In re MARRIAGE CASES.
[Six consolidated appeals[*]].
Court of Appeal of California, First District, Division Three.
*680 Alliance Defense Fund, Benjamin W. Bull, Glen Lavy, Christopher R. Stovall, Dale Schowengerdt; Advocates for Faith and Freedom, Robert H. Tyler; Law Offices of Terry L. Thompson, Terry L. Thompson; Law Offices of Andrew P. Pugno and Andrew P. Pugno for Plaintiff and Appellant Proposition 22 Legal Defense and Education Fund.
Vincent P. McCarthy, Laura B. Hernandez and Kristina J. Wenberg for American Center for Law & Justice, Northeast, Inc., as Amici Curiae on behalf of Plaintiff and Appellant Proposition 22 Legal Defense and Education Fund.
Liberty Counsel, Mathew D. Staver, Rena M. Lindevaldsen and Mary McAlister for Plaintiff and Appellant Campaign for California Families.
Bill Lockyer, Attorney General, Louis R. Mauro, Senior Assistant Attorney General, Christopher E. Krueger, Douglas J. Woods, Kathleen A. Lynch, Hirem M. Patel and Zachery P. Morazzini, Deputy Attorneys General, and Louis R. Mauro, Assistant Attorney General for Defendant and Appellant State of California.
Kenneth W. Starr, Los Angeles; Kirton & McConkie and Alexander Dushku for The Church of Jesus Christ of Latter-Day Saints, California Catholic Conference, National Association of Evangelicals, Union of Orthodox Jewish Congregations of America as Amici Curiae on behalf of Defendant and Appellant State of California.
The Claremont Institute Center for Constitutional Jurisprudence, John C. Eastman, Redondo Beach; Institute for Marriage and Public Policy and Joshua K. Baker for James Q. Wilson, Hadley Arkes, Steven G. Calabresi, Lloyd Cohen, Edward J. Erler, Robert P. George, Leon Kass, Charles Kesler, Douglas W. Kmiec, Daniel H. Lowenstein, David Popenoe, Stephen B. Presser, Katherine Shaw Spaht and Thomas G. West as Amici Curiae on behalf of Defendant and Appellant State of California.
*681 Marriage Law Foundation and Monte N. Stewart for United Families International and Family Leader Foundation as Amici Curiae on behalf of Defendant and Appellant State of California.
Allred, Maroko & Goldberg, Gloria Allred, Michael Maroko and John Steven West, Los Angeles, for Plaintiffs and Respondents Robin Tyler, Diane Olson, Troy Perry and Phillip De Blieck.
Heller Ehrman, Stephen V. Bomse, Richard Denatale, Christopher F. Stoll, San Francisco, Ryan R. Tacorda; National Center for Lesbian Rights, Shannon Minter, Courtney Joslin; Lambda Legal Defense and Education Fund, Jon W. Davidson, Jennifer C. Pizer; ACLU Foundation of Southern California, Christine P. Sun, Peter J. Eliasberg, Los Angeles; ACLU Foundation of Northern California, Tamara Lange, Alan L. Schlosser, San Francisco; Steefel, Levitt & Weiss, Dena Narbaitz, San Francisco, Clyde J. Wadsworth; Law Office of David C. Codell and David C. Codell, Los Angeles, for Plaintiffs and Respondents Lancy Woo, Cristy Chung, Joshua Rymer, Tim Frazer, Jewelle Gomez, Diane Sabin, Myra Beals, Ida Matson, Arthur Frederick Adams, Devin Wayne Baker, Jeanne Rizzo, Pali Cooper, Karen Shain, Jody Sokolower, Janet Wallace, Deborah Hart, Corey Davis, Andre Lejeune, Rachel Lederman, Alexsis Beach, Stuart Gaffney, John Lewis, Phyllis Lyon, Del Martin, Our Family Coalition and Equality California, Del Martin, Phyllis Lyon, Sarah Connor, Gillian Smith, Margot McShane, Alexandra D'Amario, David Scott Chandler, Jeffrey Wayne Chandler, Theresa Michelle Petry, Cristal Rivera-Mitchel and Equality California.
Law Offices of Waukeen Q. McCoy, San Francisco, and Waukeen McCoy; Paul Hanley & Harley and Jason E. Hasley, Berkeley, for Plaintiffs and Respondents Gregory Clinton, Gregory Morris, Anthony Bernan, Edward Neugebauer, Stephanie O'Brien, Janet Levy, Joseph Falkner, Arthur Healey, Kristin Anderson, Michele Bettega, Derrik Anderson and Wayne Edfors.
Gibson, Dunn & Crutcher and Jeffrey F. Webb for Children of Lesbians and Gays Everywhere, MassEquality, National Gay and Lesbian Task Force and Freedom to Marry as Amici Curiae on behalf of Plaintiffs and Respondents.
Munger, Tolles & Olson, Jerome Roth and Daniel J. Powell, San Francisco, for Bay Area Lawyers for Individual Freedom, Family Pride, Human Rights Campaign, Human Rights Campaign Foundation, The National Lesbian and Gay Law Association, Parents, Families and Friends of Lesbians and Gays, Inc., SacLEGAL and Tom Homann Law Association as Amici Curiae as Amici Curiae on behalf of Plaintiffs and Respondents.
Cal-Women's Law Center, Vicky Barker; Irell & Manella, Laura W. Brill, Elizabeth L. Rosenblatt, Douglas NeJaime, Los Angeles; Legal Momentum, Jennifer K. Brown and Deborah A. Widiss for Cal-Women's Law Center, Legal Momentum, Herma Hill Kay, Equal Rights Advocates, The Legal Aid Society-Employment Law Center and Queen's Bench Bar Association of the San Francisco Bay Area as Amici Curiae on behalf of Plaintiffs and Respondents.
Jon B. Eisenberg for California State Conference of the National Association For the Advancement of Colored People as Amici Curiae on behalf of Plaintiffs and Respondents.
University of Toronto Faculty of Law International Human Rights Clinic, Noah Novogradsky; Cassel Brock & Blackwell and Laurie Livingstone for The University of Toronto Faculty of Law International Human Rights Clinic, Women's Institute *682 For Leadership Development, Mayo Moran, Brenda Cossman, Sujit Choudhry, Robert Wintemute, Paul Schiff Berman, Kenji Yoshino, Beth Van Schaack, William Aceves, Margaret Satterthwaite and Barbara Cox as Amici Curiae on behalf of Plaintiffs and Respondents.
Asian Pacific Islander Legal Outreach and Victor M. Hwang for Pacific Islander Legal Outreach, Asian American Bar Association of the Greater Bay Area, Asian American Justice Center, Asian American Legal Defense and Education Fund, Asian Equality, Asian Law Alliance, Asian Law Caucus, Asian Pacific American Bar Association of Los Angeles County, Asian Pacific American Legal Center of Southern California, Asian and Pacific Islander Equality, Asian Pacific Islander Family Pride, Asian Pacific Islander Health Forum, Asian and Pacific Islander Parents & Friends of Lesbians and Gays, Asian Pacific Islander Wellness Center, Asian Women's Shelter, Asian Youth Promoting Advocacy and Leadership, Chinese for Affirmative Action, Chinese Progressive Association, Filipinos for Affirmative Action, Gay Asian Pacific Alliance, Gay Asian Pacific Support Network, Institute for Leadership Development and Study of Pacific Asian North American Religion, Japanese American Bar Association, Japanese American Citizens League, Korean Community Center of the East Bay, My Sister's House, Organization of Chinese Americans San Francisco Chapter, Southeast Asian Community Center and Vietnamese American Bar Association of Northern California as Amici Curiae on behalf of Plaintiffs and Respondents.
