposes of the equal protection clause, or as necessary should be made to the forms and documents used to apply
to serve such an interest. for and issue marriage licenses, so that licenses could be
provided to couples without regard to their gender or
A number of factors lead us to this conclusion. First, sexual orientation. In response, the county clerk designed
the exclusion of same-sex couples from the designation revised forms for the marriage license application and for
of marriage clearly is not necessary in order to afford full the license and certificate of marriage, and on February
protection to all of the rights and benefits that currently 12, 2004, the City began issuing marriage licenses to
are enjoyed by married opposite-sex couples; permitting same-sex couples.
same-sex couples access to the designation of marriage
will not deprive opposite-sex couples of any rights and The following day, two separate actions were filed in
will not alter the legal framework of the institution of San Francisco Superior Court seeking an immediate stay
marriage, because same-sex couples who choose to marry as well as writ relief, to prohibit the City's issuance of
will be subject to the same obligations and duties that marriage licenses to same-sex couples. (Proposition 22
currently are imposed on married opposite-sex couples. Legal Defense and Education Fund v. City and County
Second, retaining the traditional definition of marriage of San Francisco (Super. Ct. S.F. City & County, No.
and affording same-sex couples only a separate and CPF-04-503943) (hereafter Proposition 22 Legal Defense
differently named family relationship will, as a realistic Fund); Thomasson v. Newsom (Super. Ct. S.F. City &
matter, impose appreciable harm on same-sex couples County, No. CGC-04-428794) (subsequently retitled as
and their children, because denying such couples access Campaign for California Families v. Newsom, and
to the familiar and highly favored designation of marriage hereafter referred to as Campaign).) As noted, the
is likely to cast doubt on whether the official family Proposition 22 Legal Defense Fund and the Campaign
relationship of same-sex couples enjoys dignity equal to actions are two of the six cases whose consolidated
that of opposite-sex couples. Third, because of the appeals are before us in the present proceeding. (Ante, at
widespread disparagement that gay individuals p. 757, fn. 1.)
historically have faced, it is all the more probable that
After the superior court declined to grant an
excluding same-sex couples from the legal institution of
immediate stay in the Proposition 22 Legal Defense Fund
marriage is likely to be viewed as reflecting an official
and the Campaign actions and the City continued to issue
Page 14
marriage licenses to, and solemnize and register embody a diverse group of individuals who range from
marriages of, numerous same-sex couples, the California 30 years of age to more than 80 years of age, who come
Attorney General and a number of taxpayers filed two from various racial and ethnic backgrounds, and who are
separate petitions seeking to have this court issue an employed in (or have retired from) a wide variety of
original writ of mandate, asserting that the City's actions occupations, including pharmacist, military serviceman,
were unlawful and warranted our immediate intervention. teacher, hospital administrator, and transportation
(Lockyer v. City and County of San Francisco, S122923; manager. Many of the couples have been together for
Lewis v. Alfaro, S122865.) On March 11, 2004, we well over a decade and one couple, Phyllis Lyon and Del
issued an order to show cause in those original writ Martin, who are in their 80's, have resided together as a
proceedings, and, pending our determination of both couple for more than 50 years. Many of the couples are
matters, directed City officials to enforce the existing raising children together.
marriage statutes and to refrain from issuing marriage
licenses not authorized by such provisions. In addition, Subsequently, the CCSF, Woo, and Tyler actions,
our March 11 order stayed all proceedings in the two along with the previously filed Proposition 22 Legal
cases then pending in San Francisco Superior Court (the Defense Fund and Campaign actions, were coordinated,
Proposition 22 Legal Defense Fund and the Campaign by order of a judge appointed by the Chair of the Judicial
actions), but at the same time indicated that the stay did Council, into a single proceeding entitled In re Marriage
not preclude the filing of a separate action in superior Cases (JCCP No. 4365; hereafter referred to as the
court raising a direct challenge to the constitutionality of Marriage Cases). (Code Civ. Proc., § 404 et seq.) That
California's current marriage statutes. (Lockyer, supra, 33 coordination proceeding was assigned to San Francisco
Cal.4th 1055, 1073-1074.) Superior Court Judge Richard A. Kramer. A sixth action
(Clinton v. State of California (Super. Ct. S.F. City &
Shortly after our March 11, 2004, order was issued, County, No. CGC-04-429548) (Clinton)), filed by a
and while the consolidated Lockyer cases still were separate group of same-sex couples who similarly
pending in this court, the City filed a writ petition and challenged the constitutionality of the current marriage
complaint for declaratory relief in superior court, seeking statutes, later was added to the Marriage Cases
a declaration that (1) Family Code section 308.5--an coordination proceeding.
initiative statute proposed by Proposition 22 and enacted
by the voters--does not apply to marriages solemnized in On August 12, 2004, while the Marriage Cases
the State of California, and that (2) in any event, all coordination proceeding was pending in the superior
California statutory provisions limiting marriage to court, our court rendered its decision in Lockyer, supra,
unions between a man and a woman violate the 33 Cal.4th 1055, concluding that the City officials had
California Constitution. (City and County of San exceeded their authority in issuing marriage licenses to
Francisco v. State of California (Super. Ct. S.F. City & same-sex couples in the absence of a judicial
County, No. CGC-04-429539 (CCSF).) Thereafter, two determination that the statutory provisions limiting
similar actions challenging the constitutionality of marriage to the union of a man and a woman are
California's current marriage statutes were filed by a unconstitutional, and further concluding that the
number of same-sex couples who maintain either that approximately 4,000 same-sex marriages performed in
they are involved in committed relationships but are not San Francisco prior to our March 11, 2004, order were
permitted to marry in California, or that their out-of-state void and of no legal effect. In light of these conclusions,
marriages are not recognized under California law. we issued a writ of mandate compelling the City officials
Several statewide organizations representing many to comply with the requirements and limitations of the
thousands of same-sex couples joined as plaintiffs in current marriage statutes in performing their duties under
these actions. (Woo v. Lockyer (Super. Ct. S.F. City & these statutes, and directing the officials to notify all
County, No. CPF-04-504038) (Woo); Tyler v. County of same-sex couples to whom the officials had issued
Los Angeles (Super. Ct. L.A. County, No. BS-088506) marriage licenses or registered marriage certificates that
(Tyler).) these same-sex marriages were void from their inception
and a legal nullity. (Lockyer, supra, 33 Cal.4th at p.
According to declarations filed in the trial court, the 1120.) Although we concluded in Lockyer that the City
named same-sex couples who are parties to these actions officials had acted unlawfully and that the same-sex
Page 15
marriages they had authorized were void, as already of significant respects with the lower court's analysis of
noted our opinion made clear that the substantive the equal protection issue. (Maj. opn. of McGuiness, P. J.,
question of the constitutionality of California's statutory joined by Parrilli, J.) First, the majority opinion in the
provisions limiting marriage to a man and a woman was Court of Appeal concluded the superior court erred in
not before us in the Lockyer proceeding and that we were finding that the statutory provisions at issue impinge
expressing no opinion on this issue. (Id. at p. 1069; see upon the fundamental constitutional right to marry,
also id. at p. 1125 (conc. opn. of Moreno, J.); id. at pp. determining that this right properly should be interpreted
1132-1133 (conc. & dis. opn. of Kennard, J.); id. at p. to encompass only the right to marry a person of the
1133 (conc. & dis. opn. of Werdegar, J.).) opposite sex and that the constitutional right that
plaintiffs actually sought to enforce is a right to same-sex
After the issuance of our decision in Lockyer, supra, marriage--a right that the Court of Appeal majority found
33 Cal.4th 1055, the superior court in the coordination lacking in any historical or precedential support. Second,
matter proceeded expeditiously to solicit briefing and the Court of Appeal majority rejected the superior court's
conduct a hearing on the validity, under the California conclusion that the California marriage statutes
Constitution, of California's statutes limiting marriage to discriminate on the suspect basis of sex and for this
a man and a woman. On April 13, 2005, the superior reason are subject to strict scrutiny review, relying upon
court issued its decision on this substantive constitutional the circumstance that the statutes do not discriminate
question. Although plaintiffs argued that the statutes against either men or women or treat either of the genders
limiting marriage to a union of a man and a woman differently from the other, but rather permit members of
violated a number of provisions of the California either gender to marry only a person of the opposite
Constitution--including the fundamental right to marry gender. Third, although the Court of Appeal majority
protected by the due process and privacy provisions of found that California's marriage statutes realistically must
the California Constitution and the equal protection be viewed as providing differential treatment on the basis
clause of that Constitution--the superior court confined of sexual orientation, the majority went on to hold that
its decision to the challenge that was based upon the sexual orientation does not constitute a suspect
equal protection clause. In analyzing the equal protection classification for purposes of the state equal protection
claim, the superior court determined that the statutes clause. The majority thus concluded that, contrary to the
limiting marriage in California to opposite-sex couples superior court's determination, the marriage statutes are
properly must be evaluated under the strict scrutiny equal not subject to strict scrutiny review but rather must be
protection standard, because those statutory enactments evaluated only under the deferential rational basis
rest upon a suspect classification (sex) and impinge upon standard. Finally, applying that standard, the majority
a fundamental constitutional right (the right to marry). disagreed with the superior court and found that the
The court considered the various state interests and marriage statutes' limitation of marriage to opposite-sex
justifications proffered in support of those enactments, couples survives rational basis review, reasoning that the
ultimately concluding that the statutory limitation of state has a legitimate interest in preserving the traditional
marriage to the union of a man and a woman not only definition of marriage and that the statute's classifications
does not satisfy the strict scrutiny standard, but also does are rationally related to that interest. Accordingly, the
not meet the more deferential rational basis test because, Court of Appeal majority concluded that the superior
in the superior court's view, the differential treatment court erred in finding the marriage statutes
mandated by the statute does not further any legitimate unconstitutional.
state interest. In light of this conclusion, the court held
that California's current marriage statutes are One of the appellate justices who joined the majority
unconstitutional under the state Constitution insofar as opinion also wrote a concurring opinion, addressing what
they limit marriage to opposite-sex couples. The superior her opinion described as "more philosophical questions
court entered judgment in favor of plaintiffs in each of presented by the challenging legal issues before us."
the coordinated cases. (Conc. opn. of Parrilli, J.) The concurring justice
observed that in her view, the domestic partnership
On appeal, the Court of Appeal, in a two-to-one legislation "seems to recognize that at this stage, we do
decision, reversed the superior court's ruling on the not know whether the state must name and privilege
substantive constitutional issue, disagreeing in a number same-sex unions in exactly the same way traditional
Page 16
marriages are supported. The nuance at this moment in Lockyer, supra, 33 Cal.4th 1055, these actions no longer
history is that the institution (marriage) and emerging presented justiciable controversies, because this court's
institution (same-sex partnerships) are distinct and, we decision in Lockyer effectively granted all of the relief to
hope, equal. We hope they are equal because of the great which the parties in those actions were entitled (including
consequences attached to each. Childrearing and passing the prohibition of any continued illegal expenditure of
on culture and traditions are potential consequences of public funds). Accordingly, the Court of Appeal
each. To the degree that any committed relationship determined that the superior court erred in failing, at that
provides love and security, encourages fidelity, and juncture, to dismiss these two actions as moot. Although
creates a supportive environment for children it is entitled the Fund and the Campaign take issue with the Court of
to respect. Whether it must be called the same, or Appeal's conclusion on this point, we agree with that
supported by the state as equal to the traditional model, determination.
only time and patient attention to the models at issue will
tell." Agreeing with the majority opinion, the concurring In challenging this aspect of the Court of Appeal's
justice concluded that "[i]t is the legitimate business of ruling, the Fund maintains that notwithstanding this
the Legislature to attempt to close the distance between court's decision in Lockyer, the superior court properly
the parallel institutions (marriage and same-sex could find that, because there is a continuing dispute
committed domestic partnerships) as they develop, and to between the Fund and the City over the scope and
address such concerns." constitutionality of Family Code section 308.5 (the
initiative statute adopted by the voters' approval of
The third appellate court justice dissented from the Proposition 22 in March 2000), the Proposition 22 Legal
majority's determination that the marriage statutes do not Defense Fund action constitutes a permissible vehicle by
violate the California Constitution. (Conc. & dis. opn. of which under Code of Civil Procedure section 1060 the
Kline, J.) The dissenting justice (1) disagreed with the Fund can seek and obtain a declaratory judgment against
majority's conclusion that the same-sex couples the City with regard to that legal question. 7 Past
challenging the marriage statutes are seeking recognition California decisions establish, however, that
of a novel constitutional right to "same-sex marriage" notwithstanding an advocacy group's strong political or
rather than simply the application of an established ideological support of a statute or ordinance--and its
fundamental constitutional right to marry a person of disagreement with those who question or challenge the
one's choice, (2) explained why, in his view, sexual validity of the legislation--such a disagreement does not
orientation should be considered a suspect classification in itself afford the group the right to intervene formally in
for purposes of equal protection principles, and (3) finally an action challenging the validity of the measure. (See,
concluded that the challenged statutory restriction e.g., Socialist Workers etc. Committee v. Brown (1975)
limiting marriage to opposite-sex couples "has no rational 53 Cal. App. 3d 879, 891-892 [125 Cal. Rptr. 915]
basis, let alone a compelling justification." [holding trial court did not err in rejecting Common
Cause's request to intervene in action challenging statutes
In light of the importance of the substantive requiring disclosure of campaign contributions]; People
constitutional issues presented, we granted review. ex rel. Rominger v. County of Trinity (1983) 147 Cal.
App. 3d 655, 662 [195 Cal. Rptr. 186] [rejecting Sierra
II Club's claim that its strong interest in the enforcement of
county's environmental laws was itself sufficient to
Before beginning our discussion of the significant
afford it standing to intervene in action challenging the
constitutional issues presented by this case, we briefly
validity of an ordinance prohibiting the spraying of a
address a much more limited procedural point relating
specified chemical].) For similar reasons, we agree with
only to the Proposition 22 Legal Defense Fund and the
the Court of Appeal that, absent a showing by the Fund
Campaign proceedings--the two actions that were filed
that it possesses a direct legal interest that will be injured
immediately after San Francisco officials began issuing
or adversely affected (which the Fund acknowledges has
marriage licenses to same-sex couples and that were
not been established here), 8 the Fund's strong ideological
stayed by our court during the pendency of the Lockyer
disagreement with the City's views regarding the scope or
proceeding. The Court of Appeal concluded that although
constitutionality of Proposition 22 is not sufficient to
these two cases presented justiciable actions when they
afford standing to the Fund to maintain a lawsuit to
were initially filed, once this court issued its decision in
Page 17
obtain a declaratory judgment regarding these legal notwithstanding this court's opinion in Lockyer, properly
issues. (See, e.g., Newland v. Kizer (1989) 209 Cal. App. could view that decision as providing only interim
3d 647, 657 [257 Cal. Rptr. 450]; Zetterberg v. State mandamus relief against the City, leaving the question
Dept. of Public Health (1974) 43 Cal. App. 3d 657, whether the City should be permanently enjoined from
662-663 [118 Cal. Rptr. 100].) In this respect, the Fund granting marriage licenses to same-sex couples for
is in a position no different from that of any other resolution in the Proposition 22 Legal Defense Fund and
member of the public having a strong ideological or the Campaign actions. Our decision in Lockyer, however,
philosophical disagreement with a legal position does not support such an interpretation. We did not
advanced by a public entity that, through judicial purport to afford only interim relief, but rather granted to
compulsion or otherwise, continues to comply with a the petitioners before us the same full and final
contested measure. 9 mandamus relief to which the Fund and the Campaign
would have been entitled in the mandamus actions filed
7 Code of Civil Procedure section 1060 provides in superior court against City officials by each of those
in relevant part that "[a]ny person ... may, in cases parties. (Lockyer, supra, 33 Cal.4th at p. 1120.) Although
of actual controversy relating to the legal rights our decision recognized that the constitutionality of the
and duties of the respective parties, bring an marriage statutes remained open for judicial resolution in
original action ... for a declaration of his or her the future, we clearly indicated that the relief ordered
rights and duties in the premises ... ." (Italics constituted a final resolution of the mandamus action
added.) rather than simply an interim order. (Id. at p. 1112.)
8 At an earlier stage of the action filed by the Thus, the decision of the superior court cannot be
City (the CCSF action)--before the coordination supported on the basis of the interim-remedy theory
proceeding was established--the Fund filed a advanced by the Campaign.
motion seeking to intervene formally in the CCSF
action, but the trial court denied the motion. The Accordingly, on this initial procedural point, we
Fund appealed from that ruling, but the Court of agree with the Court of Appeal's conclusion that once this
Appeal affirmed the trial court, holding that the court's decision in Lockyer granted the mandamus relief
Fund and its members "do not ... have a sought by the Fund and the Campaign in their previously
sufficiently direct and immediate interest to filed lawsuits against the City and its officials, the
support intervention." (City and County of San superior court should have dismissed those actions as
Francisco v. State of California (2005) 128 moot. 10
Cal.App.4th 1030, 1038 [27 Cal. Rptr. 3d 722].)
9 The amicus curiae brief filed in this court by 10 This conclusion, of course, does not mean
the Pacific Justice Institute questions the right of that the superior court should have denied these
the City to maintain a declaratory judgment action organizations the opportunity to participate in the
challenging the validity of the state's marriage coordination proceeding as amici curiae.
statutes. That issue, however, was not raised in Although, as noted above (ante, at p. 790, fn. 8),
either the trial court or the Court of Appeal, and the Fund was denied the right to intervene
its resolution would not affect the validity of this formally in the CCSF action that thereafter
proceeding or the substantive issue before us, became part of this coordination proceeding (see
because the numerous same-sex couples who have City and County of San Francisco v. State of
been parties to this coordination action from its California, supra, 128 Cal.App.4th 1030), the
inception unquestionably are authorized to bring Court of Appeal's decision in that matter made
and maintain the present challenge to the marriage clear that the Fund preserved its ability to present
statutes. We therefore do not consider it necessary its views through amicus curiae status (id. at p.
or advisable for us to address, at the present 1044). Moreover, the superior court, in exercising
juncture, this issue raised by amicus curiae for the its traditional broad discretion over the conduct of
first time in these proceedings. pending litigation, retained the authority to
determine the manner and extent of these entities'
The Campaign argues alternatively that the superior participation as amici curiae that would be of
court, in permitting these two actions to go forward most assistance to the court. As we observed in
Page 18
Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, age of twenty-one years, or female under the age of
405, footnote 14 [11 Cal. Rptr. 2d 51, 834 P.2d eighteen years, without the consent of the parent or
745]: "Amicus curiae presentations assist the guardian ... ."])
court by broadening its perspective on the issues
raised by the parties. Among other services, they 11 From the state's inception, California law has
facilitate informed judicial consideration of a treated the legal institution of civil marriage as
wide variety of information and points of view distinct from religious marriage. Article XI,
that may bear on important legal questions." section 12 of the California Constitution of 1849
provided in this regard: "No contract of marriage,
In this regard we note that in the present if otherwise duly made, shall be invalidated for
proceeding, this court has received 45 extensively want of conformity to the requirements of any
researched and well-written amicus curiae briefs, religious sect." This provision is now set forth, in
some of which have been filed on behalf of many identical language, in Family Code section 420,
of California's largest cities, numerous members subdivision (c).
of the state Legislature, and scores of 12 Article XI, section 14 of the 1849
organizations, including a variety of commercial, Constitution provided in full: "All property, both
religious, and mental health groups, bar real and personal, of the wife, owned or claimed
associations, and law professors. The religious by marriage, and that acquired afterwards by gift,
groups, like some of the others, are divided in devise, or descent, shall be her separate property;
their support of the respective parties in this and laws shall be passed more clearly defining the
proceeding. The court has benefited from the rights of the wife, in relation as well to her
considerable assistance provided by these amicus separate property, as to that held in common with
curiae briefs in analyzing the significant issues her husband. Laws shall also be passed providing
presented by this case. for the registration of the wife's separate
property."
III
California's current marriage statutes derive in part
We now turn to the significant substantive from this state's Civil Code, enacted in 1872, which was
constitutional issues before us. We begin by examining based in large part upon Field's New York Draft Civil
the relevant California statutory provisions relating to Code. As adopted in 1872, former section 55 of the Civil
marriage and domestic partnership that lie at the heart of Code provided that marriage is "a personal relation
this controversy. arising out of a civil contract, to which the consent of the
parties capable of making it is necessary," 13 and former
A section 56 of that code, in turn, provided that "[a]ny
unmarried male of the age of eighteen years or upwards,
From the beginning of California statehood, the legal
institution of civil marriage 11 has been understood to and any unmarried female of the age of fifteen years or
upwards, and not otherwise disqualified, are capable of
refer to a relationship between a man and a woman.
consenting to and consummating marriage." Although
Article XI, section 14 of the California Constitution of
these statutory provisions did not expressly state that
1849--California's first Constitution--provided explicit
marriage could be entered into only by a man and a
constitutional protection for a "wife's separate property"
woman, the statutes clearly were intended to have that
(italics added), 12 and the marriage statute adopted by the
meaning and were so understood. (See Code Commrs.
California Legislature during its first session clearly
note foll. 1 Ann. Civ. Code, § 55 (1st ed. 1872, Haymond
assumed that the marriage relationship necessarily
& Burch, Commrs.-annotators) p. 28.) Thus, this court's
involved persons of the opposite sex. (See Stats. 1850,
decisions of that era declared that the marriage
ch. 140, § 2, p. 424 [listing, as marriages that would be
relationship "is one 'by which a man and woman
considered "incestuous, and absolutely void," marriages
reciprocally engage to live with each other during their
"between brothers and sisters of the one half as well as
joint lives, and to discharge toward each other the duties
the whole blood" and "between uncles and nieces, [or]
imposed by law on the relation of husband and wife'"
aunts and nephews"]; id., § 7, p. 424 ["No Judge ... , or
(Mott v. Mott (1890) 82 Cal. 413, 416 [22 P. 1140]), and
other person, shall join in marriage any male under the
Page 19
that the marriage contract is one "'by which a man and In 1971, following the adoption of the 26th
woman capable of entering into such a contract mutually Amendment to the federal Constitution, which lowered
engage with each other to live their whole lives together the voting age in federal elections to 18 years of age, our
in the state of union which ought to exist between a state Legislature passed a bill lowering most statutory
husband and his wife.'" (Kilburn v. Kilburn (1891) 89 minimum ages in California law to that age. (Stats. 1971,
Cal. 46, 50 [26 P. 636].) ch. 1748, § 1, p. 3736 ["Except for [limited, specified
exceptions], whenever, in any provision of law, the term
13 As enacted in 1872, former section 55 of the '21 years of age' or any similar phrase regarding such age
Civil Code further provided: "Consent alone will appears, it shall be deemed to mean '18 years of age.' "].)
not constitute marriage; it must be followed by As part of this legislation, the provisions of Civil Code
solemnization, or by a mutual assumption of former section 4101, subdivision (a), which previously
marital rights, duties, or obligations." (Italics had set the age of consent for marriage for men at 21
added.) In 1895, that statute was amended to years of age and for women at 18 years of age, were
delete the italicized language and to add modified to provide a uniform age of consent of 18 years
"authorized by this code," so that the concluding of age for both genders. In revising the language of
clause of the statute read: "[consent] must be section 4101 to equalize the minimum age for men and
followed by a solemnization authorized by this women, the 1971 legislation eliminated references to
code." (Stats. 1895, ch. 129, § 1, p. 121.) In "male" and "female," so that section 4101, subdivision
Norman v. Thomson (1898) 121 Cal. 620, (a), as amended in 1971, stated simply that "[a]ny
627-629 [54 P. 143], this court concluded that unmarried person of the age of 18 years or upwards, and
this statutory change operated to abolish common not otherwise disqualified, is capable of consenting to
law marriage in California and to require, for a and consummating marriage." (Stats. 1971, ch. 1748, §
valid marriage, that solemnization be performed 26, p. 3747.) There is no indication in the legislative
as authorized by the applicable California statutes. history of the 1971 enactment, however, that the change
(See, e.g., Elden v. Sheldon (1988) 46 Cal.3d 267, in section 4101 was intended to authorize marriage of
275 [250 Cal. Rptr. 254, 758 P.2d 582].) two persons of the same sex, and numerous other
marriage statutes, reflecting the long-standing
Although the California statutes governing marriage understanding that marriage under California law refers
and family relations have undergone very significant to a union between a man and a woman, remained
changes in a host of areas since the late 19th century, the unchanged. (See, e.g., Civ. Code, former § 4213 (now
statutory designation of marriage as a relationship Fam. Code, § 500) [when unmarried persons, not minors,
between a man and a woman has remained unchanged. have been living together "as man and wife," they may,
without a license, be married by any clergymember];
In 1969, the Legislature adopted the Family Law Act
Civ. Code, former § 4400 (now Fam. Code, § 2200)
(Stats. 1969, ch. 1608, § 8, pp. 3314-3344) which, among
["Marriages between ... brothers and sisters ... and
other matters, substantially revised the statutory
between uncles and nieces or aunts and nephews, are
provisions governing the dissolution of marriage, but
incestuous, and void from the beginning ..."]; Civ. Code,
retained and recodified former sections 55 and 56 of the
former § 4425 (now Fam. Code, § 2210) [a marriage is
Civil Code as Civil Code former sections 4100 and 4101.
voidable if "[e]ither party was of unsound mind, unless
14
such party, after coming to reason, freely cohabited with
14 In 1921, the age limits set forth in former the other as husband and wife"].)
section 56 of the Civil Code (18 years of age for
In the mid-1970's, several same-sex couples sought
males, 15 years of age for females) were revised
marriage licenses from county clerks in a number of
upward to authorize marriage by any unmarried
California counties, relying in part upon the 1971 change
male 21 years or older and any unmarried female
in the language of Civil Code former section 4101,
18 years or older (Stats. 1921, ch. 233, § 1, pp.
subdivision (a), noted above. All of the county clerks
333-334), and in 1969 these higher age limits
who were approached by these same-sex couples denied
were carried over to Civil Code former section
the applications, but in order to eliminate any uncertainty
4101.
as to whether the then existing California statutes
Page 20
authorized marriage between two persons of the same Consent must be followed by the issuance of a
sex, legislation was introduced in 1977 at the request of license and solemnization as authorized by this
the County Clerks' Association of California to amend division, except as provided by Section 425 and
the provisions of former sections 4100 and 4101 to Part 4 (commencing with Section 500)."
clarify that the applicable California statutes authorized
marriage only between a man and a woman. (Stats. 1977, Hereafter, unless otherwise specified, all
ch. 339, § 1, p. 1295, introduced as Assem. Bill No. 607 statutory references are to the Family Code.
(1977-1978 Reg. Sess.); see Sen. Com. on Judiciary,
There is no similar agreement between the parties,
Analysis of Assem. Bill No. 607 (1977-1978 Reg. Sess.)
however, as to the meaning and scope of a second
as amended May 23, 1977, p. 1; Governor's Legal Affairs
provision of the Family Code--section 308.5--that also
Off., Enrolled Bill Rep. on Assem. Bill No. 607
contains language limiting marriage to a union between a
(1977-1978 Reg. Sess.) Aug. 18, 1977, p. 1.)
man and a woman. Section 308.5, an initiative statute
The 1977 legislation added the phrase "between a submitted to the voters of California as Proposition 22 at
man and a woman" to the first sentence of former section the March 7, 2000, primary election and approved by the
4100, so that the sentence read: "Marriage is a personal voters at that election, provides in full: "Only marriage
relation arising out of a civil contract between a man and between a man and a woman is valid or recognized in
a woman, to which the consent of the parties capable of California." Plaintiffs maintain that section 308.5 should
making that contract is necessary." The measure also not be interpreted to apply to or to limit marriages
revised the language of former section 4101 to entered into in California, but instead to apply only to
reintroduce the references to gender that had been marriages entered into in another jurisdiction; plaintiffs
eliminated in 1971. As we explained in Lockyer, supra, take the position that although this provision prohibits
33 Cal.4th 1055, 1076, footnote 11: "The legislative California from recognizing out-of-state marriages of
history of the [1977] measure makes its objective clear. same-sex couples, it should not be interpreted to speak to
(See Sen. Com. on Judiciary, Analysis of Assem. Bill No. or control the question of the validity of marriages
607 (1977-1978 Reg. Sess.) as amended May 23, 1977, p. performed in California. The Proposition 22 Legal
1 ['The purpose of the bill is to prohibit persons of the Defense Fund and the Campaign contest plaintiffs'
same sex from entering lawful marriage'].)" In 1992, proposed interpretation of section 308.5, maintaining that
when the Family Code was enacted, the provisions of the statute properly must be interpreted to apply to and to
former sections 4100 and 4101 of the Civil Code, as limit both out-of-state marriages and marriages
amended in 1977, were reenacted without change as performed in California.
Family Code sections 300 and 301, respectively. (Stats.
As already noted, it is clear that section 300 in itself
1992, ch. 162, § 10, pp. 464, 474.)
limits marriages performed in California to opposite-sex
Accordingly, Family Code section 300 currently couples, but the proper interpretation of section 308.5
provides in relevant part: "Marriage is a personal relation nonetheless is quite significant because, unlike section
arising out of a civil contract between a man and a 300, section 308.5 is an initiative statute--a measure that,
woman, to which the consent of the parties capable of under the provisions of article II, section 10, subdivision
making that contract is necessary." 15 In light of its (c) of the California Constitution, cannot be modified by
language and legislative history, all parties before us the Legislature without submitting the proposed
agree that section 300 limits marriages that lawfully may modification to a vote of the people. 16 Accordingly, if
be performed in California to marriages of opposite-sex section 308.5 applies to marriages performed in
couples. California as well as to out-of-state marriages, any
measure passed by the Legislature that purports to
15 Family Code section 300, subdivision (a), authorize marriages of same-sex couples in California
provides in full: "Marriage is a personal relation would have to be submitted to and approved by the voters
arising out of a civil contract between a man and a before it could become effective.
woman, to which the consent of the parties
capable of making that contract is necessary. 16 California Constitution, article II, section 10,
Consent alone does not constitute marriage. subdivision (c) provides in relevant part: "The
Legislature ... may amend or repeal an initiative
Page 21
statute by another statute that becomes effective to the Assembly without his signature, the
only when approved by the electors unless the Governor noted that a challenge to Proposition 22
initiative statute permits amendment or repeal currently was pending before this court, and
without their approval." Nothing in Proposition 22 reiterated his position "that the appropriate
permits amendment or repeal of section 308.5 resolution to this issue is to allow the Court to
without the voters' approval. rule on Proposition 22." (Governor's veto message
to Assem. on Assem. Bill No. 43 (Oct. 12, 2007)
Although the Court of Appeal thought it unnecessary Recess J. No. 9 (2007-2008 Reg. Sess.) pp.
to determine the proper scope of section 308.5 in the 3497-3498.)
present proceeding, in our view it is both appropriate and
prudent to address the meaning of that statute at this In light of this ongoing controversy, it is
juncture, both to ensure that our resolution of the appropriate to resolve the question of the scope of
constitutional issue before us is rendered with a full and section 308.5 at this time.
accurate understanding of the source of California's
current limitation of marriage to a union between a man For the reasons discussed below, we conclude that in
and a woman, and to eliminate any uncertainty and light of both the language and the purpose of section
confusion regarding the Legislature's ability or inability 308.5, this provision reasonably must be interpreted to
to authorize the marriage of same-sex couples in apply both to marriages performed in California and
California without a confirming vote of the electorate, as those performed in other jurisdictions.
the Legislature recently has attempted to do. 17
First, as already noted, section 308.5 provides in full:
17 In 2005 and 2007, the Legislature passed bills "Only marriage between a man and a woman is valid or
that would have amended section 300 to permit recognized in California." This statutory language does
marriage of same-sex couples and that purported not purport to limit the statute's application to out-of-state
not to affect the provisions of section 308.5, marriages or to draw any distinction between in-state and
which the Legislature viewed as applicable only out-of-state marriages. On the contrary, the language of
to marriages performed outside of California. the statute--at least on its face--suggests that the statute
(Assem. Bill No. 849 (2005-2006 Reg. Sess.) §§ was intended to apply not only to the recognition of
3, subd. (k), 4; Assem. Bill No. 43 (2007-2008 out-of-state marriages, but also to specify more broadly
Reg. Sess.) §§ 3, subd. (m), 4.) The Governor that only marriage between a man and a woman is valid
vetoed both measures. in California.
