Only marriage between a man
and a woman is valid or
recognized in California.
Only marriage between a man
and a woman is valid or
recognized in California.
Only marriage between a man
and a woman is valid or
recognized in California.
Only marriage between a man
and a woman is valid or
recognized in California.
Only marriage between a man
and a woman is valid or
recognized in California.
—California Constitution, Art. 1, Declaration
of Rights, Section 7.5
Only marriage between a man
and a woman is valid or
recognized in California.
—California Family Code Section 308.5
Pre-1977 California Civil Code:
Marriage is “a personal relation
arising out of a civil contract, to
which consent of the parties
making that contract is
necessary.” (Sec. 4100.)
Pre-1977 California law:
Baker v. Nelson — 1972 case
brought by two Minnesota male
students suing the state issuer of
marriage licenses. U.S. Supreme
Court’s one-sentence decision
dismissed the Baker case “for want
of a substantial federal question,”
which acts as a dismissal on the
merits.
Post-1977 California Civil Code:
Marriage is “a personal relation
arising out of a civil contract
between a man and a woman, to
which consent of the parties
capable of making that contract is
necessary.” (Sec. 4100.)
Post-1977 California Civil Code:
Marriage is “a personal relation
arising out of a civil contract
between a man and a woman, to
which consent of the parties
capable of making that contract is
necessary.” (Sec. 4100.)
1992 California Family Code:
Marriage is “a personal relation
arising out of a civil contract
between a man and a woman, to
which consent of the parties
capable of making that contract is
necessary.” (Sec. 300.)
1992 California Family Code:
“A marriage contracted outside
this state that would be valid by
the laws of the jurisdiction in
which the marriage was
contracted is valid in this state.”
(Sec. 308.)
Only marriage between a man
and a woman is valid or
recognized in California.
—California Family Code Section 308.5,
Enacted by California voters in March 2000
Choice
Votes
Percentage
Yes
4,618,673
61.4%
No
2,909,370
38.6%
February 2004: Mayor Gavin Newsom orders
the County Clerk of the City and County of
San Francisco to issue newly revised marriage
license application forms
“Groom“
“Bride“
“First Person”
“Second Person”
February 12, 2004: The City and County of
San Francisco begins issuing marriage
licenses to same-sex couples
February 14, 2004: Proposition 22 Legal Defense
and Education Fund and Campaign for California
Families, file actions in San Francisco Superior
Court seeking an immediate stay to prohibit
the City from issuing marriage licenses to
same-sex couples.
February 14, 2004: Proposition 22 Legal Defense
and Education Fund and Campaign for California
Families, file actions in San Francisco Superior
Court seeking an immediate stay to prohibit
the City from issuing marriage licenses to
same-sex couples.
The court refuses to grant a stay.
Immediately thereafter: The California
Attorney General and a number of taxpayers
file two separate petitions seeking to have the
California Supreme Court issue an original
writ of mandate, asserting that the City’s
actions were unlawful and warranted the
court’s immediate intervention.
March 11, 2004: The California Supreme
Court orders officials of San Francisco “to
enforce the existing marriage statutes and to
refrain from issuing marriage licenses not
authorized by such provisions.”
However, the California Supreme Court
emphasizes that the substantive question of
the constitutional validity of the California
marriage statutes was not before the court in
that proceeding, and that its decision was not
intended to reflect any view on that issue.
September 2004: Six suits challenging the
marriage statutes are consolidated into one
case before San Francisco Superior Court
Judge Richard Kramer.
March 14, 2005: Judge Richard Kramer finds
the statutes violate the “basic human right to
marry a person of one’s choice.”
October 2006: The First District of the Court
of Appeal reverses the superior court’s ruling
on the substantive constitutional issue.
December 2006: The California Supreme
Court votes unanimously to review all six
cases.
March 4, 2008: The California Supreme Court
holds oral argument on In re Marriage Cases.