O'Melveny & Myers, Peter Obstler, Nikhil Shanbhag, San Francisco, Flora Vigo and Jee Young You for Asian American Justice Center, Asian Pacific American Bar Association, Asian Pacific American Legal Center, Asian and Pacific Islander Lesbian and Bisexual Women and Transgender Network, Asian Pacific Islander Pride Council, Bienestar Human Services, Coalition for Humane Immigrant Rights, Disability Rights Education and Defense Fund, Equal Justice Society, Japanese American Bar Association, La Raza Centro Legal, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, Mexican American Legal Defense and Educational Fund, Multicultural Bar Alliance of Los Angeles, National Black Justice Coalition, National Lawyers Guild of San Francisco, People for the American Way Foundation, United Lesbians of African Heritage, Ventura County Black Attorneys Association and Zuna Institute as Amici Curiae on behalf of Plaintiffs and Respondents.
Raoul D. Kennedy, Elizabeth Harlan, Jo Ann Hoenninger, Joren S. Bass, San Francisco, Philip A. Lieder, Michael D. Meuti, Stephen Lee; Eric Alan Isaacson; and Reverend Silvio Nardoni, Glendale, for Affirmation: Gay and Lesbian Mormons, Al-Fatiha Foundation, Dignity USA, Executive Committee of the American Friends Service Committee, General Synod of the United Church of Christ, Soka-Gakkai International-USA, Union for Reform Judaism, Unitarian Universalist Association of Congregations, Universal Fellowship of Metropolitan Community Churches, California Church IMPACT, California Council of Churches, California Faith for Equality, Council of Churches of Santa Clara County, Friends Committee on Legislation of California, Jews for Marriage Equality (Southern California), Pacific Central District Chapter of the Unitarian Universalist Ministers Association, Pacific Southwest Council of the Union for Reform Judaism, Pacific Southwest District Chapter of the Unitarian Universalist Ministers Association, Progressive Christians Uniting, Reconciling Ministries Clergy of the California-Nevada Conference *683 of the United Methodists, Unitarian Universalist Legislative Ministry-CA, All Saints Episcopal Church, All Saints Metropolitan Community Church, Bay Area American Indian Two-Spirits, Berkeley Fellowship of Unitarian Universalists, Emerson Unitarian Universalist Church Board of Trustees, First Unitarian Universalist Church of San Diego Board of Trustees, Neighborhood Unitarian Universalist Church Board of Trustees, Unitarian Universalist Church of Ventura Board of Trustees, UCC Community Church of Atascadero, Congregation Beth Chayim Chadashim, Congregation Kol Ami, Congregation Sha`ar Zahav, Congregation Shir Hadash, Conejo Valley Unitarian Universalist Fellowship Faith in Action Committee, First Unitarian Universalist Church of Stockton, First Unitarian Universalist Society of San Francisco, Humboldt Unitarian Universalist Fellowship, Kol Hadash, Community for Humanistic Judaism, Metropolitan Community Church in the Valley, Metropolitan Community Church of San Jose, Metropolitan Community Church Los Angeles, Mt. Diablo Unitarian Universalist Church, Mt. Hollywood Congregational Church United Church of Christ, Pacific School of Religion, Parkside Community Church, United Church of Christ, Pilgrim United Church of Christ, San Leandro Community Church, Berkeley Unitarian Universalist Fellowship Social Justice Committee, Social Justice Ministry at First Church, St. John Evangelist Episcopal Church, Starr King Unitarian Universalist Church, The Ecumenical Catholic Church, Unitarian Universalist Church of Palo Alto, Unitarian Universalist Church of the Monterey Peninsula, Unitarian Universalist Community Church of Sacramento, Unitarian Universalist Community Church of Santa Monica, Unitarian Universalist Community Church of South County, Unitarian Universalist Congregation of Marin, Unitarian Universalist Fellowship of Laguna Beach, Unitarian Universalist Fellowship of Redwood City, Unitarian Universalist Fellowship of Stanislaus County, Unitarian Universalists of San Mateo, Unitarian Universalists of Santa Clarita, United Church of Christ in Simi Valley, Universalist Unitarian Church of Santa Paula, University Lutheran Chapel, Reverend Doctor Pam Allen-Thompson, Reverend Rachel Anderson, Rabbi Camille Angel, Rabbi Melanie Aron, Reverend Joy Atkinson, Reverend JD Benson, Rabbi Linda Bertenthal, Pastor LeAnn Blackert, Reverend Susan Brecht, Pastor Paul Brenner, Reverend Doctor Ken Brown, Reverend Kevin Bucy, Reverend Helen Carroll, Rabbi Ari Cartun, Reverend Craig B. Chapman, Reverend Barbara M. Cheatham, Reverend Jan Christian, The Reverend Beate Chun, Reverend June M. Clark, The Reverend Anne G. Cohen, Rabbi Helen T. Cohn, Rabbi Susan S. Comforti, Rabbi Laurie Coskey, Reverend Lyn Cox, Reverend Sofia Craethnenn, Reverend Robbie Cranch, Reverend Matthew Crary, Reverend Cinnamon Daniel, Reverend Diann Davisson, Pastor Jerry De Jong, Reverend Frances A. Dew, Rabbi Lisa A. Edwards Ph.D., Rabbi Denise Eger, Reverend Michael Ellard, Reverend Stefanie EtzbachDale, Pastor Brenda Evans, Interim Minister Mark Evens, Reverend Lydia Ferrante-Roseberry, Reverend Michelle Favreult, Reverend Renae Extrum-Fernandez, Rabbi Joel Fleekop, Reverend Diana Gibson, Reverend Doctor Robert Goss, Reverend Doctor June Goudey, Reverend Robert C. Grabowski, Reverend James Grant, Rabbi Bruce DePriester Greenbaum, Reverend Doctor Susan Hamilton, Reverend Bill Hamilton-Holway, Reverend Barbara Hamilton-Holway, Reverend Doctor Kathy Hearn, Reverend Jane Heckles, Rabbi Alan Henkin, Rabbi Jay Heyman, Reverend Anne Felton Hines, Reverend Jackie Holland, *684 Reverend Marcia Hootman, Reverend Ricky Hoyt, Reverend Kathy Huff, Reverend Keith Inouye, Reverend Bryan Jessup, Reverend Jeff Johnson, Reverend Beth Johnson, Reverend Roger Jones, Reverend Julie Kain, Reverend Kathryn Kandarian, Reverend John Kirkley, Reverend Benjamin A. Kocs-Meyers, Reverend Kurt Kuhwald, Reverend Richard Kuykendall, Reverend Peter Laarman, Rabbi Howard Laibson, Reverend Darcey Laine, Pastor Scott Landis, Rabbi Moshe Levin, Reverend Tom Lewis, Reverend Ken MacLean, Rabbi Tamar Malino, Reverend Elder Debbie Martin, Pastor Michael-Ray Matthews, Reverend Gregory W. McGonigle, Reverend Joseph McGowan, Rev. William McKinney, Reverend Susan Meeter, Reverend Eric H. Meter, Reverend Judith Meyer, Reverend Barbara F. Meyers, Reverend Beth Miller, Reverend John Millspaugh, Reverend Sarah Moldenhauer-Salazar, Reverend Amy Zucker Morgenstern, Reverend David Moss, Reverend Silvio Nardoni, Reverend James A. Nelson, Reverend Drew Nettinga, Reverend Julia Older, Reverend Nancy Palmer Jones, Rev. Doctor Rebecca Parker, Reverend Ernest Pipes, Reverend Georgia Prescott, Reverend Carolyn Price, Reverend Sherry Prud'homme, Reverend Jane Quandt, Reverend Lindi Ramsden, Rabbi Lawrence Raphael, Reverend John Robinson, Reverend Carol Rudisill, Reverend Susan Russell, Reverend David Sammons, Reverend Thomas Schmidt, Reverend Craig Scott, Reverend Wayne Scovell, Reverend Michael Schuenemeyer, Doctor John M. Sherwood, Most Reverend Mark Shirilau, The Reverend Madison Shockley II, Reverend Grace Simons, Most Reverend Bruce J. Simpson, Reverend Dan Smith, Reverend Jeffrey Spencer, Reverend June Stanford-Clark, Reverend Doctor Betty Stapleford, Reverend Stanley Stefancic, Reverend Arvid Straube, Reverend Doctor Archer Summers, Reverend Steven Swope, Reverend Paul Tellstrom, Reverend Margo Tenold, Reverend Neil Thomas, Reverend Lynn Ungar, Reverend Nada Velimirovic, Rabbi Arthur Waskow, Reverend Theodore A. Webb, Reverend Doctor Petra Weldes, Reverend Vail Weller, Reverend Bets Wienecke, Reverend Elder Nancy Wilson, Rope Wolf, Reverend Ned Wright and Rabbi Bridget Wynne as Amici Curiae on behalf of Plaintiffs and Respondents.
