Same-sex marriage in California

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The status of same-sex marriage in California, known for its large gay communities and generally liberal political climate, has been a political issue since at least the late 1970s.^[1]

On May 15, 2008, the Supreme Court of California, ruling on In re Marriage Cases, overturned the state's ban on same-sex marriage. The four-to-three decision made California the second state, after Massachusetts, to allow full marriage rights for same-sex partners^[2][3][4] with the decision taking effect on June 16, 2008 at 5:00 p.m. Pacific Daylight Time.^[5][6] An initiative effort is underway to bar same-sex marriage, with a vote expected in November. Many same sex couples from all over the U.S. are expected to get married in California prior to the election, because California, unlike Massachusetts, does not have a residency requirement.[1]

California had already permitted domestic-partner registration, a right similar to civil unions found in other states.^[7] This grants "same-sex couples all state-level rights and obligations of marriage — in areas such as inheritance, income tax, insurance and hospital visitation" but does not apply to "federal-level rights of marriage that cannot be granted by states".^[8]

Contents 1 Legislation 1.1 Family Code 1.2 Proposition 22 1.3 Mark Leno 1.4 Limit on Marriage Amendment 2 Court challenges 2.1 Trial court decision 2.2 Appellate court decision 2.3 Supreme Court review 3 Public Opinion 4 2004 San Francisco marriages 4.1 Legality 4.2 Timeline 4.3 Statistics 5 Footnotes 6 External links 7 See also

[edit] Legislation

[edit] Family Code

Prior to 1977, the Family Code (then known as the Civil Code § 4100) defined marriage as "a personal relation arising out of a civil contract, to which the consent of the parties capable of making that contract is necessary." This definition was uniformly interpreted as including only opposite-sex partners, but, worried that the language was unclear, Bill No. 67 was proposed and later passed to "prohibit persons of the same sex from entering lawful marriage." The act amended the Family Code to define marriage as "a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary."^[1]

[edit] Proposition 22

Main article: California Proposition 22 (2000)

In 2000, a majority of 61.4% voted to adopt Proposition 22, which explicitly defines the union of a man and a woman as the only valid or recognizable form

[edit] Mark Leno

When the 2005-2006 session opened in the California State Legislature, Assembly Bill 849, a bill to legalize same-sex marriage^[9] was expected to top the legislative agenda. The bill was drafted by Assemblyman Mark Leno in December 2004 and enjoyed the support of then-Speaker Fabian Núñez. (Leno had introduced a similar bill in the prior session, but it died in committee.)^[10]

On September 2, 2005, the California Senate approved the bill 21-15 and on September 6, the California State Assembly followed suit with a vote of 41-35, making California's legislature the first in the nation to approve a same-sex marriage bill without court pressure. The next day, September 7, Governor Arnold Schwarzenegger indicated he would veto the bill, citing Proposition 22, which had passed with the approval of 61% of voters five years before. Like the statutes amended by AB 849, Prop 22 prohibits the state from recognizing same-sex marriages, but as an initiative statute, it was not affected by AB 849. The legislature avoided physically delivering the bill to the governor for over two weeks, during which time advocacy groups urged Schwarzenegger to change his mind. Ultimately, the bill was delivered on September 23 and vetoed on September 29, 2005.^[11] Schwarzenegger stated he believed that same-sex marriage should be settled by the courts or another vote by the people via a statewide initiative or referendum.^[12][13] He argued that the legislature's bill simply complicated the issue, as the constitutionality of Proposition 22 had not yet been determined, and its ultimate disposition would render AB 849 either unconstitutional (being in conflict with a valid voter initiative) or redundant (being guaranteed by the California Constitution itself, as construed by the courts).^[14]

Shortly after the newly elected Assembly was sworn in, Leno resubmitted a similar bill on 4 December 2006.^[15] AB 43 was passed by the legislature in early September 2007, giving the governor until 14 October 2007, to either sign or veto the bill.^[16] Schwarzenegger had stated months before that he would veto AB 43 on the grounds that the issue at hand had already been voted on by California by way of Proposition 22.^[17] The governor held true with his statement and on October 12, 2007, he vetoed AB 43. Schwarzenegger wrote in his veto statement that to solve the issue of gender-neutral marriage, the California Supreme Court needed to finish its rule on the challenge which had been made to Proposition 22.^[18]