March 4, 2008: The California Supreme Court
holds oral argument on In re Marriage Cases.
May 15, 2008: The California Supreme Court
rules that Proposition 22 violates the state
Constitution and is therefore invalid.
Majority opinion:
“Under this state’s Constitution, the
constitutionally based right to marry properly
must be understood to encompass the core set
of basic substantive legal rights and attributes
traditionally associated with marriage that
are so integral to an individual’s liberty and
personal autonomy that they may not be
eliminated or abrogated by the Legislature or
by the electorate through the statutory
initiative process.”
Majority opinion:
“Under this state’s Constitution, the
constitutionally based right to marry properly
must be understood to encompass the core set
of basic substantive legal rights and attributes
traditionally associated with marriage that
are so integral to an individual’s liberty and
personal autonomy that they may not be
eliminated or abrogated by the Legislature or
by the electorate through the statutory
initiative process.”
Majority opinion:
“Under this state’s Constitution, the
constitutionally based right to marry properly
must be understood to encompass the core set
of basic substantive legal rights and attributes
traditionally associated with marriage that
are so integral to an individual’s liberty and
personal autonomy that they may not be
eliminated or abrogated by the Legislature or
by the electorate through the statutory
initiative process.”
“Strict scrutiny [. . .] is applicable here
because (1) the statutes in question properly
must be understood as classifying or
discriminating on the basis of sexual
orientation, a characteristic that we conclude
represents — like gender, race, and religion
— a constitutionally suspect basis upon
which to impose differential treatment, and
“Strict scrutiny [. . .] is applicable here
because (1) the statutes in question properly
must be understood as classifying or
discriminating on the basis of sexual
orientation, a characteristic that we conclude
represents — like gender, race, and religion
— a constitutionally suspect basis upon
which to impose differential treatment, and
(2) the differential treatment at issue
impinges upon a same-sex couple’s
fundamental interest in having their family
relationship accorded the same respect and
dignity enjoyed by an opposite-sex couple.”
“Strict scrutiny [. . .] is applicable here
because (1) the statutes in question properly
must be understood as classifying or
discriminating on the basis of sexual
orientation, a characteristic that we conclude
represents — like gender, race, and religion
— a constitutionally suspect basis upon
which to impose differential treatment, and
(2) the differential treatment at issue
impinges upon a same-sex couple’s
fundamental interest in having their family
relationship accorded the same respect and
dignity enjoyed by an opposite-sex couple.”
“The exclusion of same-sex couples from the
designation of marriage clearly is not
necessary in order to afford full protection to
all of the rights and benefits that currently are
enjoyed by married opposite-sex couples.”
Justice Baxter, concurring and dissenting:
“Nothing in our Constitution, express or
implicit, compels the majority’s startling
conclusion that the age-old understanding of
marriage—an understanding recently
confirmed by an initiative law—is no longer
valid. California statutes already recognize
same-sex unions and grant them all the
substantive legal rights this state can bestow.
If there is to be a further sea change in the
social and legal understanding of marriage
itself, that evolution should occur by similar
democratic means. The majority forecloses
this ordinary democratic process, and, in
doing so, oversteps its authority.”
Justice Baxter, concurring and dissenting:
“Nothing in our Constitution, express or
implicit, compels the majority’s startling
conclusion that the age-old understanding of
marriage—an understanding recently
confirmed by an initiative law—is no longer
valid. California statutes already recognize
same-sex unions and grant them all the
substantive legal rights this state can bestow.
If there is to be a further sea change in the
social and legal understanding of marriage
itself, that evolution should occur by similar
democratic means. The majority forecloses
this ordinary democratic process, and, in
doing so, oversteps its authority.”
“If such a profound change in this ancient
social institution is to occur, the People and
their representatives, who represent the
public conscience, should have the right, and
the responsibility, to control the pace of that
change through the democratic process.
Family Code sections 300 and 308.5 serve this
salutary purpose. The majority’s decision
erroneously usurps it.”
