Failure To Designate The Official Relationship Of Same-Sex Couples As Marriage Violates The California Constitution

In In re Marriage Cases, (— Cal.Rptr.3d —, 2008 WL 2051892, Cal., May 15, 2008), the California Supreme Court considered whether the California “Constitution prohibits the State from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship . . . but under which the union of an opposite-sex couple is officially designated a ‘marriage’ whereas the union of the same-sex couple is officially designated a ‘domestic partnership.’” The Supreme Court declared the California statutes unconstitutional which reserve the designation of marriage for opposite-sex couples and deny the designation to same-sex couples.


On February 10, 2004, the Mayor of the City and County of San Francisco (“City”) sent a letter to the county clerk, directing the clerk to determine the necessary changes required on forms and documents used to apply for marriage licenses so that licenses could be issued to couples without regard to their sexual orientation or gender. The clerk revised the marriage license application, and the certificate of marriage. The City began issuing marriage licenses to same-sex couples on February 12, 2004. Two separate actions were filed in Superior Court on the following day seeking an order prohibiting City from issuing marriage licenses to same-sex couples. However, the Superior Court declined to grant an immediate stay. A number of taxpayers and the California Attorney General filed separate petitions with the California Supreme Court asserting the City’s actions were unlawful.

The California Supreme Court in Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, concluded the City’s public officials acted unlawfully when they issued marriage licenses to same-sex couples in the absence of a judicial determination of the constitutionality of the statutes, which limit marriage to a union between a woman and a man. In Lockyer, the Court only determined that City had acted unlawfully in issuing the marriage licenses and that the same-sex marriages that City had authorized were void. In Lockyer, the Court, however, did not address the substantive issue of whether California’s statutory provisions that limit marriage to a man and a woman are unconstitutional.

City filed an action asserting that the statutory provisions, which limit marriage to unions between a man and a woman, are unconstitutional. Two other actions were filed by same-sex couples challenging the constitutionality of the marriage statutes. Ultimately, six actions were coordinated challenging the statutes’ constitutionality. The Superior Court found that California’s current marriage statutes are unconstitutional “insofar as they limit marriage to opposite-sex couples.” A Court of Appeal reversed the Superior Court’s decision finding the lower court erred in concluding marriage statutes are unconstitutional.

Supreme Court Decision

The California Supreme Court reversed the decision of the Court of Appeal and held that the statutory provisions that draw a distinction between same-sex couples and opposite-sex couples and exclude same-sex couples from access to the designation of “marriage” for their officially recognized relationship are unconstitutional.

Family Code section 300 provides, in part, “Marriage is 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.” Family Code section 308.5, an initiative statute approved by the voters in 2000, provides, “Only marriage between a man and a woman is valid or recognized in California.” The Court determined that section 308.5 applies to both marriages performed in California and marriages performed in other jurisdictions.

California recently enacted domestic partnership legislation, which affords same-sex couples the opportunity “to obtain virtually all of the legal benefits, privileges, responsibilities, and duties that California law affords to and imposes upon married couples.” The rights of domestic partners were greatly expanded in 2003 by the enactment of the California Domestic Partner Rights and Responsibilities Act of 2003 (“Domestic Partner Act”). The Legislature provided that the Domestic Partner Act should be liberally construed to provide “the full range of legal rights, protections and benefits, as well as all of the responsibilities, obligations, and duties to each other, to their children, to third parties and to the state, as the laws of California extend to and impose upon spouses.” The Supreme Court previously concluded that “a chief goal of the Domestic Partner Act is to equalize the status of registered domestic partners and married couples.” However, the Domestic Partner Act does not purport to “modify the applicable provisions of federal law, which currently do not provide for domestic partnerships and that define marriage, for purposes of federal law, as the union of a man and a woman.”

Although California law provides same-sex couples the opportunity to enter into a domestic partnership and to obtain virtually all benefits afforded to opposite-sex couples, the plaintiffs claim that limiting marriage to opposite-sex couples violates a same-sex couple’s right to marry and right to equal protections as guaranteed by the California Constitution. The right to marry is not explicitly guaranteed by the California Constitution, but federal and state case law have established the right to marry is a fundamental right protected by the Constitution. “[T]he right to marry represents the right of an individual to establish a legally recognized family with the person of one’s choice, and, as such, is of fundamental significance both to society and to the individual.” Furthermore, because of “the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society – the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.

The Court recognized that, in California, marriage has always been limited to opposite-sex couples. “Tradition alone, however, generally has not been viewed as sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right.” The Court rejected the argument that marriage should be limited to opposite-sex couples because such couples can produce biological children together. The Court noted there is no authority to support the argument for which a person “who is physically incapable of bearing children does not possess a fundamental constitutional right to marry.”