[edit] Limit on Marriage Amendment

Main article: Limit on Marriage Amendment

Months before the court's ruling, conservative groups who opposed same-sex marriage began circulating four amendment petitions, 07-0098, 07-0079, 07-0068, 07-0061, that would eliminate domestic partnership rights or define marriage as being the union of only a man and a woman.^[19] Petition #07-0068 (titled the "California Marriage Protection Act" by its proponents; titled the "Limit on Marriage" amendment for the ballot by the California Attorney General), which would override the Court's decision and again ban same sex marriages by explicitly declaring, "Only marriage between a man and a woman is valid or recognized in California," in the state constitution, qualified for the November 2008 election, having gathered more than 1.12 million signatures.^[20] Twelve other proposed amendments since 2004 had failed to qualify to be on the ballot.^[21] An opinion piece in the Metropolitan News-Enterprise of Los Angeles on May 21, 2008 called the initiative into question. Log Cabin Republican Kevin Norte questioned whether the California Supreme Court's ruling on the same-sex marriage in California cases which found several constitutional rights under the California Constitution to permit such marriages and that it changed the dynamics of the process because he argued that it was originally an initiative and apparently the signature collection process informed voters that the initiative would not change current law. The facts and circumstances are now different because the Court recognized the right to marry as a (1) right to privacy in marrying the person of one's choice, (2) right to free speech/fundamental right to marry, and (3) equal protection. He pondered whether those constitutional rights could be simply abolished by a voter initiative or should the amendment be removed because a constitutional convention would have to be held to remove fundamental rights.^[22]

[edit] Court challenges

[edit] Trial court decision

In February 2004, litigants filed five civil lawsuits in San Francisco Superior Court and one case in Los Angeles Superior Court. The parties included individuals and organizations opposed to same-sex marriage who sought to stop San Francisco from issuing marriage licenses to same-sex couples. The City and County of San Francisco and numerous individuals sued the state of California seeking to overturn Proposition 22, the existing state law that limited marriage to opposite-sex couples.

Eventually, all six cases were coordinated (In re Marriage Cases) and assigned to San Francisco Superior Court Judge Richard Kramer. On March 14, 2005, Judge Kramer ruled that California statutes limiting marriage to opposite-sex couples were unconstitutional.[2] The court held there was no rational connection between forbidding same-sex marriage and any legitimate state interest and the opposite-sex requirements impermissibly discriminated based on gender.

[edit] Appellate court decision

The state and organizations opposed to same-sex marriage appealed. The First District Court of Appeal held extended oral argument on the cases on 10 July 2006, before a three-judge panel. In a 2-to-1 decision, the appellate court overturned the lower court.^[1] Writing for the majority, Presiding Judge William R. McGuiness found: The marriage statutes do not discriminate based on gender; the state’s interests in "preserving the traditional definition of marriage" and "carrying out the expressed wishes of a majority of Californians" were sufficient to preserve the existing law; and challenges from the two groups opposed to same-sex marriage had to be dismissed because they lacked standing in any actual controversy on which the court could rule.

The majority emphasized that it was not the role of the court to determine whether the "traditional definition" of marriage should be maintained. "The time may come when California chooses to expand the definition of marriage to encompass same-sex unions," McGuiness writes. "That change must come from democratic processes, however, not by judicial fiat."

In a sharply worded dissent, Judge J. Anthony Kline described the court’s reasoning as "circular." He wrote that the majority’s indifference to the reasons why marriage is a fundamental right unintentionally "diminish the humanity of the lesbians and gay men whose rights are defeated." Both judges in the majority commented at length on Judge Kline’s dissent.