Dennis J. Herrera, City Attorney, Therese M. Stewart, Chief Deputy City Attorney, Julia M.C. Friedlander, Kathleen S. Morris and Sherri Skokeland Kaiser, Deputy City Attorneys; Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Bobbie J. Wilson and Amy Margolis, San Francisco, for Defendant and Respondent City and County of San Francisco.
Thomas J. Kuna-Jacob as Amicus Curiae.
McGUINESS, P.J.
The legal issue presented in these appeals is straightforward: Did the trial court err when it concluded Family Code statutes defining civil marriage as the union between a man and a woman are unconstitutional? (Fam.Code, §§ 300, 301, 302, 308.5.) Appellants assert legal error; respondents reiterate their arguments that excluding same-sex couples from marriage violates due process and equal protection and is not supported by a compelling state interest. Our dissenting colleague advances theories and arguments not made by the parties or relied on by the trial court and concludes a constitutionally protected privacy interest compels expanding the definition of marriage to include same-sex couples.
California has long sought to eliminate discrimination against gays and lesbians. Our Legislature has passed landmark legislation *685 providing substantially all the rights, responsibilities, benefits and protections of marriage to same-sex couples who register as domestic partners. (Fam. Code, § 297 et seq.) We must now decide whether the state's definition of marriage, which historically has precluded same-sex partners from marrying, is constitutional. Obviously, the question is one of great significance, and it requires us to venture into the storm of a fierce national debate. Both sides believe passionately in their positions. One side argues the time has come for lesbian and gay relationships to enjoy full social equality, and it is fundamentally unfair for the state to continue to reserve marriage as an institution for heterosexual couples only. The other side stresses the need for judicial restraint and the importance of preserving the traditional understanding of marriagewhich is very important to many Californians, who fear such a fundamental change will destroy or seriously weaken the institution at the heart of family life.
While we have considered all arguments raised on both sides of the issue, our task as an appellate court is not to decide who has the most compelling vision of what marriage is, or what it should be. "[T]he judiciary is not in the business of preferring, much less anointing, one value as more valid than another. . . ." (Lewis v. Harris (2005)
All can agree that California has not deprived its gay and lesbian citizens of a right they previously enjoyed; same-sex couples have never before had the right to enter a civil marriage. It is also beyond dispute that our society has historically understood "marriage" to refer to the union of a man and a woman. These facts do not mean the opposite-sex nature of marriage can never change, or should never change, but they do limit our ability as a court to effect such change. The respondents in these appeals are asking this court to recognize a new right. Courts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage. "The role of the judiciary is not to rewrite legislation to satisfy the court's, rather than the Legislature's, sense of balance and order. Judges are not `"knight[s]-errant, roaming at will in pursuit of [their] own ideal of beauty or of goodness."' [Citation.]" (People v. Carter (1997)
Because we have a fundamentally different view of the appellate judicial function, at least in relation to these cases, we part ways with our dissenting colleague. The dissent delivers what is essentially an impassioned policy lecture on why marriage should be extended to same-sex couples. Lacking controlling precedent, it misconstrues case law and mischaracterizes the parties' claims and our analysis to reach this result. But the court's role is not to define social policy; it is only to decide legal issues based on precedent and the appellate record. The six cases before us ultimately distill to the question of who gets to define marriage in our democratic society. We believe this power rests in the people and their elected representatives, and courts may not appropriate to themselves the power to change the definition of such a basic social institution. Our dissenting colleague's views, while well intentioned, *686 disregard this delicate balance. Moreover, his unfortunate rhetoric suggesting our opinion is an exercise in discrimination rather than a legitimate attempt to follow the law (dis. opn., post, at pp. ___-___) does nothing to advance the serious subject matter of these appeals.
We conclude California's historical definition of marriage does not deprive individuals of a vested fundamental right or discriminate against a suspect class, and thus we analyze the marriage statutes to determine whether the opposite-sex requirement is rationally related to a legitimate government interest. According the Legislature the extreme deference that rational basis review requires, we conclude the marriage statutes are constitutional. The time may come when California chooses to expand the definition of marriage to encompass same-sex unions. That change must come from democratic processes, however, not by judicial fiat.