In returning the 2005 bill to the Assembly Although plaintiffs acknowledge the wording of
without his signature, the Governor stated he section 308.5 could be interpreted to apply to both
believed that Proposition 22 required such in-state and out-of-state marriages, they maintain this
legislation to be submitted to a vote of the language is ambiguous when one takes into account the
people--a condition that the 2005 bill did not location of the provision in the Family Code--its
fulfill--and the Governor further noted that "[t]he sequence in immediately following section 308, which
ultimate issue regarding the constitutionality of relates specifically to out-of-state marriages. 18 Plaintiffs
section 308.5 and its prohibition against same-sex point out that section 308 employs the term "valid" with
marriage is currently before the Court of Appeal specific reference to out-of-state marriages, and they
in San Francisco and will likely be decided by the maintain that, as a consequence, the use of the word
Supreme Court. [¶] This bill simply adds "valid" (along with the word "recognized") in section
confusion to a constitutional issue. If the ban of 308.5 is not inconsistent with an interpretation of the
same-sex marriage is unconstitutional, this bill is statute that limits its application to out-of-state marriages.
not necessary. If the ban is constitutional, this bill
18 Section 308 provides in full: "A marriage
is ineffective." (Governor's veto message to
contracted outside this state that would be valid
Assem. on Assem. Bill No. 849 (Sept. 29, 2005)
by the laws of the jurisdiction in which the
Recess J. No. 4 (2005-2006 Reg. Sess.) pp.
marriage was contracted is valid in this state."
3737-3738.) Similarly, in returning the 2007 bill
Page 22
In view of the asserted ambiguity of the statute, marriage of a same-sex couple will not be
plaintiffs urge this court to consider the measure's "recognized" in California in any capacity--even
purpose as reflected in the initiative's "legislative as, for example, a domestic partnership. In our
history." In this regard, plaintiffs maintain that the view, the interpretation proposed by the City is
arguments relating to Proposition 22 set forth in the voter not a reasonable interpretation of section 308.5's
information guide indicate that this initiative measure language, because the statute contains no
was prompted by the proponents' concern that other states reference to domestic partnership or to any
and nations might authorize marriages of same-sex comparable status and there is no indication that
couples, and by the proponents' desire to ensure that the measure was intended to affect or restrict the
California would not recognize such marriages. (See recognition of such a status. (See Knight v.
Voter Information Guide, Primary Elec. (Mar. 7, 2000) Superior Court (2005) 128 Cal.App.4th 14, 23-25
arguments in favor of and against Prop. 22, pp. 52-53; see [26 Cal. Rptr. 3d 687].)
also Armijo v. Miles (2005) 127 Cal.App.4th 1405,
1422-1424 [26 Cal. Rptr. 3d 623].) Plaintiffs assert that Nothing in the ballot materials or other background
in light of this objective, and the circumstance that when of the initiative indicates that its proponents intended to
Proposition 22 was submitted to the electorate the limit its scope to out-of-state marriages of same-sex
provisions of section 308.5 were not needed to establish a couples and leave the California Legislature free to adopt
limitation on marriages performed in California because a different rule validating the marriages of same-sex
section 300 already specified that marriage in California couples in California. Indeed, in view of the thrust of the
is limited to opposite-sex couples, section 308.5 should measure as explained in the ballot arguments supporting
be interpreted to apply only to out-of-state marriages and the proposed initiative and rebutting the argument against
not to marriages solemnized in California. it, it would be unreasonable to conclude that the measure
was intended (and should be interpreted) to leave the
Although we agree with plaintiffs that the principal Legislature free to revise California law to authorize the
motivating factor underlying Proposition 22 appears to marriage of same-sex couples. (See Voter Information
have been to ensure that California would not recognize Guide, Primary Elec. (Mar. 7, 2000) argument in favor of
marriages of same-sex couples that might be validly Prop. 22, p. 52 ["Proposition 22 is exactly 14 words long:
entered into in another jurisdiction, we conclude the 'Only marriage between a man and a woman is valid or
statutory provision proposed by this initiative measure recognized in California.' [¶] That's it! No legal
and adopted by the voters--which, we note again, doubletalk, no hidden agenda. Just common sense:
provides in full that "[o]nly marriage between a man and Marriage should be between a man and a woman. [¶] ...
a woman is valid or recognized in California"--cannot [¶] It's tough enough for families to stay together these
properly be interpreted to apply only to marriages days. Why make it harder by telling children that
performed outside of California. Unlike section 308, marriage is just a word anyone can re-define again and
section 308.5 itself contains no language indicating that again until it no longer has any meaning?" (original
the statute is directed at and applies only to marriages italics)]; id., rebuttal to argument against Prop. 22, p. 53
performed outside of California. Further, because section ["Opponents say anybody supporting traditional marriage
308.5 states both that only a marriage between a man and is guilty of extremism, bigotry, hatred and discrimination
a woman is "recognized" in California and also that only towards gays, lesbians and their families. [¶] That's unfair
a marriage between a man and a woman is "valid" in and divisive nonsense. [¶] THE TRUTH IS, we respect
California, the average voter is likely to have understood EVERYONE'S freedom to make lifestyle choices, but
the proposed statute to apply to marriages performed in draw the line at re-defining marriage for the rest of
California as well as to out-of-state marriages. 19 society. [¶] ... [¶] ... 'YES' on 22 sends a clear, positive
message to children that marriage between a man and a
19 The City argues that in employing both the woman is a valuable and respected institution, now and
terms "valid" and "recognized," section 308.5 forever." (Original capitalization.)].) Accordingly, we
could be interpreted to mean that an out-of-state agree with the conclusion of the Court of Appeal in
marriage involving a same-sex couple not only Knight v. Superior Court, supra, 128 Cal.App.4th 14,
will not be considered a "valid" marriage in 23-24, that section 308.5 was intended to ensure "that
California, but that, in addition, an out-of-state California will not legitimize or recognize same-sex
Page 23
marriages from other jurisdictions ... and that California state could approve the validity of marriages of same-sex
will not permit same-sex partners to validly marry within couples that are performed in California while continuing
the state." (Italics added.) 20 to deny recognition to marriages of same-sex couples that
are lawfully performed in another state. (See, ante, at p.
20 Proposition 22 was one of a number of 797, fn. 17.) Imposing such discriminatory treatment
similar measures (commonly denominated "little against out-of-state marriages of same-sex couples, as
DOMA's" [defense of marriage acts]) that were contrasted with marriages of same-sex couples performed
proposed and adopted in many states in the 1990's within the state, would be difficult to square with
and early 2000's in the wake of the decision of the governing federal constitutional precedents. (See, e.g.,
Hawaii Supreme Court in Baehr v. Lewin (1993) Hicklin v. Orbeck (1978) 437 U.S. 518, 523-526 [57 L.
74 Haw. 530 [852 P.2d 44] and of Congress' Ed. 2d 397, 98 S. Ct. 2482]; Toomer v. Witsell (1948)
enactment of the federal Defense of Marriage Act 334 U.S. 385, 398-399 [92 L. Ed. 1460, 68 S. Ct. 1156].)
(Pub.L. No. 104-199 (Sept. 21, 1996) 110 Stat. Accordingly, it is appropriate to interpret the limitations
2419, codified at 1 U.S.C. § 7, 28 U.S.C. § imposed by section 308.5 as applicable to marriages
1738C). (See Duncan, Revisiting State Marriage performed in California as well as to out-of-state
Recognition Provisions (2005) 38 Creighton marriages, in order to avoid the serious federal
L.Rev. 233, 237-238; see also Coolidge & constitutional questions that would be posed by a
Duncan, Definition or Discrimination? State contrary interpretation. (Accord, NBC Subsidiary
Marriage Recognition Statutes in the "Same-Sex (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th
Marriage" Debate (1998) 32 Creighton L.Rev. 3.) 1178, 1216 [86 Cal. Rptr. 2d 778, 980 P.2d 337].) 21
Like Proposition 22, a number of these measures
provided that only a marriage between a man and 21 Plaintiffs contend that because section 308.5
a woman would be "valid" or "recognized" in the currently does not prescribe a rule for out-of-state
adopting state, and a law review commentary on marriages different from the rule California
these measures concluded that the use of the term applies to in-state marriages, no constitutional
"valid" (accompanying the term "recognized") in problems are presented even if the statute is
these measures was intended to signify that, with interpreted to apply only to out-of-state marriages,
respect to marriages performed within the and that it is improper, in interpreting the statute,
enacting state, only marriages between to rely upon potential constitutional problems that
opposite-sex couples would be considered legally would arise only in the event the state in the
valid. (See Duncan, Revisiting State Marriage future were to adopt a different rule for in-state
Recognition Provisions, supra, 38 Creighton marriages. As explained above, however, because
L.Rev. 233, 261.) section 308.5 is an initiative statute, under
plaintiffs' proposed interpretation of section 308.5
Second, not only does this appear to be the most California law, at the present time, would make it
reasonable interpretation of section 308.5 in light of the more difficult to obtain recognition of out-of-state
statute's language and purpose, but serious constitutional marriages of same-sex couples than to obtain
problems under the privileges and immunities clause and recognition of in-state marriages of such couples.
the full faith and credit clause of the federal Constitution Moreover, in assessing the merits of alternative
would be presented were section 308.5 to be interpreted interpretations of a statutory provision, it is
as creating a distinct rule for out-of-state marriages as appropriate to consider the potential constitutional
contrasted with in-state marriages. Under plaintiffs' problems that would be posed by each alternative
proposed interpretation, section 308.5 would prohibit the construction of the statute, and to favor an
state from recognizing the marriages of same-sex couples interpretation that avoids such problems. (See,
lawfully solemnized in other states without resubmitting e.g., People v. Superior Court (Romero) (1996)
the question to the voters and obtaining a confirming vote 13 Cal.4th 497, 509 [53 Cal. Rptr. 2d 789, 917
of the electorate, but would permit the state to recognize P.2d 628] [" 'If a statute is susceptible of two
the validity of marriages of same-sex couples performed constructions, one of which will render it
in California by legislative action alone without a vote of constitutional and the other unconstitutional in
the electorate, raising the very real possibility that the whole or in part, or raise serious and doubtful
Page 24
constitutional questions, the court will adopt the the persons must be more than 62 years of age. (§ 297,
construction which, without doing violence to the subd. (b).) The 1999 legislation, however, afforded those
reasonable meaning of the language used, will couples who register as domestic partners only limited
render it valid in its entirety, or free from doubt as substantive benefits, granting domestic partners specified
to its constitutionality, even though the other hospital visitation privileges (Stats. 1999, ch. 588, § 4
construction is equally reasonable.' "].) [adding Health & Saf. Code, § 1261]), and authorizing
the state to provide health benefits to the domestic
In sum, we conclude that California's current partners of some state employees (Stats. 1999, ch. 588, §
statutory restriction of marriage to a couple consisting of 3 [adding Gov. Code, §§ 22867-22877]). The following
a man and a woman rests upon the provisions of both year, the Legislature included domestic partners within
section 300 and section 308.5. Plaintiffs' constitutional the category of persons granted access to specially
challenge thus must be viewed as relating to the designed housing reserved for senior citizens. (Stats.
limitation embodied in each of these statutory provisions. 2000, ch. 1004, §§ 3, 3.5 [amending Civ. Code, § 51.3].)
California Constitution by providing all caring and provision declares: "Former registered domestic
committed couples, regardless of their gender or sexual partners shall have the same rights, protections,
orientation, the opportunity to obtain essential rights, and benefits, and shall be subject to the same
protections, and benefits and to assume corresponding responsibilities, obligations, and duties under law,
responsibilities, obligations, and duties and to further the whether they derive from statutes, administrative
state's interests in promoting stable and lasting family regulations, court rules, government policies,
relationships, and protecting Californians from the common law, or any other provisions or sources
economic and social consequences of abandonment, of law, as are granted to and imposed upon former
separation, the death of loved ones, and other life crises." spouses."
(Stats. 2003, ch. 421, § 1, subd. (a).) Finding that "many
lesbian, gay, and bisexual Californians have formed Further, as we noted in Koebke v. Bernardo Heights
lasting, committed, and caring relationships with persons Country Club (2005) 36 Cal.4th 824, 838-839 [31 Cal.
of the same sex," the Legislature concluded that Rptr. 3d 565, 115 P.3d 1212] (Koebke), other
"[e]xpanding the rights and creating responsibilities of subdivisions of section 297.5 similarly effectuate the
registered domestic partners would further California's Legislature's intent "by using the broadest terms possible
interests in promoting family relationships and protecting to grant to, and impose upon, registered domestic partners
family members during life crises, and would reduce the same rights and responsibilities as spouses in
discrimination on the bases of sex and sexual orientation specified areas of laws whether they are current, former
in a manner consistent with the requirements of the or surviving domestic partners. For example, pursuant to
California Constitution." (Stats. 2003, ch. 421, § 1, subd. section 297.5, subdivision (c), a ?surviving registered
(b).) The Legislature further specified that the provisions domestic partner, [upon] the death of the other partner,' is
of the Domestic Partner Act "shall be construed liberally granted all the same rights and is subject to all the same
in order to secure to eligible couples who register as responsibilities, from whatever source in the law, as those
domestic partners the full range of legal rights, 'granted to and imposed upon a widow or a widower.'
protections and benefits, as well as all of the Similarly, section 297.5, subdivision (d) states: 'The
responsibilities, obligations, and duties to each other, to rights and obligations of registered domestic partners
their children, to third parties and to the state, as the with respect to a child of either of them shall be the same
laws of California extend to and impose upon spouses." as those of spouses. The rights and obligations of former
(Italics added.) (Stats. 2003, ch. 421, § 15.) or surviving registered domestic partners with respect to a
child of either of them shall be the same as those of
To effectuate this legislative purpose, the Domestic former or surviving spouses.' Subdivision (e) requires
Partner Act amended the existing statutory provisions that, '[t]o the extent that provisions of California law
relating to domestic partnership by adding several adopt, refer to, or rely upon ... federal law' and that this
entirely new provisions to the Family Code, most reliance on federal law would require domestic partners
significantly section 297.5, which the legislation to be treated differently than spouses, 'registered
provided would become operative on January 1, 2005. domestic partners shall be treated by California law as if
(Stats. 2003, ch. 421, § 14.) Section 297.5, subdivision federal law recognized a domestic partnership in the same
(a), provides in broad and sweeping terms: "Registered manner as California law.' (§ 297.5, subd. (e).)"
domestic partners shall have the same rights, protections,
and benefits, and shall be subject to the same We concluded in Koebke, supra, 36 Cal.4th 824,
responsibilities, obligations, and duties under law, 839, that "[i]t is clear from both the language of section
whether they derive from statutes, administrative 297.5 and the Legislature's explicit statements of intent
regulations, court rules, government policies, common that a chief goal of the Domestic Partner Act is to
law, or any other provisions or sources of law, as are equalize the status of registered domestic partners and
granted to and imposed upon spouses." (Italics added.) 22 married couples."
22 Section 297.5, subdivision (b), contains Although the Domestic Partner Act generally
comparable expansive language equalizing the equalized the treatment under California law of registered
rights and responsibilities of former registered domestic partners and married couples, there was one
domestic partners and of former spouses. The significant area--state income taxes--in which the 2003
Page 26
enactment did not provide for equal treatment. Section California statute, registered domestic partners generally
297.5, former subdivision (g)--a part of the 2003 "have the same rights, protections, and benefits, and [are]
act--provided in this regard: "Notwithstanding this subject to the same responsibilities, obligations, and
section, in filing their state income tax returns, domestic duties under law ... as are granted to and imposed upon
partners shall use the same filing status as is used on their spouses." (§ 297.5, subd. (a).) 24
federal income tax returns, or that would have been used
had they filed federal income tax returns. Earned income 23 As noted above (ante, at p. 797, fn. 17), in
may not be treated as community property for state 2005 and 2007 the Legislature passed bills that
income tax purposes." would have amended section 300 to permit
marriage of same-sex couples (but that purported
In 2006, the Legislature eliminated this disparity in not to affect the provisions of § 308.5, which the
the treatment of registered domestic partners and married legislation viewed as applicable only to marriages
couples with regard to state income taxes by amending performed outside of California). The Governor
section 297.5 to delete the provisions of former vetoed both measures.
subdivision (g) (and to renumber the subsequent 24 Although the governing statutes provide that
subdivisions of § 297.5). (Stats. 2006, ch. 802, § 2.) The registered domestic partners have the same
2006 legislation specifically declared that "[i]t is the substantive legal rights and are subject to the
intent of the Legislature in enacting this bill that the same obligations as married spouses, in response
inconsistency between registered domestic partners and to a request for supplemental briefing by this
spouses with respect to state income taxation be removed, court the parties have identified various
registered domestic partners be permitted to file their differences (nine in number) that exist in the
income tax returns jointly or separately on terms similar corresponding provisions of the domestic
to those governing spouses, and the earned income of partnership and marriage statutes and in a few
registered domestic partners be recognized appropriately other statutory and constitutional provisions.
as community property. As a result of this bill, registered
domestic partners who file separate income tax returns First, although the domestic partnership
each shall report one-half of the combined income provisions require that both partners have a
earned by both domestic partners, as spouses do, rather common residence at the time a domestic
than their respective individual incomes for the taxable partnership is established (§ 297, subd. (b)(1)),
year." (Stats. 2006, ch. 802, § 1, subd. (d).) there is no similar requirement for marriage.
Second, although the domestic partnership
Most recently, the Legislature passed and the legislation requires that both persons be at least 18
Governor signed into law a bill requiring the Declaration years of age when the partnership is established (§
of Domestic Partnership form to contain a section 297, subd. (b)(4)), the marriage statutes permit a
affording either party or both parties the option of a person under the age of 18 to marry with the
change of name as part of the registration process. (Stats. consent of a parent or guardian or a court order
2007, ch. 567, introduced as Assem. Bill No. 102 (§§ 302, 303). Third, to establish a domestic
(2007-2008 Reg. Sess.) signed Oct. 12, 2007.) partnership, the two persons desiring to become
domestic partners must complete and file a
Although the preamble to the Domestic Partner Act Declaration of Domestic Partnership with the
suggests that the proponents of this legislation did not Secretary of State, who registers the declaration in
view the enactment as the final or ultimate legislative a statewide registry for such partnerships (§
step with regard to the official status available to 298.5, subds. (a), (b)); to marry, a couple must
same-sex couples (see Stats. 2003, ch. 421, § 1, subd. (a) obtain a marriage license and certificate of
["This act is intended to help California move closer to registry of marriage from the county clerk, have
fulfilling the promises of inalienable rights, liberty, and the marriage solemnized by an authorized
equality contained in Sections 1 and 7 of Article 1 of the individual, and return the marriage license and
California Constitution ..." (italics added)]), 23 certificate of registry to the county recorder of the
nonetheless (by virtue of the explicit provisions of the county in which the license was issued, who
Domestic Partner Act) under the current governing keeps a copy of the certificate of registry of
Page 27
marriage and transmits the original certificate to ..." (§ 297.5, subd. (g)), which means that
the State Registrar of Vital Statistics (§§ 306, 359; although such a plan may provide coverage for a
Health & Saf. Code, §§ 102285, 102330, state employee's spouse, it may not provide
102355). Fourth, although the marriage statutes coverage for an employee's domestic partner; this
establish a procedure under which an unmarried same disparity, however, would exist even if
man and unmarried woman who have been same-sex couples were permitted to marry under
residing together as husband and wife may enter California law, because for federal law purposes
into a "confidential marriage" in which the the nonemployee partner would not be considered
marriage certificate and date of the marriage are a spouse. (See 1 U.S.C. § 7.) Eighth, an additional
not made available to the public (§ 500 et seq.), difference stems from the provisions of California
the domestic partnership law contains no similar Constitution, article XIII, section 3, subdivisions
provisions for "confidential domestic (o) and (p), granting a $ 1,000 property tax
partnership." Fifth, although both the domestic exemption to an "unmarried spouse of a deceased
partnership and marriage statutes provide a veteran" who owns property valued at less than $
procedure for summary dissolution of the 10,000; however, as the Legislative Analyst
domestic partnership or marriage under the same explained when this constitutional provision last
limited circumstances, a summary dissolution of a was amended in 1988 (see Ballot Pamp., Gen.
domestic partnership is initiated by the partners' Elec. (Nov. 8, 1988) analysis of Prop. 93 by
joint filing of a Notice of Termination of Legis. Analyst, p. 60), few persons claim this
Domestic Partnership with the Secretary of State exemption, because a homeowner may not claim
and may become effective without any court both this exemption and the more generous
action, whereas a summary dissolution of a homeowner's exemption on the same property
marriage is initiated by the spouses' joint filing of (Rev. & Tax. Code, § 205.5, subd. (f)), and the
a petition in superior court and becomes effective homeowner's exemption is available to both
only upon entry of a court judgment; in both married persons and domestic partners. (See §
instances, the dissolution does not take effect for 297.5, subd. (a).) Ninth, one appellate decision
at least six months from the date dissolution is has held that the putative spouse doctrine
sought, and during that period either party may (codified in § 2251) does not apply to an asserted
terminate the summary dissolution. (§§ 299, putative domestic partner. (Velez v. Smith (2006)
subds. (a)-(c), 2400 et seq.) Sixth, although a 142 Cal.App.4th 1154, 1172-1174 [48 Cal. Rptr.
proceeding to dissolve a domestic partnership 3d 642].)
may be filed in superior court "even if neither
domestic partner is a resident of, or maintains a Plaintiffs also have brought to the court's
domicile in, the state at the time the proceedings attention a statement of decision in a recent
are filed" (§ 299, subd. (d)), a judgment of superior court ruling that declares, in part, that
dissolution of marriage may not be obtained "[a] Registered Domestic Partnership is not the
unless one of the parties has been a resident of equivalent of a marriage. It is the functional
California for six months and a resident of the equivalent of cohabitation." (Garber v. Garber
county in which the proceeding is filed for three (Super. Ct. Orange County, 2007, No.
months prior to the filing of the petition for 04D006519.) That trial court ruling is currently on
dissolution (§ 2320). Seventh, in order to protect appeal and has no precedential effect.
the federal tax-qualified status of the CalPERS
Of course, although the Domestic Partner Act
(California Public Employees' Retirement
generally affords registered domestic partners the same
System) long-term care insurance program (see
substantive benefits and privileges and imposes upon
Sen. Com. on Appropriations, fiscal summary of
them the same responsibilities and duties that California
Assem. Bill No. 205 (2003-2004 Reg. Sess.) as
law affords to and imposes upon married spouses, the act
amended Aug. 21, 2003; 26 U.S.C. §
does not purport to (and lawfully could not) modify the
7702B(f)(2)(C)), the domestic partnership statute
applicable provisions of federal law, which currently do
provides that "nothing in this section applies to
not provide for domestic partnerships and which define
modify eligibility for [such] long-term care plans
Page 28
marriage, for purposes of federal law, as the union of a Marriage Act. (See Smelt v. County of Orange
man and a woman. (See 1 U.S.C. § 7.) 25 In light of the (9th Cir. 2006) 447 F.3d 673.) The federal
current provisions of federal law, the many federal decision in question, however, does not suggest
benefits (and the amount of those benefits) granted to a that a same-sex couple would lack standing to
married person or to a married couple on the basis of mount a direct federal constitutional challenge to
their married status are not available to registered the California marriage statutes or alternatively to
domestic partners. Included within this category are mount a direct federal equal protection challenge
significant benefits such as those relating to Social to the denial to domestic partners of federal
Security, Medicare, federal housing, food stamps, federal benefits that are made available to a married
military and veterans' programs, federal employment couple, on the theory that such differential
programs, and filing status for federal income tax treatment is impermissible when state law affords
purposes. All of these important federal benefits, domestic partners legal rights and benefits equal
however, also would be denied to same-sex couples even to those afforded married spouses. The court in
if California designated the official union of such couples Smelt instead simply held that the trial court
a marriage rather than a domestic partnership, because, as properly concluded that abstention was warranted
noted, federal law defines marriage for purposes of in light of the pending state litigation that is the
federal law as "only a legal union between one man and subject of the present appeal. (Id. at pp. 681-682.)
one woman." (1 U.S.C. § 7.) 26 As explained below (post, at p. 809, fn. 28), in
this case plaintiffs' challenge is based solely upon
25 Title 1, section 7, of the United States Code the provisions of the California Constitution, and
provides in full: "In determining the meaning of plaintiffs have not advanced any claim under the
any Act of Congress, or of any ruling, regulation, federal Constitution.
or interpretation of the various administrative
bureaus and agencies of the United States, the Thus, in sum, the current California statutory
word 'marriage' means only a legal union between provisions generally afford same-sex couples the
one man and one woman as husband and wife, opportunity to enter into a domestic partnership and
and the word 'spouse' refers only to a person of thereby obtain virtually all of the benefits and
the opposite sex who is a husband or a wife." responsibilities afforded by California law to married
opposite-sex couples.
The Domestic Partner Act attempts to
ameliorate the disparity in treatment caused by While acknowledging that the Domestic Partner Act
federal law by providing in section 297.5, affords substantial benefits to same-sex couples, plaintiffs
subdivision (e) that "[t]o the extent that provisions repeatedly characterize that legislation as granting
of California law adopt, refer to, or rely upon, same-sex couples only the "material" or "tangible"
provisions of federal law in a way that otherwise benefits of marriage. At least in some respects, this
would cause registered domestic partners to be characterization inaccurately minimizes the scope and
treated differently than spouses, registered nature of the benefits and responsibilities afforded by
domestic partners shall be treated by California California's domestic partnership law. The broad reach of
law as if federal law recognized a domestic this legislation extends to the extremely wide network of
partnership in the same manner as California statutory provisions, common law rules, and
law." administrative practices that give substance to the legal
26 In addition to the differences in the provisions institution of civil marriage, including, among many
of the Domestic Partner Act and the marriage others, various rules and policies concerning parental
statute set forth above (ante, at pp. 805-806, fn. rights and responsibilities affecting the raising of
24), plaintiffs point out that California's children, mutual duties of respect, fidelity and support,
designation of the union of same-sex couples as a the fiduciary relationship between partners, the privileged
domestic partnership rather than a marriage has nature of confidential communications between partners,
led at least one federal court to conclude that and a partner's authority to make health care decisions
same-sex couples lack standing to maintain a when his or her partner is unable to act for himself or
constitutional challenge to the federal Defense of herself. These legal rights and responsibilities embody
Page 29
more than merely the "material" or "tangible" financial plaintiffs had brought a constitutional challenge to
benefits that are extended by government to married the California marriage statutes and our court had
couples. As we explained in Koebke, supra, 36 Cal.4th concluded that those statutes were
824, 843: "[T]he decision ... to enter into a domestic unconstitutional because they did not afford
partnership is more than a change in the legal status of same-sex couples rights and benefits equal to
individuals ... . [T]he consequence[] of the decision is the those available to opposite-sex couples under the
creation of a new family unit with all of its implications marriage statutes, we might well have further
in terms of personal commitment as well as legal rights concluded--as other state courts have determined
and obligations." in similar situations--that the appropriate
disposition would be to direct the Legislature to
The nature and breadth of the rights afforded provide equal treatment to same-sex couples,
same-sex couples under the Domestic Partner Act is leaving to the Legislature, in the first instance, the
significant, because under California law the scope of decision whether to provide such treatment by a
that enactment is directly relevant to the question of the revision of the marriage statutes or by the
constitutional validity of the provisions in California's enactment of a comprehensive domestic
marriage statutes limiting marriage to opposite-sex partnership or civil union law. (See Baker v. State,
couples. As this court explained in Brown v. Merlo, supra, 744 A.2d 864, 886-889; Lewis v. Harris,
supra, 8 Cal.3d 855, 862: "In determining the scope of supra, 908 A.2d 196, 221-223.)
the class singled out for special burdens or benefits, a
court cannot confine its view to the terms of the specific Because the California Legislature already
statute under attack, but must judge the enactment's has enacted a comprehensive domestic
operation against the background of other legislative, partnership law which broadly grants to same-sex
administrative and judicial directives which govern the couples virtually all of the substantive legal rights
legal rights of similarly situated persons. As the United and benefits enjoyed by opposite-sex married
States Supreme Court recognized long ago: 'The question couples, plaintiffs have been relieved of the
of constitutional validity is not to be determined by burden of successfully prosecuting a
artificial standards [confining review "within the four constitutional challenge to obtain those
corners" of a statute]. What is required is that state action, substantive rights and benefits. Thus, in this
whether through one agency or another, or through one proceeding, we are faced only with the narrower
enactment or more than one, shall be consistent with the question that logically ensues: whether, in light of
restrictions of the Federal Constitution.' [Citations.]" the enactment of California's domestic
partnership legislation, the current California
Accordingly, the provisions of both the current statutory scheme is constitutional.
marriage statutes and the current domestic partnership
statutes must be considered in determining whether the We note that in Baker v. State, supra, 744
challenged provisions of the marriage statutes violate the A.2d 864, 886, and Lewis v. Harris, supra, 908
constitutional rights of same-sex couples guaranteed by A.2d 196, 221-222, the Vermont Supreme Court
the California Constitution. 27 and the New Jersey Supreme Court specifically
reserved judgment on the analogous state
27 To avoid any potential misunderstanding, we constitutional question that would be presented
note that the circumstance that the constitutional should the legislature decide to extend to
challenge to the provisions of California's same-sex couples the substantive benefits, but not
marriage statutes must be evaluated in light of the official designation, of marriage. To date,
both the marriage statutes and the domestic neither of these courts has addressed this issue.
partnership legislation does not in any sense
signify that plaintiffs are in a worse position, as a IV
constitutional matter, by virtue of the Legislature's
enactment of the Domestic Partner Act. Plaintiffs contend that by limiting marriage to
opposite-sex couples, California's marriage statutes
If a comprehensive domestic partnership law violate a number of provisions of the California
had not been enacted in California, and if Constitution. 28 In particular, plaintiffs contend that the
Page 30
challenged statutes violate a same-sex couple's [219 Cal. Rptr. 387, 707 P.2d 760] (Valerie N.) ["The
fundamental "right to marry" as guaranteed by the right to marriage and procreation are now recognized as
privacy, free speech, and due process clauses of the fundamental, constitutionally protected interests.