[edit] Supreme Court review

Main article: In re Marriage Cases

In November 2006, several parties petitioned the Supreme Court of California to review the decision.[3] Attorney General Bill Lockyer asked the Supreme Court to take up the case.^[23] In December 2006, the Supreme Court voted unanimously to review all six cases and held oral argument on March 4, 2008, consolidating the cases as In re Marriage Cases.^[24]

On May 15, 2008 the Supreme Court struck down California's existing statutes limiting marriage to opposite-sex couples in a 4-3 ruling.^[25] The judicial ruling overturned the one-man, one-woman marriage law which the California Legislature had passed in 1977 and Proposition 22. After the ruling, Governor Arnold Schwarzenegger issued a statement repeating his pledge to oppose the Limit on Marriage Amendment, the ballot initiative that would override the ruling.

The opinion, written by Chief Justice Ronald M. George, cited the court's 1948 decision that reversed the state's interracial marriages ban. It found that "equal respect and dignity" of marriage is a "basic civil right" that cannot be withheld from same-sex couples, that sexual orientation is a protected class like race and gender, and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of the California State Constitution. Associate Justices Joyce L. Kennard, Kathryn Werdegar, and Carlos R. Moreno concurred.^[2] It is the first state high court in the country to do so.^[26] The Massachusetts State Supreme Court, by contrast, did not find sexual orientation to be a protected class, and instead voided its gay-marriage ban on rational basis review.^[27]

After the announcement, the Advocates for Faith and Freedom and the Alliance Defense Fund, inter alia, asked for a stay of the ruling. But on June 4, 2008, the California Supreme Court declined to issue a stay. In a one-page order, the court denied all petitions for rehearing and to reconsider the May 15 ruling, and rejected moves to delay enforcement of the decision until after the November election, when voters will decide whether to reinstate a ban on same-sex nuptials. By doing so, the court removed the final obstacle to same-sex marriages starting in mid-June. Chief Justice Ronald George and Justices Joyce Kennard, Kathryn Mickle Werdegar and Carlos Moreno, voted for the resolution, while dissenting or voting to reconsider the judgment, were Justices Marvin Baxter, Ming Chin and Carol Corrigan.^[28] The order stated, "The decision filed on May 15, 2008, will become final on June 16, 2008, at 5 p.m."^[5] San Francisco Mayor Gavin Newsom announced that marriages would be held "5:01" on June 16.^[29][30] In addition, a Field Poll conducted in late May, shortly after the court's opinion was released, reported that "51% of registered voters in the state favored the right of same-sex couples to marry, with 42 percent opposed".^[31]

[edit] Public Opinion

In a poll taken one week after the decision by the court, a Los Angeles Times Poll found that 54 percent of respondents supported an amendment to the California constitution to ban gay marriage. ^[32] However, a Field Poll survey tracking support for same-sex marriage in California has shown steadily increasing support since the poll's inception in 1977, when only 28 percent supported the idea. According to the Field Poll, support for same-sex marriage in California reached a majority for the first time in 2008, with 51 percent in support, 42 percent opposed, and seven percent with no opinion. ^[33] The poll also showed majority support among those under 50 years of age, with 68 percent of 18 to 29 year olds favoring same-sex marriage. Among those 65 or older, support drops to 36 percent. A majority of those living in Los Angeles County, the San Francisco Bay Area, and the more urban parts of Northern California were in favor of same-sex marriage, while a majority of those in the Central Valley and the more rural parts of Southern California were opposed.

[edit] 2004 San Francisco marriages

Main article: San Francisco 2004 same-sex weddings

This article or section is missing citations or needs footnotes. Using inline citations helps guard against copyright violations and factual inaccuracies. (May 2008)

From February 12 to March 11, under the direction of Mayor Gavin Newsom of San Francisco, officials of the City and County of San Francisco issued marriage licenses to approximately 4,000 same-sex couples, in apparent defiance of state law. During the month that licenses were issued, couples travelled from all over the United States and from other countries to be married. On August 12, citing the mayor's lack of authority to bypass state law, the Supreme Court of California ruled that the marriages were void.