The Court concluded that Article I, Sections 1 and 7 of the California Constitution “guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and to enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” Although the Domestic Partner Act affords same-sex couples most of the substantive attributes that are constitutionally protected by the right to marry, the Court concluded that different designations of the official family relationship, with one being labeled marriage and the other a domestic partnership, “must be viewed as potentially impinging upon the state constitutional right of same-sex couples to marry.”

The statutory assignment of a different name for the officially recognized relationship of opposite-sex couples raises constitutional concerns not only under the constitutional right to marry, but also under the equal protection clause of the state constitution. When challenges are made under the equal protection clause, two different standards may be utilized to determine if an individual or group has been denied equal protection. The first standard applies when reviewing economic or social welfare legislation in which there is a charge of discrimination or different treatment between individuals or classes of individuals. In such cases, the different treatment is examined to see if the “distinctions drawn by a challenged statute bear some rational relationship to a conceivable state purpose.” The burden to prove the invalidity of a statute’s classification is on the person challenging the classification.

The second equal protection standard is applied where there is a suspect classification or where a case touches on a fundamental interest. In such cases, the classification is subject to strict scrutiny and the state bears the burden of showing that it has a compelling interest that justifies the law, and that the distinctions drawn by the law are necessary to further the law’s purpose. The plaintiffs alleged that strict scrutiny should be applied to their claim of denial of equal protection because the California laws discriminated based on gender and sexual orientation and impinged upon a fundamental right.

The Court rejected the argument that the laws which limited the right to marry to couples consisting of a man and a woman, discriminate on the basis of gender. The statutory distinction between opposite-sex couples and same-sex couples “do not treat men and women differently” because persons of either gender are treated equally in that they are only permitted to marry a person of the opposite gender.

The plaintiffs asserted that discrimination based on sexual orientation should be subject to strict scrutiny under the California Constitution. The Court found that the marriage statutes treat persons differently based on their sexual orientation. As a matter of first impression, it concluded “that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution’s equal protection clause.” Therefore, California statutes, which “treat persons differently because of their sexual orientation should be subjected to strict scrutiny.” The Court also agreed with the plaintiffs that the distinction drawn by California statutes which designate the family relationship of same-sex couples differently than the family relationship of opposite-sex couples “impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples.”

The Court found that the State failed to show it had a constitutionally compelling interest in reserving the designation of “marriage” to opposite-sex couples, while excluding same-sex couples from access to the designation of their relationship as a marriage. The California Constitution does not itself limit the marriage relationship to a union between a woman and a man. The Court rejected the State’s argument that the separation-of-powers doctrine precludes the Supreme Court from modifying the traditional definition of marriage. If a court were so prohibited, a previous court could not have found unconstitutional the statutory provisions prohibiting interracial marriage. Furthermore, the Supreme Court rejected the argument that it could not subject section 308.5, which resulted from an electorate vote to retain the traditional definition of marriage, to constitutional review.

The limitation of marriage to opposite-sex couples “is not necessary to preserve the rights and benefits of marriage currently enjoyed by opposite-sex couples.” Extending the designation of “marriage” to same-sex couples will not deprive opposite-sex couples or their children any of the benefits and rights conferred on them by the marriage statutes. Conferring the designation of “marriage” on same-sex couples will not impinge on the religious freedom of any religious official or organization and no religious officiant will be required to solemnize a same-sex marriage in contravention of his or her religious beliefs.

The Court concluded that, “the retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling under the strict scrutiny standard to justify withholding that status from same-sex couples.” Sections 300 and 308.5 are unconstitutional to the extent that they reserve the designation of marriage to opposite-sex couples. The language in section 300, which limits the designation of marriage to a union “between a man and a woman” must be stricken from the statute. Section 308.5 has “no constitutionally permissible effect” and cannot stand. The Court directed state officials to take all of the actions necessary to effectuate the Court’s ruling and to ensure that county clerks and local officials act in accordance with the provisions of the Court’s decision.

Practical Effect

As noted above, prior to this decision, California law already afforded same-sex couples “virtually all of the legal benefits, privileges, responsibilities, and duties that California law affords to and imposes upon married couples.” In re Marriage Cases will not have an effect on the legal rights and benefits afforded to same-sex couples other than providing those couples the opportunity to designate their union as a “marriage.”

Finally, the Court noted, many federal benefits granted to a married person or to a married couple based on their married status are not available to domestic partners. This includes benefits such as those relating to Social Security, Medicare, federal housing, food stamps, federal military and veterans. All of these federal benefits will still be denied same-sex couples regardless of the condition as federal law defines marriage as between a man and a woman.