California Constitution (Cal. Const., art. I, §§ 1, 2, 7), [Citations.] ... These rights are aspects of the right of
and additionally violate the equal protection clause of the privacy which ... is express in section 1 of articleI of the
California Constitution (Cal. Const., art. I, § 7). 29 California Constitution which includes among the
Because the question whether the challenged aspect of inalienable rights possessed by all persons in this state,
the marriage statutes violates or impinges upon the that of 'privacy.' "]; Williams v. Garcetti (1993) 5 Cal.4th
fundamental right to marry may be determinative in 561, 577 [20 Cal. Rptr. 2d 341, 853 P.2d 507] ["we have
deciding the appropriate standard of review to be applied ... recognized that '[t]he concept of personal liberties and
in evaluating plaintiffs' equal protection challenge, we fundamental human rights entitled to protection against
first address the question whether the challenged statutes overbroad intrusion or regulation by government ...
independently infringe a fundamental constitutional right extends to ... such basic civil liberties and rights not
guaranteed by the California Constitution. explicitly listed in the Constitution [as] the right "to
marry, establish a home and bring up children" ...' "];
28 Plaintiffs base their constitutional challenge Ortiz v. Los Angeles Police Relief Assn. (2002) 98
in this case solely upon the provisions of the Cal.App.4th 1288, 1303 [120 Cal. Rptr. 2d 670] ["under
California Constitution and do not advance any the state Constitution, the right to marry and the right of
claim under the federal Constitution. (See Cal. intimate association are virtually synonymous. ... [W]e
Const., art. I, § 24 ["Rights guaranteed by this will refer to the privacy right in this case as the right to
Constitution are not dependent on those marry."]; In re Carrafa (1978) 77 Cal. App. 3d 788, 791
guaranteed by the United States Constitution."].) [143 Cal. Rptr. 848] ["[t]he right to marry is a
29 California Constitution, article I, section 1 fundamental constitutional right ..." (citations omitted)].)
provides: "All people are by nature free and The United States Supreme Court initially discussed the
independent and have inalienable rights. Among constitutional right to marry as an aspect of the
these are enjoying and defending life and liberty, fundamental substantive "liberty" protected by the due
acquiring, possessing, and protecting property, process clause of the federal Constitution (see Meyer v.
and pursuing and obtaining safety, happiness, and Nebraska (1923) 262 U.S. 390, 399 [67 L. Ed. 1042, 43
privacy." (Italics added.) S. Ct. 625]), but thereafter in Griswold v. Connecticut
(1965) 381 U.S. 479 [14 L. Ed. 2d 510, 85 S. Ct. 1678]
California Constitution, article I, section 2, (Griswold), the federal high court additionally identified
subdivision (a), provides: "Every person may the right to marry as a component of a "right of privacy"
freely speak, write and publish his or her protected by the federal Constitution. (Griswold, at p.
sentiments on all subjects, being responsible for 486.) With California's adoption in 1972 of a
the abuse of this right. A law may not restrain or constitutional amendment explicitly adding "privacy" to
abridge liberty of speech or press." (Italics added.) the "inalienable rights" of all Californians protected by
article I, section 1 of the California Constitution--an
California Constitution, article I, section 7,
amendment whose history demonstrates that it was
subdivision (a), provides in relevant part: "A
intended, among other purposes, to encompass the federal
person may not be deprived of life, liberty, or
constitutional right of privacy, "particularly as it
property without due process of law or denied
developed beginning with Griswold v. Connecticut[,
equal protection of the laws ... ." (Italics added.)
supra,] 381 U.S. 479 [14 L. Ed. 2d 510, 85 S. Ct. 1678]"
A (Hill v. National Collegiate Athletic Assn. (1994) 7
Cal.4th 1, 28 [26 Cal. Rptr. 2d 834, 865 P.2d 633])--the
Although our state Constitution does not contain any state constitutional right to marry, while presumably still
explicit reference to a "right to marry," past California embodied as a component of the liberty protected by the
cases establish beyond question that the right to marry is state due process clause, 30 now also clearly falls within
a fundamental right whose protection is guaranteed to all the reach of the constitutional protection afforded to an
persons by the California Constitution. (See, e.g., individual's interest in personal autonomy by California's
Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 161 explicit state constitutional privacy clause. (See, e.g., Hill
Page 31
v. National Collegiate Athletic Assn., supra, 7 Cal.4th at in that case sought to obtain as "a right to interracial
p. 34 [the interest in personal autonomy protected by the marriage" and did not dismiss the plaintiffs' constitutional
state constitutional privacy clause includes "the freedom challenge on the ground that such marriages never had
to pursue consensual familial relationships"]; Valerie N., been permitted in California. 32 Instead, the Perez
supra, 40 Cal.3d 143, 161.) 31 decision focused on the substance of the constitutional
right at issue--that is, the importance to an individual of
30 See People v. Belous (1969) 71 Cal.2d 954, the freedom "to join in marriage with the person of one's
963 [80 Cal. Rptr. 354, 458 P.2d 194] ("[t]he choice"--in determining whether the statute impinged
fundamental right of the woman to choose upon the plaintiffs' fundamental constitutional right. (32
whether to bear children follows from the Cal.2d at pp. 715, 717 , italics added.) Similarly, in
Supreme Court's and this court's repeated Valerie N., supra, 40 Cal.3d 143--which involved a
acknowledgment of a 'right of privacy' or 'liberty' challenge to a statute limiting the reproductive freedom
in matters related to marriage, family, and sex"). of a developmentally disabled woman--our court did not
31 As we recognized in Hill v. National analyze the scope of the constitutional right at issue by
Collegiate Athletic Assn., supra, 7 Cal.4th 1, 35, examining whether developmentally disabled women
the privacy interests protected under California historically had enjoyed a constitutional right of
Constitution, article I, section 1, fall into two reproductive freedom, but rather considered the substance
categories: autonomy privacy and informational of that constitutional right in determining whether the
privacy. The right to marry constitutes an aspect right was one that properly should be interpreted as
of autonomy privacy. (See Hill, at p. 34 extending to a developmentally disabled woman. (40
[describing "the freedom to pursue consensual Cal.3d at pp. 160-164.) And, in addressing a somewhat
familial relationships" as an "interest fundamental analogous point, the United States Supreme Court in
to personal autonomy"].) Lawrence v. Texas (2003) 539 U.S. 558 [156 L. Ed. 2d
508, 123 S. Ct. 2472] concluded that its prior decision in
Although all parties in this proceeding agree that the Bowers v. Hardwick (1986) 478 U.S. 186 [92 L. Ed. 2d
right to marry constitutes a fundamental right protected 140, 106 S. Ct. 2841] had erred in narrowly
by the state Constitution, there is considerable characterizing the constitutional right sought to be
disagreement as to the scope and content of this invoked in that case as the right to engage in intimate
fundamental state constitutional right. The Court of homosexual conduct, determining instead that the
Appeal concluded that because marriage in California constitutional right there at issue properly should be
(and elsewhere) historically has been limited to understood in a broader and more neutral fashion so as to
opposite-sex couples, the constitutional right to marry focus upon the substance of the interests that the
under the California Constitution properly should be constitutional right is intended to protect. (539 U.S. at pp.
interpreted to afford only a right to marry a person of the 565-577.) 33
opposite sex, and that the constitutional right that
plaintiffs actually are asking the court to recognize is a 32 The marriage statute enacted in California's
constitutional "right to same-sex marriage." In the first legislative session contained an explicit
absence of any historical or precedential support for such provision declaring that "[a]ll marriages of white
a right in this state, the Court of Appeal determined that persons with negroes or mulattoes are declared to
plaintiffs' claim of the denial of a fundamental right under be illegal and void." (Stats. 1850, ch. 140, § 3, p.
the California Constitution must be rejected. 424.)
33 Similarly, in addressing under the federal
Plaintiffs challenge the Court of Appeal's Constitution the validity of a prison rule that
characterization of the constitutional right they seek to permitted a prisoner to marry only if the
invoke as the right to same-sex marriage, and on this superintendent of the prison found there were
point we agree with plaintiffs' position. In Perez v. Sharp, compelling reasons to permit the marriage, the
supra, 32 Cal.2d 711--this court's 1948 decision holding high court did not characterize the constitutional
that the California statutory provisions prohibiting right at issue as "the right to inmate marriage," but
interracial marriage were unconstitutional--the court did rather considered whether the purposes and
not characterize the constitutional right that the plaintiffs attributes of the general fundamental right to
Page 32
marry were applicable in the prison context. issue is addressed below. (See, post, at pp. 830-831.)
(Turner v. Safley (1987) 482 U.S. 78, 95-96 [96 L.
Ed. 2d 64, 107 S. Ct. 2254].) In discussing the constitutional right to marry in
Perez v. Sharp, supra, 32 Cal.2d 711 (Perez), then Justice
The flaw in characterizing the constitutional right at Traynor in the lead opinion quoted the seminal passage
issue as the right to same-sex marriage rather than the from the United States Supreme Court's decision in
right to marry goes beyond mere semantics. It is Meyer v. Nebraska, supra, 262 U.S. 390. There the high
important both analytically and from the standpoint of court, in describing the scope of the "liberty" protected by
fairness to plaintiffs' argument that we recognize they are the due process clause of the federal Constitution, stated
not seeking to create a new constitutional right--the right that " '[w]ithout doubt, it denotes not merely freedom
to "same-sex marriage"--or to change, modify, or (as from bodily restraint, but also the right of the individual
some have suggested) "deinstitutionalize" the existing to contract, to engage in any of the common occupations
institution of marriage. Instead, plaintiffs contend that, of life, to acquire useful knowledge, to marry, establish a
properly interpreted, the state constitutional right to home and bring up children, to worship God according to
marry affords same-sex couples the same rights and the dictates of [one's] own conscience, and, generally, to
benefits--accompanied by the same mutual enjoy those privileges long recognized at common law as
responsibilities and obligations--as this constitutional essential to the orderly pursuit of happiness by free
right affords to opposite-sex couples. 34 For this reason, men.'" (Perez, supra, 32 Cal.2d at p. 714, italics added
in evaluating the constitutional issue before us, we ["to marry" italicized by Perez], quoting Meyer, supra,
consider it appropriate to direct our focus to the meaning 262 U.S. 390, 399.) The Perez decision continued:
and substance of the constitutional right to marry, and to "Marriage is thus something more than a civil contract
avoid the potentially misleading implications inherent in subject to regulation by the state; it is a fundamental
analyzing the issue in terms of "same-sex marriage." right of free men." (Perez, supra, 32 Cal.2d at p. 714,
italics added.)
34 Because the right to marry refers to the right
of an individual to enter into a consensual Like Perez, subsequent California decisions
relationship with another person, we find it discussing the nature of marriage and the right to marry
appropriate and useful to refer to the right to have recognized repeatedly the linkage between
marry as a right possessed both by each individual marriage, establishing a home, and raising children in
member of the couple and by the couple as a identifying civil marriage as the means available to an
whole. (Cf. N. A. A. C. P. v. Alabama (1958) 357 individual to establish, with a loved one of his or her
U.S. 449, 458-460 [2 L. Ed. 2d 1488, 78 S. Ct. choice, an officially recognized family relationship. In De
1163] [holding that nonprofit association may Burgh v. De Burgh (1952) 39 Cal.2d 858 [250 P.2d 598],
assert the right of privacy of its members under for example, in explaining "the public interest in the
the federal constitutional right of association].) institution of marriage" (id. at p. 863), this court stated:
"The family is the basic unit of our society, the center of
Accordingly, in deciding whether the constitutional the personal affections that ennoble and enrich human
right to marry protected by the California Constitution life. It channels biological drives that might otherwise
applies to same-sex couples as well as to opposite-sex become socially destructive; it ensures the care and
couples and, further, whether the current California education of children in a stable environment; it
marriage and domestic partnership statutes deny establishes continuity from one generation to another; it
same-sex couples this fundamental constitutional right, nurtures and develops the individual initiative that
we shall examine the nature and substance of the interests distinguishes a free people. Since the family is the core of
protected by the constitutional right to marry. In our society, the law seeks to foster and preserve
undertaking this inquiry, we put to the side for the marriage." (Id. at pp. 863-864.)
moment the question whether the substantive rights
embodied within the constitutional right to marry include In Elden v. Sheldon, supra, 46 Cal.3d 267, in
the right to have the couple's official relationship rejecting the claim that persons in an unmarried
designated by the name "marriage" rather than by some cohabitant relationship that allegedly was akin to a
other term, such as "domestic partnership." The latter marital relationship should be treated similarly to married
Page 33
persons for purposes of bringing an action for negligent constitutional right of privacy (id. at pp. 629-630)), we
infliction of emotional distress, this court explained that " explained that "the highly personal relationships that are
'[m]arriage is accorded [a special] degree of dignity in sheltered by this constitutional guaranty are exemplified
recognition that "[t]he joining of the man and woman in by 'those that attend the creation and sustenance of a
marriage is at once the most socially productive and family--marriage ... , childbirth ... , the raising and
individually fulfilling relationship that one can enjoy in education of children ... and cohabitation with one's
the course of a lifetime." ' " (46 Cal.3d at pp. 274-275, relatives ... .' ... 'Family relationships, by their nature,
italics added, quoting Nieto v. City of Los Angeles (1982) involve deep attachments and commitments to the
138 Cal. App. 3d 464 [188 Cal. Rptr. 31], quoting necessarily few other individuals with whom one shares
Marvin v. Marvin (1976) 18 Cal.3d 660, 684 [134 Cal. not only a special community of thoughts, experiences,
Rptr. 815, 557 P.2d 106].) The court in Elden v. Sheldon and beliefs but also distinctly personal aspects of one's
further explained: "Our emphasis on the state's interest in life.' " (10 Cal.4th at p. 624, italics added, citation
promoting the marriage relationship is not based on omitted, quoting Roberts v. United States Jaycees (1984)
anachronistic notions of morality. The policy favoring 468 U.S. 609, 619-620 [82 L. Ed. 2d 462, 104 S. Ct.
marriage is 'rooted in the necessity of providing an 3244].) The constitutional right to marry thus may be
institutional basis for defining the fundamental relational understood as constituting a subset of the right of
rights and responsibilities ... in organized society.' intimate association--a subset possessing its own
[Citation.] Formally married couples are granted substantive content and affording a distinct set of
significant rights and bear important responsibilities constitutional protections and guarantees.
toward one another which are not shared by those who
cohabit without marriage. ... Plaintiff does not suggest a As these and many other California decisions make
convincing reason why cohabiting unmarried couples, clear, the right to marry represents the right of an
who do not bear such legal obligations toward one individual to establish a legally recognized family with
another, should be permitted to recover for injuries to the person of one's choice, and, as such, is of fundamental
their partners to the same extent as those who undertake significance both to society and to the individual. 35
these responsibilities." (46 Cal.3d at p. 275, italics
35 Numerous decisions of the United States
added.)
Supreme Court, in discussing marriage and the
In Williams v. Garcetti, supra, 5 Cal.4th 561, a case federal constitutional right to marry, similarly
in which a criminal statute that prohibited contributing to recognize that the significance of this right lies in
the delinquency of a minor was challenged on the ground its relationship to the establishment of a family.
the statute was unconstitutionally vague, this court stated: (See, e.g., Zablocki v. Redhail (1978) 434 U.S.
"Plaintiffs emphasize the fundamental nature of the rights 374, 386 [54 L. Ed. 2d 618, 98 S. Ct. 673] ["It is
at stake in matters of child rearing. We need no not surprising that the decision to marry has been
convincing of their significance; we have already placed on the same level of importance as
recognized that '[t]he concept of personal liberties and decisions relating to procreation, childbirth, child
fundamental human rights entitled to protection against rearing, and family relationships. ... [I]t would
overbroad intrusion or regulation by government ... make little sense to recognize a right of privacy
extends to ... such basic liberties and rights not explicitly with respect to other matters of family life and not
listed in the Constitution [as] the right "to marry, with respect to the decision to enter the
establish a home and bring up children" ... ; the right to relationship that is the foundation of the family in
educate one's children as one chooses ... ; ... and the right our society."]; Maynard v. Hill (1888) 125 U.S.
to privacy and to be let alone by the government in "the 190, 211 [31 L. Ed. 654, 8 S. Ct. 723]
private realm of family life." ' " (5 Cal.4th at p. 577.) ["[Marriage] is the foundation of the family and
of society, without which there would be neither
And in Warfield v. Peninsula Golf & Country Club civilization nor progress."]; Smith v. Organization
(1995) 10 Cal.4th 594 [42 Cal. Rptr. 2d 50, 896 P.2d of Foster Families (1977) 431 U.S. 816, 843 [53
776], in discussing the types of relationships that fall L. Ed. 2d 14, 97 S. Ct. 2094] [describing marriage
within the scope of the constitutionally protected right of as "[t]he basic foundation of the family in our
intimate association (one component of our state society"].)
Page 34
Society is served by the institution of civil marriage have relied on the family to teach us to care for
in many ways. Society, of course, has an overriding others, [and] to moderate ... self-interest ... .' ...
interest in the welfare of children, and the role marriage With this perspective, the family in a democratic
plays in facilitating a stable family setting in which society not only provides emotional
children may be raised by two loving parents companionship, but is also a principal source of
unquestionably furthers the welfare of children and moral and civic duty. ... [¶] Something about the
society. In addition, the role of the family in educating combined permanence, authority, and love that
and socializing children serves society's interest by characterize the formal family uniquely makes
perpetuating the social and political culture and providing possible the performance of this teaching
continuing support for society over generations. 36 It is enterprise ... ." (Hafen, The Constitutional Status
these features that the California authorities have in mind of Marriage, Kinship and Sexual
in describing marriage as the "basic unit" or "building Privacy--Balancing the Individual and Social
block" of society. (See, e.g., De Burgh v. De Burgh, Interests (1983) 81 Mich. L.Rev. 463, 476-477,
supra, 39 Cal.2d 858, 863 ["[t]he family is the basic unit fns. omitted (hereafter Constitutional Status of
of our society ..."]; Baker v. Baker (1859) 13 Cal. 87, 94 Marriage).)
["[t]he public is interested in the marriage relation and the 37 "Although the legal system has shifted its
maintenance of its integrity, as it is the foundation of the focus from families to individuals, society still
social system ..."]; Elden v. Sheldon, supra, 46 Cal.3d relies on families to play a crucial role in caring
267, 281, fn. 1 (dis. opn. of Broussard, J.) [referring to for the young, the aged, the sick, the severely
"the well-accepted maxim that marriage serves as the disabled, and the needy. Even in advanced
building block of society"]; Dawn D. v. Superior Court welfare states, families at all levels are a major
(1998) 17 Cal.4th 932, 968 [72 Cal. Rptr. 2d 871, 952 resource for government, sharing the burdens of
P.2d 1139] (dis. opn. of Chin, J.) ["'the family provides dependency with public agencies in various ways
the foundation upon which our society is built and and to greater and lesser degrees." (Glendon, The
through which its most cherished values are best Transformation of Family Law (1989) p. 306.)
transmitted' "].) Furthermore, the legal obligations of
support that are an integral part of marital and family Although past California cases emphasize that
relationships relieve society of the obligation of caring marriage is an institution in which society as a whole has
for individuals who may become incapacitated or who are a vital interest, our decisions at the same time recognize
otherwise unable to support themselves. (See, e.g., Elisa that the legal right and opportunity to enter into such an
B. v. Superior Court (2005) 37 Cal.4th 108, 123 [33 Cal. officially recognized relationship also is of overriding
Rptr. 3d 46, 117 P.3d 660].) 37 In view of the public's importance to the individual and to the affected couple.
significant interest in marriage, California decisions have As noted above, past California decisions have described
recognized that the Legislature has broad authority in marriage as "the most socially productive and
seeking to protect and regulate this relationship by individually fulfilling relationship that one can enjoy in
creating incentives to marry and adopting measures to the course of a lifetime." (Marvin v. Marvin, supra, 18
protect the marital relationship. (See, e.g., McClure v. Cal.3d 660, 684; accord, Maynard v. Hill, supra, 125
Donovan (1949) 33 Cal.2d 717 [728, 205 P.2d 17] ["the U.S. 190, 205 [describing marriage as "the most
Legislature has full control of the subject of marriage and important relation in life"].) The ability of an individual
may fix the conditions under which the marital status to join in a committed, long-term, officially recognized
may be created or terminated ..."].) family relationship with the person of his or her choice is
often of crucial significance to the individual's happiness
36 "Through the commitments of marriage and and well-being. The legal commitment to long-term
kinship both children and parents experience the mutual emotional and economic support that is an
need for and the value of authority, responsibility, integral part of an officially recognized marriage
and duty in their most pristine forms. [¶] ... [¶] ... relationship provides an individual with the ability to
American society has 'relied to a considerable invest in and rely upon a loving relationship with another
extent on the family not only to nurture the young adult in a way that may be crucial to the individual's
but also to instill the habits required for development as a person and achievement of his or her
citizenship in a self-governing community. We full potential. 38
Page 35
38 "The formal commitment of marriage is ... the person also is an important element of self-expression
basis of stable expectations in personal that can give special meaning to one's life. Finally, of
relationships. The willingness to marry permits course, the ability to have children and raise them with a
important legal and personal assumptions to arise loved one who can share the joys and challenges of that
about one's intentions. Marriage ... carries with it endeavor is without doubt a most valuable component of
a commitment toward permanence that places it in one's liberty and personal autonomy. Although persons
a different category of relational interests than if it can have children and raise them outside of marriage, the
were temporary. A 'justifiable expectation ... that institution of civil marriage affords official governmental
[the] relationship will continue indefinitely' sanction and sanctuary to the family unit, granting a
permits parties to invest themselves in the parent the ability to afford his or her children the
relationship with a reasonable belief that the substantial benefits that flow from a stable two-parent
likelihood of future benefits warrants the family environment, 40 a ready and public means of
attendant risks and inconvenience." establishing to others the legal basis of one's parental
(Constitutional Status of Marriage, supra, 81 relationship to one's children (cf. Koebke, supra, 36
Mich. L.Rev. 463, 485-486, fns. omitted; see also Cal.4th 824, 844-845; Elden v. Sheldon, supra, 46 Cal.3d
id. at pp. 479-480 ["Mediating structures are 'the 267, 275), and the additional security that comes from the
value-generating and value-maintaining agencies knowledge that his or her parental relationship with a
in society.' ... [¶] A recent analysis of the concept child will be afforded protection by the government
of mediating structures identifies the family as against the adverse actions or claims of others. (Cf., e.g.,
'the major institution within the private sphere, Dawn D. v. Superior Court, supra, 17 Cal.4th 932 [when
and thus for many people the most valuable thing biological mother was married at the time of a child's
in their lives. Here they make their moral conception and birth, husband is the presumed father of
commitments, invest their emotions, [and] plan the child, and another man who claims to be the child's
for the future ... .' The family's role in providing biological father has no constitutional right to bring an
emotional and spiritual comfort, as well as human action to establish a legal relationship with the child].)
fulfillment, has long been a dominant theme in
sociological literature." (Fns. omitted)].) 39 As one scholarly article reported, sociological
researchers in an updated "Middletown project"
Further, entry into a formal, officially recognized (involving a representative American city) found
family relationship provides an individual with the that "'the single most important fact about the
opportunity to become a part of one's partner's family, nuclear family in contemporary Middletown is
providing a wider and often critical network of economic that it is not isolated' from kinship networks.
and emotional security. (Accord, e.g., Moore v. East From the standpoint of social structuring, [¶] 'the
Cleveland (1977) 431 U.S. 494, 504-505 [52 L. Ed. 2d kin groups organized on the basis of marriage and
531, 97 S. Ct. 1932] ["Ours is by no means a tradition descent provide the substance which integrates
limited to respect for the bonds uniting the members of people into the larger social structure. ... The
the nuclear family. ... Out of choice, necessity, or a sense moral sentiments established in the interaction of
of family responsibility, it has been common for close parents and their children are extended and
relatives to draw together and participate in the duties elaborated to produce consensus and loyalties
and the satisfactions of a common home. ... Especially in which bind social groups (and possibly societies)
times of adversity ... the broader family has tended to into a cohesive whole.'" (Constitutional Status of
come together for mutual sustenance and to maintain or Marriage, supra, 81 Mich. L.Rev. 463, 482, fns.
rebuild a secure home life."].) The opportunity of a omitted.)
couple to establish an officially recognized family of their 40 "[T]he conditions that optimize 'a home
own not only grants access to an extended family but also environment which enables [a child] to develop
permits the couple to join the broader family social into a mature and responsible adult' are clearly
structure that is a significant feature of community life. 39 encouraged by cultural patterns and reinforced by
Moreover, the opportunity to publicly and officially legal expectations that create a sense of
express one's love for and long-term commitment to permanency and stable expectations in
another person by establishing a family together with that child-parent relations. By giving priority to
Page 36
permanent, relational interests within families, the independent substantive content, and cannot properly be
Supreme Court has reinforced the law's insistence understood as simply the right to enter into such a
on the conditions that maximize stability." relationship if (but only if) the Legislature chooses to
(Constitutional Status of Marriage, supra, 81 establish and retain it. (Accord, Poe v. Ullman (1961) 367
Mich. L.Rev. 463, 473, fn. omitted.) The quoted U.S. 497, 553 [6 L. Ed. 2d 989, 81 S. Ct. 1752] (dis. opn.
article acknowledges that "[n]ot all formal of Harlan, J.) ["the intimacy of husband and wife is
families are stable, nor do all necessarily provide necessarily an essential and accepted feature of the
wholesome continuity for their children, as the institution of marriage, an institution which the State not
prevailing levels of child abuse and divorce amply only must allow, but which always and in every age it has
demonstrate." (Id. at p. 475.) Nonetheless, the fostered and protected" (italics added)].) 42
article indicates that "the commitments inherent in
formal families do increase the likelihood of 41 It is noteworthy that the California and
stability and continuity for children. Those factors federal Constitutions are not alone in recognizing
are so essential to child development that they that the right to marry is not properly viewed as
alone may justify the legal incentives and simply a benefit or privilege that a government
preferences traditionally given to permanent may establish or abolish as it sees fit, but rather
kinship units based on marriage." (Id. at pp. that the right constitutes a basic civil or human
475-476.) right of all people. Article 16 of the Universal
Declaration of Human Rights, adopted by the
There are, of course, many persons and couples who United Nations General Assembly in 1948,
choose not to enter into such a relationship and who provides: "Men and women of full age, without
prefer to live their lives without the formal, officially any limitation due to race, nationality or religion,
recognized and sanctioned, long-term legal commitment have the right to marry and to found a family. ...
to another person signified by marriage or an equivalent [¶] ... [¶] ... The family is the natural and
relationship. Nonetheless, our cases recognize that the fundamental group unit of society and is entitled
opportunity to establish an officially recognized family to protection by society and the State." Numerous
with a loved one and to obtain the substantial benefits other international human rights treaties similarly
such a relationship may offer is of the deepest and utmost recognize the right "to marry and to found a
importance to any individual and couple who wish to family" as a basic human right (Internat.
make such a choice. Covenant on Civil and Political Rights, Mar. 23,
1976, art. 23; see European Convention for the
If civil marriage were an institution whose only role Protection of Human Rights and Fundamental
was to serve the interests of society, it reasonably could Freedoms, Mar. 9, 1953, art. 12; American
be asserted that the state should have full authority to Convention on Human Rights, July 18, 1978, art.
decide whether to establish or abolish the institution of 17), and the constitutions of many nations
marriage (and any similar institution, such as domestic throughout the world explicitly link marriage and
partnership). In recognizing, however, that the right to family and provide special protections to these
marry is a basic, constitutionally protected civil right--"a institutions. (See Wardle, Federal Constitutional
fundamental right of free men [and women]" (Perez, Protection for Marriage: Why and How (2006) 20
supra, 32 Cal.2d 711, 714)--the governing California BYU J. Pub.L. 439, 453-461 [describing
cases establish that this right embodies fundamental constitutional provisions of other nations].)
interests of an individual that are protected from 42 One legal commentator has suggested that the
abrogation or elimination by the state. 41 Because our federal constitutional right to marry simply
cases make clear that the right to marry is an integral "comprises a right of access to the expressive and
component of an individual's interest in personal material benefits that the state affords to the
autonomy protected by the privacy provision of article I, institution of marriage ... [and that] states may
section 1, and of the liberty interest protected by the due abolish marriage without offending the
process clause of article I, section 7, it is apparent under Constitution." (Sunstein, The Right to Marry
the California Constitution that the right to marry--like (2005) 26 Cardozo L.Rev. 2081, 2083-2084,
the right to establish a home and raise children--has italics omitted.) The article in question concedes,
Page 37
however, that its suggested view of the right to not constitute a publication within the meaning of the law
marry is inconsistent with the governing federal of slander," the court explained that "every sound
cases that identify the right to marry as an integral consideration of public policy, every just regard for the
feature of the liberty interest protected by the due integrity and inviolability of the marriage relation ... --the
process clause (26 Cardozo L.Rev. at pp. most confidential relation known to the law"--dictated
2096-2097), and further acknowledges that even that conclusion].) This constitutional right also has the
"[i]f official marriage was abolished, the Due additional affirmative substantive effect of providing
Process Clause might give people a right to some assurance to each member of the relationship that the
of the benefits and arrangements to which married government will enforce the mutual obligations between
people are ordinarily entitled under existing state the partners (and to their children) that are an important
law" (id. at p. 2093). As explained above, in light aspect of the commitments upon which the relationship
of the governing cases identifying the source and rests. (Cf. In re Marriage of Bonds (2000) 24 Cal.4th 1,
explaining the significance of the state 27-29 [99 Cal. Rptr. 2d 252, 5 P.3d 815] [contrasting
constitutional right to marry, we conclude that fiduciary relationship during marriage with relationship
under the California Constitution this prior to marriage].)
constitutional right properly must be viewed as
having substantive content. 43 Three of the four decisions of the United
States Supreme Court that have found state
One very important aspect of the substantive statutes invalid as violative of the right to marry,
protection afforded by the California constitutional right as that right is embodied in the federal
to marry is, of course, an individual's right to be free from Constitution, involved circumstances in which an
undue governmental intrusion into (or interference with) individual was prohibited under state law from
integral features of this relationship--that is, the right of entering into an officially sanctioned family
marital or familial privacy. (See, e.g., In re Marriage of relationship. (See Loving v. Virginia (1967) 388
Wellman (1980) 104 Cal. App. 3d 992, 996 [164 Cal. U.S. 1 [18 L. Ed. 2d 1010, 87 S. Ct. 1817];
Rptr. 148] [manner of raising one's child]; accord, e.g., Zablocki v. Redhail, supra, 434 U.S. 374; Turner
Griswold, supra, 381 U.S. 479 [use of contraception]; v. Safley, supra, 482 U.S. 78.) In the fourth
Moore v. East Cleveland, supra, 431 U.S. 494 decision--Griswold, supra, 381 U.S. 479--the
[cohabitation with extended family].) The substantive court found that a state statute prohibiting married
protection embodied in the constitutional right to marry, couples from using contraceptives violated the
however, goes beyond what is sometimes characterized constitutional right of marital privacy inherent in
as simply a "negative" right insulating the couple's the constitutional right to marry.
relationship from overreaching governmental intrusion or
interference, and includes a "positive" right to have the A number of law review articles support the
state take at least some affirmative action to acknowledge view that the constitutional right to marry
and support the family unit. encompasses a positive right to have the state
publicly and officially recognize a couple's family
Although the constitutional right to marry clearly relationship. (See Ball, The Positive in the
does not obligate the state to afford specific tax or other Fundamental Right to Marry: Same-Sex Marriage
governmental benefits on the basis of a couple's family in the Aftermath of Lawrence v. Texas (2004) 88
relationship, the right to marry does obligate the state to Minn. L.Rev. 1184; Meyer, A Privacy Right to
take affirmative action to grant official, public Public Recognition of Family Relationships? The
recognition to the couple's relationship as a family Cases of Marriage and Adoption (2006) 51 Vill.