[edit] Legality

City officials claimed that although the marriages were prohibited by state law, the state law was invalidated by the Equal Protection Clause. The mayor echoed this view, permitting the marriages because he believed the state law was unconstitutional. However, legislators and groups opposing same-sex marriages quickly reacted, filing a suit and requesting a court order to prevent the city from performing the ceremonies. Additionally, the California state agency that records marriages stated that altered forms, including any marriage licenses issued to same-sex couples, would not be registered. The legal validity of the marriages was tested in the courts, and the marriages were ultimately voided by the state Supreme Court.

Officials in Berkeley and Oakland, in nearby Alameda County, expressed interest in joining San Francisco,^{[citation needed]} but were unable to do so because marriage licenses are handled at a county, rather than at a city, level. San Francisco was able to issue its own licenses because San Francisco is both a city and a county.

[edit] Timeline

• February 12: Recently elected Mayor Gavin Newsom and other city officials begin issuing marriage licenses in San Francisco, California. Lesbian activists Del Martin and Phyllis Lyon are the first same-sex couple to be married. The event is intended to undercut a legal challenge planned by a conservative group, Campaign for California Families (CCF).
• March 9: The San Jose City Council, by a vote of 8-1, agrees to recognize same-sex marriages performed in other jurisdictions for city employees.
• March 11: The Supreme Court of California, headquartered in San Francisco, issues a stay ordering the County of San Francisco to stop performing same-sex marriages pending court review on the legality of the matter. Mayor Newsom agrees to abide by the order.
  The ruling does not alter a scheduled March 29 San Francisco Superior Court hearing before Judge Ronald Quidachay in which the Campaign for California Families and the Alliance Defense Fund claim that San Francisco's granting of same-sex marriage licenses is illegal. Quidachay later delays the hearing pending state Supreme Court action.
• May 25: The state Supreme Court holds hearings on the legality of the marriages. San Francisco had wanted its case heard first by lower courts, before juries, rather than by the state Supreme Court. However, the court suggests that San Francisco could file its own suit against the state, and the city launches such a suit that afternoon.
• August 12: The state Supreme Court releases its decision, exactly six months after the first same-sex marriages were performed in San Francisco. The court rules unanimously that the City and County of San Francisco exceeded its authority and violated state law by issuing the marriage licenses. In a 5-2 decision, the court also declares all same-sex marriages performed in San Francisco to be void, while expressing no opinion on the constitutionality of marriage restrictions.

[edit] Statistics

Marriage licenses were issued to 4,037 same-sex couples before the state Supreme Court issued its stay. During the same period, the San Francisco City Hall issued 103 opposite-sex marriage licenses.

Of those same-sex marriage licenses issued, 82 couples either decided not to go through with a marriage or failed to register their marriage with the county before the state Supreme Court stay was issued, meaning 3,955 completed same-sex marriages were registered in the county.

By reviewing first names of applicants, San Francisco officials estimated that 57 percent of the same-sex married couples were women. Demographic information gleaned from the registered licenses also shows the newlywed same-sex couples were older and better educated than the average American household. More than 74 percent were over age 35, while 69 percent had at least one college degree.

According to figures released March 18 by San Francisco County Assessor Mabel Teng, although 91.4 percent of the licenses were granted to couples living in California, other couples came from every state in the United States except for Maine, Mississippi, West Virginia and Wyoming.

Of the other states, the top five states represented included 32 couples each from Washington and Oregon, 24 from Nevada, 20 from New York and 16 from Florida. International same-sex couples, 17 in all, came from Canada, Denmark, France, Germany, the Netherlands, Switzerland, Thailand and the United Kingdom.

[edit] Footnotes

[edit] External links

• LA Weekly feature, "California Supreme Court Set to Consider Gay Marriage," Feb. 2008 by Matthew Fleischer
• Calif. Senate OKs Gay Marriage Bill
• Documentary: One Wedding and a Revolution
• "Judicial Usurpation, California Style," by Robert Struble, TeLL, June 2008.
• Windows Media Player Web cast of Court of Appeal arguments in In re Marriage Cases: part 1 and part 2

[edit] See also

Pursuit of Equality (documentary)

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