BACKGROUND
Litigation in California over the right to same-sex marriage was sparked by the controversial decision of Gavin Newsom, Mayor of the City and County of San Francisco (City), to begin issuing marriage licenses without regard to the gender or sexual orientation of either prospective spouse. On February 10, 2004, Newsom sent a letter to County Clerk Nancy Alfaro asking her to alter the forms used in order to provide marriage licenses regardless of gender or sexual orientation. (Lockyer v. City and County of San Francisco (2004)
In accordance with this directive, the City began issuing marriage licenses to same-sex couples on February 12, 2004. (Lockyer, supra,
Acting on this suggestion, the City filed a complaint for declaratory relief and a petition for writ of mandate challenging the validity of Family Code provisions limiting marriage in California to unions between a man and a woman. (Fam.Code, §§ 300, 308.5.) (City and County of San Francisco v. State of California (Super.Ct. S.F. City & County, 2004, No. CGC-04-429539) (CCSF).) Two similar actions were filed by groups of same-sex couples, who allege they are involved in committed relationships but are prevented from marrying in California, or whose out-of-state marriages are not recognized under California law. (Tyler v. County of Los Angeles (Super.Ct. L.A.County, 2004, No. BS-088506) (Tyler); Woo v. Lockyer (Super.Ct. S.F. City & County, 2004, No. CGC-04-504038) (Woo).)[3]
On August 12, 2004, the Supreme Court issued its opinion in Lockyer. Having concluded local officials in San Francisco exceeded their authority in issuing marriage licenses to same-sex couples, the court issued a writ of mandate directing these officials to enforce the statutes governing marriage "unless and until they are judicially determined to be unconstitutional" and compelling them to take remedial action with respect to marriages that were previously conducted in violation of applicable laws. (Lockyer, supra, 33 Cal.4th at pp. 1069, 1120,
Meanwhile, when Lockyer was pending, the Judicial Council coordinated the three actions challenging the constitutionality of the marriage laws into a single proceeding, known as the Marriage Cases (JCCP No. 4365), and assigned them to San Francisco Superior Court Judge Richard A. Kramer. A fourth suit filed by a group of same-sex couples was later added. (Clinton v. State of California (Super.Ct. S.F. City and County, 2004, No. CGC-04-429-548) (Clinton).) The Thomasson and Proposition 22 cases, which had been stayed while the *688 Supreme Court considered Lockyer, were also assigned to the coordinated proceedings before Judge Kramer. The trial court directed all parties to submit briefs, and, on December 22 and 23, 2004, it held hearings in the coordinated cases to consider the constitutional validity of California's marriage statutes.[5]
On April 13, 2005, the trial court issued its final decision. Although the City and other plaintiffs had also claimed the marriage laws violated their rights to due process and privacy, the court addressed only those challenges based on the equal protection clause of the California Constitution (Cal. Const., art. I § 7, subd. (a)). The court ruled that Family Code provisions limiting marriage in California to opposite-sex unions are subject to strict judicial scrutiny because they rest on a suspect classification (gender) and because they impinge upon the fundamental right to marry. After considering interests advanced by the state and other partiesi.e., CCF and the Proposition 22 Legal Defense and Education Fund (the Fund)and searching for additional interests in relevant legislative history and ballot materials, the court concluded the marriage statutes' opposite-sex requirement does not pass strict scrutiny, or even the more deferential review accorded under the rational basis test, because it does not further any legitimate state interest. Accordingly, the court declared Family Code sections 300 and 308.5 unconstitutional under the California Constitution and entered judgment in each of the coordinated cases in favor of the City and/or the individual plaintiffs and interveners. Separate appeals from the state, the Fund and CCF followed, and we consolidated all six appeals for purposes of decision.[6]
DISCUSSION
I. Justiciability Issues
As a preliminary matter, we must address arguments that two of the cases before us should have been dismissed because they are not justiciable controversies.
After the Supreme Court issued a remittitur in Lockyer and dissolved the stay that had applied to the Thomasson and Proposition 22 actions, CCF and the Fund sought leave to amend the complaints in these cases. The City and certain intervener-defendants opposed this request and moved to dismiss Thomasson and Proposition 22 as moot, arguing the Supreme Court's decision in Lockyer had granted all the relief sought in these cases and plaintiffs lacked standing to pursue bare claims for declaratory relief. The trial court denied the plaintiffs' request for leave to amend but also denied the defendants' motion to dismiss. The court concluded the Thomasson and Proposition 22 complaints "adequately state[d]" claims for declaratory relief concerning the constitutionality of the marriage laws.
On appeal, the City and interveners renew their arguments that claims brought in the Thomasson and Proposition 22 actions are not justiciable. Such challenges may be raised without a cross-appeal because they do not seek affirmative relief; *689 rather, they are alternative legal theories offered to support affirmance of the judgments in these cases. (Code Civ. Proc., § 906; see Westinghouse Electric Corp. v. County of Los Angeles (1982)
Code of Civil Procedure section 1060 confers standing upon "[a]ny person interested under a written instrument" who brings an action for declaratory relief "in cases of actual controversy relating to the legal rights and duties of the respective parties." The validity or construction of a statute is recognized as a proper subject of declaratory relief. (City of Cotati v. Cashman (2002)
For reasons we discussed in a prior opinion concerning the Fund's attempt to intervene in the CCSF and Woo cases, neither the Fund nor CCF satisfies these requirements for injury-based standing. In determining that the Fund lacked a sufficiently direct and immediate interest to support intervention, we observed there was no indication that a judgment in the action would in any way benefit or harm the Fund's members. (City and County of San Francisco v. State of California (2005)
However, unlike in federal courts, two related rules permit standing in California in the absence of such potential injury. "Code of Civil Procedure section 526a permits a taxpayer to bring an action to restrain or prevent an illegal expenditure of public money. No showing of special damage to a particular taxpayer is required as a requisite for bringing a taxpayer suit. [Citation.] Rather, taxpayer suits provide a general citizen remedy for controlling illegal governmental activity. [Citation.]" (Connerly v. State Personnel Bd. (2001)
In addition to taxpayer actions, standing requirements are also relaxed in the area of so-called citizen suits. In such actions, citizens who are not personally affected may nevertheless sue to compel performance of a public duty. (Connerly v. State Personnel Bd., supra,
Although we have determined CCF and the Fund lack standing to pursue their declaratory relief claims, this conclusion has had little to no significance, as a practical matter, in our review of the substantive issues in these appeals. We have reviewed all appellate briefs submitted by the Fund and CCF, and amicus curiae briefs submitted on their behalf, and have considered all the arguments contained therein. For reasons discussed later in this opinion, we have concluded California's marriage laws are subject to review under the rational basis test. Because rational basis review requires a court to consider all reasonably conceivable state interests that may be furthered by a challenged statute (Warden v. State Bar (1999)
II. Relevant Statutory Provisions
A. The Marriage Statutes
Civil marriage in this state is entirely a creature of statutory law. (Lockyer, supra,
The gender specifications were added to the Family Code's definition of marriage in 1977. (Stats.1977, ch. 339, § 1, p. 1295.) Previous versions of the statute stated only that marriage "is a personal relation arising out of a civil contract, to which the consent of the parties capable of making that contract is necessary." (Former Civ. Code, § 4100, added by Stats.1969, ch. 1608, § 8, p. 3314 and repealed by Stats. 1992, ch. 162, § 10, p. 474 [moving the provision, without substantive change, to Fam.Code, § 300]; see also former Civ. Code, § 55, enacted 1872 [stating "Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary"].) In 1977, the County Clerks Association of California sponsored Assembly Bill No. 607, which sought to specify that marriage is a relationship "between a man and a woman." (Assem. Bill No. 607 (1977-1978 Reg. Sess.).) Although county clerks throughout the state had interpreted existing law as permitting only opposite-sex marriages, and consequently had "uniformly denied marriage licenses to same sex couples" (Legis. Counsel, Rep. on Assem. Bill No. 607 (1977-1978 Reg. Sess.) p. 1), they believed former Civil Code, section 4100 was unclear and could be interpreted to encompass same-sex unions. (Sen. Republican Caucus, analysis of Assem. Bill No. 607 (1977-1978 Reg. Sess.) p. 1.) Assembly Bill No. 607 was therefore introduced, and passed, for the express purpose of amending the statute "to prohibit persons of the same sex from entering lawful marriage." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 607 (1977-1978 Reg. Sess.) as amended May 23, 1977, p. 1; see Lockyer, supra,
A second statute limiting marriage in California to opposite-sex unions was passed by voter initiative in 2000. Proposition 22 added Family Code section 308.5, which states: "Only marriage between a man and a woman is valid or recognized in California." The scope of section 308.5 remains a matter of some dispute. Last year, Division One of the Second District Court of Appeal held that Family Code section 308.5 addresses only the extent to which out-of-state marriages will be recognized as valid in California. (Armijo v. Miles (2005)
The Third District Court of Appeal has reached a somewhat broader interpretation of the reach of Proposition 22. In rejecting a claim that the state's domestic partnership laws (Fam.Code, § 297 et seq.) constitute an inappropriate amendment to Proposition 22, because they grant marriage-like rights to same-sex unions, the Third District concluded the initiative was intended "to prevent the recognition in California of homosexual marriages that have been, or may in the future be, legitimized by laws of other jurisdictions," and "to limit the status of marriage to heterosexual couples." (Knight v. Superior Court (2005)
We need not resolve this controversy because issues about the precise scope of Proposition 22, and whether it inhibits the Legislature from passing laws to permit same-sex marriage between Californians, are not directly presented in these appeals. Taken together, Family Code, sections 300 and 308.5 clearly and consistently limit the institution of marriage in California to opposite-sex unions. We must decide only whether the limitation is constitutional. Before turning to this question, however, we discuss the rights and benefits California law currently provides to same-sex relationships, most notably through the domestic partnership statutes.