To qualify for the ballot, Proposition 8 needed
694,354 valid petition signatures, equal to 8%
of the total votes cast for governor in the
November 2006 General Election.
April 24, 2008: The initiative proponents
submitted 1,120,801 signatures, and on June
2, 2008, the initiative qualified for the
November 4, 2008 election ballot.
Choice
Votes
Percentage
Yes
4,618,673
61.4%
No
2,909,370
38.6%
Choice
Votes
Percentage
Yes
7,001,084
52.24%
No
6,401,482
47.76%
State Court Challenge (Strauss v. Horton)
November 19, 2008: California Supreme
Court accepts Strauss v. Horton cases.
Question: Was Prop 8 merely an
“amendment” (allowing it to be placed on the
ballot by 8% of the voters) or was it a
constitutional “revision” (requiring it to be
proposed by two-thirds of the legislature and
a majority of voters)?
State Court Challenge (Strauss v. Horton)
November 19, 2008: California Supreme
Court accepts Strauss v. Horton cases.
Question: Was Prop 8 merely an
“amendment” (allowing it to be placed on the
ballot by 8% of the voters) or was it a
constitutional “revision” (requiring it to be
proposed by two-thirds of the legislature and
a majority of voters)?
Question: Can an initiative be used to take
away fundamental rights?
State Court Challenge (Strauss v. Horton)
May 26, 2009: California Supreme Court
decides Strauss v. Horton, rejecting claims that
Prop 8 was not validly adopted, but affirming
the validity of 18,000 same-sex marriages that
had been entered into in California during the
five and one-half month period of time
between the May 15, 2008 California Supreme
Court opinion striking down Proposition 22
and the November 4, 2008 passage of
Proposition 8.
Federal Court Challenge (Perry v.
Schwarzenegger)
May 23, 2009: Two same-sex couples file suit
challenging the constitutionality of Prop 8,
arguing it violates both Substantive Due
Process and the Equal Protection Guarantee
of the 14th Amendment to the U.S.
Constitution.
Federal Court Challenge (Perry v.
Schwarzenegger)
June 12, 2009: Attorney General Jerry Brown
files brief refusing to defend Prop 8.
September 9, 2009: Prop 8 supporters file a
motion for summary judgment.
October 13, 2009: Judge Walker denies the
motion.
January 11, 2010: Prop 8 trial begins.
January 27, 2010: Prop 8 testimony ends.
June 16, 2010: Prop 8 trial closing arguments.
Federal Court Challenge (Perry v.
Schwarzenegger)
August 4, 2010: U.S. District Chief Judge
Vaughn R. Walker overturns Proposition 8,
stating (1) it is “...unconstitutional under the
Due Process Clause because no compelling
state interest justifies denying same-sex
couples the fundamental right to marry” and
(2) it violates “the Equal Protection Clause
because there is no rational basis for limiting
the designation of ‘marriage’ to opposite-sex
couples.”
Federal Court Challenge (Perry v.
Schwarzenegger)
Judge Walker stays his ruling; the voter
initiative is to remain in effect pending
appeal. Then, on August 12, Walker
announces his decision to lift the stay as of
August 18, 2010 (which would allow samesex marriages to be performed thereafter).
Federal Court Challenge (Perry v.
Schwarzenegger)
However, on August 16, 2010, the United
States Court of Appeals for the Ninth Circuit
indefinitely extends the District Court’s stay,
stopping new same-sex marriages in the state
of California pending appeal. It also
schedules an accelerated time table for
hearing an appeal of Walker’s ruling.
Federal Court Challenge (Perry v.
Schwarzenegger)
Following briefing of the case, oral arguments
are heard on December 6, 2010 by three
judges of the United States Court of Appeals
for the Ninth Circuit, Stephen Reinhardt,
Michael Hawkins, and N. Randy Smith.