(Perez, supra, 32 Cal.2d 711; In re Carrafa, supra, 77 L.Rev. 891.)
Cal. App. 3d 788, 791), 43 as well as to protect the core
elements of the family relationship from at least some In light of the fundamental nature of the substantive
types of improper interference by others. (Cf. Sesler v. rights embodied in the right to marry--and their central
Montgomery (1889) 78 Cal. 486, 488-489 [21 P. 185] [in importance to an individual's opportunity to live a happy,
holding that a confidential conversation between husband meaningful, and satisfying life as a full member of
and wife, allegedly overheard by an eavesdropper, "does society--the California Constitution properly must be
Page 38
interpreted to guarantee this basic civil right to all provision that generally prohibited women from
individuals and couples, without regard to their sexual being employed as bartenders, took note of the
orientation. 44 significant evolution that had occurred in society's
views of the appropriate role of women in society
44 As this court observed in Valerie N., supra, and of the relative abilities and capacities of men
40 Cal.3d 143, 163, "[a]rticle I, section 1, and women. Pointing to the United States
confirms the right not only to privacy, but to Supreme Court's early-20th-century decision in
pursue happiness and enjoy liberty." (See also Muller v. Oregon (1908) 208 U.S. 412 [52 L. Ed.
Grodin, Rediscovering the State Constitutional 551, 28 S. Ct. 324], the court in Sail'er Inn
Right to Happiness and Safety (1997) 25 Hastings observed: "No judge today would justify
Const. L.Q. 1.) classification based on sex by resort to such
openly biased and wholly chauvinistic statements
It is true, of course, that as an historical matter in this as this one made by Justice Brewer in Muller [at
state marriage always has been limited to a union pp. 421-422]: '[H]istory discloses the fact that
between a man and a woman. Tradition alone, however, woman has always been dependent upon man. He
generally has not been viewed as a sufficient justification established his control at the outset by superior
for perpetuating, without examination, the restriction or physical strength, and this control in various
denial of a fundamental constitutional right. (Cf. Perez, forms, with diminishing intensity, has continued
supra, 32 Cal.2d 711, 727; Sail'er Inn, Inc. v. Kirby to the present. ... Though limitations upon
(1971) 5 Cal.3d 1, 17-19 [95 Cal. Rptr. 329, 485 P.2d personal and contractual rights may be removed
529] (Sail'er Inn).) 45 As this court observed in People v. by legislation, there is that in her disposition and
Belous, supra, 71 Cal.2d 954, 967, "[c]onstitutional habits of life which will operate against a full
concepts are not static. ..." " 'In determining what lines assertion of those rights. ... Doubtless there are
are unconstitutionally discriminatory, we have never been individual exceptions ... but looking at it from the
confined to historic notions of equality, any more than we viewpoint of the effort to maintain an independent
have restricted due process to a fixed catalogue of what position in life, she is not upon an equality.'" (5
was at a given time deemed to be the limits of Cal.3d at p. 17, fn. 15.)
fundamental rights.'" (See, e.g., In re Antazo (1970) 3
Cal.3d 100, 109 [89 Cal. Rptr. 255, 473 P.2d 999] ["the There can be no question but that, in recent decades,
long-standing recognition of this practice does not there has been a fundamental and dramatic
foreclose its reassessment in the light of the continued transformation in this state's understanding and legal
evolution of fundamental precepts of our constitutional treatment of gay individuals and gay couples. California
system ..."].) has repudiated past practices and policies that were based
on a once common viewpoint that denigrated the general
45 In Perez, supra, 32 Cal.2d 711, the lead character and morals of gay individuals, and at one time
opinion, in describing the historical basis of even characterized homosexuality as a mental illness
California's antimiscegenation statute, quoted rather than as simply one of the numerous variables of
from a California judicial decision of an earlier our common and diverse humanity. This state's current
era (People v. Hall (1854) 4 Cal. 399, 404), which policies and conduct regarding homosexuality recognize
set forth, as an assertedly established and that gay individuals are entitled to the same legal rights
uncontrovertible proposition, the alleged inferior and the same respect and dignity afforded all other
nature of all non-Caucasian persons. (Perez, individuals and are protected from discrimination on the
supra, 32 Cal.2d at p. 720.) The court in Perez basis of their sexual orientation, 46 and, more specifically,
rejected that demeaning and unsubstantiated recognize that gay individuals are fully capable of
characterization, and found there was no entering into the kind of loving and enduring committed
justification for the racially discriminatory relationships that may serve as the foundation of a family
restriction on the right to marry. (Id. at pp. and of responsibly caring for and raising children. 47
722-727.)
46 See, for example, Civil Code section 51
Similarly, in Sail'er Inn, supra, 5 Cal.3d 1, (barring sexual orientation discrimination in the
this court, in holding unconstitutional a statutory
Page 39
provision of services by any business against state employees]; Morrison v. State Board of
establishment); Government Code sections 12920 Education (1969) 1 Cal.3d 214 [82 Cal. Rptr. 175, 461
(barring sexual orientation discrimination in P.2d 375] [homosexual conduct does not in itself
employment), 12955 (barring sexual orientation necessarily constitute immoral conduct or demonstrate
discrimination in housing), 11135, subdivision (a) unfitness to teach].) Thus, just as this court recognized in
(barring sexual orientation discrimination in any Perez that it was not constitutionally permissible to
program operated by, or that receives any continue to treat racial or ethnic minorities as inferior
financial assistance from, the state); Gay Law (Perez, supra, 32 Cal.2d at pp. 720-727), and in Sail'er
Students Assn. v. Pacific Tel. & Tel. Co. (1979) Inn that it was not constitutionally acceptable to continue
24 Cal.3d 458, 466-475 [156 Cal. Rptr. 14, 595 to treat women as less capable than and unequal to men
P.2d 592] (Gay Law Students) (Cal. Const. (Sail'er Inn, supra, 5 Cal.3d at pp. 17-20 & fn. 15), we
prohibits sexual orientation discrimination by now similarly recognize that an individual's homosexual
public utility). orientation is not a constitutionally legitimate basis for
47 See, for example, sections 297 et seq., 9000, withholding or restricting the individual's legal rights.
subdivisions (b), (g); Welfare & Institutions Code
section 16013, subdivision (a); Sharon S. v. In light of this recognition, sections 1 and 7 of article
Superior Court (2003) 31 Cal.4th 417 [2 Cal. I of the California Constitution cannot properly be
Rptr. 3d 699, 73 P.3d 554]; Elisa B. v. Superior interpreted to withhold from gay individuals the same
Court, supra, 37 Cal.4th 108. basic civil right of personal autonomy and liberty
(including the right to establish, with the person of one's
Contrary to the assertions in Justice Baxter's choice, an officially recognized and sanctioned family)
concurring and dissenting opinion (see post, at pp. that the California Constitution affords to heterosexual
860-861, 864-865, 867-868), our reference to numerous individuals. The privacy and due process provisions of
statutes demonstrating California's current recognition our state Constitution--in declaring that "[a]ll people ...
that gay individuals are entitled to equal and have [the] inalienable right[] [of] privacy" (art. I, § 1)
nondiscriminatory legal treatment (ante, fns. 46, 47) does and that no person may be deprived of "liberty" without
not suggest that an individual's entitlement to equal due process of law (art. I, § 7)--do not purport to reserve
treatment under the law--regardless of his or her sexual to persons of a particular sexual orientation the
orientation--is grounded upon the Legislature's recent substantive protection afforded by those provisions. In
enactment of the Domestic Partner Act or any other light of the evolution of our state's understanding
legislative measure. The capability of gay individuals to concerning the equal dignity and respect to which all
enter into loving and enduring relationships comparable persons are entitled without regard to their sexual
to those entered into by heterosexuals is in no way orientation, it is not appropriate to interpret these
dependent upon the enactment of the Domestic Partner provisions in a way that, as a practical matter, excludes
Act; the adoption of that legislation simply constitutes an gay individuals from the protective reach of such basic
explicit official recognition of that capacity. Similarly, civil rights. (Cf. Valerie N., supra, 40 Cal.3d 143, 154,
the numerous recent legislative enactments prohibiting 160-165 [holding that the state constitutional right of
discrimination on the basis of sexual orientation were not personal autonomy in matters of reproductive choice
required in order to confer upon gay individuals a legal must be interpreted to afford incompetent
status equal to that enjoyed by heterosexuals; these developmentally disabled women the benefits accorded
measures simply provide explicit official recognition of, by that constitutional right].)
and affirmative support for, that equal legal status.
Indeed, the change in this state's past treatment of gay In reaching the contrary conclusion that the right to
individuals and homosexual conduct is reflected in scores marry guaranteed by the California Constitution should
of legislative, administrative, and judicial actions that be understood as protecting only an individual's right to
have occurred over the past 30 or more years. (See, e.g., enter into an officially recognized family relationship
Stats. 1975, ch. 71, §§ 7, 10, pp. 133, 134 [revising with a person of the opposite sex, the Court of Appeal
statutes criminalizing consensual sodomy and oral relied upon a number of decisions that have cautioned
copulation]; Governor's Exec. Order No. B-54-79 (Apr. against defining at too high a level of generality those
4, 1979) [barring sexual-orientation discrimination constitutional rights that are protected as part of the
Page 40
substantive due process doctrine. (See, e.g., Washington the court looked to the essence and substance of the right
v. Glucksberg (1997) 521 U.S. 702, 722, 723 [138 L. Ed. to marry, a right itself deeply rooted in the history and
2d 772, 117 S. Ct. 2258] [holding, in case challenging tradition of our state and nation, to determine whether the
constitutional validity of statute forbidding assisted challenged statute impinged upon the plaintiffs'
suicide, that liberty interest at issue should not be defined constitutional right. For similar reasons, it is apparent that
as an interest in choosing "how to die" or " 'the time and history alone does not provide a justification for
manner of one's death' "; instead the issue was whether interpreting the constitutional right to marry as protecting
the liberty interest protected by the due process clause only one's ability to enter into an officially recognized
"includes a right to commit suicide which itself includes a family relationship with a person of the opposite sex. In
right to assistance in doing so"]; Reno v. Flores (1993) this regard, we agree with the view expressed by Chief
507 U.S. 292, 302 [123 L. Ed. 2d 1, 113 S. Ct. 1439] Judge Kaye of the New York Court of Appeals in her
[holding, in case challenging federal policy of placing dissenting opinion in Hernandez v. Robles, supra, 855
deportable juveniles in custodial child care rather than N.E.2d 1, 23: "[F]undamental rights, once recognized,
releasing them to unrelated adults, that the right at issue cannot be denied to particular groups on the ground that
should not be viewed as " 'freedom from physical these groups have historically been denied those rights."
restraint' " but rather "the alleged right of a child who has (Cf. Taylor v. Louisiana (1975) 419 U.S. 522, 537 [42 L.
no available parent, close relative, or legal guardian, and Ed. 2d 690, 95 S. Ct. 692] ["it is no longer tenable to hold
for whom the government is responsible, to be placed in that women as a class may be excluded or given
the custody of a willing-and-able private custodian rather automatic exemptions based solely on sex if the
than of a government-operated or government- selected consequence is that criminal jury venires are almost
child-care institution"]; Dawn D. v. Superior Court, totally male. ... If it was ever the case that women were
supra, 17 Cal.4th 932, 941 [holding, in case in which an unqualified to sit on juries or were so situated that none
alleged biological father sought an opportunity to of them should be required to perform jury service, that
establish a relationship with a child whose biological time has long since passed"].)
mother was married to another man at the time of the
child's conception and birth, that the appropriate question Furthermore, unlike the situation presented in several
was not whether a biological father generally has a prior decisions of this court in which recognition of a
liberty interest in establishing a relationship with his party's claim of a constitutional right necessarily and
biological child but rather whether the federal invariably would have had the effect of reducing or
Constitution protects a biological father's "interest in diminishing the rights of other persons (see, e.g., Johnson
establishing a relationship with his child born to a woman v. Calvert (1993) 5 Cal.4th 84, 92, fn. 8, 100 [19 Cal.
married to another man at the time of the child's Rptr. 2d 494, 851 P.2d 776] [noting, in rejecting
conception and birth"].) surrogate mother's claim of a liberty interest in the
companionship of a child, that recognition of such an
None of the foregoing decisions--in emphasizing the interest would impinge upon the liberty interests of the
importance of undertaking a "'careful description' of the child's legal parents]; Dawn D. v. Superior Court, supra,
asserted fundamental liberty interest" (Washington v. 17 Cal.4th 932 [rejecting asserted biological father's
Glucksberg, supra, 521 U.S. 702, 721)--suggests, claim of a liberty interest in establishing relationship with
however, that it is appropriate to define a fundamental a child whose biological mother was married to another
constitutional right or interest in so narrow a fashion that man when the child was conceived and born]), in the
the basic protections afforded by the right are withheld present context our recognition that the constitutional
from a class of persons--composed of individuals sharing right to marry applies to same-sex couples as well as to
a personal characteristic such as a particular sexual opposite-sex couples does not diminish any other person's
orientation--who historically have been denied the benefit constitutional rights. Opposite-sex couples will continue
of such rights. As noted above, our decision in Perez, to enjoy precisely the same constitutional rights they
supra, 32 Cal.2d 711, declining to define narrowly the traditionally have possessed, unimpaired by our
right to marry, did not consider the fact that recognition that this basic civil right is applicable, as
discrimination against interracial marriage was well, to gay individuals and same-sex couples.
"sanctioned by the state for many years" a reason to reject
the plaintiffs' claim in that case. (Id. at p. 727.) Instead The Proposition 22 Legal Defense Fund and the
Page 41
Campaign agree that the constitutional right to marry is potential to become a parent and raise a child through
integrally related to the right of two persons to join adoption or through means of assisted reproduction, and
together to establish an officially recognized family, but the constitutional right to marry ensures the individual
they contend that the only family that possibly can be the opportunity to raise children in an officially
encompassed by the constitutional right to marry is a recognized family with the person with whom the
family headed by a man and a woman. Pointing out that individual has chosen to share his or her life. Thus,
past cases often have linked marriage and procreation, although an important purpose underlying marriage may
these parties argue that because only a man and a woman be to channel procreation into a stable family
can produce children biologically with one another, the relationship, that purpose cannot be viewed as limiting
constitutional right to marry necessarily is limited to the constitutional right to marry to couples who are
opposite-sex couples. capable of biologically producing a child together. 48
This contention is fundamentally flawed for a 48 Although California cases hold that one of the
number of reasons. To begin with, although the legal types of misrepresentation or concealment that
institution of civil marriage may well have originated in will justify a judgment of nullity of marriage is
large part to promote a stable relationship for the the intentional misrepresentation or concealment
procreation and raising of children (see, e.g., Baker v. of an individual's inability to have children (see,
Baker, supra, 13 Cal. 87, 103 ["the first purpose of e.g., Vileta v. Vileta (1942) 53 Cal. App. 2d 794,
matrimony, by the laws of nature and society, is 796 [128 P.2d 376]; Aufort v. Aufort (1935) 9
procreation"]; see generally Blankenhorn, The Future of Cal. App. 2d 310, 311 [49 P.2d 620]), no case has
Marriage (2007) pp. 23-125), and although the right to suggested that an inability to have children--when
marry and to procreate often are treated as closely related disclosed to a prospective partner--would
aspects of the privacy and liberty interests protected by constitute a basis for denying a marriage license
the state and federal Constitutions (see, e.g., Valerie N., or nullifying a marriage.
supra, 40 Cal.3d 143, 161; Skinner v. Oklahoma (1942)
316 U.S. 535, 541 [86 L. Ed. 1655, 62 S. Ct. 1110]), the A variant of the contention that the right to marry is
constitutional right to marry never has been viewed as the limited to couples who are capable of procreation is that
sole preserve of individuals who are physically capable of the purpose of marriage is to promote "responsible
having children. Men and women who desire to raise procreation" and that a restriction limiting this right
children with a loved one in a recognized family but who exclusively to opposite-sex couples follows from this
are physically unable to conceive a child with their loved purpose. A number of recent state court decisions,
one never have been excluded from the right to marry. applying the rational basis equal protection standard,
Although the Proposition 22 Legal Defense Fund and the have relied upon this purpose as a reasonably conceivable
Campaign assert that the circumstance that marriage has justification for a statutory limitation of marriage to
not been limited to those who can bear children can be opposite-sex couples. These decisions have explained
explained and justified by reference to the state's that although same-sex couples can have or obtain
reluctance to intrude upon the privacy of individuals by children through assisted reproduction or adoption, resort
inquiring into their fertility, if that were an accurate and to such methods demonstrates, in the case of a same-sex
adequate explanation for the absence of such a limitation couple, that parenthood necessarily is an intended
it would follow that in instances in which the state is able consequence because each of these two methods requires
to make a determination of an individual's fertility considerable planning and expense, whereas in the case
without such an inquiry, it would be constitutionally of an opposite-sex couple a child often is the unintended
permissible for the state to preclude an individual who is consequence of the couple's sexual intercourse. These
incapable of bearing children from entering into courts reason that a state plausibly could conclude that
marriage. There is, however, no authority whatsoever to although affording the benefits of marriage to
support the proposition that an individual who is opposite-sex couples is an incentive needed to ensure that
physically incapable of bearing children does not possess accidental procreation is channeled into a stable family
a fundamental constitutional right to marry. Such a relationship, a similar incentive is not required for
proposition clearly is untenable. A person who is same-sex couples because they cannot produce children
physically incapable of bearing children still has the accidentally. (See, e.g., Morrison v. Sadler, supra, 821
Page 42
N.E.2d 15, 23-29; Hernandez v. Robles, supra, 855 striking down a state law as violative of the federal
N.E.2d 1, 7.) constitutional right of privacy--the high court upheld a
married couple's right to use contraception to prevent
Whether or not the state's interest in encouraging procreation, demonstrating quite clearly that the
responsible procreation properly can be viewed as a promotion of procreation is not the sole or defining
reasonably conceivable justification for the statutory purpose of marriage. Similarly, in Turner v. Safley,
limitation of marriage to a man and a woman for supra, 482 U.S. 78, the court held that the constitutional
purposes of the rational basis equal protection standard, right to marry extends to an individual confined in state
this interest clearly does not provide an appropriate basis prison--even a prisoner who has no right to conjugal
for defining or limiting the scope of the constitutional visits with his would-be spouse--emphasizing that
right to marry. None of the past cases discussing the right "[m]any important attributes of marriage remain ... after
to marry--and identifying this right as one of the taking into account the limitations imposed by prison life
fundamental elements of personal autonomy and liberty ... [including the] expressions of emotional support and
protected by our Constitution--contains any suggestion public commitment [that] are an important and significant
that the constitutional right to marry is possessed only by aspect of the marital relationship." (482 U.S. at pp.
individuals who are at risk of producing children 95-96.) Although Griswold and Turner relate to the right
accidentally, or implies that this constitutional right is not to marry under the federal Constitution, they accurately
equally important for and guaranteed to responsible reflect the scope of the state constitutional right to marry
individuals who can be counted upon to take appropriate as well. Accordingly, this right cannot properly be
precautions in planning for parenthood. Thus, although defined by or limited to the state's interest in fostering a
the state undeniably has a legitimate interest in promoting favorable environment for the procreation and raising of
"responsible procreation," that interest cannot be viewed children.
as a valid basis for defining or limiting the class of
persons who may claim the protection of the fundamental The Proposition 22 Legal Defense Fund and the
constitutional right to marry. Campaign also rely upon several academic commentators
who maintain that the constitutional right to marry should
Furthermore, although promoting and facilitating a be viewed as inapplicable to same-sex couples because a
stable environment for the procreation and raising of contrary interpretation assertedly would sever the link
children is unquestionably one of the vitally important that marriage provides between procreation and child
purposes underlying the institution of marriage and the rearing and would "send a message" to the public that it
constitutional right to marry, past cases make clear that is immaterial to the state whether children are raised by
this right is not confined to, or restrictively defined by, their biological mother and father. (See, e.g.,
that purpose alone. (See, e.g., Baker v. Baker, supra, 13 Blankenhorn, The Future of Marriage, supra, at pp.
Cal. 87, 103 ["[t]he second purpose of matrimony is the 201-212; Wardle, "Multiply and Replenish": Considering
promotion of the happiness of the parties by the society Same-Sex Marriage in Light of State Interests in Marital
of each other ..."].) As noted above, our past cases have Procreation (2001) 24 Harv. J.L. & Pub. Pol'y 771,
recognized that the right to marry is the right to enter into 797-799; Gallagher, What Is Marriage For? The Public
a relationship that is "the center of the personal affections Purposes of Marriage Law (2002) 62 La. L.Rev. 773,
that ennoble and enrich human life" (De Burgh v. De 779-780, 790-791.) Although we appreciate the genuine
Burgh, supra, 39 Cal.2d 858, 863-864)--a relationship concern for the well-being of children underlying that
that is "at once the most socially productive and position, we conclude this claim lacks merit. Our
individually fulfilling relationship that one can enjoy in recognition that the core substantive rights encompassed
the course of a lifetime." (Marvin v. Marvin, supra, 18 by the constitutional right to marry apply to same-sex as
Cal.3d 660, 684; see also Elden v. Sheldon, supra, 46 well as opposite-sex couples does not imply in any way
Cal.3d 267, 274.) The personal enrichment afforded by that it is unimportant or immaterial to the state whether a
the right to marry may be obtained by a couple whether child is raised by his or her biological mother and father.
or not they choose to have children, and the right to By recognizing this circumstance we do not alter or
marry never has been limited to those who plan or desire diminish either the legal responsibilities that biological
to have children. Indeed, in Griswold v. Connecticut, parents owe to their children or the substantial incentives
supra, 381 U.S. 479--one of the seminal federal cases that the state provides to a child's biological parents to
Page 43
enter into and raise their child in a stable, long-term that the constitutional right to marry applies to
committed relationship. 49 Instead, such an interpretation same-sex couples "will eventually devalue the
of the constitutional right to marry simply confirms that a institution [of marriage] to the detriment of
stable two-parent family relationship, supported by the children," one amicus curiae brief (brief of the
state's official recognition and protection, is equally as American Center for Law & Justice) relies upon a
important for the numerous children in California who passage attributed to the philosopher John Rawls
are being raised by same-sex couples as for those with respect to the institutions of marriage and
children being raised by opposite-sex couples (whether family, in which Rawls states that one of the
they are biological parents or adoptive parents). 50 This essential functions of the family "is to establish
interpretation also guarantees individuals who are in a the orderly production and reproduction of society
same-sex relationship, and who are raising children, the and of its culture from one generation to the next"
opportunity to obtain from the state the official and that "[r]eproductive labor is socially
recognition and support accorded a family by agreeing to necessary labor." (Rawls, Justice as Fairness: A
take on the substantial and long-term mutual obligations Restatement (2001) p. 162.) In the cited work,
and responsibilities that are an essential and inseparable however, after explaining that "essential to the
part of a family relationship. 51 role of the family is the arrangement in a
reasonable and effective way of the raising and
49 As noted in our earlier discussion of the caring for children, ensuring their moral
relationship between procreation and marriage, development and education into the wider
many opposite-sex married couples choose not to culture," Rawls proceeds to observe that in his
have children and many other opposite-sex view, "no particular form of the family
married couples become parents through adoption (monogamous, heterosexual, or otherwise) is so
or through a variety of assisted-reproduction far required by a political conception of justice so
techniques. If societal acceptance of these long as it is arranged to fulfill these tasks
marriages (whose numbers surely exceed the effectively and does not run afoul of other
number of potential same-sex unions) does not political values." (Id. at pp. 162-163.) Rawls then
"send a message" that it is immaterial to the state adds that "this observation sets the way in which
whether children are raised by their biological justice as fairness deals with the question of gay
mother and father--and we conclude there clearly and lesbian rights and duties, and how they affect
is no such message--it is difficult to understand the family. If these rights and duties are consistent
why the message would be sent by our with orderly family life and the education of
recognition that same-sex couples possess a children, they are, ceteris paribus [all other things
constitutional right to marry. (See, e.g., Baker v. being equal], fully admissible." (Id. at p. 163, fn.
State, supra, 744 A.2d 864, 882.) 42.)
50 According to a report based upon a review of
data from the 2000 Census, at the time of that Accordingly, we conclude that the right to marry, as
census same-sex couples in California were embodied in article I, sections 1 and 7 of the California
raising more than 70,000 children. (See Badgett & Constitution, guarantees same-sex couples the same
Sears, Same-Sex Couples And Same-Sex Couples substantive constitutional rights as opposite-sex couples
Raising Children In California: data from census to choose one's life partner and enter with that person into
2000 (May 2004) p. 2 a committed, officially recognized, and protected family
<http://www.law.ucla.edu/williamsproj/publications/CaliforniaCouplesReport.pdf>
relationship that enjoys all of the constitutionally based
[as of May 15, 2008].) The report also states that incidents of marriage. 52
the 2000 census data indicates that, as of that date,
33 percent of female same-sex couples and 28.4 52 We emphasize that our conclusion that the
percent of all same-sex couples in California were constitutional right to marry properly must be
raising children, and further notes that those interpreted to apply to gay individuals and gay
figures do not include foster children being raised couples does not mean that this constitutional
by same-sex couples. (Id. at p. 10.) right similarly must be understood to extend to
51 In support of the argument that recognizing polygamous or incestuous relationships. Past
Page 44
judicial decisions explain why our nation's culture the state legislature from changing the name of the
has considered the latter types of relationships marital institution itself to 'civil unions.' " Accordingly,
inimical to the mutually supportive and healthy the Attorney General argues that in light of the rights
family relationships promoted by the afforded to same-sex couples by the Domestic Partner
constitutional right to marry. (See, e.g., Reynolds Act, the current California statutes cannot be found to
v. United States (1878) 98 U.S. 145, 165-166 [25 violate the right of same-sex couples to marry.
L. Ed. 244]; Davis v. Beason (1890) 133 U.S. 333,
341 [33 L. Ed. 637, 10 S. Ct. 299]; People v. Scott We have no occasion in this case to determine
(2007) 157 Cal.App.4th 189, 192-194 [68 Cal. whether the state constitutional right to marry necessarily
Rptr. 3d 592]; State v. Freeman (2003) 155 Ohio affords all couples the constitutional right to require the
App. 3d 492 [2003 Ohio 6730, 801 N.E.2d 906, state to designate their official family relationship a
909]; Smith v. State (Tenn.Crim.App. 1999) 6 "marriage," or whether, as the Attorney General suggests,
S.W.3d 512, 518-520.) Although the historic the Legislature would not violate a couple's constitutional
disparagement of and discrimination against gay right to marry if--perhaps in order to emphasize and
individuals and gay couples clearly is no longer clarify that this civil institution is distinct from the
constitutionally permissible, the state continues to religious institution of marriage--it were to assign a name
have a strong and adequate justification for other than marriage as the official designation of the
refusing to officially sanction polygamous or family relationship for all couples. The current California
incestuous relationships because of their statutes, of course, do not assign a name other than
potentially detrimental effect on a sound family marriage for all couples, but instead reserve exclusively
environment. (Accord, e.g., Potter v. Murray City to opposite-sex couples the traditional designation of
(C.D. Utah 1984) 585 F. Supp. 1126, 1137-1140, marriage, and assign a different designation--domestic
affd. (10th Cir. 1985) 760 F.2d 1065, 1068-1071, partnership--to the only official family relationship
cert. den. (1985) 474 U.S. 849 [88 L. Ed. 2d 120, available to same-sex couples.
106 S. Ct. 145]; People v. Scott, supra, 157
Whether or not the name "marriage," in the abstract,
Cal.App.4th 189, 193-194.) Thus, our conclusion
is considered a core element of the state constitutional
that it is improper to interpret the state
right to marry, one of the core elements of this
constitutional right to marry as inapplicable to gay
fundamental right is the right of same-sex couples to
individuals or couples does not affect the
have their official family relationship accorded the same
constitutional validity of the existing legal
dignity, respect, and stature as that accorded to all other
prohibitions against polygamy and the marriage of
officially recognized family relationships. The current
close relatives.
statutes--by drawing a distinction between the name
B assigned to the family relationship available to
opposite-sex couples and the name assigned to the family
The Attorney General, in briefing before this court, relationship available to same-sex couples, and by
argues that even if, as we have concluded, the state reserving the historic and highly respected designation of
constitutional right to marry extends to same-sex couples marriage exclusively to opposite-sex couples while
as well as to opposite-sex couples, the current California offering same-sex couples only the new and unfamiliar
statutes do not violate the fundamental rights of same-sex designation of domestic partnership--pose a serious risk
couples, "because all of the personal and dignity interests of denying the official family relationship of same-sex
that have traditionally informed the right to marry have couples the equal dignity and respect that is a core
been given to same-sex couples through the Domestic element of the constitutional right to marry. As observed
Partner Act." Maintaining that "under the domestic by the City at oral argument, this court's conclusion in
partnership system, the word 'marriage' is all that the state Perez, supra, 32 Cal.2d 711, that the statutory provision
is denying to registered domestic partners," the Attorney barring interracial marriage was unconstitutional,
General asserts that "[t]he fundamental right to marry can undoubtedly would have been the same even if
no more be the basis for same-sex couples to compel the alternative nomenclature, such as "transracial union," had
state to denominate their committed relationships been made available to interracial couples.
'marriage' than it could be the basis for anyone to prevent
Page 45
Accordingly, although we agree with the Attorney to consider which standard of review applies to
General that the provisions of the Domestic Partner Act plaintiffs' equal protection claim. Although the
afford same-sex couples most of the substantive attributes separate opinions of Justice Baxter (conc. & dis.
to which they are constitutionally entitled under the state opn., post, at pp. 872-874) and Justice Corrigan
constitutional right to marry, we conclude that the current (conc. & dis. opn., post, at pp. 881-882) embrace
statutory assignment of different designations to the this argument, which in reality would insulate the
official family relationship of opposite-sex couples and of challenged marriage statutes from any meaningful
same-sex couples properly must be viewed as potentially equal protection review, we conclude this
impinging upon the state constitutional right of same-sex contention clearly lacks merit. Both groups at
couples to marry. issue consist of pairs of individuals who wish to
enter into a formal, legally binding and officially
V recognized, long-term family relationship that
affords the same rights and privileges and
The current statutory assignment of different names imposes the same obligations and responsibilities.
for the official family relationships of opposite-sex Under these circumstances, there is no question
couples on the one hand, and of same-sex couples on the but that these two categories of individuals are
other, raises constitutional concerns not only in the sufficiently similar to bring into play equal
context of the state constitutional right to marry, but also protection principles that require a court to
under the state constitutional equal protection clause. determine "'whether distinctions between the two
Plaintiffs contend that by permitting only opposite-sex groups justify the unequal treatment.' " (People v.
couples to enter into a relationship designated as a Hofsheier (2006) 37 Cal.4th 1185, 1200 [39 Cal.