B. The Domestic Partner Act
California has passed many laws to reduce discrimination against gays and lesbians. *694 For example, the Unruh Civil Rights Act (Civ.Code, § 51) prohibits business establishments that offer services to the public from discriminating on the basis of sexual orientation. (Curran v. Mount Diablo Council of the Boy Scouts (1983)
In 1999, the Legislature passed a bill creating a statewide domestic partnership registry. (Stats.1999, ch. 588, § 2 [adding Fam.Code, §§ 297-299.6]; see Armijo v. Miles, supra,
Soon after their creation, these domestic partnership laws were expanded by *695 amendments that granted registered partners new legal rights. (Stats.2001, ch. 893; Holguin v. Flores, supra,
Family Code, section 297.5, subdivision (a) was added by the Domestic Partner Act and became operative on January 1, 2005. (Stats.2003, ch. 421, § 4; Armijo v. Miles, supra,
There are some exceptions, however. First, the Domestic Partner Act confers only rights and responsibilities available under California law; it does not (because it cannot) extend to domestic partners the numerous benefits married couples enjoy under federal law. (Fam.Code, § 297.5, subd. (k); Knight v. Superior Court, supra,
Moreover, the prerequisites for forming a domestic partnership, and the mechanisms for terminating such a partnership, *696 differ in significant ways from marriage. (See Knight v. Superior Court, supra, 128 Cal.App.4th at pp. 30-31,
Consideration of these differences led the Third District Court of Appeal to observe that "marriage is considered a more substantial relationship and is accorded a greater stature than a domestic partnership." (Knight v. Superior Court, supra,
Our review of domestic partnership laws would not be complete without a discussion of the Legislature's recent attempt to extend marriage rights to same-sex couples. In 2005, Assemblyman Mark Leno introduced a bill to enact the Religious Freedom and Civil Marriage Protection Act. (Legis. Counsel's Dig., Assem. Bill No. 849 (2005-2006 Reg. Sess.), p. 1.) Assembly Bill No. 849 recited legislative findings that (1) gender-specific language added by the 1977 amendments to the marriage laws (Fam.Code, § 300 et seq.) discriminates against same-sex couples; (2) the exclusion of same-sex couples from marriage violates the rights of gays and lesbians under the California Constitution; (3) California's same-sex couples are harmed in various *697 ways by their exclusion from marriage; and (4) "[t]he Legislature has an interest in encouraging stable relationships regardless of the gender or sexual orientation of the partners. The benefits that accrue to the general community when couples undertake the mutual obligations of marriage accrue regardless of the gender or sexual orientation of the partners." (Assem. Bill No. 849 (2005-2006 Reg. Sess.) as amended June 28, 2005, § 3, subds. (d), (f), (g) & (j).) With a declared intent to "correct the constitutional infirmities" of the marriage laws (id., § 8), the bill would have amended Family Code, sections 300 through 302 to remove all gender-specific terms. (Assem. Bill No. 849 (2005-2006 Reg. Sess.) as amended June 28, 2005, §§ 4-6.) Recognizing its inability to correct any such problems in Family Code, section 308.5, due to its enactment by initiative, the Legislature declared Assembly Bill No. 849 was not intended to alter or amend the prohibition in section 308.5 against recognizing same-sex marriages entered outside California. (Assem. Bill No. 849 (2005-2006 Reg. Sess.) as amended June 28, 2005, §§ 3, subd. (k), 8.) Finally, the bill provided that no clergy or religious official would be required to solemnize a marriage in violation of his or her constitutional right to free exercise of religion. (Id., § 7.)
Although Assembly Bill No. 849 passed both houses of the Legislature in September 2005, it was vetoed by the Governor. In his veto message, Governor Schwarzenegger explained that while he supported domestic partnerships for gay and lesbian couples, he did not believe the Legislature could amend Family Code, section 308.5 without submitting the provision for voter approval. (Governor's veto message to Assem. on Assem. Bill No. 849 (Sept. 29, 2005) Recess J. No. 4 (2005-2006 Reg. Sess.) pp. 3737-3738.) Moreover, because the constitutionality of the marriage laws was pending before this appellate court at the time, the Governor believed Assembly Bill No. 849 would add "confusion" to the constitutional issues under review. (Ibid.) He remarked, "If the ban of same-sex marriage is unconstitutional, this bill is not necessary. If the ban is constitutional, this bill is ineffective." (Ibid.)
III. Respondents' Constitutional Claims
Respondents claim Family Code provisions limiting marriage to unions between a man and a woman violate their fundamental right to marry, under the due process and equal protection clauses of the California Constitution, and discriminate against them on the basis of gender and sexual orientation, in violation of the equal protection clause. (Cal. Const., art. I, § 7, subd. (a) ["A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws . . ."].) Respondents also argue the marriage laws violate their constitutional rights to privacy and freedom of expression and association. (Cal. Const., art. I, §§ 1, 2.)