Federal Court Challenge (Perry v. Brown)
One month later, January 4, 2011: The Ninth
Circuit certifies a question to the California
Supreme Court. Because California officials
had declined to defend the law, the federal
court has asked the state court to decide
whether the backers of the challenged
initiative have standing (i.e., do they have “a
particularized interest in the initiative’s
validity or the authority to assert the State’s
interest in the initiative’s validity” that would
permit them to defend the law when state
officials refuse to do so?)
Federal Court Challenge (Perry v. Brown)
U.S. District Chief Judge Vaughn R. Walker:
Federal Court Challenge (Perry v. Brown)
September 6, 2011: The California Supreme
Court hears oral arguments on the Ninth
Circuit Court of Appeals’ certified question
regarding “standing.”
Federal Court Challenge (Perry v. Brown)
November 11, 2011: The California Supreme
Court rules that the non-governmental
proponents of Prop 8 do have standing to
defend it.
Federal Court Challenge (Perry v. Brown)
February 7, 2012: The three-judge panel of the
Ninth Circuit Court of Appeals issues a 2-1
ruling declaring Prop 8 unconstitutional.
Federal Court Challenge (Perry v. Brown)
The three-judge panel unanimously agree
that Judge Walker did not need to recuse
himself from trying the case.
Federal Court Challenge (Perry v. Brown)
Judge Reinhardt: Although Judge Walker
had held that Prop 8 is unconstitutional
because “it deprives same-sex couples of the
fundamental right to marry” and violates the
Equal Protection Clause by excluding samesex couples to the “honored status” otherwise
permitted to different-sex couples, the federal
appellate court states it will reach its decision
on “the narrowest ground.”
Federal Court Challenge (Perry v. Brown)
Judge Reinhardt: “Proposition 8 singles out
same-sex couples for unequal treatment by
taking away from them alone the right to
marry”, a “distinct constitutional violation”
in that it subjects a minority group to “the
deprivation of an existing right without a
legitimate reason.”
Federal Court Challenge (Perry v. Brown)
“The People of California may not, consistent
with the Federal Constitution, add to their
state constitution a provision that has no
more practical effect than to strip gays and
lesbians of their right to use the official
designation that the State and society give to
committed relationships, thereby adversely
affecting the status and dignity of the
members of a disfavored class.”
Federal Court Challenge (Perry v. Brown)
Dissenting Judge Smith: “The majority
dispenses with Baker in a footnote. . . .
[however, even though] the precedential
effect of Baker v. Nelson is not challenged by
this decision, such precedent is
distinguishable from the decision of the
district court here.”
Federal Court Challenge (Perry v. Brown)
“Proposition 8 is subject to rational basis
review rather than to any heightened
scrutiny. . . . Our task is to determine whether
Proposition 8 rationally relates to any
independent legitimate governmental
interest. . . .”
Federal Court Challenge (Perry v. Brown)
The California Supreme Court [has] indicated
that the responsible procreation theory
[“justifying the inducement of marital
recognition only for opposite-sex couples,
because it ‘steers procreation into marriage’
because opposite-sex couples are the only
couples who can procreate children
accidentally or irresponsibly”] is a legitimate
governmental interest.”
Federal Court Challenge (Perry v. Brown)
“The optimal parenting theory [justifying the
inducement of marital recognition only for
opposite-sex couples, because the family
structure of two committed biological
parents--one man and one woman--is the
optimal partnership for raising children]
could conceivably be a legitimate
governmental interest.”
Federal Court Challenge (Perry v. Brown)
“I cannot conclude that Proposition 8 is
‘wholly irrelevant’ to any legitimate
governmental interests.”
Federal Court Challenge (Perry v. Brown)
On February 21, 2012, Proposition 8
supporters requested an en banc review by 11
of the Ninth Circuit’s judges. If the Ninth
Circuit refuses, they have the option of asking
the U.S. Supreme Court to review the
decision. If the Ninth Circuit grants en banc
review, its decision could be appealed to the
U.S. Supreme Court by an aggrieved party.