"marriage," and by designating as a "domestic Rptr. 3d 821, 129 P.3d 29].)
partnership" the parallel relationship into which same-sex
couples may enter, 53 the statutory scheme impermissibly There are two different standards traditionally
denies same-sex couples the equal protection of the laws, applied by California courts in evaluating challenges
guaranteed by article I, section 7, of the California made to legislation under the equal protection clause. As
Constitution. The relevant California statutes clearly treat we recently explained in Hernandez v. City of Hanford
opposite-sex and same-sex couples differently in this (2007) 41 Cal.4th 279 [59 Cal. Rptr. 3d 442, 159 P.3d
respect, and the initial question we must consider in 33] (Hernandez), " ' "[t]he first is the basic and
addressing the equal protection issue is the standard of conventional standard for reviewing economic and social
review that should be applied in evaluating this welfare legislation in which there is a 'discrimination' or
distinction. 54 differentiation of treatment between classes or
individuals. ... [That standard] invests legislation
53 Although the Domestic Partner Act also involving such differentiated treatment with a
makes domestic partnership available to presumption of constitutionality and 'requir[es] merely
opposite-sex couples if at least one of the partners that distinctions drawn by a challenged statute bear some
is over the age of 62 years (§ 297, subd. rational relationship to a conceivable legitimate state
(b)(5)(B)), under sections 300 and 308.5 the purpose.'... [T]he burden of demonstrating the invalidity
relationship designated "marriage" is available of a classification under this standard rests squarely upon
only to opposite-sex couples and thus only the the party who assails it." ' [Citation.] This first basic
relationship designated "domestic partnership" is equal protection standard generally is referred to as the
available to same-sex couples. 'rational relationship' or 'rational basis' standard." (41
54 One defendant, the Proposition 22 Legal Cal.4th at pp. 298-299.)
Defense Fund, advances a threshold argument that
same-sex couples and opposite-sex couples are Our decision in Hernandez, supra, 41 Cal.4th 279,
not "similarly situated" with regard to the further explained: "[T]he second equal protection
challenged statute's legitimate purpose (Purdy & standard is ' "[a] more stringent test [that] is applied ... in
Fitzpatrick v. State of California (1969) 71 Cal.2d cases involving 'suspect classifications' or touching on
566, 578 [79 Cal. Rptr. 77, 456 P.2d 645]), 'fundamental interests.' Here the courts adopt 'an attitude
assertedly obviating any need for this court even of active and critical analysis, subjecting the
Page 46
classifications to strict scrutiny. ... Under the strict on the basis of sex or gender are subject to strict scrutiny
standard applied in such cases, the state bears the burden under the California Constitution (see, e.g., Catholic
of establishing not only that it has a compelling interest Charities of Sacramento, Inc. v. Superior Court, supra,
which justifies the law but that the distinctions drawn by 32 Cal.4th 527, 564; Sail'er Inn, supra, 5 Cal.3d 1,
the law are necessary to further its purpose.' [Citation.] " ' 17-20), we conclude that the challenged statutes cannot
... This second standard generally is referred to as the properly be viewed as discriminating on the basis of sex
'strict scrutiny' standard." (41 Cal.4th at p. 299, citation or gender for purposes of the California equal protection
omitted.) 55 clause.
prohibits only interracial marriages involving white discrimination based on the gender of the homosexual's
persons demonstrates that the racial classifications must partner ..." (24 Cal.3d at p. 490), and "analogizing to a
stand on their own justification, as measures designed to series of racial discrimination cases" including Loving v.
maintain White Supremacy."].) Under these Virginia, supra, 388 U.S. 1 (Gay Law Students, supra, 24
circumstances, there can be no doubt that the reference to Cal.3d at p. 490 & fn. 18), the plaintiffs asserted that
race in the statutes at issue in Perez and Loving "such discrimination is discrimination on the basis of
unquestionably reflected the kind of racial discrimination sex" (id. at p. 490). Although this court recognized in
that always has been recognized as calling for strict Gay Law Students that "as a semantic argument" the
scrutiny under equal protection analysis. plaintiffs' contention might have some appeal (ibid.), we
nonetheless squarely rejected the claim, explaining that
In Perez, Loving, and a number of other decisions the statute proscribing "discrimination on the basis of
(see, e.g., McLaughlin v. Florida (1964) 379 U.S. 184, 'sex,' did not contemplate discrimination against
192 [13 L. Ed. 2d 222, 85 S. Ct. 283]), courts have homosexuals." (Ibid.) In reaching this conclusion, we
recognized that a statute that treats a couple differently relied not only on the circumstance that the identical
based upon whether the couple consists of persons of the statutory prohibition against sex discrimination in
same race or of different races generally reflects a policy employment set forth in title VII of the 1964 federal Civil
disapproving of the integration or close relationship of Rights Act uniformly had been interpreted as not
individuals of different races in the setting in question, encompassing discrimination on the basis of sexual
and as such properly is viewed as embodying an instance orientation or homosexuality, but also on the
of racial discrimination with respect to the interracial circumstance that the agency charged with administering
couple and both of its members. By contrast, past judicial the California statute consistently had interpreted the
decisions, in California and elsewhere, virtually prohibition of sex discrimination as inapplicable to
uniformly hold that a statute or policy that treats men and claims of discrimination based upon sexual orientation.
women equally but that accords differential treatment (Gay Law Students, supra, at pp. 490-491; accord, e.g., In
either to a couple based upon whether it consists of re Maki (1943) 56 Cal. App. 2d 635, 639-640 [133 P.2d
persons of the same sex rather than opposite sexes, or to 64] [ordinance forbidding administration of massage to a
an individual based upon whether he or she generally is person of the opposite sex did not violate state
sexually attracted to persons of the same gender rather constitutional provision mandating that no person shall be
than the opposite gender, is more accurately characterized disqualified from pursuing any lawful vocation " 'on
as involving differential treatment on the basis of sexual account of sex' "].)
orientation rather than an instance of sex discrimination,
and properly should be analyzed on the former ground. 56 At the time the Gay Law Students decision
These cases recognize that, in realistic terms, a statute or was rendered, the applicable California statute
policy that treats same-sex couples differently from prohibited employment discrimination on the
opposite-sex couples, or that treats individuals who are basis of sex, but did not explicitly prohibit
sexually attracted to persons of the same gender discrimination on the basis of homosexuality or
differently from individuals who are sexually attracted to sexual orientation. (See Gay Law Students, supra,
persons of the opposite gender, does not treat an 24 Cal.3d 458, 489.) California's current
individual man or an individual woman differently employment discrimination statute explicitly
because of his or her gender but rather accords prohibits discrimination either on the basis of sex
differential treatment because of the individual's sexual or on the basis of sexual orientation. (Gov. Code,
orientation. § 12940, subds. (a)-(d), (j).)
In Gay Law Students, supra, 24 Cal.3d 458, 490-491, In the three decades that have elapsed since our
for example, the plaintiffs contended that an employer's decision in Gay Law Students, supra, 24 Cal.3d 458,
alleged policy of discriminating against homosexuals judicial decisions in a variety of contexts similarly have
constituted discrimination on the basis of "sex" within the concluded that statutes, policies, or public or private
meaning of California's fair employment practice statute. actions that treat the genders equally but that accord
56 In support of this contention, the plaintiffs argued that differential treatment either to a couple based upon
"discrimination against homosexuals is in effect whether they are persons of the same sex or of opposite
Page 48
sexes, or to a person based upon whether he or she 57 As illustrated by the numerous authorities
generally is sexually attracted to persons of the same cited in the text, virtually all of the decisions that
gender rather than the opposite gender, do not constitute have addressed this issue have rejected plaintiffs'
instances of sex discrimination (either within the meaning contention that a statute that treats same-sex
of statutory prohibitions on sex discrimination or for couples differently from opposite-sex couples
purposes of the equal protection clauses or equal rights constitutes sex discrimination, although we are
amendments contained within the federal and various aware that one state court decision and a number
state constitutions), but rather are more properly viewed of separate concurring and/or dissenting opinions
as instances of differential treatment on the basis of filed in other recent state court marriage decisions
sexual orientation and accordingly should be evaluated have found such differential treatment to
on that ground. (See, e.g., Medina v. Income Support constitute sex discrimination for purposes of the
Div., New Mexico (10th Cir. 2005) 413 F.3d 1131, equal protection clause or equal rights
1134-1135 [workplace harassment]; DeSantis v. Pacific amendment contained in the applicable state
Tel. & Tel. Co., Inc. (9th Cir. 1979) 608 F.2d 327, constitution. (See, e.g., Baehr v. Lewin, supra,
329-330 [termination of employment]; Com. v. Wasson 852 P.2d 44, 60 (plur. opn. of Levinson, J.),
(Ky. 1992) 842 S.W.2d 487, 499-502, 507 [statute endorsed by a majority of justices on motion for
prohibiting "deviate sexual intercourse with another reconsideration or clarification, and further
person of the same sex"]; State v. Walsh (Mo. 1986) 713 explicated in Baehr v. Miike (Haw., Dec. 9, 1999,
S.W.2d 508, 510-511 [same]; Conaway v. Deane, supra, No. 20371) 1999 Haw. Lexis 391, p. *6, fn. 1
932 A.2d 571, 585-602, 605-616 [marriage]; Lewis v. [explaining that the history of Hawaii's state
Harris, supra, 908 A.2d 196, 212-215 [marriage]; equal protection clause indicates the framers of
Hernandez v. Robles, supra, 855 N.E.2d 1, 10-11 that provision "expressly declared their intention
[marriage]; Baker v. State, supra, 744 A.2d 864, 880, fn. that a proscription against discrimination based on
13 [marriage]; Andersen v. King County, supra, 138 P.3d sexual orientation be subsumed within the clause's
963, 974-976, 988-990 (lead opn. of Madsen, J.); id. at prohibition against discrimination based on sex"];
pp. 997-998, 1010 (conc. opn. of Johnson (J.M.), J.) Conaway v. Deane, supra, 932 A.2d 571, 677-686
[marriage]; In re Kandu (Bankr. W.D.Wn. 2004) 315 B.R. (dis. opn. of Battaglia, J.); Goodridge v.
123, 142-144 [marriage]; accord, Oncale v. Sundowner Department of Public Health, supra, 798 N.E.2d
Offshore Services, Inc. (1998) 523 U.S. 75, 80 [140 L. 941, 971-972 (conc. opn. of Greaney, J.);
Ed. 2d 201, 118 S. Ct. 998] [in determining whether Hernandez v. Robles, supra, 855 N.E.2d 1, 29-30
same-sex harassment in the workplace constitutes (dis. opn. of Kaye, C. J.); Baker v. State, supra,
"discrimination because of sex" within the meaning of 744 A.2d 864, 904-912 (conc. & dis. opn. of
title VII of the 1964 federal Civil Rights Act, "'[t]he Johnson, J.); Andersen v. King County, supra, 138
critical issue ... is whether members of one sex are P.3d 963, 1037-1039 (dis. opn. of Bridge, J.).) At
exposed to disadvantageous terms or conditions of the same time, a number of these separate
employment to which members of the other sex are not opinions also have concluded that the distinction
exposed' "]; Lawrence v. Texas, supra, 539 U.S. 558, 581 in treatment before the court should be viewed, as
(conc. opn. of O'Connor, J.) [statute that makes sodomy a well, as discrimination on the basis of sexual
crime only if a person engages in such conduct "'with orientation. (See, e.g., Hernandez v. Robles,
another individual of the same sex'" treats persons supra, 855 N.E.2d 1, 27-29 (dis. opn. of Kaye, C.
differently on the basis of their "same-sex sexual J.); Andersen v. King County, supra, 138 P.3d
orientation" and, for equal protection purposes, is 963, 1029-1032 (dis. opn. of Bridge, J.).)
appropriately analyzed on that ground]; see also
C-249/96, Grant v. South-West Trains (Eur. Ct. of For the reasons explained below (post, at pp.
Justice) 1998 E.C.R. I-261, pars. 24-28, 37-47 837-838), we conclude that, for purposes of
["discrimination based on sex" prohibited by art. 119 of determining the applicable standard of review
the Treaty establishing the European Economic under the California equal protection clause, the
Community "does not cover discrimination based on distinction drawn by the marriage statutes
sexual orientation"].) 57 between opposite-sex couples and same-sex
couples is more appropriately analyzed as a
Page 49
difference in treatment on the basis of sexual California decisions addressed instances in which the
orientation rather than as sex discrimination. applicable statutes favored one gender over another, or
Accordingly, the pertinent question is which prescribed different treatment for one gender as
standard of review applies under the California compared to the other based upon a stereotype relating to
equal protection clause to statutory provisions one particular gender, rather than instances in which a
that discriminate between individuals or couples statute treated the genders equally but imposed
on the basis of sexual orientation. We address that differential treatment based upon whether or not an
issue in the next part of this opinion. (Post, at pp. individual was of the same gender as his or her sexual
839-844.) partner. (See, e.g., Sail'er Inn, supra, 5 Cal.3d 1, 21
[statute restricting women's access to the occupation of
s Although plaintiffs further contend that the bartender "appears to be based upon notions of what is a
difference in treatment prescribed by the relevant statutes 'ladylike' or proper pursuit for a woman in our society
should be treated as sex discrimination for equal rather than any ascertainable evil effects of permitting
protection purposes because the differential treatment women to labor behind ... bars"]; Arp, supra, 19 Cal.3d
reflects illegitimate gender-related stereotyping based on 395, 405-406 [conclusive statutory presumption that all
the view that men are attracted to women and women are widows were totally economically dependent upon their
attracted to men, this argument again improperly deceased husbands "was the product of ... 'archaic and
conflates two concepts--discrimination on the basis of overbroad' role stereotypes" and "clearly ... is outmoded
sex, and discrimination on the basis of sexual in a society where more often than not a family's standard
orientation--that traditionally have been viewed as of living depends upon the financial contributions of both
distinct phenomena. (See, e.g., Gov. Code, § 12940, marital partners"].) In light of the reasoning underlying
subds. (a), (b), (c), (d), (j) [prohibiting, separately, these rulings, we conclude that the type of discrimination
employment discrimination (or harassment) on the basis or differential treatment between same-sex and
of "sex" and on the basis of "sexual orientation"]; Civ. opposite-sex couples reflected in the challenged marriage
Code, § 51, subd. (b) [guaranteeing "[a]ll persons ... no statutes cannot fairly be viewed as embodying the same
matter what their sex ... or sexual orientation ... the full type of discrimination at issue in the California decisions
and equal accommodations ... in all business establishing that the strict scrutiny standard applies to
establishments"].) Under plaintiffs' argument, statutes that discriminate on the basis of sex. 58
discrimination on the basis of sexual orientation always
would constitute a subset of discrimination on the basis 58 Relying upon a statement appearing in the
of sex. legislative history of the 1977 statute that added
the phrase "between a man and a woman" to
For purposes of determining the applicable standard section 300 (see Assem. Com. on Judiciary, Dig.
of judicial review under the California equal protection of Assem. Bill No. 607 (1977-1978 Reg. Sess.)
clause, we conclude that discrimination on the basis of Apr. 14, 1977, pp. 1-2), plaintiffs and a number of
sexual orientation cannot appropriately be viewed as a amici curiae additionally contend that the
subset of, or subsumed within, discrimination on the statutory limitation of marriage to opposite-sex
basis of sex. The seminal California decisions that couples is based upon the outdated stereotype of a
address the question of which equal protection standard marriage comprised of a stay-at-home mother and
should apply to statutory classifications that discriminate a breadwinner father, and for that reason should
on the basis of sex or gender, and that explain why under be viewed as reflective of sex discrimination.
the California Constitution the strict scrutiny standard is Neither the 1977 legislation nor any other
applicable to such classifications, look to (1) whether a provision of California law, however, purports to
person's gender (rather than sexual orientation) does or limit the role of either partner in a marriage, and
does not bear a relation to one's ability to perform or the bulk of the legislative history of the 1977
contribute to society, and (2) the long history of societal enactment--a measure that, as noted above (ante,
and legal discrimination against women (rather than at p. 795), was introduced at the behest of the
against gay individuals). (See, e.g., Sail'er Inn, supra, 5 County Clerks' Association of
Cal.3d 1, 18-20; Arp v. Workers' Comp. Appeals Bd., California--indicates that the legislation primarily
supra, 19 Cal.3d 395, 404-405.) Each of these seminal was intended simply to clarify that the existing
Page 50
California marriage statutes retained the historic having merely a disparate impact on gay persons, but
definition of marriage as the union of a man and a instead properly must be viewed as directly classifying
woman. Furthermore, the ballot arguments and prescribing distinct treatment on the basis of sexual
pertaining to Proposition 22 indicate that section orientation. By limiting marriage to opposite-sex couples,
308.5, which independently limits marriage to the the marriage statutes, realistically viewed, operate clearly
union of a man and a woman, was intended to and directly to impose different treatment on gay
ensure that the traditional definition of marriage individuals because of their sexual orientation. By
would be retained, and these arguments do not definition, gay individuals are persons who are sexually
contain any suggestion that the initiative measure attracted to persons of the same sex and thus, if inclined
was grounded in an outdated stereotypical view of to enter into a marriage relationship, would choose to
the appropriate roles of men and women in a marry a person of their own sex or gender. 59 A statute
marriage. Under these circumstances, we cannot that limits marriage to a union of persons of opposite
agree with plaintiffs' contention that under the sexes, thereby placing marriage outside the reach of
theory they advance, the relevant provisions of couples of the same sex, unquestionably imposes
sections 300 and 308.5 properly should be viewed different treatment on the basis of sexual orientation. In
as embodying sex discrimination. our view, it is sophistic to suggest that this conclusion is
avoidable by reason of the circumstance that the marriage
Accordingly, we conclude that in the context of statutes permit a gay man or a lesbian to marry someone
California's equal protection clause, the differential of the opposite sex, because making such a choice would
treatment prescribed by the relevant statutes cannot require the negation of the person's sexual orientation.
properly be found to constitute discrimination on the Just as a statute that restricted marriage only to couples of
basis of sex, and thus that the statutory classification the same sex would discriminate against heterosexual
embodied in the marriage statutes is not subject to strict persons on the basis of their heterosexual orientation, the
scrutiny on that ground. current California statutes realistically must be viewed as
discriminating against gay persons on the basis of their
B homosexual orientation. (Accord, Johnson Controls, Inc.
v. Fair Employment & Housing Com. (1990) 218 Cal.
Plaintiffs next maintain that even if the applicable
App. 3d 517, 533, 541, fn. 7 [267 Cal. Rptr. 158].)
California statutes do not discriminate on the basis of sex
or gender, they do so on the basis of sexual orientation, 59 As explained in the amicus curiae brief filed
and that statutes that discriminate on the basis of sexual by a number of leading mental health
orientation should be subject to strict scrutiny under the organizations, including the American
California Constitution. In response, defendants assert the Psychological Association and the American
marriage statutes do not discriminate on the basis of Psychiatric Association: "Sexual orientation is
sexual orientation, and, even if they do, discrimination on commonly discussed as a characteristic of the
the basis of sexual orientation should not trigger strict individual, like biological sex, gender identity, or
scrutiny. age. This perspective is incomplete because
sexual orientation is always defined in relational
In arguing that the marriage statutes do not
terms and necessarily involves relationships with
discriminate on the basis of sexual orientation, defendants
other individuals. Sexual acts and romantic
rely upon the circumstance that these statutes, on their
attractions are categorized as homosexual or
face, do not refer explicitly to sexual orientation and do
heterosexual according to the biological sex of the
not prohibit gay individuals from marrying a person of
individuals involved in them, relative to each
the opposite sex. Defendants contend that under these
other. Indeed, it is by acting--or desiring to
circumstances, the marriage statutes should not be viewed
act--with another person that individuals express
as directly classifying or discriminating on the basis of
their heterosexuality, homosexuality, or
sexual orientation but at most should be viewed as having
bisexuality. ... Thus, sexual orientation is
a "disparate impact" on gay persons.
integrally linked to the intimate personal
In our view, the statutory provisions restricting relationships that human beings form with others
marriage to a man and a woman cannot be understood as to meet their deeply felt needs for love,
Page 51
attachment, and intimacy. In addition to sexual considered a suspect classification for purposes of
behavior, these bonds encompass nonsexual analysis under their state equal protection
physical affection between partners, shared goals clauses. (See Hernandez v. Robles, supra, 855
and values, mutual support, and ongoing N.E.2d 1, 27-29 (dis. opn. of Kaye, C. J.);
commitment. [¶] Consequently, sexual orientation Andersen v. King County, supra, 138 P.3d 963,
is not merely a personal characteristic that can be 1029-1032 (conc. opn. of Bridge, J.); see also
defined in isolation. Rather, one's sexual Egan v. Canada [1995] 2 S.C.R. 513, 528-529,
orientation defines the universe of persons with 536 [¶¶ 5 & 22] [finding sexual orientation to be
whom one is likely to find the satisfying and analogous to enumerated classifications, such as
fulfilling relationships that, for many individuals, race or sex, that are constitutionally suspect under
comprise an essential component of personal the equal protection clause of the Canadian
identity." Charter].)
61 In Citizens for Responsible Behavior v.
Having concluded that the California marriage Superior Court (1991) 1 Cal.App.4th 1013 [2 Cal.
statutes treat persons differently on the basis of sexual Rptr. 2d 648], the court held that a proposed
orientation, we must determine whether sexual ordinance that would have repealed existing
orientation should be considered a "suspect ordinances relating to gay rights and required
classification" under the California equal protection voter approval for any future ordinances on the
clause, so that statutes drawing a distinction on this basis subject was invalid under the rational basis equal
are subject to strict scrutiny. As pointed out by the parties protection standard, and thus found no need to
defending the marriage statutes, the great majority of determine whether heightened scrutiny should be
out-of-state decisions that have addressed this issue have applied. (1 Cal.App.4th at p. 1026, fn. 8.) In
concluded that, unlike statutes that impose differential Children's Hospital & Medical Center v. Bonta'
treatment on the basis of an individual's race, sex, (2002) 97 Cal.App.4th 740, 769 [118 Cal. Rptr.
religion, or national origin, statutes that treat persons 2d 629], the appellate court, in dicta, referred in
differently because of their sexual orientation should not an off-hand comment to "suspect classifications,
be viewed as constitutionally suspect and thus should not such as race or sexual orientation," but the court
be subjected to strict scrutiny. 60 The issue is one of first cited no authority addressing the question whether
impression in California, 61 however, and for the reasons sexual orientation is a suspect classification, and
discussed below we conclude that sexual orientation this brief reference clearly was not intended to
should be viewed as a suspect classification for purposes have (and does not have) any precedential
of the California Constitution's equal protection clause significance.
and that statutes that treat persons differently because of
their sexual orientation should be subjected to strict In addressing this issue, the majority in the Court of
scrutiny under this constitutional provision. Appeal stated: "For a statutory classification to be
considered 'suspect' for equal protection purposes,
60 See, for example, Baker v. State, supra, 744 generally three requirements must be met. The defining
A.2d 864, 878, footnote 10, and cases cited characteristic must (1) be based upon an 'immutable trait';
therein; see also Standhardt v. Superior Court, (2) 'bear[] no relation to [a person's] ability to perform or
supra, 77 P.3d 451, 456-457; Hernandez v. contribute to society'; and (3) be associated with a 'stigma
Robles, supra, 855 N.E.2d 1, 9-10; Andersen v. of inferiority and second class citizenship,' manifested by
King County, supra, 138 P.3d 963, 975-976. One the group's history of legal and social disabilities. (Sail'er
intermediate appellate court in Oregon held that Inn, Inc. v. Kirby, supra, 5 Cal.3d at pp. 18-19.) While
sexual orientation constitutes a suspect the latter two requirements would seem to be readily
classification for the purpose of that state's equal satisfied in the case of gays and lesbians, the first is more
protection clause (see Tanner v. OHSU (1998) controversial." Concluding that "whether sexual
157 Ore. App. 502 [971 P.2d 435, 446-447]), and, orientation is immutable presents a factual question" as to
as noted above, a number of justices of other state which an adequate record had not been presented in the
supreme courts recently have similarly concluded trial court, the Court of Appeal ultimately held that
that sexual orientation properly should be "[l]acking guidance from our Supreme Court or decisions
Page 52
from our sister Courts of Appeal," the court would review 528 ["whether or not sexual orientation is based on
the marriage statutes under the rational basis, rather than biological or physiological factors, which may be a
the strict scrutiny, standard. matter of some controversy, it is a deeply personal
characteristic that is either unchangeable or changeable
Past California cases fully support the Court of only at unacceptable personal costs ..."].)
Appeal's conclusion that sexual orientation is a
characteristic (1) that bears no relation to a person's In his briefing before this court, the Attorney General
ability to perform or contribute to society (see, e.g., Gay does not maintain that sexual orientation fails to satisfy
Law Students, supra, 24 Cal.3d 458, 488), and (2) that is the three requirements for a suspect classification
associated with a stigma of inferiority and second-class discussed by the Court of Appeal, but instead argues that
citizenship, manifested by the group's history of legal and a fourth requirement should be imposed before a
social disabilities. (See, e.g., People v. Garcia (2000) 77 characteristic is considered a constitutionally suspect
Cal.App.4th 1269 [92 Cal. Rptr. 2d 339] ["Lesbians and basis for classification for equal protection
gay men ... share a history of persecution comparable to purposes--namely, that "a 'suspect' classification is
that of Blacks and women." (id. at p. 1276); "Outside of appropriately recognized only for minorities who are
racial and religious minorities, we can think of no group unable to use the political process to address their needs."
which has suffered such 'pernicious and sustained The Attorney General's brief asserts that "[s]ince the gay
hostility' [citation], and such 'immediate and severe and lesbian community in California is obviously able to
opprobrium' [citation] as homosexuals." (id. at p. 1279)].) wield political power in defense of its interests, this Court
should not hold that sexual orientation constitutes a
We disagree, however, with the Court of Appeal's suspect classification."
conclusion that it is appropriate to reject sexual
orientation as a suspect classification, in applying the Although some California decisions in discussing
California Constitution's equal protection clause, on the suspect classifications have referred to a group's
ground that there is a question as to whether this "political powerlessness" (see, e.g., Raffaelli v.
characteristic is or is not "immutable." Although we Committee of Bar Examiners, supra, 7 Cal.3d 288, 292),
noted in Sail'er Inn, supra, 5 Cal.3d 1, that generally a our cases have not identified a group's current political
person's gender is viewed as an immutable trait (id. at p. powerlessness as a necessary prerequisite for treatment
18), immutability is not invariably required in order for a as a suspect class. 62 Indeed, if a group's current political
characteristic to be considered a suspect classification for powerlessness were a prerequisite to a characteristic's
equal protection purposes. California cases establish that being considered a constitutionally suspect basis for
a person's religion is a suspect classification for equal differential treatment, it would be impossible to justify
protection purposes (see, e.g., Owens v. City of Signal the numerous decisions that continue to treat sex, race,
Hill (1984) 154 Cal. App. 3d 123, 128 [201 Cal. Rptr. and religion as suspect classifications. 63 Instead, our
70]; Williams v. Kapilow & Son, Inc. (1980) 105 Cal. decisions make clear that the most important factors in
App. 3d 156, 161-162 [164 Cal. Rptr. 176]), and one's deciding whether a characteristic should be considered a
religion, of course, is not immutable but is a matter over constitutionally suspect basis for classification are
which an individual has control. (See also Raffaelli v. whether the class of persons who exhibit a certain
Committee of Bar Examiners (1972) 7 Cal.3d 288, 292 characteristic historically has been subjected to invidious
[101 Cal. Rptr. 896, 496 P.2d 1264] [alienage treated as and prejudicial treatment, and whether society now
a suspect classification notwithstanding circumstance that recognizes that the characteristic in question generally
alien can become a citizen].) Because a person's sexual bears no relationship to the individual's ability to perform
orientation is so integral an aspect of one's identity, it is or contribute to society. Thus, "courts must look closely
not appropriate to require a person to repudiate or change at classifications based on that characteristic lest outdated
his or her sexual orientation in order to avoid social stereotypes result in invidious laws or practices."
discriminatory treatment. (Accord, Hernandez-Montiel v. (Sail'er Inn, supra, 5 Cal.3d 1, 18, italics added; see, e.g.,
I.N.S. (9th Cir. 2000) 225 F.3d 1084, 1093 ["[s]exual Arp v. Workers' Comp. Appeals Bd., supra, 19 Cal.3d
orientation and sexual identity ... are so fundamental to 395, 404-406.) This rationale clearly applies to statutory
one's identity that a person should not be required to classifications that mandate differential treatment on the
abandon them"]; Egan v. Canada, supra, 2 S.C.R. 513, basis of sexual orientation.