A two-tiered analysis is typically used to determine the constitutionality of laws challenged under the equal protection clause, depending upon the classification involved or the nature of the interest affected. (D'Amico v. Board of Medical Examiners (1974)
A similar approach is employed in passing upon substantive due process challenges to legislative measures. "In analyzing a substantive due process claim, we first examine the nature of the interest at issue to determine whether it is a `fundamental right' protected by the Fourteenth Amendment. [Citation.] Where there is a fundamental right, we must next determine whether the state has significantly infringed upon this right. [Citation.] If so, we then consider whether an important state interest justifies the infringement. [Citation.]" (In re Adoption of Kay C. (1991)
In addressing respondents' constitutional claims, we consider decisions of the United States Supreme Court and other federal courts as persuasive authority because the equal protection provision of the California Constitution is "substantially the equivalent of the equal protection clause of the Fourteenth Amendment. . . ." (Dept. of Mental Hygiene v. Kirchner (1965)
A. No Fundamental Right to Marriage Between Same-sex Partners Has Been Recognized.
The due process clause of the Fourteenth Amendment includes a substantive component that forbids the government from infringing certain fundamental liberty interests unless the infringement is narrowly tailored to serve a compelling state interest. (Reno v. Flores (1993)
Undoubtedly, all citizens have a fundamental constitutional right to marry. (Zablocki v. Redhail, supra, 434 U.S. at pp. 383-386,
Respondents urge us to end the discussion here. Because marriage is a fundamental right that belongs to everyone, respondents reason the Family Code provisions that prevent them from marrying the persons they choose i.e., their same-sex partners deprive them of this fundamental right.[14] Language from many historical decisions stressing the importance of the right to marriage supports their position. (See, e.g., Perez v. Sharp, supra,
Until very recently, the term "marriage" in court opinions has always referred, either explicitly or implicitly, to the union of a man and a woman. (See, e.g., Elden v. Sheldon (1988)
This is not to say that marriage can never be defined to include same-sex unions. As noted, civil marriage in California is based entirely on statutory law. (Lockyer, supra,
Whereas respondents frame the fundamental right at issue generically, as the right to marriage, appellants argue the interest truly at issue here is the more narrow right to same-sex marriage.
In considering which side has the better definition of the right at stake, we heed the guiding principle that substantive due process analysis "must begin with a careful description of the asserted right." (Reno v. Flores, supra,
*702 Considering the importance of judicial restraint in this area, we must agree with appellants that, carefully described, the right at issue in these cases is the right to same-sex marriage, not simply marriage. Just as the United States Supreme Court determined the right before it in Glucksberg was the right to assisted suicide, and not a more generic "right to die" or right to control the manner of one's death (Washington v. Glucksberg, supra, 521 U.S. at pp. 722-723,
Although the Woo respondents forcefully argue that a fundamental right should not be defined based on the group that is seeking to exercise it,[17] the due process clause does not require us to blind ourselves to reality. Where the identity of individuals who claim a fundamental right is relevant in defining the precise liberty interest asserted, courts have not ignored such pertinent facts. For example, in Dawn D. v. Superior Court, a man who claimed to be the biological father of a child born during the mother's marriage to another man challenged a statutory presumption that favored the mother's husband as the child's natural father. (Dawn D. v. Superior Court, supra, 17 Cal.4th at pp. 934-935,
Constitutionally protected fundamental rights need not be defined so broadly that they will inevitably be exercised by everyone. For example, although the ability to make personal decisions regarding child rearing and education has been recognized as a fundamental right (see, e.g., Pierce v. Society of the Sisters (1925)
*703 Furthermore, for purposes of a due process analysis, only rights that are "objectively, `deeply rooted in this Nation's history and tradition,' [citations] and `implicit in the concept of ordered liberty,' such that `neither liberty nor justice would exist if they were sacrificed'" are recognized as fundamental. (Washington v. Glucksberg, supra, 521 U.S. at pp. 720-721,
Everyone agrees there is no historical tradition of same-sex marriage in this country. Quite the contrary. Until just three years ago, United States Supreme Court precedent permitted states to criminalize intimate homosexual conduct. (See Lawrence v. Texas (2003)
Nevertheless, recognition of the rights and liberties of gays and lesbians is progressing swiftly, and "our laws and traditions in the past half century are of most relevance" in this area. (Lawrence v. Texas, supra, 539 U.S. at pp. 571-572,
Respondents argue it is illogical to require that a right long denied by law be supported by a deeply rooted tradition. Of course no such tradition will be found if the people asserting the right have been legally precluded from exercising it. For example, when our Supreme Court struck down California's antimiscegenation laws in Perez v. Sharp, supra,
On the surface, the interracial marriage cases appear to provide compelling support for finding gays and lesbians have a fundamental right to marry their same-sex partners. However, upon closer inspection, the analogy is flawed. The central holdings of Perez and Loving are that laws prohibiting interracial marriage constitute invidious racial discrimination in violation of the equal protection clause. (Loving v. Virginia, supra,
Moreover, although antimiscegenation laws had been around for many years when they were declared invalid (see Perez v. Sharp, supra, 32 Cal.2d at pp. 746-748,
Because marriage in this state has always been defined, implicitly or explicitly, as the union of opposite-sex individuals, the fundamental right respondents urge us to recognize requires a redefinition of the term "marriage."[19] Courts in this state simply do not have authority to redefine marriage. In California, "`the Legislature has full control of the subject of marriage and may fix the conditions under which the marital status may be created or terminated. . . .' [Citation.]" (Lockyer, supra,
We do not presume to hold same-sex marriage will never enjoy the same constitutional protection as is accorded to opposite-sex marriage. "Constitutional concepts are not static" (People v. Belous (1969)
B. The Marriage Laws Do Not Discriminate Based on Gender
Respondents also claim California's marriage laws impermissibly discriminate on the basis of gender. "Public policy in California strongly supports eradication of discrimination based on sex." (Koire v. Metro Car Wash (1985)
The trial court concluded the marriage laws are discriminatory, reasoning: "If a person, male or female, wishes to marry, then he or she may do so as long as the intended spouse is of a different gender. It is the gender of the intended spouse that is the sole determining factor." Obviously, however, the opposite-sex requirement for marriage applies regardless of the applicant's gender. The laws treat men and women exactly the same, in that neither group is permitted to marry a person of the same gender. We fail to see how a law that merely mentions gender can be labeled "discriminatory" when it does not disadvantage either group. (See Hi-Voltage Wire Works, Inc. v. City of San Jose (2000)
All of the leading sex-discrimination decisions from the United States Supreme Court have involved statutes that singled out men or women as a class for unequal treatment. (Smelt v. County of Orange, supra, 374 F.Supp.2d at pp. 876-877; Baker v. State of Vermont, supra,
Despite acknowledging that the marriage laws treat "all men and all women . . . the same," the trial court asserted this equality is beside the point because the laws establish explicit gender-based classifications. Similarly, respondents argue proof of disparate treatment is not required because the laws facially classify by gender. However, we are aware of no controlling authority imposing strict constitutional scrutiny on a law that merely mentions gender, without treating either group differently.[20] Rather than dealing in semantics, a court's primary concern in analyzing gender classifications under the equal protection clause is to ensure equal treatment for men and women. (See Koire v. Metro Car Wash, supra,
Several respondents rely on cases striking antimiscegenation laws as support for their positions. Just as today's marriage laws prohibit men and women equally from entering into same-sex marriages, respondents argue, antimiscegenation laws from the past century prohibited persons of all races equally from marrying outside their race. In the interracial marriage context, the United State Supreme Court "reject[ed] the notion that the mere `equal application' of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations. . . ." (Loving v. Virginia, supra,
The analogy to statutes prohibiting interracial marriage is not entirely apt, however. Close examination of Perez and Loving reveals that these courts were especially troubled by the challenged laws' reliance on express racial classifications. Noting that "[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination" (Loving v. Virginia, supra,
Moreover, the Supreme Court looked beyond the apparently neutral classification scheme and determined that the true purpose of Virginia's antimiscegenation law was "to maintain White Supremacy." (Loving v. Virginia, supra,
Respondents correctly point out that, during the last century, California has abolished or altered many marriage-related laws because they were based on improper sex-role stereotypes. For example, a husband was once regarded as the owner of all community property in a marriage, *709 and he enjoyed the sole ability to control such marital property. (Droeger v. Friedman, Sloan & Ross (1991)
C. Disparate Impact on Gays and Lesbians Does Not Trigger Strict Scrutiny
Although the trial court did not address this issue, we must consider respondents' claim that the marriage statutes are unconstitutional because they discriminate on the basis of sexual orientation. As noted (ante, fn. 9), the Family Code provisions we are considering make no reference to the sexual orientation of potential marriage partners. California law does not literally prohibit gays and lesbians from marrying; however, it requires those who do to marry someone of the opposite sex. As a practical matter, of course, this requirement renders marriage unavailable to gay and lesbian individuals, whose choice of a life partner will, by definition, be a person of the same sex. Clearly, the statutory definition of marriage as male-female has a disparate impact on gay and lesbian individuals.[23] (See Personnel Administrator v. *710 Feeney (1979)
Moreover, the Legislature's manifest purpose in enacting the 1977 amendments to Family Code, section 300, was to exclude same-sex couples from the institution of marriage. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 607 (1977-1978 Reg. Sess.) as amended May 23, 1977, p. 1 [stating the purpose of Assembly Bill No. 607 was "to prohibit persons of the same sex from entering lawful marriage"]; see Lockyer, supra,
However, though we agree with respondents that the marriage statutes implicitly classify based on sexual orientation, we do not agree that this classification requires that the laws be subjected to strict scrutiny. There is no precedent for doing so.
