Same-sex marriage in California

Same-sex marriage is valid and recognized in California. California is the second U.S. state, after Massachusetts, to make marriage licenses available to same-sex couples.

The status of same-sex marriage in California has been a contentious political issue since at least the late 1970s. On May 15, 2008, the Supreme Court of California overturned the state's ban on same-sex marriage in In re Marriage Cases. The four-to-three decision took effect on June 16, 2008. The Court declined to stay its decision until after the November elections. Some reports suggest that out-of-state same-sex couples will marry in California prior to the 2008 elections because California does not require the marriage to be valid in the couple's home state.

Proposition 8 is a proposed constitutional amendment titled Eliminates Right of Same-Sex Couples to Marry Act, whose proponents intend to override the Court's decision. The measure will appear on the 2008 California general election ballot this November.

California continues to allow domestic-partner registration, a right similar to civil unions found in other states. 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". UCLA’s Williams Institute on Sexual Orientation Law and Public Policy projected in June 2008 that about half of California’s more than 100,000 same-sex couples will wed during the next three years and 68,000 out-of-state couples will travel to California to exchange vows.


From the enactment of legislation in 1971 to replace gendered pronouns with gender-neutral pronouns until 1977, California 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 Civil 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." Since 1994, this language is found in § 300 of the Family Code.

Proposition 22 (2000)

At the March 7, 2000 primary election Proposition 22 was adopted by a vote of 61.4% to 38%, thus adding § 308.5 to the Family Code, largely replicating the 1977 enactment. The one-sentence code section explicitly defines the union of a man and a woman as the only valid or recognizable form of marriage in the State of California. Its main proponent was State Senator William Knight, and the measure was dubbed the "Knight initiative" in an attempt to link it to the failed "Briggs Initiative" (Proposition 6 of 1978) that would have banned gays and lesbians from working as teachers in California's public schools.

Legislative action on same-sex marriage

When California State Legislature opened the 2005-2006 session, Assembly member Mark Leno introduced Assembly Bill 19, which proposed legalizing same-sex marriage. The bill enjoyed the support of then-Speaker Fabian Núñez among others. Leno had introduced a similar bill in the prior session, but it died in committee. Assembly committees reported out Assembly Bill 19 favorably, but the measure failed on the Assembly floor on June 2, 2005. Later that month, Assembly member Patty Berg amended the text of her fisheries-research measure, Assembly Bill 849, which was already in the Senate, to the text of Leno's failed bill.

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 a majority of voters five years earlier. Like the statutes amended by AB 849, Prop 22 prohibited 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. 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. 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).

Shortly after the newly elected Assembly was sworn in, Leno resubmitted a similar bill on 4 December, 2006. 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. 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. The governor followed through on 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.

Proposition 8 (2008)

Months before the court's ruling, conservative groups who opposed same-sex marriage began circulating initiative petitions, one 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), having gathered an estimated 764,063 valid signatures, qualified for the November 4 2008 ballot, as Proposition 8. The measure would add § 7.5 to Article I of the California Constitution mirroring the now-unenforceable Family Code § 308.5. It would attempt to supersede that part of the Supreme Court's holding that authorized the granting of marriage licenses to same-sex couples. Twelve other proposed amendments since 2004 had failed to qualify to be on the ballot. The ability of the voters to remove a fundamental constitutional right by initiative amendment has been called into question, and a lawsuit was filed on those grounds asking for the removal of Proposition 8 from the ballot. That lawsuit was dismissed on July 16, 2008, and Proposition 8 is scheduled to appear on the November 2008 general election ballot.

Court challenges

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. 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.

Appellate court decision

The state and organizations opposed to same-sex marriage appealed. Division Three of the First District Court of Appeal held extended oral argument on the cases on July 10 2006, before a three-judge panel. In a 2-to-1 decision, the appellate court overturned the lower court. Writing for the majority, Presiding Justice 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, Justice J. Anthony Kline (Presiding Justice of Division Two sitting by designation because two Justices had recused themselves.) 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 justices in the majority commented at length on Justice Kline’s dissent.

Supreme Court review

In November 2006, several parties petitioned the Supreme Court of California to review the decision. Attorney General Bill Lockyer asked the Supreme Court to take up the case. 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.

On May 15, 2008 the Supreme Court struck down California's existing statutes limiting marriage to opposite-sex couples in a 4-3 ruling. 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 Proposition 8, the ballot initiative that would override the ruling.

The opinion, written by Chief Justice Ronald M. George, cited the Court's 1948 decision in Perez v. Sharp where the state's interracial marriage ban was held unconstitutional. 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. It is the first state high court in the country to do so. 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.

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, including a request to stay the proceedings until after the November elections, when Californians will vote on a constitutional amendment to overturn the decision. 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. The order stated, "The decision filed on May 15, 2008, will become final on June 16, 2008, at 5 p.m." San Francisco Mayor Gavin Newsom announced that marriages would be held "5:01" on June 16. The final stage of the case was the issuance of a writ of mandate by the Superior Court to the Registrar of Vital Statistics on June 19, 2008.

Legal challenges to November 2008 initiative (Proposition 8)

On June 20, 2008, gay rights groups filed suit before the California Supreme Court seeking to remove the initiative from the November ballot; their lawsuit was later dismissed on July 16, 2008. They argued that the changes would constitute a revision to the California Constitution, which requires a two-thirds vote of the legislature before being placed before voters, rather than a mere amendment, which does not require involvement by the legislature. They further argued that the original petitions, which were circulated before the May 15 court decision, were misleading because the petitions said the initiative would not change the marriage laws and would have no fiscal impact.

In a related development, state Attorney General Jerry Brown changed the title of the Proposition 8 initiative from "Limit on Marriage" to "Eliminates the Right of Same-Sex Couples to Marry," generating criticism and a lawsuit by backers of the proposition. On August 8, Superior Court Judge Timothy Frawley ruled that "The attorney general did not abuse his discretion in concluding that the chief purpose and effect of the initiative is to eliminate the right of same-sex couples to marry," so the new name will appear on California ballots in November.

Before Judge Frawley's ruling, Attorney General Brown stated his belief that "marriages that have been entered into subsequent to the [May 15] Supreme Court opinion will be recognized by the California Supreme Court. . . . I would think the court, in looking at the underlying equities, would most probably conclude that upholding the marriages performed in that interval [before the election] would be a just result. Similarly, Joan Hollinger, a professor at the University of California, Berkeley, Boalt Hall School of Law had this to say: "Constitutional scholars agree that the amendment cannot be effective retroactively, so anyone married before November would be protected.

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. However, a Field Poll survey tracking support for same-sex marriage in California has shown steadily increasing support since Field first asked the question 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. 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.

2004 San Francisco marriages

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.


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, 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.


  • 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.


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.


External links

See also

Pursuit of Equality (documentary)

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