Page 53
62 In Bowens v. Superior Court (1991) 1 Cal.4th continue to review, under strict scrutiny rather than
36, 42 [2 Cal. Rptr. 2d 376, 820 P.2d 600], in intermediate scrutiny, those statutes that impose
discussing the factors that are relevant under the differential treatment on the basis of sex or gender. (See,
federal equal protection clause to the issue of e.g., Catholic Charities of Sacramento, Inc. v. Superior
suspect classification, the court explained: "The Court, supra, 32 Cal.4th 527, 564; see also Darces v.
determination of whether a suspect class exists Woods (1984) 35 Cal.3d 871, 888-893 [201 Cal. Rptr.
focuses on whether '[t]he system of alleged 807, 679 P.2d 458] [applying strict scrutiny rather than
discrimination and the class it defines have [any] the intermediate scrutiny standard that was applied in a
of the traditional indicia of suspectness: [such as a related federal decision].)
class] saddled with such disabilities, or subjected
to such a history of purposeful unequal treatment, 64 In describing its intermediate scrutiny
or relegated to such a position of political standard in Clark v. Jeter, supra, 486 U.S. 456,
powerlessness as to command extraordinary 461, the high court explained: "To withstand
protection from the majoritarian political process.' intermediate scrutiny, a statutory classification
" (Quoting San Antonio School District v. must be substantially related to an important
Rodriguez (1973) 411 U.S. 1, 28 [36 L. Ed. 2d 16, governmental objective." By contrast, under the
93 S. Ct. 1278], bracketed material added in strict scrutiny standard, the state bears the burden
Bowens, italics added.) of demonstrating that the disparate treatment
63 In Frontiero v. Richardson (1973) 411 U.S. imposed by a statute is necessary to serve a
677, 687-688 [36 L. Ed. 2d 583, 93 S. Ct. 1764], compelling state interest. (See, e.g., Hernandez,
the lead opinion of Justice Brennan pointed to the supra, 41 Cal.4th 279, 299.)
enactment of laws prohibiting sex discrimination
There is no persuasive basis for applying to statutes
as confirming that a class of individuals had been
that classify persons on the basis of the suspect
subjected to widespread discrimination in the past
classification of sexual orientation a standard less
and thus as supporting the need for heightened
rigorous than that applied to statutes that classify on the
judicial scrutiny of statutory provisions that
basis of the suspect classifications of gender, race, or
impose differential treatment on the basis of such
religion. Because sexual orientation, like gender, race, or
a characteristic.
religion, is a characteristic that frequently has been the
In sum, we conclude that statutes imposing basis for biased and improperly stereotypical treatment
differential treatment on the basis of sexual orientation and that generally bears no relation to an individual's
should be viewed as constitutionally suspect under the ability to perform or contribute to society, it is
California Constitution's equal protection clause. appropriate for courts to evaluate with great care and with
considerable skepticism any statute that embodies such a
The Attorney General argues that even if sexual classification. The strict scrutiny standard therefore is
orientation is viewed as a suspect classification and applicable to statutes that impose differential treatment
statutes that classify persons on such a basis are subject to on the basis of sexual orientation.
heightened review, this court should apply an
intermediate scrutiny standard of review (comparable to C
the standard applied by the United States Supreme Court
Plaintiffs additionally contend that the strict scrutiny
to discriminatory classifications based on sex or
standard applies here not only because the statutes in
illegitimacy (see Clark v. Jeter, supra, 486 U.S. 456,
question impose differential treatment between
461)), rather than strict scrutiny, to statutes that draw
individuals on the basis of the suspect classification of
distinctions between persons on the basis of their sexual
sexual orientation, but also because the classification
orientation. 64 In enforcing the California Constitution's
drawn by the statutes impinges upon a same-sex couple's
equal protection clause, however, past California cases
fundamental, constitutionally protected privacy interest,
have not applied an intermediate scrutiny standard of
creating unequal and detrimental consequences for
review to classifications involving any suspect (or
same-sex couples and their children.
quasi-suspect) characteristic. Unlike decisions applying
the federal equal protection clause, California cases As discussed above (ante, at pp. 830-831), one of the
Page 54
core elements embodied in the state constitutional right to defender's office through which such defendants
marry is the right of an individual and a couple to have are represented by government-selected attorneys,
their own official family relationship accorded respect instead of by providing funds to such defendants
and dignity equal to that accorded the family relationship with which they can obtain their own self-selected
of other couples. Even when the state affords substantive attorneys. (See, e.g., People v. Miller (1972) 7
legal rights and benefits to a couple's family relationship Cal.3d 562, 574 [102 Cal. Rptr. 841, 498 P.2d
that are comparable to the rights and benefits afforded to 1089]; People v. Hughes (1961) 57 Cal.2d 89,
other couples, the state's assignment of a different name 97-99 [17 Cal. Rptr. 617, 367 P.2d 33].)
to the couple's relationship poses a risk that the different 66 One such conceivable (albeit unlikely)
name itself will have the effect of denying such couple's example would be a statutory scheme that
relationship the equal respect and dignity to which the designated all formal family unions as a
couple is constitutionally entitled. Plaintiffs contend that "marriage" during the first five years of the
in the present context, the different nomenclature union's existence, and thereafter renamed the
prescribed by the current California statutes properly relationship, for official purposes, as an "enduring
must be understood as having just such a constitutionally union," and provided additional benefits to the
suspect effect. couple for so long as the enduring union remained
intact. In this setting, the withholding of the
We agree with plaintiffs' contention in this regard. official designation "marriage" to all long-term
Although in some contexts the establishment of separate formal relationships would not appear to be
institutions or structures to remedy the past denial of stigmatizing or necessarily to warrant, in itself,
rights or benefits has been found to be constitutionally application of the strict scrutiny standard.
permissible, 65 and although it may be possible to
conceive of some circumstances in which assignment of First, because of the long and celebrated history of
the name "marriage" to one category of family the term "marriage" and the widespread understanding
relationship and of a name other than marriage to another that this term describes a union unreservedly approved
category of family relationship would not likely be and favored by the community, there clearly is a
stigmatizing or raise special constitutional concerns, 66 considerable and undeniable symbolic importance to this
for a number of reasons we conclude that in the present designation. Thus, it is apparent that affording access to
context, affording same-sex couples access only to the this designation exclusively to opposite-sex couples,
separate institution of domestic partnership, and denying while providing same-sex couples access to only a novel
such couples access to the established institution of alternative designation, realistically must be viewed as
marriage, properly must be viewed as impinging upon the constituting significantly unequal treatment to same-sex
right of those couples to have their family relationship couples. In this regard, plaintiffs persuasively invoke by
accorded respect and dignity equal to that accorded the analogy the decisions of the United States Supreme Court
family relationship of opposite-sex couples. finding inadequate a state's creation of a separate law
school for Black students rather than granting such
65 For example, the establishment and students access to the University of Texas Law School
maintenance of separate women's collegiate (Sweatt v. Painter (1950) 339 U.S. 629, 634 [94 L. Ed.
athletic teams to address the long-standing 1114, 70 S. Ct. 848]), 67 and a state's founding of a
discrimination against women in the allocation of separate military program for women rather than
athletic resources has been found to be admitting women to the Virginia Military Institute
constitutionally valid. (See, e.g., O'Connor v. Bd. (United States v. Virginia (1996) 518 U.S. 515, 555-556
of Ed. of School Dist. No. 23 (7th Cir. 1981) 645 [135 L. Ed. 2d 735, 116 S. Ct. 2264]). As plaintiffs
F.2d 578, 582; Force by Force v. Pierce City R-VI maintain, these high court decisions demonstrate that
School Dist. (W.D.Mo. 1983) 570 F. Supp. 1020, even when the state grants ostensibly equal benefits to a
1026.) Courts similarly have held it is previously excluded class through the creation of a new
constitutionally permissible for a state to remedy institution, the intangible symbolic differences that
the constitutional problem resulting from the remain often are constitutionally significant.
inability of indigent criminal defendants to retain
counsel by establishing a separate public 67 In Sweatt v. Painter, supra, 339 U.S. 629, the
Page 55
high court stated in this regard: "What is more between the designation of the family relationship
important, the University of Texas Law School available to opposite-sex couples and the designation
possesses to a far greater degree those qualities available to same-sex couples impinges upon the
which are incapable of objective measurement fundamental interest of same-sex couples in having their
[such as] ... standing in the community, traditions official family relationship accorded dignity and respect
and prestige. It is difficult to believe that one who equal to that conferred upon the family relationship of
had a free choice between these law schools opposite-sex couples.
would consider the question close." (339 U.S. at
p. 634.) In addition, plaintiffs' briefs disclose a further way in
which the different designations established by the
Second, particularly in light of the historic current statutes impinge upon the constitutionally
disparagement of and discrimination against gay persons, protected privacy interest of same-sex couples. Plaintiffs
there is a very significant risk that retaining a distinction point out that one consequence of the coexistence of two
in nomenclature with regard to this most fundamental of parallel types of familial relationships is that--in the
relationships whereby the term "marriage" is denied only numerous everyday social, employment, and
to same-sex couples inevitably will cause the new parallel governmental settings in which an individual is asked
institution that has been made available to those couples whether he or she "is married or single"--an individual
to be viewed as of a lesser stature than marriage and, in who is a domestic partner and who accurately responds to
effect, as a mark of second-class citizenship. As the the question by disclosing that status will (as a realistic
Canada Supreme Court observed in an analogous context: matter) be disclosing his or her homosexual orientation,
"One factor which may demonstrate that legislation that even if he or she would rather not do so under the
treats the claimant differently has the effect of demeaning circumstances and even if that information is totally
the claimant's dignity is the existence of pre-existing irrelevant in the setting in question. 68 Because the
disadvantage, stereotyping, prejudice, or vulnerability constitutional right of privacy ordinarily would protect
experienced by the individual or group at issue. ... [¶] '... an individual from having to disclose his or her sexual
It is logical to conclude that, in most cases, further orientation under circumstances in which that information
differential treatment will contribute to the perpetuation is irrelevant (see, e.g., People v. Garcia, supra, 77
or promotion of their unfair social characterization, and Cal.App.4th 1269, 1280; Urbaniak v. Newton (1991) 226
will have a more severe impact upon them, since they are Cal. App. 3d 1128, 1140-1141 [277 Cal. Rptr. 354]), the
already vulnerable.'" (M. v. H. [1999] 2 S.C.R. 3, 54-55 existence of two separate family designations--one
[¶ 68].) available only to opposite-sex couples and the other to
same-sex couples--impinges upon this privacy interest,
Third, it also is significant that although the meaning and may expose gay individuals to detrimental treatment
of the term "marriage" is well understood by the public by those who continue to harbor prejudices that have
generally, the status of domestic partnership is not. While been rejected by California society at large.
it is true that this circumstance may change over time, it
is difficult to deny that the unfamiliarity of the term 68 Although the disclosure that an individual is a
"domestic partnership" is likely, for a considerable period registered domestic partner does not necessarily
of time, to pose significant difficulties and complications mean that he or she is in a same-sex relationship,
for same-sex couples, and perhaps most poignantly for because opposite-sex couples comprised of at
their children, that would not be presented if, like least one partner who is more than 62 years of age
opposite-sex couples, same-sex couples were permitted may register as domestic partners, in most
access to the established and well-understood family instances the revelation that one is a domestic
relationship of marriage. (See generally N.J. Civil Union partner will be understood (accurately) to signify
Review Com., First Interim Rep. (Feb. 19, 2008) pp. 6-18 that the individual is gay.
<http://www.nj.gov/oag/dcr/downloads/1st-InterimReport-CURC.pdf>
[as of May 15, 2008].) For all of these reasons, we conclude that the
classifications and differential treatment embodied in the
Under these circumstances, we conclude that the relevant statutes significantly impinge upon the
distinction drawn by the current California statutes fundamental interests of same-sex couples, and
Page 56
accordingly provide a further reason requiring that the providing constitutional protection for separate-property
statutory provisions properly be evaluated under the strict rights, 69 thereby precluding the Legislature or the people
scrutiny standard of review. through the statutory initiative power from modifying the
current statutes to permit same-sex couples to marry.
D There is no indication, however, that the constitutional
provisions were intended to place the common law
As already explained, in circumstances, as here, in understanding of marriage beyond legislative control (see
which the strict scrutiny standard of review applies, the Dow v. Gould & Curry Silver Mining Co. (1867) 31 Cal.
state bears a heavy burden of justification. In order to 629, 640 ["the laws in force at the time of the adoption
satisfy that standard, the state must demonstrate not of the Constitution were continued in force until altered
simply that there is a rational, constitutionally legitimate or repealed by the Legislature ..."]), and throughout this
interest that supports the differential treatment at issue, state's history the Legislature, of course, has effected
but instead that the state interest is a constitutionally numerous fundamental changes in the institution of
compelling one that justifies the disparate treatment marriage, dramatically altering its nature from how it
prescribed by the statute in question. (See, e.g., Darces v. existed at common law. As discussed above, because
Woods, supra, 35 Cal.3d 871, 893-895.) Furthermore, section 308.5 is an initiative statute, any action by the
unlike instances in which the rational basis test applies, Legislature redefining marriage to include same-sex
the state does not meet its burden of justification under couples would require a confirming vote of approval by
the strict scrutiny standard merely by showing that the the electorate (see, ante, at pp. 797-801), but the
classification established by the statute is rationally or California Constitution imposes no constitutional bar to a
reasonably related to such a compelling state interest. legislative revision of the marriage statutes consistent
Instead, the state must demonstrate that the distinctions with the requirement of voter approval. (Accord, In re
drawn by the statute (or statutory scheme) are necessary Mana (1918) 178 Cal. 213, 214-216 [172 P. 986]
to further that interest. (See, e.g., Ramirez v. Brown [holding that a statute authorizing women to sit as jurors
(1973) 9 Cal.3d 199, 207-212 [107 Cal. Rptr. 137, 507 did not violate the defendant's constitutional right to trial
P.2d 1345].) by jury, even though, at common law, a jury was
composed only of men].)
In the present case, the question before us is whether
the state has a constitutionally compelling interest in 69 As set forth ante, at page 792-793, footnote
reserving the designation of marriage only for 12, article XI, section 14 of the California
opposite-sex couples and excluding same-sex couples Constitution of 1849 provided in full: "All
from access to that designation, and whether this property, both real and personal, of the wife,
statutory restriction is necessary to serve a compelling owned or claimed by marriage, and that acquired
state interest. In their briefing before this court, various afterwards by gift, devise, or descent, shall be her
defendants have advanced different contentions in separate property; and laws shall be passed more
support of the current statutes, and we discuss each of clearly defining the rights of the wife, in relation
these arguments. as well to her separate property, as to that held in
common with her husband. Laws shall also be
The Proposition 22 Legal Defense Fund and the
passed providing for the registration of the wife's
Campaign initially contend that retention of the
separate property."
traditional definition of marriage not only constitutes a
compelling state interest, but that the Legislature (and the Article XX, section 8 of the California
people in adopting an initiative statute) had no choice but Constitution of 1879 contained a similar
to retain this definition, because according to these provision, stating: "All property, real and
defendants the California Constitution itself mandates personal, owned by either husband or wife before
this limitation on the meaning of the term "marriage." marriage, and that acquired by either of them
The Fund and the Campaign assert that the common law
afterwards by gift, devise, or descent, shall be
definition of marriage as the union of a man and a woman their separate property."
is enshrined in the California Constitution by virtue of
language in the 1849 and 1879 Constitutions that The current analogous provision of the
employed the terms "marriage," "wife," and "husband" in
Page 57
California Constitution is contained in article I, As Chief Justice Poritz of the New Jersey Supreme
section 21, and since 1970 has provided: Court observed in her concurring and dissenting opinion
"Property owned before marriage or acquired in Lewis v. Harris, supra, 908 A.2d 196: "Perhaps the
during marriage by gift, will, or inheritance is political branches will right the wrong presented in this
separate property." case by amending the marriage statutes to recognize fully
the fundamental right of same-sex couples to marry. That
In contrast to the position advanced by the possibility does not relieve this Court of its responsibility
Proposition 22 Legal Defense Fund and the Campaign, to decide constitutional questions, no matter how
the Attorney General and the Governor recognize that the difficult. ... [¶] The question of access to civil marriage
California Constitution does not define or limit the by same-sex couples 'is not a matter of social policy but
marriage relationship to a union of a man and a woman. of constitutional interpretation.' [Citation.] It is a question
These officials acknowledge that the Legislature for this Court to decide." (Id. at pp. 230-231 (conc. & dis.
(consistent with the constitutional limitations imposed by opn. of Poritz, C. J.).) As noted generally by Professor
the initiative provisions) or the people (through the Jesse Choper, "the Court should review individual rights
exercise of the initiative power) have the authority to questions, unabated by its judgment about whether a
revise the current marriage statutes to permit same-sex particular result will be subject to criticism, hostility, or
couples to marry. The Attorney General and the disobedience." (Choper, Judicial Review and the National
Governor maintain, however, that because the institution Political Process: A Functional Reconsideration of the
of marriage traditionally (both in California and Role of the Supreme Court (1980) p. 167.)
throughout most of the world) has been limited to a union
between a man and a woman, any change in that status The circumstance that in the present instance the
necessarily is a matter solely for the legislative process. statutory limitation upon who may enter into the marriage
Thus, they suggest that the separation-of-powers doctrine relationship is contained in statutory provisions that may
precludes a court from modifying the traditional be viewed as defining the marriage relationship, rather
definition of marriage. than, for example, in a separate statutory provision stating
that a marriage between persons of the same sex is void,
Although, as noted at the outset of this opinion (ante, does not render this aspect of the statutory scheme
at pp. 780-781), we agree with the Attorney General and immune from constitutional constraints. The statutory
the Governor that the separation-of-powers doctrine provisions prohibiting interracial marriage at issue in
precludes a court from "redefining" marriage on the basis Perez, supra, 32 Cal.2d 711, would not have been
of the court's view that public policy or the public interest exempt from, or subject to a more deferential,
would be better served by such a revision, we disagree constitutional scrutiny had the relevant statutes in that
with the Attorney General and the Governor to the extent case defined marriage as a union between two persons of
they suggest that the traditional or long-standing nature of the same race, rather than providing that an interracial
the current statutory definition of marriage exempts the marriage was void. The form in which a statutory
statutory provisions embodying that definition from the limitation or prohibition on marriage is set forth does not
constraints imposed by the California Constitution, or justify different constitutional treatment or preclude
that the separation-of-powers doctrine precludes a court judicial review.
from determining that constitutional question. On the
contrary, under "the constitutional theory of 'checks and Furthermore, history belies the notion that any
balances' that the separation of powers doctrine is element that traditionally has been viewed as an integral
intended to serve" (Superior Court v. County of or definitional feature of marriage constitutes an
Mendocino (1996) 13 Cal.4th 45, 53 [51 Cal. Rptr. 2d impermissible subject of judicial scrutiny. Many
837, 913 P.2d 1046]), a court has an obligation to examples exist of legal doctrines that once were viewed
enforce the limitations that the California Constitution as central components of the civil institution of
imposes upon legislative measures, and a court would marriage--such as the doctrine of coverture under which
shirk the responsibility it owes to each member of the the wife's legal identity was treated as merged into that of
public were it to consider such statutory provisions to be her husband, whose property she became, or the doctrine
insulated from judicial review. of recrimination which significantly limited the
circumstances under which a marriage could be legally
Page 58
terminated, or the numerous legal rules based upon the initiative power (see 64 Cal.2d at pp. 546, 553, 559 (dis.
differing roles historically occupied by a man and by a opn. of White, J.); id. at p. 559 (dis. opn. of McComb,
woman in the marriage relationship and in family life J.))--and, indeed, noted that the electorate's approval had
generally. Courts have not hesitated to subject such legal been "[b]y an overwhelming margin of popular votes"
doctrines to judicial scrutiny when the fairness or (id. at p. 553 (dis. opn. of White, J.))--the majority
continuing validity of the doctrine or rule was challenged, nonetheless clearly explained that the governing
on occasion ultimately modifying or invalidating it as a constitutional principles require that an initiative measure
result of such judicial scrutiny. (See, e.g., Stone, The "like any other state law, conform to federal
Family, Sex and Marriage in England 1500-1800 (1979) constitutional standards before it may be enforced against
p. 221 [coverture]; De Burgh v. De Burgh, supra, 39 persons who are entitled to protection under that
Cal.2d 858 [recrimination]; Arp v. Workers' Comp. Constitution." (Id. at p. 533; see also Romer v. Evans
Appeals Bd., supra, 19 Cal.3d 395 [assumption of (1996) 517 U.S. 620 [134 L. Ed. 2d 855, 116 S. Ct. 1620]
dependent nature of wife but not husband]; Kirchberg v. [invalidating, as violative of the federal equal protection
Feenstra (1981) 450 U.S. 455 [67 L. Ed. 2d 428. 101 S. clause, a provision of the Colorado Constitution, adopted
Ct. 1195] [control over community property].) in a statewide referendum, that barred any municipality
Accordingly, we reject the contention that the from enacting or enforcing any policy prohibiting
separation-of-powers doctrine renders judicial scrutiny discrimination on the basis of sexual orientation].)
improper because the statutory provisions in question Similarly, in Legislature v. Deukmejian (1983) 34 Cal.3d
embody an integral aspect of the definition of marriage. 658 [194 Cal. Rptr. 781, 669 P.2d 17], this court held
that a proposed reapportionment initiative measure was
By the same token, the circumstance that the invalid under a state constitutional provision limiting
limitation of marriage to a union between a man and a legislative reapportionment to a single, valid,
woman embodied in section 308.5 was enacted as an once-a-decade redistricting, emphasizing the "elementary
initiative measure by a vote of the electorate similarly principle" that "[a] statutory initiative is subject to the
neither exempts the statutory provision from same state and federal constitutional limitations as are the
constitutional scrutiny nor justifies a more deferential Legislature and the statutes which it enacts." (Id. at p.
standard of review. Although California decisions 674.) (See also, e.g., Calfarm Ins. Co. v. Deukmejian
consistently and vigorously have safeguarded the right of (1989) 48 Cal.3d 805, 831-837 [258 Cal. Rptr. 161, 771
voters to exercise the authority afforded by the initiative P.2d 1247] [invalidating, as violative of state
process (see, e.g., Associated Home Builders etc., Inc. v. constitutional provision prohibiting the designation of a
City of Livermore (1976) 18 Cal.3d 582, 591 [135 Cal. named private corporation to perform any function, a
Rptr. 41, 557 P.2d 473]), our past cases at the same time section of an insurance reform initiative that created a
uniformly establish that initiative measures adopted by nonprofit consumer advocacy corporation]; Hays v. Wood
the electorate are subject to the same constitutional (1979) 25 Cal.3d 772, 786-795 [160 Cal. Rptr. 102, 603
limitations that apply to statutes adopted by the P.2d 19] [invalidating, under federal and state equal
Legislature, and our courts have not hesitated to protection principles, portions of the Political Reform
invalidate measures enacted through the initiative process Act of 1974 (Gov. Code, § 81000 et seq.), an initiative
when they run afoul of constitutional guarantees provided statute adopted by the voters]; Weaver v. Jordan (1966)
by either the federal or California Constitution. 64 Cal.2d 235, 238-249 [49 Cal. Rptr. 537, 411 P.2d
289] [invalidating, as violative of the free speech
For example, in Mulkey v. Reitman (1966) 64 Cal. 2d provisions of the state and federal Constitutions, an
529 [50 Cal. Rptr. 881, 413 P.2d 825], affd. sub nom. initiative measure imposing a statewide ban on the
Reitman v. Mulkey (1967) 387 U.S. 369 [18 L. Ed. 2d business of home subscription television].)
830, 87 S. Ct. 1627], this court invalidated, as violative of
federal equal protection principles, a state initiative Although defendants maintain that this court has an
measure that purported to overturn recently enacted state obligation to defer to the statutory definition of marriage
laws prohibiting racial discrimination in housing. contained in section 308.5 because that statute--having
Although the dissenting justices in that case referred been adopted through the initiative process--represents
repeatedly to the circumstance that the measure at issue the expression of the "people's will," this argument fails
had been adopted by a vote of the people under the to take into account the very basic point that the
Page 59
would violate the state constitution].) clearly is not necessary to preserve the rights and benefits
of marriage currently enjoyed by opposite-sex couples.
Although the understanding of marriage as limited to Extending access to the designation of marriage to
a union of a man and a woman is undeniably the same-sex couples will not deprive any opposite-sex
predominant one, if we have learned anything from the couples or their children of any of the rights and benefits
significant evolution in the prevailing societal views and conferred by the marriage statutes, but simply will make
official policies toward members of minority races and the benefit of the marriage designation available to
toward women over the past half-century, it is that even same-sex couples and their children. As Chief Judge
the most familiar and generally accepted of social Kaye of the New York Court of Appeals succinctly
practices and traditions often mask an unfairness and observed in her dissenting opinion in Hernandez v.
inequality that frequently is not recognized or appreciated Robles, supra, 855 N.E.2d 1, 30 (dis. opn. of Kaye, C. J.):
by those not directly harmed by those practices or "There are enough marriage licenses to go around for
traditions. It is instructive to recall in this regard that the everyone." Further, permitting same-sex couples access
traditional, well-established legal rules and practices of to the designation of marriage will not alter the
our not-so-distant past (1) barred interracial marriage, 71 substantive nature of the legal institution of marriage;
(2) upheld the routine exclusion of women from many same-sex couples who choose to enter into the
occupations and official duties, and (3) considered the relationship with that designation will be subject to the
relegation of racial minorities to separate and assertedly same duties and obligations to each other, to their
equivalent public facilities and institutions as children, and to third parties that the law currently
constitutionally equal treatment. As the United States imposes upon opposite-sex couples who marry. Finally,
Supreme Court observed in its decision in Lawrence v. affording same-sex couples the opportunity to obtain the
Texas, supra, 539 U.S. 558, 579, the expansive and designation of marriage will not impinge upon the
protective provisions of our constitutions, such as the due religious freedom of any religious organization, official,
process clause, were drafted with the knowledge that or any other person; no religion will be required to
"times can blind us to certain truths and later generations change its religious policies or practices with regard to
can see that laws once thought necessary and proper in same-sex couples, and no religious officiant will be
fact serve only to oppress." For this reason, the interest in required to solemnize a marriage in contravention of his
retaining a tradition that excludes a historically or her religious beliefs. (Cal. Const., art. I, § 4.) 72
disfavored minority group from a status that is extended
to all others--even when the tradition is long-standing and 72 Contrary to the contention of the Proposition
widely shared--does not necessarily represent a 22 Legal Defense Fund and the Campaign, the
compelling state interest for purposes of equal protection distinction in nomenclature between marriage and
analysis. domestic partnership cannot be defended on the
basis of an asserted difference in the effect on
71 This court's 1948 decision in Perez, supra, 32 children of being raised by an opposite-sex couple
Cal.2d 711, was the first judicial decision to hold instead of by a same-sex couple. Because the
that a statute prohibiting interracial marriage was governing California statutes permit same-sex
unconstitutional. It was not until nearly 20 years couples to adopt and raise children and
later, in 1967, that the United States Supreme additionally draw no distinction between married
Court reached the same conclusion in Loving v. couples and domestic partners with regard to the
Virginia, supra, 388 U.S. 1, striking down a legal rights and responsibilities relating to
comparable Virginia statute. children raised within each of these family
relationships, the asserted difference in the effect
After carefully evaluating the pertinent on children does not provide a justification for the
considerations in the present case, we conclude that the differentiation in nomenclature set forth in the
state interest in limiting the designation of marriage challenged statutes.
exclusively to opposite-sex couples, and in excluding
same-sex couples from access to that designation, cannot While retention of the limitation of marriage to
properly be considered a compelling state interest for opposite-sex couples is not needed to preserve the rights
equal protection purposes. To begin with, the limitation and benefits of opposite-sex couples, the exclusion of
Page 61
same-sex couples from the designation of marriage works same-sex couples] was irrational, ignorant or
a real and appreciable harm upon same-sex couples and bigoted."].) We conclude that because of the
their children. As discussed above, because of the long detrimental effect that such provisions impose on
and celebrated history of the term "marriage" and the gay individuals and couples on the basis of their
widespread understanding that this word describes a sexual orientation, the statutes are inconsistent
family relationship unreservedly sanctioned by the with the constitutional principles embodied in the
community, the statutory provisions that continue to limit California Constitution and accordingly cannot be
access to this designation exclusively to opposite-sex upheld.
couples--while providing only a novel, alternative
institution for same-sex couples--likely will be viewed as VI
an official statement that the family relationship of
Having concluded that sections 300 and 308.5 are
same-sex couples is not of comparable stature or equal
unconstitutional to the extent each statute reserves the
dignity to the family relationship of opposite-sex couples.
designation of marriage exclusively to opposite-sex
Furthermore, because of the historic disparagement of
couples and denies same-sex couples access to that
gay persons, the retention of a distinction in
designation, we must determine the proper remedy.
nomenclature by which the term "marriage" is withheld
only from the family relationship of same-sex couples is When a statute's differential treatment of separate
all the more likely to cause the new parallel institution categories of individuals is found to violate equal
that has been established for same-sex couples to be protection principles, a court must determine whether the
considered a mark of second-class citizenship. Finally, in constitutional violation should be eliminated or cured by
addition to the potential harm flowing from the lesser extending to the previously excluded class the treatment
stature that is likely to be afforded to the family or benefit that the statute affords to the included class, or
relationships of same-sex couples by designating them alternatively should be remedied by withholding the
domestic partnerships, there exists a substantial risk that a benefit equally from both the previously included class
judicial decision upholding the differential treatment of and the excluded class. A court generally makes that
opposite-sex and same-sex couples would be understood determination by considering whether extending the
as validating a more general proposition that our state by benefit equally to both classes, or instead withholding it
now has repudiated: that it is permissible, under the law, equally, would be most consistent with the likely intent
for society to treat gay individuals and same-sex couples of the Legislature, had that body recognized that unequal
differently from, and less favorably than, heterosexual treatment was constitutionally impermissible. (See, e.g.,
individuals and opposite-sex couples. Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607,
626-662 [47 Cal. Rptr. 2d 108, 905 P.2d 1248]; Arp v.
In light of all of these circumstances, we conclude
Workers' Comp. Appeals Bd., supra, 19 Cal.3d 395,
that retention of the traditional definition of marriage
407-410.)
does not constitute a state interest sufficiently
compelling, under the strict scrutiny equal protection In the present case, it is readily apparent that
standard, to justify withholding that status from same-sex extending the designation of marriage to same-sex
couples. Accordingly, insofar as the provisions of couples clearly is more consistent with the probable
sections 300 and 308.5 draw a distinction between legislative intent than withholding that designation from
opposite-sex couples and same-sex couples and exclude both opposite-sex couples and same-sex couples in favor
the latter from access to the designation of marriage, we of some other, uniform designation. In view of the
conclude these statutes are unconstitutional. 73 lengthy history of the use of the term "marriage" to
describe the family relationship here at issue, and the
73 We emphasize that in reaching this
importance that both the supporters of the 1977
conclusion we do not suggest that the current
amendment to the marriage statutes and the electors who
marriage provisions were enacted with an
voted in favor of Proposition 22 unquestionably attached
invidious intent or purpose. (Cf. Hernandez v.
to the designation of marriage, there can be no doubt that
Robles, supra, 855 N.E.2d 1, 8 ["A court should
extending the designation of marriage to same-sex
not lightly conclude that everyone who held this
couples, rather than denying it to all couples, is the equal
belief [that the right to marriage did not extend to
protection remedy that is most consistent with our state's
Page 62
general legislative policy and preference. unlawfully by issuing gender-neutral marriage licenses to
same-sex couples after the officials made a legal
Accordingly, in light of the conclusions we reach determination that depriving same-sex couples of the
concerning the constitutional questions brought to us for right to marry was unconstitutional. (Lockyer, supra, 33
resolution, we determine that the language of section 300 Cal.4th at pp. 1069, 1104-1105.) Here, this court holds
limiting the designation of marriage to a union "between that under the state Constitution's equal protection
a man and a woman" is unconstitutional and must be guarantee, same-sex couples have a right to marry, and
stricken from the statute, and that the remaining statutory that state officials should take all necessary and
language must be understood as making the designation appropriate steps so that local officials may begin issuing
of marriage available both to opposite-sex and same-sex marriage licenses to same-sex couples. (Maj. opn., ante,
couples. In addition, because the limitation of marriage to at pp. 855-857.)
opposite-sex couples imposed by section 308.5 can have
no constitutionally permissible effect in light of the From such brief descriptions, these two decisions
constitutional conclusions set forth in this opinion, that may appear inconsistent. What this court determined to
provision cannot stand. be unlawful in Lockyer, and ordered city officials to
immediately stop doing, is the same action that must
Plaintiffs are entitled to the issuance of a writ of now, by virtue of this court's decision here, be
mandate directing the appropriate state officials to take recommenced--issuing marriage licenses to couples
all actions necessary to effectuate our ruling in this case consisting of either two women or two men. There is no
so as to ensure that county clerks and other local officials inconsistency, however, in these two decisions. In
throughout the state, in performing their duty to enforce Lockyer, this court did not decide whether the California
the marriage statutes in their jurisdictions, apply those Constitution's equal protection guarantee affords a right
provisions in a manner consistent with the decision of of marriage to same-sex couples. (Lockyer, supra, 33
this court. Further, as the prevailing parties, plaintiffs are Cal.4th at p. 1069.) Rather, this court decided only that
entitled to their costs. local officials lacked authority to decide the
constitutional validity of the state marriage statutes and
The judgment of the Court of Appeal is reversed, and instead should have submitted that question to the
the matter is remanded to that court for further action judiciary for resolution. (Ibid.) Now that this court has
consistent with this opinion. authoritatively and conclusively resolved the underlying
constitutional question by holding that state marriage
Kennard, J., Werdegar, J., and Moreno, J., concurred.
laws are constitutionally invalid insofar as they
CONCUR BY: Kennard; Baxter (In Part); Corrigan (In discriminate on the basis of sexual orientation, the
Part) issuance of marriage licenses to same-sex couples is
lawful, and indeed constitutionally required.