The equal protection clauses of the United States and California Constitutions prohibit arbitrary discrimination against any class of individuals, including homosexuals. (Gay Law Students Assn. v. Pacific Tel. & Tel. Co., supra,
Lower federal courts have held that sexual orientation does not constitute a suspect or quasi-suspect classification. (E.g., Holmes v. California Army Natl. Guard, supra,
In 2003, however, the United State Supreme Court destroyed the foundation of these arguments when it overturned its 17-year-old decision in Bowers. Noting that the Bowers court had failed to appreciate the liberty interest at stake and had demeaned this interest by framing it only as a right to engage in certain sexual conduct, the Supreme Court held "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent." (Lawrence v. Texas, supra, 539 U.S. at pp. 566-567, 578,
Despite this forceful repudiation of Bowers, the Lawrence court did not apply strict scrutiny to Texas's antisodomy law. (See Lawrence v. Texas, supra,
Lower courts have not seized on Lawrence as authority for imposing heightened scrutiny on laws that classify based on sexual orientation. (See, e.g., In re Kandu, supra, 315 B.R. at pp. 143-144 [noting that, while Lawrence "may indicate a shift in the Supreme Court's treatment of same-sex couples," it did not disturb Ninth Circuit precedent holding homosexuals are not a suspect or quasi-suspect class]; see also People v. Limon (2005)
California courts have not decided whether sexual orientation is a suspect classification under our state Constitution's equal protection clause. In Gay Law Students Assn. v. Pacific Tel. & Tel. Co., supra,
For a statutory classification to be considered "suspect" for equal protection purposes, generally three requirements must be met. The defining characteristic must (1) be based upon "an immutable trait"; (2) "bear[] no relation to [a person's] ability to perform or contribute to society"; and (3) be associated with a "stigma of inferiority and second class citizenship," manifested by the group's history of legal and social disabilities. (Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d at pp. 18-19,
Lacking guidance from our Supreme Court or decisions from our sister Courts of Appeal, and lacking even a finding from the trial court on the issue, we decline to forge new ground in this case by declaring sexual orientation to be a suspect classification for purposes of equal protection analysis. Instead, we will follow the lead of the federal courts and other state courts and review the constitutionality of the marriage laws under the rational basis test. (See, e.g., Wilson v. Ake (M.D.Fla. 2005)
D. The Marriage Laws Do Not Infringe Other Asserted Constitutional Rights.
Finally, we turn to two additional, somewhat contradictory, arguments respondents have raisedi.e., that the opposite-sex definition of marriage violates their constitutional rights to privacy and to freedom of expression.
1. Right of Privacy/Intimate Association
Unlike the federal Constitution, the California Constitution contains an explicit guarantee of the right of privacy. (Cal. Const., art. I, § 1; American Academy of Pediatrics v. Lungren, supra,
The Supreme Court has articulated three requirements necessary to support a constitutional invasion of privacy claim: "(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy." (Hill v. National Collegiate Athletic Assn. (1994)
"Legally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (`informational privacy'); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (`autonomy privacy')." (Hill v. National Collegiate Athletic Assn., supra,
Relying on Lawrence v. Texas, supra,
Our dissenting colleague insists that respondents have a constitutionally protected privacy interest in marrying their same-sex partners yet pointedly ignores the reality that respondents have never enjoyed such a right before. This is not a case in which the state has taken away a person's right to get married (e.g., Zablocki v. Redhail, supra, 434 U.S. at pp. 381-382,
Moreover, all of the California decisions the dissent cites addressing the right to "autonomy privacy" concern limits that the Constitution places on the government's ability to interfere into an individual's highly personal decisions or affairs. (See, e.g., American Academy of Pediatrics v. Lungren, supra, 16 Cal.4th at pp. 332-334,
The Constitution does not protect every conceivable claim for privacy. "`[N]ot every act which has some impact on personal privacy invokes the protections of [our Constitution]. . . . [A] court should not play the trump card of unconstitutionality to protect absolutely every assertion of individual privacy.' [Citation.]" (Hill v. National Collegiate Athletic Assn., supra,
The dissent suggests we have somehow abdicated our responsibility to address respondents' privacy claim. Not so. Respondents' briefing on privacy was often cursory and sometimes completely absent. Much of the parties,' and our, discussion of issues raised in the dissent proceeds under the rubric of a fundamental rights analysis. The dissent often conflates the fundamental right issue with privacy, following the style of some federal opinions, but nothing obligates the majority to adopt the same approach especially where the parties have not done so. To the extent a substantial privacy argument has been raised, it has been raised by the dissent.
2. Right of Free Expression
The marriage laws do not interfere with the ability of individuals in this state to enter intimate relationships with persons of their choosing, regardless of gender. The laws do not proscribe any form of intimate conduct between same-sex partners. Nor do they prevent same-sex couples from associating with each other or from publicly expressing their mutual commitment through some form of ceremony. Indeed, California provides formal recognition to same-sex relationships in the Domestic Partner Act. (Fam.Code, § 297 et seq.) What the marriage statutes prohibit, however, is the state's recognition of same-sex relationships as "marriage." Although there are expressive aspects to it, entering a marriage is obviously something much more than a communicative act. If the state has legitimate reasons for limiting marriage to opposite sex couples, then the unavailability for same-sex couples of this one form of expressing commitment when all other expressions remain availabledoes not rise to the level of a constitutional violation.