CONCUR
In Lockyer, this court declared void all of the
KENNARD, J., Concurring.--I write separately to approximately 4,000 marriages performed in San
explain how the court's decision here is consistent with Francisco under the licenses issued to same-sex couples
Lockyer v. City and County of San Francisco (2004) 33 (Lockyer, supra, 33 Cal.4th at pp. 1117-1118), and the
Cal.4th 1055 [17 Cal. Rptr. 3d 225, 95 P.3d 459] court here does not undertake any reconsideration of the
(Lockyer), to note Lockyer's effect on marriages of validity of those marriages. I disagreed with Lockyer's
same-sex couples previously performed in this state, and nullification of those marriages. Recognizing that many
to emphasize my agreement with the Chief Justice that of the individuals to whom those licenses had been issued
the constitutionality of the marriage laws' exclusion of had "waited years, sometimes several decades, for a
same-sex couples is an issue particularly appropriate for chance to wed, yearning to obtain the public validation
decision by this court. that only marriage can give" (Lockyer, supra, at p. 1132
(conc. & dis. opn. of Kennard, J.)), I took the position
As the opening words of the Chief Justice's majority that the validity of those marriages should be determined
opinion indicate, this case is a continuation of Lockyer. "after the constitutionality of California laws restricting
There, this court held that local officials had acted marriage to opposite-sex couples has been authoritatively
Page 63
resolved through judicial proceedings now pending in the those marriages. In light of our determination here that
courts of California" (id. at p. 1125). same-sex couples are entitled under the state Constitution
to the same marriage rights as opposite-sex couples, this
I explained my position in these words: "Whether the court--had it in Lockyer deferred until now a decision on
issuance of a gender-neutral license to a same-sex couple, the validity of the previously performed marriages of
in violation of state laws restricting marriage to same-sex couples--necessarily would have recognized
opposite-sex couples, is a defect that precludes any that the defects in those marriages were not substantive
possibility of a valid marriage may well depend upon (in other words, no valid law prohibited the marriages)
resolution of the constitutional validity of that statutory but rather procedural (the marriages were premature in
restriction. If the restriction is constitutional, then a the sense that they were performed before rather than
marriage between persons of the same sex would be a after a judicial determination of the couples' right to
legal impossibility, and no marriage would ever have marry), and that the parties to these marriages were
existed. But if the restriction violates a fundamental attempting in good faith to exercise their rights under the
constitutional right, the situation could be quite different. state Constitution. Because of Lockyer, however, those
A court might then be required to determine the validity marriage ceremonies, performed with great joy and
of same-sex marriages that had been performed before celebration, must remain "empty and meaningless ... in
the laws prohibiting those marriages had been invalidated the eyes of the law." (Lockyer, supra, 33 Cal.4th at p.
on constitutional grounds. [¶] When a court has declared 1132 (conc. & dis. opn. of Kennard, J.).)
a law unconstitutional, questions about the effect of that
determination on prior actions, events, and transactions The court's opinion, authored by the Chief Justice,
'are among the most difficult of those which have carefully and fully explains why the constitutionality of
engaged the attention of courts, state and federal, and it is the marriage laws' exclusion of same-sex couples is an
manifest from numerous decisions that an all-inclusive issue particularly appropriate for decision by this court,
statement of a principle of absolute retroactive invalidity rather than a social or political issue inappropriate for
cannot be justified.' (Chicot County Dist. v. Bank (1940) judicial consideration. (See maj. opn., ante, at pp.
308 U.S. 371, 374 [84 L. Ed. 329, 60 S. Ct. 317]; accord, 849-853.) Because of its importance, this point deserves
Lemon v. Kurtzman [(1973) 411 U.S. 192,] 198 [36 L. special emphasis.
Ed. 2d 151, 93 S. Ct. 1463].) This court has
acknowledged that, in appropriate circumstances, an In holding today that the right to marry guaranteed
unconstitutional statute may be judicially reformed to by the state Constitution may not be withheld from
retroactively extend its benefits to a class that the statute anyone on the ground of sexual orientation, this court
expressly but improperly excluded. (Kopp v. Fair Pol. discharges its gravest and most important responsibility
Practices Com. (1995) 11 Cal.4th 607, 624-625 [47 Cal. under our constitutional form of government. There is a
Rptr. 2d 108, 905 P.2d 1248] (lead opn. of Lucas, C. J.), reason why the words "Equal Justice Under Law" are
685 (conc. & dis. opn. of Baxter, J.) [joining in pt. III of inscribed above the entrance to the courthouse of the
lead opn.].) Thus, it is possible, though by no means United States Supreme Court. Both the federal and the
certain, that if the state marriage laws prohibiting state Constitutions guarantee to all the "equal protection
same-sex marriage were held to violate the state of the laws" (U.S. Const., 14th Amend.; Cal. Const., art.
Constitution, same-sex marriages performed before that I, § 7), and it is the particular responsibility of the
determination could then be recognized as valid." judiciary to enforce those guarantees. The architects of
(Lockyer, supra, 33 Cal.4th at pp. 1131-1132 (conc. & our federal and state Constitutions understood that
dis. opn. of Kennard, J.).) widespread and deeply rooted prejudices may lead
majoritarian institutions to deny fundamental freedoms to
Recognizing that this court's decision in Lockyer unpopular minority groups, and that the most effective
finally and conclusively invalidated the marriages of remedy for this form of oppression is an independent
same-sex couples performed in San Francisco in 2004, judiciary charged with the solemn responsibility to
the parties have not asked this court to again address that interpret and enforce the constitutional provisions
issue here, and this court has not done so. Nevertheless, guaranteeing fundamental freedoms and equal protection.
in my view, it is important to recognize how today's (See Davis v. Passman (1979) 442 U.S. 228, 241 [60 L.
holding could have affected a decision on the validity of Ed. 2d 846, 99 S. Ct. 2264] [describing the judiciary as
Page 64
"the primary means" for enforcement of constitutional Nothing in our Constitution, express or implicit, compels
rights]; Bixby v. Pierno (1971) 4 Cal.3d 130, 141 [93 the majority's startling conclusion that the age-old
Cal. Rptr. 234, 481 P.2d 242] [stating that, under our understanding of marriage--an understanding recently
constitutional system of checks and balances, "probably confirmed by an initiative law--is no longer valid.
the most fundamental [protection] lies in the power of the California statutes already recognize same-sex unions and
courts to test legislative and executive acts by the light of grant them all the substantive legal rights this state can
constitutional mandate and in particular to preserve bestow. If there is to be a further sea change in the social
constitutional rights, whether of individual or minority, and legal understanding of marriage itself, that evolution
from obliteration by the majority"].) should occur by similar democratic means. The majority
forecloses this ordinary democratic process, and, in doing
Here, we decide only the scope of the equal so, oversteps its authority.
protection guarantee under the state Constitution, which
operates independently of the federal Constitution. (See The majority's mode of analysis is particularly
Cal. Const., art. I, § 24 ["Rights guaranteed by this troubling. The majority relies heavily on the Legislature's
Constitution are not dependent on those guaranteed by adoption of progressive civil rights protections for gays
the United States Constitution."].) Absent a compelling and lesbians to find a constitutional right to same-sex
justification, our state government may not deny a right marriage. In effect, the majority gives the Legislature
as fundamental as marriage to any segment of society. indirectly power that body does not directly possess to
Whether an unconstitutional denial of a fundamental right amend the Constitution and repeal an initiative statute. I
has occurred is not a matter to be decided by the cannot subscribe to the majority's reasoning, or to its
executive or legislative branch, or by popular vote, but is result.
instead an issue of constitutional law for resolution by the
judicial branch of state government. Indeed, this court's As noted above, I do not dispute everything the
decision in Lockyer made it clear that the courts alone majority says. At the outset, I join the majority's
must decide whether excluding individuals from marriage observation that "[f]rom the beginning of California
because of sexual orientation can be reconciled with our statehood, the legal institution of civil marriage has been
state Constitution's equal protection guarantee. (Lockyer, understood to refer to a relationship between a man and a
supra, 33 Cal.4th at pp. 1068-1069.) The court today woman." (Maj. opn., ante, at p. 792, fn. omitted.)
discharges its constitutional obligation by resolving that
Moreover, I endorse the majority's interpretation of
issue.
California's Domestic Partnership Act (DPA; Fam. Code,
With these observations, I concur fully in the court's § 297 et seq.). As the majority makes clear, the DPA now
opinion authored by the Chief Justice. allows same-sex partners to enter legal unions which
"afford ... virtually all of the [substantive] benefits and
DISSENT BY: Baxter (In Part); Corrigan (In Part) responsibilities afforded by California law to married
opposite-sex couples." (Maj. opn., ante, at p. 807; see
DISSENT also Fam. Code, § 297.5.) As the majority further
correctly observes, California has done all it can do with
BAXTER, J., Concurring and Dissenting.--The regard to providing these substantive rights, benefits, and
majority opinion reflects considerable research, thought, responsibilities to same-sex partners. (Maj. opn., ante, at
and effort on a significant and sensitive case, and I pp. 806-807.) 1
actually agree with several of the majority's conclusions.
However, I cannot join the majority's holding that the 1 As the majority acknowledges, California
California Constitution gives same-sex couples a right to cannot force other jurisdictions to recognize
marry. In reaching this decision, I believe, the majority California same-sex legal partnerships, by any
violates the separation of powers, and thereby commits name. Indeed, the federal Defense of Marriage
profound error. Act (DOMA; 28 U.S.C. § 1738C, as added by
Pub.L. 104-199, § 2(a) (Sept. 21, 1996), 110 Stat.
Only one other American state recognizes the right 2419) specifies that an American state, territory,
the majority announces today. So far, Congress, and possession, or Indian tribe may refuse to
virtually every court to consider the issue, has rejected it. recognize any same-sex legal relationship created
Page 65
under the laws of another state, territory, However, I respectfully disagree with the remainder
possession, or tribe, and "treated as a marriage" of the conclusions reached by the majority.
by that other entity. As the majority concedes,
many American jurisdictions have exercised this The question presented by this case is simple and
authority, and have enacted laws refusing to stark. It comes down to this: Even though California's
recognize same-sex marriages or equivalent progressive laws, recently adopted through the
same-sex legal unions created under the laws of democratic process, have pioneered the rights of
other jurisdictions. Moreover, under the DOMA, same-sex partners to enter legal unions with all the
all federal laws and regulations affecting marital substantive benefits of opposite-sex legal unions, do
or spousal rights, responsibilities, and benefits those laws nonetheless violate the California Constitution
expressly apply only to opposite-sex unions. (1 because at present, in deference to long and universal
U.S.C. § 7, as added by Pub.L. 104-199, § 3(a) tradition, by a convincing popular vote, and in accord
(Sept. 21, 1996), 110 Stat. 2419.) with express national policy (see fns. 1, 2, ante), they
reserve the label "marriage" for opposite-sex legal
I also agree with the majority's construction of unions? 3 I must conclude that the answer is no.
Family Code section 308.5. As the majority explains, this
initiative statute, adopted by a popular vote of 61.4 3 Before addressing the "label" issue--the only
percent and thus immune from unilateral repeal by the one actually presented by this case--the majority
Legislature (Cal. Const., art. II, § 10, subd. (c)), does not spends much time and effort to find that there is a
merely preclude California's recognition of same-sex fundamental constitutional right to enter a legally
"marriage[s]" consummated elsewhere, but also recognized familial union with a partner of the
invalidates same-sex "marriage[s]" contracted under that same sex. The focus on this subject is puzzling,
name in this state. 2 for, as the majority concedes, California law
already provides, to the maximum extent of the
2 Insofar as Family Code section 308.5 does state's power, a right to same-sex legal unions
represent California's decision not to recognize with all the substantive legal benefits of their
same-sex marriages contracted in another opposite-sex counterparts. Thus, as the majority
jurisdiction, that choice is expressly sanctioned, of further acknowledges, plaintiffs have no occasion
course, by 28 United States Code section 1738C, to establish a constitutional basis for these rights,
part of the DOMA. (See fn. 1, ante.) This and the issue is simply "whether, in light of the
provision is an exercise of Congress's power enactment of California's domestic partnership
under the full faith and credit clause (U.S. Const., legislation, the current California statutory
art. IV, § 1). (E.g., Wilson v. Ake (M.D.Fla. 2005) scheme is constitutional." (Maj. opn., ante, at p.
354 F. Supp. 2d 1298, 1303-1304 (Wilson).) 808, fn. 27, original italics.) The majority's
objective appears to be to establish that the
In addition, I am fully in accord with the majority's so-called fundamental right to same-sex legal
conclusion that Family Code sections 300 and 308.5, unions includes, as a "core element[]," the right to
insofar as they recognize only legal relationships between have those unions "accorded the same dignity,
opposite-sex partners as "marriage[s]," do not respect, and stature" as opposite-sex legal
discriminate on the basis of gender. partnerships enjoy. (Id., at p. 830.) This, in turn,
supports the majority's later conclusion that the
Finally, I concur that the actions in Proposition 22 labeling distinction in the current scheme directly
Legal Defense and Education Fund v. City and County of infringes this fundamental right, and is therefore
San Francisco (Super. Ct. S.F. City & County, No. subject to strict scrutiny for reasons independent
CPF-04-503943) and Campaign for California Families of the equal protection theory also advanced by
v. Newsom (Super. Ct. S.F. City & County, No. the majority. (Id., at pp. 844?847.)
CGC-04-428794) should have been dismissed as moot in
the wake of this court's decision in Lockyer v. City and As I explain below, however, I conclude that
County of San Francisco (2004) 33 Cal.4th 1055 [17 Cal. there is no fundamental constitutional right to a
Rptr. 3d 225, 95 P.3d 459]. same-sex legal union that equates in every respect
Page 66
with marriage. I would also reject the majority's the cause for further proceedings on the issue
alternative theory, based on the equal protection whether strict scrutiny was satisfied. However,
clause, for subjecting the labeling distinction to before the lower court's "no" answer (see Baehr v.
strict scrutiny. Hence, in my view, the naming Miike (Haw.Cir.Ct., Dec. 3, 1996, No. 91-1394)
distinction preserved by California's statutes must 80 Haw. 341 [910 P.2d 112]) could be reviewed
be upheld under our Constitution unless it is on appeal, the voters ratified a state constitutional
irrational. By that standard, the People's decision amendment giving the Hawaii Legislature the
to retain the traditional definition of marriage as right to reserve marriage to opposite-sex unions
between a man and a woman is amply justified. (Haw. Const., art. I, § 23, as adopted at Gen. Elec.
(Nov. 3, 1998) pursuant to Haw. H.R. Bill No.
The People, directly or through their elected 117 (1997 Reg. Sess.)), a step that body had
representatives, have every right to adopt laws abrogating already taken (Haw.Rev.Stat. § 572-1, as amended
the historic understanding that civil marriage is between a by Haw. Sess. Laws 1994, Act 217, § 3).
man and a woman. The rapid growth in California of Meanwhile, a substantially greater number of
statutory protections for the rights of gays and lesbians, courts have rejected claims of state constitutional
as individuals, as parents, and as committed partners, rights to same-sex marriage. (E.g., Conaway v.
suggests a quickening evolution of community attitudes Deane (2007) 401 Md. 219 [932 A.2d 571];
on these issues. Recent years have seen the development Hernandez v. Robles (2006) 7 N.Y.3d 338 [821
of an intense debate about same-sex marriage. Advocates N.Y.S.2d 770, 855 N.E.2d 1]; Andersen v. King
of this cause have had real success in the marketplace of County (2006) 158 Wn.2d 1 [138 P.3d 963];
ideas, gaining attention and considerable public support. Morrison v. Sadler (Ind.Ct.App. 2005) 821 N.E.2d
Left to its own devices, the ordinary democratic process 15; Standhardt v. Superior Court (Ariz.Ct.App.
might well produce, ere long, a consensus among most 2003) 206 Ariz. 276 [77 P.3d 451]; Baker v.
Californians that the term "marriage" should, in civil Nelson (1971) 291 Minn. 310 [191 N.W.2d 185],
parlance, include the legal unions of same-sex partners. app. dis. (1972) 409 U.S. 810 [34 L. Ed. 2d 65, 93
S. Ct. 37]; see Dean v. District of Columbia
But a bare majority of this court, not satisfied with (D.C.App. 1995) 653 A.2d 307, 332-333 (conc. &
the pace of democratic change, now abruptly forestalls dis. opn. of Ferren, J); Dean, at pp. 361-364
that process and substitutes, by judicial fiat, its own (conc. opns. of Terry, J. & Steadman, J.) [federal
social policy views for those expressed by the People Const.]; see also Lewis v. Harris (2006) 188 N.J.
themselves. Undeterred by the strong weight of state and 415 [908 A.2d 196] [finding right to same-sex
federal law and authority, 4 the majority invents a new civil union with benefits of marriage, but
constitutional right, immune from the ordinary process concluding that label issue is premature]; Baker v.
of legislative consideration. The majority finds that our State (1999) 170 Vt. 194 [744 A.2d 864] [same].)
Constitution suddenly demands no less than a permanent In the wake of these developments, "[w]ith the
redefinition of marriage, regardless of the popular will. exception of Massachusetts, every state's law,
explicitly or implicitly, defines marriage to mean
4 Among American jurisdictions, only the high
the union of a man and a woman." (Lewis v.
court of Massachusetts (Goodridge v. Department
Harris, supra, 908 A.2d at p. 208, fn. omitted.) As
of Public Health (2003) 440 Mass. 309 [798
we have seen, federal statutory law also expressly
N.E.2d 941] (Goodridge); see also Opinions of
does so.
the Justices to the Senate (2004) 440 Mass. 1201
[802 N.E.2d 565, 572]) has previously found or In doing so, the majority holds, in effect, that the
confirmed in its state Constitution a right of civil Legislature has done indirectly what the Constitution
marriage to partners of the same sex. Several prohibits it from doing directly. Under article II, section
years earlier, in Baehr v. Lewin (1993) 74 Haw. 10, subdivision (c), that body cannot unilaterally repeal
530 [852 P.2d 44], the Hawaii Supreme Court an initiative statute, such as Family Code section 308.5,
had held that the denial of marriage licenses to unless the initiative measure itself so provides. Section
same-sex couples was subject, under the state 308.5 contains no such provision. Yet the majority
Constitution, to strict scrutiny, and had remanded suggests that, by enacting other statutes which do provide
Page 67
substantial rights to gays and lesbians--including definition of marriage, as virtually all societies have
domestic partnership rights which, under section 308.5, understood it, in order to satisfy its own contemporary
the Legislature could not call "marriage"--the Legislature notions of equality and justice.
has given "explicit official recognition" (maj. opn., ante,
at pp. 822, 823) to a California right of equal treatment The California Constitution says nothing about the
which, because it includes the right to marry, thereby rights of same-sex couples to marry. On the contrary, as
invalidates section 308.5. 5 the majority concedes, our original Constitution, effective
from the moment of statehood, evidenced an assumption
5 The majority refrains from declaring explicitly that marriage was between partners of the opposite sex.
that same-sex legal unions must be called Statutes enacted at the state's first legislative session
marriage, suggesting only that the name chosen confirmed this assumption, which has continued to the
must be equivalent in respect and dignity to the present day. When the Legislature realized that 1971
name allotted to opposite-sex unions. Thus, the amendments to the Civil Code, enacted for other reasons,
majority suggests, the Legislature might choose a had created an ambiguity on the point, the oversight was
new, common name for civil unions of both quickly corrected, and the definition of marriage as
kinds. Either way, as the majority clearly holds, between a man and a woman was made explicit. (Maj.
Family Code section 308.5 must be struck down. opn., ante, at pp. 792-801.) The People themselves
(Maj. opn., ante, at pp. 856-857.) reaffirmed this definition when, in the year 2000, they
adopted Proposition 22 by a 61.4 percent majority.
I cannot join this exercise in legal jujitsu, by which
the Legislature's own weight is used against it to create a Despite this history, plaintiffs first insist they have a
constitutional right from whole cloth, defeat the People's fundamental right, protected by the California
will, and invalidate a statute otherwise immune from Constitution's due process and privacy clauses (Cal.
legislative interference. Though the majority insists Const., art. I, §§ 1, 7, subd. (a)), to marry the adult
otherwise, its pronouncement seriously oversteps the consenting partners of their choice, regardless of gender.
judicial power. The majority purports to apply certain The majority largely accepts this contention. It holds that
fundamental provisions of the state Constitution, but it "the right to marry, as embodied in article I, sections 1
runs afoul of another just as fundamental--article III, and 7 of the California Constitution, guarantees same-sex
section 3, the separation of powers clause. This clause couples the same substantive constitutional rights as
declares that "[t]he powers of state government are opposite-sex couples to ... enter with [one's chosen life
legislative, executive, and judicial," and that "[p]ersons partner] into a committed, officially recognized, and
charged with the exercise of one power may not exercise protected family relationship that enjoys all of the
either of the others" except as the Constitution itself constitutionally based incidents of marriage." (Maj. opn.,
specifically provides. (Italics added.) ante, at p. 829, fn. omitted.) Further, the majority
declares, a "core element[ ] of this fundamental right is
History confirms the importance of the judiciary's the right of same-sex couples to have their official family
constitutional role as a check against majoritarian abuse. relationship accorded the same dignity, respect, and
Still, courts must use caution when exercising the stature as that accorded to all other officially recognized
potentially transformative authority to articulate family relationships." (Id., at p. 830.)
constitutional rights. Otherwise, judges with limited
accountability risk infringing upon our society's most To the extent this means same-sex couples have a
basic shared premise--the People's general right, directly fundamental right to enter legally recognized family
or through their chosen legislators, to decide fundamental unions called "marriage" (or, as the majority
issues of public policy for themselves. Judicial restraint is unrealistically suggests, by another name common to
particularly appropriate where, as here, the claimed both same-sex and opposite-sex unions), I cannot agree. I
constitutional entitlement is of recent conception and find no persuasive basis in our Constitution or our
challenges the most fundamental assumption about a jurisprudence to justify such a cataclysmic transformation
basic social institution. of this venerable institution.
The majority has violated these principles. It simply Fundamental rights entitled to the Constitution's
does not have the right to erase, then recast, the age-old protection are those "which are, objectively, 'deeply
Page 68
rooted in this [society's] history and tradition,' [citations], Dict. (2d ed. 1989) p. 396, cols. 1, 2 ["1.a. The
and 'implicit in the concept of ordered liberty,' such that condition of being a husband or wife; ... [¶] ... [¶]
'neither liberty nor justice could exist if they were 2.a. ... the ceremony or procedure by which two
sacrificed,' [citation]." (Washington v. Glucksberg (1997) persons are made husband and wife"]; American
521 U.S. 702, 720-721 [138 L. Ed. 2d 772, 117 S. Ct. Heritage Dict. (2d ed. 1985) p. 768, col. 1 ["1.a.
2258] (Glucksberg); see, e.g., Dawn D. v. Superior Court The state of being married: wedlock. b. The legal
(1998) 17 Cal.4th 932, 940 [72 Cal. Rptr. 2d 871, 952 union of a man and woman as husband and wife.
P.2d 1139].) Moreover, an assessment whether a ..."].) In light of the recent development of the
fundamental right or interest is at stake requires "a issue, late editions of some such works dutifully
'careful description' of the asserted fundamental ... allude to the concept of same-sex marriage. (See,
interest. [Citations.]" (Glucksberg, supra, at p. 721; e.g., American Heritage Dict. (4th ed. 2000) p.
Dawn D., supra, at p. 941.) 1073, col. 1 ["... d. A union having the customary
but usually not the legal force of marriage: a
These principles are crucial restraints upon the same-sex marriage"]; compare, e.g., Black's Law
overreaching exercise of judicial authority in violation of Dict. (8th ed. 2004) p. 994, col. 2 [noting that
the separation of powers. Courts have " 'always been "[t]he United States government and most
reluctant to expand the concept of substantive due American states do not recognize same-sex
process because guideposts for responsible marriages," but citing recent decisions on the
decisionmaking in this unchartered area are scarce and issue], with Black's Law Dict. (7th ed. 1999) pp.
open-ended.' [Citation.] By extending constitutional 986, col. 2, 987, cols. 1-2, 988, col. 1; compare
protection to an asserted right or liberty interest, we, to a also, e.g., Merriam Webster's Collegiate Dict.
great extent, place the matter outside the arena of public (11th ed. 2004) p. 761, col. 2, with Merriam
debate and legislative action. We must therefore 'exercise Webster's Collegiate Dict. (10th ed. 2000) p. 711,
the utmost care whenever we are asked to break new cols. 1-2.) But such recent acknowledgements in
ground in this field,' [citation], lest the liberty protected reference books do not undermine the fact that,
by the Due Process Clause be subtly transformed into the until very recently, the institution of marriage has
policy preferences" of judges. (Glucksberg, supra, 521 universally been understood as the union of
U.S. 702, 720.) opposite-sex partners.
It is beyond dispute, as the Court of Appeal majority One state, Massachusetts, has within the past five
in this case persuasively indicated, that there is no deeply years recognized same-sex marriage. (Goodridge, supra,
rooted tradition of same-sex marriage, in the nation or in 798 A.2d 941; see fn. 4, ante.) However, as the Court of
this state. Precisely the opposite is true. The concept of Appeal majority in our case observed, "the Massachusetts
same-sex marriage was unknown in our distant past, and Supreme Judicial Court's decision establishing this right
is novel in our recent history, because the universally has been controversial. (See, e.g., Note, Civil Partnership
understood definition of marriage has been the legal or in the United Kingdom and a Moderate Proposal for
religious union of a man and a woman. 6 Change in the United States (2005) 22 Ariz. J. Internat. &
Comparative L. 613, 630-631 [describing the controversy
6 This traditional understanding is certainly engendered by Goodridge]; see also Lewis v. Harris
confirmed by the definitions of "marriage" [(2005) 378 N.J. Super. 168 [875 A.2d 259, 274]]
contained in standard dictionaries. (See, e.g., [concluding from 'the strongly negative public reactions'
Webster's Third New Internat. Dict. (2002) p. to Goodridge, and similar decisions from lower courts of
1384, col. 3 ["1 a: the state of being united to a other states, that 'there is not yet any public consensus
person of the opposite sex as husband or wife. b: favoring recognition of same-sex marriage'].) Several
the mutual relation of husband and wife: other states have reacted negatively by, for example,
WEDLOCK ..."]; Random House Webster's amending their constitutions to prohibit same-sex
College Dict. (2d rev. ed. 2001) p. 814, col. 1 ["1. marriage. (See Stein, Symposium on Abolishing Civil
the social institution under which a man and Marriage: An Introduction (2006) 27 Cardozo L.Rev.
woman live as husband and wife by legal or 1155, 1157, fn. 12 [noting, as of January 2006, '39 states
religious commitments ..."]; IX Oxford English [had] either passed laws or amended their constitutions
Page 69
(or done both) to prohibit same-sex marriages, to deny current community value in favor of same-sex marriage
recognition of same-sex marriages from other that must now be enshrined in the Constitution. 7
jurisdictions, and/or to deny recognition to other types of
same-sex relationships'].)" 7 In this respect, California's situation differs
materially from that of Massachusetts, the only
California's history falls squarely along this other state that now recognizes a constitutional
nationwide spectrum, though at its more progressive end. right to same-sex marriage. In finding such a
As the majority itself explains, despite the Legislature's right, the Massachusetts Supreme Judicial Court
passage of the DPA and other statutes pioneering gay and addressed marriage statutes that imposed no facial
lesbian rights, California law has always assumed that prohibition on the issuance of marriage licenses to
marriage itself is between a man and a woman. In recent same-sex couples. (See Goodridge, supra, 798
years, both the Legislature and the People themselves A.2d 941, 951-952.) The Massachusetts court did
have enacted measures to make that assumption explicit. not confront, as we do, a law, recently adopted by
Under these circumstances, there is no basis for a the voters, that gave explicit voice to a prevailing
conclusion that same-sex marriage is a deeply rooted community standard in favor of retaining the
California tradition. traditional man-woman definition of marriage.
Undaunted, the majority nonetheless claims Of even greater concern is the majority's mode of
California's legal history as evidence of the constitutional analysis, which places heavy reliance on statutory law to
right it espouses. According to the majority, the very fact establish a constitutional right. When a pattern of
that the Legislature has, over time, adopted progressive legislation makes current community values clear, the
laws such as the DPA, thereby granting many substantial majority seems to say, those values can become locked
rights to gays and lesbians, constitutes "explicit official into the Constitution itself. 8
recognition" (maj. opn., ante, at pp. 822, 823) of "[t]his
state's current policies and conduct regarding 8 The majority protests that, contrary to my
homosexuality," i.e., "that gay individuals are entitled to assertion, the constitutional right it finds is not
the same legal rights and the same respect and dignity "grounded upon" the Legislature's passage of the
afforded all other individuals and are protected from DPA or any other laws, and such legislation
discrimination on the basis of their sexual orientation." "[was] not required" in order to confer equal
(Maj. opn., ante, at pp. 821-822, fn. omitted.) "In light of rights on gay and lesbian individuals. (Maj. opn.,
this recognition," the majority concludes, "sections 1 and ante, at p. 822.) As noted, however, the majority's
7 of article I of the California Constitution cannot analysis depends heavily on the Legislature's
properly be interpreted to withhold from gay individuals" efforts in behalf of gays and lesbians as "explicit
full equality of rights with heterosexual persons, official recognition" (id., at p. 822) of California's
including the right to same-sex legal unions that are fully policies on this subject, and as consequent
equivalent--including in name--to those of opposite-sex justification for concluding, despite an express
partners. (Id., at p. 823; see also id., at pp. 830-831, contrary statute, that our Constitution grants gays
844-856.) and lesbians a right to marry.
This analysis is seriously flawed. At the outset, it Of course, only the People can amend the
overlooks the most salient facts. The Legislature has Constitution; the Legislature has no unilateral power to
indeed granted many rights to gay and lesbian do so. (Cal. Const., art. XVIII.) However, the effect of
individuals, including the right to enter same-sex legal the majority's reasoning is to suggest that the Legislature
unions with all the substantive rights and benefits of civil can accomplish such amendment indirectly, whether it
marriage. As the majority elsewhere acknowledges, intends to do so or not, by reflecting current community
however, our current statutory scheme, which includes an attitudes in the laws it enacts.
initiative measure enacted by the People, specifically
The notion that legislation can become
reserves marriage itself for opposite-sex unions. (Fam.
"constitutionalized" is mischievous for several reasons.
Code, §§ 300, 308.5.) Under these circumstances, it is
As indicated above, it violates the constitutional scheme
difficult to see how our legislative history reflects a
by which only the People can amend the state's charter of
Page 70
government. It abrogates the legislative power to same-sex marriage. Second, as evidence that
reconsider what the law should be as public debate on an prevailing community attitudes support full
issue ebbs and flows. And, for that very reason, it may marital rights for same-sex couples, the majority
discourage efforts to pass progressive laws, out of fear cites the Legislature's efforts to accord various
that such efforts will ultimately, and inadvertently, place rights and benefits to gays and lesbians, including
the issue beyond the power of legislation to affect. the right to enter same-sex unions that are
substantively equivalent to marriage. But this
As applied in this case, the majority's analysis has effectively means the Legislature has, by
also given the Legislature, indirectly, a power it does not indirection, undermined section 308.5, though the
otherwise possess to thwart the People's express Constitution expressly denies that body express
legislative will. As noted above, under article II, section power to do so. (Cal. Const., art. II, § 10, subd.
10, subdivision (c) of the California Constitution, "[t]he (c).) Third, and most fundamentally, the majority
Legislature may amend or repeal ... an initiative statute has eschewed the judicial restraint and caution
by another statute that becomes effective only when that should always apply, under separation of
approved by the electors unless the initiative statute powers principles, before clear expressions of
permits amendment or repeal without their approval." popular will on fundamental issues are
(Italics added.) Family Code section 308.5, adopted by overturned.
Proposition 22, includes no provision allowing its
unilateral repeal or amendment by the Legislature. Other grounds advanced by the majority for its
claim of a fundamental right are equally unpersuasive.
According to the majority, however, the Legislature's The majority accepts plaintiffs' unconvincing claim that
adoption of progressive laws on the subject of gay and they seek no new " 'right to same-sex marriage' " (maj.
lesbian rights, including the DPA, makes it impossible opn., ante, at p. 811), but simply a recognition that the
not to recognize a constitutional right to same-sex legal well-established right to marry one's chosen partner is not
unions with full equivalency to opposite-sex legal unions. limited to those who wish to marry persons of the
This development, the majority ultimately concludes, opposite sex. However, by framing the issue simply as
requires the invalidation of Family Code section 308.5. In whether the undoubted right to marry is confined to
other words, in the majority's view, the Legislature's own opposite-sex couples, the majority mischaracterizes the
actions have, by indirection, caused this initiative statute entitlement plaintiffs actually claim. The majority thus
to be erased from the books. To say the least, I find such begs the question and violates the requirement of "
a constitutional approach troubling. 9 'careful description' " that properly applies when a court
is asked to break new ground in the area of substantive
9 It is true, as the majority suggests, that due process. (Glucksberg, supra, 521 U.S. 702, 721-722.)
initiative statutes are not immune from
constitutional scrutiny, for " 'the voters may no Though the majority insists otherwise, plaintiffs
more violate the Constitution by enacting a ballot seek, and the majority grants, a new right to same-sex
measure than a legislative body may do so by marriage that only recently has been urged upon our
enacting legislation.' " (Maj. opn., ante, at p. 852, social and legal system. Because civil marriage is an
quoting Citizens Against Rent Control v. Berkeley institution historically defined as the legal union of a man
(1981) 454 U.S. 290, 295 [70 L. Ed. 2d 492, 102 and a woman, plaintiffs could not succeed except by
S. Ct. 434].) I do not suggest otherwise. I say only convincing this court to insert in our Constitution an
that the majority has made three serious mistakes altered and expanded definition of marriage--one that
en route to its conclusion that the initiative statute includes same-sex partnerships for the first time. By
at issue here, Family Code section 308.5, violates accepting that invitation, the majority places this
the due process clause of the California controversial issue beyond the realm of legislative debate
Constitution. First, the majority finds such a and substitutes its own judgment in the matter for the
violation largely on the basis of its assessment of considered wisdom of the People and their elected
prevailing contemporary values in this state, representatives. The majority advances no persuasive
though section 308.5 itself makes clear that our reason for taking that step.
citizens have not yet embraced the concept of
Page 71
In support of its view that marriage is a constitutional mean, she made clear, that all distinctions
entitlement without regard for the genders of the between gay and heterosexual persons would
respective partners, the majority cites the many California similarly fail. In the case at hand, she noted,
and federal decisions broadly describing the basic rights "Texas cannot assert any legitimate state interest
of personal autonomy and family intimacy, including the [in such a classification], such as ... preserving the
right to marry, procreate, establish a home, and bring up traditional institution of marriage." (Id., at p. 585
children. (See maj. opn., ante, at pp. 809-820.) However, (conc. opn. of O'Connor, J.).)
none of the cited decisions holds, or remotely suggests,
that any right to marry recognized by the Constitution In a footnote, the majority insists that, though
extends beyond the traditional definition of marriage to same-sex couples are included within the fundamental
include same-sex partnerships. constitutional right to marry, the state's absolute bans on
marriages that are incestuous (Fam. Code, § 2200; see
Certainly Perez v. Sharp (1948) 32 Cal.2d 711 [198 Pen. Code, § 285), or nonmonogamous (Pen. Code, § 281
P.2d 17] (Perez) does not support the majority's et seq.; Fam. Code, § 2201) are not in danger. Vaguely
expansive view. There we struck down racial restrictions the majority declares that "[p]ast judicial decisions
on the right of a man and a woman to marry. But nothing explain why our nation's culture has considered
in Perez suggests an intent to alter the definition of [incestuous and polygamous] relationships inimical to the
marriage as a union of opposite-sex partners. In sum, mutually supportive and healthy family relationships
there is no convincing basis in federal or California promoted by the constitutional right to marry.
jurisprudence for the majority's claim that same-sex [Citations.]" (Maj. opn., ante, at p. 829, fn. 52.) Thus, the
couples have a fundamental constitutional right to marry. majority asserts, though a denial of same-sex marriage is
10 no longer justified, "the state continues to have a strong
and adequate justification for refusing to officially
10 The majority can draw no comfort from sanction polygamous or incestuous relationships because
Lawrence v. Texas (2003) 539 U.S. 558 [156 L. of their potentially detrimental effect on a sound family
Ed. 2d 508, 123 S. Ct. 2472] (Lawrence), which environment. [Citations.]" (Id., at p. 829.)
struck down a state law prohibiting same-sex
sodomy. (Overruling Bowers v. Hardwick (1986) The bans on incestuous and polygamous marriages
478 U.S. 186 [92 L. Ed. 2d 140, 106 S. Ct. 2841].) are ancient and deep-rooted, and, as the majority
The five-member Lawrence majority, asserting suggests, they are supported by strong considerations of
privacy and personal autonomy interests under the social policy. Our society abhors such relationships, and
due process clause, emphasized that the law, as the notion that our laws could not forever prohibit them
applied to consenting adults, constituted an seems preposterous. Yet here, the majority overturns, in
intrusion into the most intimate form of human abrupt fashion, an initiative statute confirming the equally
behavior, sexual conduct, in the most private of deep-rooted assumption that marriage is a union of
places, the home. Even if the personal partners of the opposite sex. The majority does so by
relationships in which such consensual private relying on its own assessment of contemporary
conduct occurred were "not entitled to formal community values, and by inserting in our Constitution
recognition in the law," the majority concluded, an expanded definition of the right to marry that
the government could not prohibit the conduct contravenes express statutory law.
itself. (Lawrence, at p. 567.) In response to
concerns expressed in dissent by Justice Scalia, That approach creates the opportunity for further
the majority made clear that the case "[did] not judicial extension of this perceived constitutional right
involve whether the government must give formal into dangerous territory. Who can say that, in 10, 15, or
recognition to any relationship that homosexual 20 years, an activist court might not rely on the majority's
persons seek to enter." (Id., at p. 578.) Justice analysis to conclude, on the basis of a perceived
O'Connor, concurring in the judgment, found the evolution in community values, that the laws prohibiting
antisodomy law invalid on equal protection polygamous and incestuous marriages were no longer
grounds, seeing no rational basis for the statute's constitutionally justified?
limitation to homosexual conduct. This did not
In no way do I equate same-sex unions with
Page 72
incestuous and polygamous relationships as a matter of at the threshold. And even if that were not appropriate, I
social policy or social acceptance. California's adoption disagree that sexual orientation is a suspect classification.
of the DPA makes clear that our citizens find merit in the Hence, as with the majority's due process theory, I would
desires of gay and lesbian couples for legal recognition of not apply strict scrutiny, and would uphold the statutory
their committed partnerships. Moreover, as I have said, I scheme as reasonable. I explain my conclusions.
can foresee a time when the People might agree to assign
the label marriage itself to such unions. It is unlikely, to "The general rule is that legislation is presumed to be
say the least, that our society would ever confer such valid and will be sustained if the classification drawn by
favor on incest and polygamy. the statute is rationally related to a legitimate state
interest. [Citations.] When social or economic legislation
My point is that the majority's approach has removed is at issue, the Equal Protection Clause allows the States
the sensitive issues surrounding same-sex marriage from wide latitude, [citations], and the Constitution presumes
their proper forum--the arena of legislative that even improvident decisions will eventually be
resolution--and risks opening the door to similar rectified by the democratic processes." (Cleburne v.
treatment of other, less deserving, claims of a right to Cleburne Living Center, Inc. (1985) 473 U.S. 432, 440
marry. By thus moving the policy debate from the [87 L. Ed. 2d 313, 105 S. Ct. 3249], italics added
legislative process to the court, the majority engages in (Cleburne).)
faulty constitutional analysis and violates the separation
of powers. "The initial inquiry in any equal protection analysis
is whether persons are 'similarly situated for purposes of
I would avoid these difficulties by confirming clearly the law challenged.' [Citation.]" (In re Lemanuel C.
that there is no constitutional right to same-sex marriage. (2007) 41 Cal.4th 33, 47 [58 Cal. Rptr. 3d 597, 158 P.3d
That is because marriage is, as it always has been, the 148].) A statute does not violate equal protection when it
right of a woman and an unrelated man to marry each recognizes real distinctions that are pertinent to the law's
other. legitimate aims. (E.g., People v. Smith (2007) 40 Cal.4th
483, 527 [54 Cal. Rptr. 3d 245, 150 P.3d 1224]; Cooley
From this conclusion, it follows, for substantive due v. Superior Court (2002) 29 Cal.4th 228, 253 [127 Cal.
process purposes, that the marriage statutes are valid Rptr. 2d 177, 57 P.3d 654]; Coleman v. Department of
unless unreasonable or arbitrary (see, e.g., Kavanau v. Personnel Administration (1991) 52 Cal.3d 1102, 1125
Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, [278 Cal. Rptr. 346, 805 P.2d 300]; Purdy & Fitzpatrick
771 [66 Cal. Rptr. 2d 672, 941 P.2d 851]), and are not v. State of California (1969) 71 Cal.2d 566, 578 [79 Cal.
subject to the strict scrutiny that applies when a statute Rptr. 77, 456 P.2d 645]; see Cleburne, supra, 473 U.S.
infringes a fundamental right or interest. As I discuss 432, 441.) In such cases, judicial deference to legislative
below, California's preservation of the traditional choices is consistent with "our respect for the separation
definition of marriage is entirely reasonable. of powers." (Cleburne, supra, at p. 441.)
Accordingly, I would reject plaintiffs' due process claim.
Though the majority insists otherwise (see maj. opn.,
Besides concluding that Family Code sections 300 ante, at pp. 831-832, fn. 54), I agree with Justice
and 308.5 are subject to strict scrutiny as an infringement Corrigan that same-sex couples and opposite-sex couples
on the fundamental state constitutional right to marry, the are not similarly situated with respect to the valid
majority also independently holds that such scrutiny is purposes of Family Code sections 300 and 308.5. As
required under the equal protection clause of the Justice Corrigan indicates, the state has a legitimate
California Constitution. This is so, the majority declares, interest in enforcing the express legislative and popular
because by withholding from same-sex legal unions the will that the traditional definition of marriage be
label that is applied to opposite-sex legal unions, the preserved. Same-sex and opposite-sex couples cannot be
scheme discriminates on the basis of sexual orientation, similarly situated for that limited purpose, precisely
which the majority now deems to be a suspect because the traditional definition of marriage is a union
classification. of partners of the opposite sex.
I find this analysis flawed at several levels. For two Of course, statutory classifications do not serve
reasons, I would reject plaintiffs' equal protection claim legitimate state interests when adopted for their own
Page 73
sake, out of animus toward a disfavored group. (E.g., adopted Family Code section 308.5, they did so " '
Romer v. Evans (1996) 517 U.S. 620, 633, 634-635 [134 "because of" ' " (Baluyut v. Superior Court, supra, 12
L. Ed. 2d 855, 116 S. Ct. 1620] (Romer); U. S. Dept. of Cal.4th at p. 837) its consequent adverse effect on gays
Agriculture v. Moreno (1973) 413 U.S. 528, 534 [37 L. and lesbians as a group. On the contrary, it appears the
Ed. 2d 782, 93 S. Ct. 2821]; see Lawrence, supra, 539 legislation was simply intended to maintain an age-old
U.S. 558, 582-583 (conc. opn. of O'Connor, J.); see also understanding of the meaning of marriage. Indeed,
Cleburne, supra, 473 U.S. 432, 441.) Here, however, the California's adoption of pioneering legislation that grants
majority itself expressly disclaims any suggestion "that gay and lesbian couples all the substantive incidents of
the current marriage provisions were enacted with an marriage further dispels the notion that an invidious
invidious intent or purpose." (Maj. opn., ante, at p. 856, intent lurks in our statutory scheme. As indicated above,
fn. 73.) I therefore concur fully in Justice Corrigan's the majority itself expressly disclaims any suggestion that
conclusion that plaintiffs' equal protection challenge fails the laws defining marriage were passed for the purpose of
for this reason alone. discrimination. For this reason as well, I believe our
equal protection analysis need go no further.
I also disagree with the majority's premise that, by
assigning different labels to same-sex and opposite-sex Even if the distinction were subject to further
legal unions, the state discriminates directly on the basis examination under the equal protection clause, I disagree
of sexual orientation. The marriage statutes are facially that strict scrutiny is the applicable standard of review.
neutral on that subject. They allow all persons, whether This is because I do not agree with the majority's decision
homosexual or heterosexual, to enter into the relationship to hold, under current circumstances, that sexual
called marriage, and they do not, by their terms, prohibit orientation is a suspect classification.
any two persons from marrying each other on the ground
that one or both of the partners is gay. (Cf. Perez, supra, The United States Supreme Court has never
32 Cal.2d 711, 712-713 [statutes prohibited marriage declared, for federal constitutional purposes, that a
between certain partners on the basis of their respective classification based on sexual orientation is entitled to
races].) any form of scrutiny beyond rational basis review. (See
Cleburne, supra, 473 U.S. 432, 440-441 [recognizing
The marriage statutes may have a disparate impact race, alienage, and national origin as suspect
on gay and lesbian individuals, insofar as these laws classifications requiring strict scrutiny review, and gender
prevent such persons from marrying, by that name, the and illegitimacy as quasi-suspect classifications requiring
partners they would actually choose. But, as we explained "somewhat heightened" review].) 11 Moreover, as the
in Baluyut v. Superior Court (1996) 12 Cal.4th 826 [50 majority concedes, its conclusion that sexual orientation
Cal. Rptr. 2d 101, 911 P.2d 1], a facially neutral statute is a suspect classification subject to strict scrutiny
that merely has a disparate effect on a particular class of contravenes "the great majority of out-of-state
persons does not violate equal protection absent a decisions"--indeed, all but one of those cited by the
showing the law was adopted for a discriminatory majority. (Maj. opn., ante, at p. 840 & fn. 60.) 12
purpose. In this regard, discriminatory purpose "'implies
more than intent as volition or intent as awareness of 11 In Lawrence, supra, 539 U.S. 558, the
consequences. See United Jewish Organizations v. Carey majority held that Texas's law prohibiting
[(1977)] 430 U.S. 144, 179 [51 L. Ed. 2d 229, 97 S. Ct. homosexual sodomy violated the
996] (concurring opinion). It implies that the due-process-derived fundamental right of all
decisionmaker ... selected or reaffirmed a particular consenting adults to engage in intimate activity,
course of action at least in part "because of," not merely including sexual conduct, in private. (Id., at pp.
"in spite of," its adverse effects upon an identifiable 564-579.) Concurring in the judgment, Justice
group.' (Personnel Administrator of Mass. v. Feeney O'Connor found, for equal protection purposes,
[(1979)] 442 U.S. [256,] 279 [60 L. Ed. 2d 870, 99 S. Ct. that insofar as the law drew a distinction based
2282].)" (Baluyut, supra, at p. 837.) simply on dislike and moral disapproval of
homosexuals, it served no legitimate state interest.
There is no evidence that when the Legislature (Id., at pp. 581-585 (conc. opn. of O'Connor, J.).)
adopted Family Code section 300, and the People As noted above, both the majority and Justice
Page 74
O'Connor were careful to state that they were not because these groups are unpopular minorities, or
calling into question laws denying formal legal otherwise share a history of insularity, persecution, and
recognition to gay and lesbian relationships. In discrimination, and are politically powerless, they are
Romer, supra, 517 U.S. 620, the majority found especially susceptible to continuing abuse by the
that a Colorado constitutional amendment which majority. Laws that single out groups in this category for
prohibited all state and local agencies from different treatment are presumed to "reflect prejudice and
enacting or enforcing laws whereby antipathy--a view that those in the burdened class are not
homosexuality or bisexuality could be the basis as worthy or deserving as others. For these reasons, and
for claims of minority or protected status, or of because such discrimination is unlikely to be soon
discrimination, was obviously motivated by rectified by legislative means," the deference normally
antigay animus, an illegitimate state purpose, and accorded to legislative choices does not apply. (Cleburne,
thus could not survive rational basis review. The supra, 473 U.S. 432, 440, italics added; see also San
Romer majority specifically noted (id., at p. 625), Antonio School District v. Rodriguez (1973) 411 U.S. 1,
but did not adopt, the Colorado Supreme Court's 28 [36 L. Ed. 2d 16, 93 S. Ct. 1278] [noting relevance,
theory that the amendment was subject to strict for purposes of identification as suspect class, that group
scrutiny because it invaded fundamental political is "relegated to such a position of political powerlessness
rights. as to command extraordinary protection from the
12 Numerous other decisions have held that majoritarian political process"].)
sexual orientation is not a suspect or quasi-suspect
classification. (E.g., Lofton v. Secretary of Dept. Recognizing that the need for special constitutional
of Children & Family (11th Cir. 2004) 358 F.3d protection arises from the political impotence of an
804, 818; Equality Foundation v. City of insular and disfavored group, several courts holding that
Cincinnati (6th Cir. 1997) 128 F.3d 289, sexual orientation is not a suspect class have focused
292-293; Holmes v. California Army National particularly on a determination that, in contemporary
Guard (9th Cir. 1997) 124 F.3d 1126, 1132; times at least, the gay and lesbian community does not
Richenberg v. Perry (8th Cir. 1996) 97 F.3d 256, lack political power. (High Tech Gays, supra, 895 F.2d
260; High Tech Gays v. Defense Ind. Sec. 563, 574; Conaway v. Deane, supra, 932 A.2d 571,
Clearance Off. (9th Cir. 1990) 895 F.2d 563, 609-614 [same-sex marriage]; Andersen v. State, supra,
573-574 (High Tech Gays); Woodward v. U.S. 138 P.3d 963, 974-975 [same].)
(Fed.Cir. 1989) 871 F.2d 1068, 1076; Rich v.
In California, the political emergence of the gay and
Secretary of the Army (10th Cir. 1984) 735 F.2d
lesbian community is particularly apparent. In this state,
1220, 1229; Wilson, supra, 354 F. Supp. 2d 1298,
the progress achieved through democratic
1307-1308 [DOMA and Florida marriage
means--progress described in detail by the
statutes]; Selland v. Perry (D.Md. 1995) 905 F.
majority--demonstrates that, despite undeniable past
Supp. 260, 265-266, affd. (4th Cir. 1996) 100
F.3d 950; see Thomasson v. Perry (4th Cir. 1996) injustice and discrimination, this group now " 'is
obviously able to wield political power in defense of its
80 F.3d 915, 928; Ben-Shalom v. Marsh (7th Cir.
interests.' " (Maj. opn., ante, at p. 842, quoting the
1989) 881 F.2d 454, 464.)
Attorney General's brief.)
As the majority also notes, the issue is one of first
Nor are these gains so fragile and fortuitous as to
impression in California. I find that circumstance highly
require extraordinary state constitutional protection. On
significant. Considering the current status of gays and
the contrary, the majority itself declares that recent
lesbians as citizens of 21st century California, the
decades have seen "a fundamental and dramatic
majority fails to persuade me we should now hold that
transformation in this state's understanding and legal
they qualify, under our state Constitution, for the
treatment of gay individuals and gay couples" (maj. opn.,
extraordinary protection accorded to suspect classes.
ante, at p. 821), whereby "California has repudiated past
The concept that certain identifiable groups are practices and policies that ... denigrated the general
entitled to extra protection under the equal protection character and morals of gay individuals" and now
clause stems, most basically, from the premise that recognizes homosexuality as "simply one of the
Page 75
numerous variables of our common and diverse that, for purposes of federal benefits, limit the definition
humanity" (ibid.). Under these circumstances, I submit, of marriage to opposite-sex couples (1 U.S.C. § 7),
gays and lesbians in this state currently lack the California must distinguish same-sex from opposite-sex
insularity, unpopularity, and consequent political couples in administering the numerous federal-state
vulnerability upon which the notion of suspect programs that are governed by federal law. A separate
classifications is founded. nomenclature applicable to the family relationship of
same-sex couples undoubtedly facilitates the
The majority insists that a determination whether a administration of such programs.
historically disfavored group is a suspect class should not
depend on the group's current political power. Otherwise, Most fundamentally, the People themselves cannot
the majority posits, "it would be impossible to justify the be considered irrational in deciding, for the time being,
numerous decisions that continue to treat sex, race, and that the fundamental definition of marriage, as it has
religion as suspect classifications." (Maj. opn., ante, at p. universally existed until very recently, should be
843, fn. omitted.) preserved. As the New Jersey Supreme Court observed,
"We cannot escape the reality that the shared societal
I do not quarrel with those decisions. At the times meaning of marriage--passed down through the common
suspect-class status was first assigned to race, and in law into our statutory law--has always been the union of a
California to sex and religion, there were ample grounds man and a woman. To alter that meaning would render a
for doing so. They may well still exist in some or all of profound change in the public consciousness of a social
those cases. Moreover, I do not suggest that once a group institution of ancient origin." (Lewis v. Harris, supra, 908
is properly found in need of extraordinary protection, it A.2d 196, 222.)
should later be "declassified" when circumstances
change. If such a profound change in this ancient social
institution is to occur, the People and their
I only propose that, when, as here, the issue is before representatives, who represent the public conscience,
us as a matter of first impression, we cannot ignore should have the right, and the responsibility, to control
current reality. In such a case, we should consider the pace of that change through the democratic process.
whether, despite a history of discrimination, a particular Family Code sections 300 and 308.5 serve this salutary
group remains so unpopular, disfavored, and susceptible purpose. The majority's decision erroneously usurps it.
to majoritarian abuse that suspect-class status is
necessary to safeguard its rights. I would not draw that For all these reasons, I would affirm the judgment of
conclusion here. the Court of Appeal.
Accordingly, I would apply the normal rational basis Chin, J., concurred.
test to determine whether, by granting same-sex couples
all the substantive rights and benefits of marriage, but CORRIGAN, J., Concurring and Dissenting.--In my
reserving the marriage label for opposite-sex unions, view, Californians should allow our gay and lesbian
California's laws violate the equal protection guarantee of neighbors to call their unions marriages. But I, and this
the state Constitution. By that standard, I find ample court, must acknowledge that a majority of Californians
grounds for the balance currently struck on this issue by hold a different view, and have explicitly said so by their
both the Legislature and the People. vote. This court can overrule a vote of the people only if
the Constitution compels us to do so. Here, the
First, it is certainly reasonable for the Legislature, Constitution does not. Therefore, I must dissent.
having granted same-sex couples all substantive marital
rights within its power, to assign those rights a name It is important to be clear. Under California law,
other than marriage. After all, an initiative statute adopted domestic partners have "virtually all of the substantive
by a 61.4 percent popular vote, and constitutionally benefits and responsibilities" available to traditional
immune from repeal by the Legislature, defines marriage spouses. (Maj. opn., ante, at p. 807.) I believe the
as a union of partners of the opposite sex. Constitution requires this as a matter of equal protection.
However, the single question in this case is whether
Moreover, in light of the provisions of federal law domestic partners have a constitutional right to the name
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Crow and other segregation laws, the courts properly and change is for the people to adopt, not for judges to
courageously held the people accountable to their own dictate.
constitutional mandates. Here the situation is quite
different. In less than a decade, through the democratic My view on this question of terminology rests on
process, same-sex couples have been given the equal both an equal protection analysis and a recognition of the
legal rights to which they are entitled. appropriate scope of judicial authority. As a matter of
equal protection, while plaintiffs are in the same position
In Perez v. Sharp (1948) 32 Cal.2d 711 [198 P.2d as married couples when it comes to the substantive legal
17], we struck down a law prohibiting interracial rights and responsibilities of family members, they are
marriages. The majority places great reliance on the not in the same position with regard to the title of
Perez court's statement that "the right to marry is the right "marriage." " ' "The concept of the equal protection of the
to join in marriage with the person of one's choice." (Id. laws compels recognition of the proposition that persons
at p. 715.) However, Perez and the many other cases similarly situated with respect to the legitimate purpose
establishing the fundamental right to marry were all of the law receive like treatment." ' [Citation.] 'The first
based on the common understanding of marriage as the prerequisite to a meritorious claim under the equal
union of a man and a woman. (See maj. opn., ante, at pp. protection clause is a showing that the state has adopted a
813-819.) The majority recognizes this, as it must. (Id. at classification that affects two or more similarly situated
p. 820.) Because those cases involved the traditional groups in an unequal manner.' [Citations.] This initial
definition of marriage, they do not support the majority's inquiry is not whether persons are similarly situated for
analysis. The question here is whether the meaning of the all purposes, but 'whether they are similarly situated for
term as it was used in those cases must be changed. purposes of the law challenged.' [Citation.]" (Cooley v.
Superior Court (2002) 29 Cal.4th 228, 253 [127 Cal.
What is unique about this case is that plaintiffs seek Rptr. 2d 177, 57 P.3d 654]; see also Cleburne v.
both to join the institution of marriage and at the same Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439
time to alter its definition. The majority maintains that [87 L. Ed. 2d 313, 105 S. Ct. 3249].)
plaintiffs are not attempting to change the existing
institution of marriage. (Maj. opn., ante, at p. 812.) This The legitimate purpose of the statutes defining
claim is irreconcilable with the majority's declaration that marriage is to preserve the traditional understanding of
"[f]rom the beginning of California statehood, the legal the institution. 2 For that purpose, plaintiffs are not
institution of civil marriage has been understood to refer similarly situated with spouses. While their unions are of
to a relationship between a man and a woman." (Id. at p. equal legal dignity, they are different because they join
792, fn. omitted.) The people are entitled to preserve this partners of the same gender. Plaintiffs are in the process
traditional understanding in the terminology of the law, of founding a new tradition, unfettered by the boundaries
recognizing that same-sex and opposite-sex unions are of the old one.
different. What they are not entitled to do is treat them
differently under the law. 2 The majority recognizes that these statutes
were not enacted with an invidious purpose. (Maj.
The distinction between substance and nomenclature opn., ante, at p. 856, fn. 73.) Thus, this is not a
makes this case different from other civil rights cases. case like Mulkey v. Reitman (1966) 64 Cal. 2d
The definition of the rights to education, to vote, to 529 [50 Cal. Rptr. 881, 413 P.2d 825], where this
pursue an office or occupation, and the other celebrated court declared an initiative measure
civil rights vindicated by the courts, were not altered by unconstitutional because it was enacted "with the
extending them to all races and both genders. The clear intent to overturn state laws" prohibiting
institution of marriage was not fundamentally changed by racial discrimination. (Id. at p. 534.)
removing the racial restrictions that formerly encumbered
it. Plaintiffs, however, seek to change the definition of the The majority relegates the threshold question of
marital relationship, as it has consistently been "similar situation" to a footnote, observing that "[b]oth
understood, into something quite new. They could groups at issue consist of pairs of individuals who wish to
certainly accomplish such a redefinition through the enter into a formal, legally binding and officially
initiative process. As a voter, I might agree. But that recognized, long-term family relationship that affords the
same rights and privileges and imposes the same
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obligations and responsibilities." (Maj. opn., ante, at p. gubernatorial moves, which occurred in 2005 and
831-832, fn. 54.) The majority ignores the fact that 2007. (Maj. opn., ante, at p. 797, fn. 17.)
plaintiffs already have those rights and privileges under
the DPA. The majority aptly articulates how domestic Certainly initiative measures are not immune from
partnerships and marriages are the same. But it fails to constitutional review. However, we should hesitate to use
recognize that this case involves only the names of those our authority to take one side in an ongoing political
unions. The fact that plaintiffs enjoy equal substantive debate. The accommodation of disparate views is
rights does not situate them similarly with married democracy's essential challenge. Democracy is never
couples in terms of the traditional designation of more tested than when its citizens honestly disagree,
marriage. Society may, if it chooses, recognize that some based on deeply held beliefs. In such circumstances, the
legally authorized familial relationships unite partners of legislative process should be given leeway to work out
the same gender while others join partners of opposite the differences. It is inappropriate for the judiciary to
sexes. There is nothing pernicious or constitutionally interrupt that process and impose the views of its
defective in this approach. 3 individual members, while the opinions of the people are
still evolving.
3 The majority correctly observes that if
plaintiffs are not similarly situated to married Restraint is the hallmark of constitutional review.
couples for the purpose of the laws they "[I]f the judiciary is to fulfill its role in our tripartite
challenge, those laws are insulated from equal system of government as the final arbiter of constitutional
protection review. (Maj. opn., ante, at p. 831-832, issues, it cannot hope to escape the tension between
fn. 54.) That is the purpose of the well-settled legislative policy determinations and the challenges
requirement that plaintiffs making an equal raised by those who would seek exceptions thereto. We
protection claim first show that they are similarly can, however, while entertaining such challenges, seek to
situated. (Cooley v. Superior Court, supra, 29 hold the tension in check by always presuming the
Cal.4th at p. 253.) It is particularly appropriate for constitutional validity of legislative acts and resolving
us to refrain from employing equal protection doubts in favor of the statute." (Dawn D. v. Superior
doctrine to thwart the will of the voters in this Court (1998) 17 Cal.4th 932, 939 [72 Cal. Rptr. 2d 871,
case. Whether the institution of marriage should 952 P.2d 1139], italics added.)
be expanded to include same-sex couples is a
The majority abandons this judicious approach.
question properly reserved for the political
Instead of presuming the validity of the statutes defining
process.
marriage and establishing domestic partnership, in effect
The voters who passed Proposition 22 not long ago the majority presumes them to be constitutionally invalid
decided to keep the meaning of marriage as it has always by characterizing domestic partnership as a "mark of
been understood in California. The majority improperly second-class citizenship." (Maj. opn., ante, at p. 855.)
infringes on the prerogative of the voters by overriding This judicial presumption contravenes the express intent
their decision. It does that which it acknowledges it of the Legislature to equalize the rights of spouses and
should not do: it redefines marriage because it believes domestic partners.
marriage should be redefined. (See maj. opn., ante, at pp.
The principle of judicial restraint is a covenant
780-781, 849-850.) It justifies its decision by finding a
between judges and the people from whom their power
constitutional infirmity where none exists. Plaintiffs are
derives. It protects the people against judicial
free to take their case to the people, to let them vote on
overreaching. It is no answer to say that judges can break
whether they are now ready to accept such a redefinition.
the covenant so long as they are enlightened or
Californians have legalized domestic partnership, but
well-meaning.
decided not to call it "marriage." Four votes on this court
should not disturb the balance reached by the democratic The process of reform and familiarization should go
process, a balance that is still being tested in the political forward in the legislative sphere and in society at large.
arena. 4 We are in the midst of a major social change. Societies
seldom make such changes smoothly. For some the
4 The majority details the latest legislative and
process is frustratingly slow. For others it is jarringly fast.
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In a democracy, the people should be given a fair chance We should allow the significant achievements
to set the pace of change without judicial interference. embodied in the domestic partnership statutes to continue
That is the way democracies work. Ideas are proposed, to take root. If there is to be a new understanding of the
debated, tested. Often new ideas are initially resisted, meaning of marriage in California, it should develop
only to be ultimately embraced. But when ideas are among the people of our state and find its expression at
imposed, opposition hardens and progress may be the ballot box.
hampered.