The dissent argues the state is constitutionally required to change the traditional definition of marriage in order to afford same-sex couples access to this particular form of expression. (Dis. opn. post, at p. 736.) Contrary to the dissent's suggestion, the holding in Turner v. Safley, supra, 482 U.S. at pages 94-95,
IV. The Marriage Laws Withstand Rational Basis Review
Because we have concluded the marriage statutes do not abridge a fundamental right or involve a suspect classification, we review them under the "rational basis" test. (Warden v. State Bar, supra,
Under the rational basis test, then, we must decide whether the opposite-sex definition of marriage furthers a legitimate state interest. (D'Amico v. Board of Medical Examiners, supra,
A. State's Interest in Preserving the Traditional Definition of Marriage Is Legitimate
The Attorney General urges us to take a broad view and consider the availability of domestic partnership laws when we assess the constitutionality of laws restricting marriage to opposite-sex couples. He argues the state has a legitimate interest in "maintaining the understanding of marriage *719 that has always existed in California, while declaring that registered domestic partners shall have the same rights, protections and benefits as spouses." Under rational basis review, it is appropriate for us to consider other relevant laws concerning the rights of same-sex couples, such as the Domestic Partner Act. (See Brown v. Merlo (1973)
In recent years, the Legislature has worked consistently to expand the legal rights of same-sex domestic partners. (Bouley v. Long Beach Memorial Medical Center, supra,
Ignoring legislative declarations in the Domestic Partner Act, and our high court's interpretation of its purpose, the dissent accuses the Act of "stigmatiz[ing] homosexual unions" and insists the "most powerful message" conveyed by a domestic partnership is the couple's "inferior status." (Dis. opn. post, at pp. 761, 760.) We doubt our colleague truly believes that, absent marriage vows, gay and lesbian couples are incapable of creating any meaning for their partnerships beyond oppression and subjugation.[30] In any event, *720 however one regards the symbolic value of domestic partnership, the increase in tangible rights and protections the Domestic Partner Act gives to registered couples cannot be denied.
At the same time, in Family Code sections 300 and 308.5, the Legislature has preserved the traditional definition of marriage. Since our Constitution was enacted, "marriage" has referred to the legal union between a man and a woman. (See, e.g., Murphy v. Ramsey (1885)
Certainly, the state has a strong interest in promoting marriage. (See, e.g., Elden v. Sheldon, supra,
Under the highly deferential standard of review that applies, we believe it is rational for the Legislature to preserve the opposite-sex definition of marriage, which has existed throughout history and which continues to represent the common understanding of marriage in most other countries and states of our union, while at the same time providing equal rights and benefits to same-sex partners through a comprehensive *721 domestic partnership system. The state may legitimately support these parallel institutions while also acknowledging their differences.
Some respondents dismiss the state's interest in preserving the definition of marriage as the mere perpetuation of historical discrimination. "Certainly the fact alone that the discrimination has been sanctioned by the state for many years does not supply [a compelling] justification" for sustaining such discrimination. (Perez v. Sharp, supra,
The trial court minimized the state's interest in providing rights to same-sex couples through a parallel domestic partnership scheme, arguing the provision of "marriage-like rights without marriage . . . smacks of a concept long rejected by the courts: separate but equal." Likewise, the dissent maligns our reliance on the Domestic Partner Act as a return to the discredited reasoning of Plessy v. Ferguson (1896)
Once again, however, the facile comparison of California's marriage statutes to racial segregation is inappropriate. Analogizing the Domestic Partner Act to a "separate but equal" facility assumes the *722 existence of a constitutionally suspect classification. Brown and Perez addressed laws and policies designed to perpetuate racial segregation, and the courts reviewed these laws and policies with great suspicion. (Cf. Loving v. Virginia, supra,
We are not dealing with a suspect classification such as race. Therefore, under the correct legal standard (rational basis review), we must uphold the opposite-sex requirement for marriage if it is supported by any plausible reason. (Warden v. State Bar, supra,
The trial court suggested the Legislature's provision of domestic partnership rights for same-sex couples is irrelevant, stating: "The issue is not whether such a system is `irrational.' . . . The issue under the rational basis test in this case is whether there is a legitimate governmental purpose for denying same-sex couples the last step in the equation: the right to marriage itself." With all due respect, what the *723 trial court described is not a rational basis analysis. Rational basis review starts with a presumption that distinctions drawn in a statute are constitutional. (Heller v. Doe, supra,
Here, the opposite-sex requirement in the marriage statutes is rationally related to the state's interest in preserving the institution of marriage in its historical opposite-sex form, while also providing comparable rights to same-sex couples through domestic partnership laws. The same-sex requirement for couples under age 62 who register as domestic partners (Fam.Code, § 297, subd. (b)(5)) could be likewise justified by the state's interest in providing rights to committed couples through this dual system. Contrary to the trial court's assertion, the question for purposes of rational basis review is indeed whether this system is irrational. We conclude it is not. (See Lawrence v. Texas, supra,
Setting aside charges of discrimination, respondents also dispute the legitimacy of the state's interest in preserving tradition. The City labels this a "`status quo' justification" and asserts, "Nothing could be more arbitrary than to uphold a law simply because it is the law and always has been." Marriage is more than a "law," of course; it is a social institution of profound significance to the citizens of this state, many of whom have expressed strong resistance to the idea of changing its historically opposite-sex nature.[33] We cannot say the *724 state's interest in continuing this institution in the form it has always taken, and continues to take across the country, is so unreasonable that the marriage laws must be stricken under rational basis review. Given that the state affords same-sex couples "legal recognition comparable to marriage" (Koebke v. Bernardo Heights Country Club, supra,
B. State's Interest in Carrying Out the Will of Its Citizens Is Legitimate
In addition to tradition, the Attorney General argues the marriage laws are justified by a related state interest in carrying out the expressed wishes of a majority of Californians. In 2000, voters in this state passed Proposition 22, enacting a law that provides only a marriage between a man and a woman is valid or recognized in California. (Fam.Code, § 308.5.) Regardless of whether this initiative should be interpreted to pertain to all marriages or only those entered outside California (see ante, at pp. 693-694), the citizens who voted for Proposition 22 unquestionably expressed a desire to limit recognition of same-sex partnerships as marriage in this state. Meanwhile, the citizens' elected representatives in the Legislature have found that the public policy of this state supports providing equal rights and opportunities for gay and lesbian families. (See Stats.2003, ch. 421, § 1, subd. (b) [finding that expanding the rights and responsibilities of registered domestic partners furthers California's interest in promoting and protecting stable family relationships]; see also Koebke v. Bernardo Heights Country Club, supra,
Of course, the mere fact that a majority wishes it so cannot save an otherwise unconstitutional law. Majoritarian whims or prejudices will never be sufficient to sustain a law that deprives individuals of a *725 fundamental right or discriminates against a suspect class. (See Bixby v. Pierno (1971)
Like Justice Sosman in Massachusetts, we "fully appreciate the strength of the temptation to find [the marriage laws] unconstitutional." (Goodridge v. Department of Public Health, supra,
The Legislature and the voters of this state have determined that "marriage" in California is an institution reserved for opposite-sex couples, and it makes no difference whether we agree with their reasoning. We may not strike down a law simply because we think it unwise or because we believe there is a fairer way of dealing with the problem. (Fein v. Permanente Medical Group (1985)
The trial court's decision, although purporting to apply rational basis review, essentially redefined marriage to encompass unions that have never before been considered as such in this state. Laudable as the trial court's intentions may have been, it is beyond the judiciary's realm of authority to redefine a statute or to confer a new right where none previously existed. "While courts have the authority to recognize rights supported by the Constitution, the creation of new and unique rights is more properly reserved for the people through the legislative process." (In re Kandu, supra,
Having concluded the interests articulated by the state are legitimate and are advanced by the statutory limitation of marriage to opposite-sex couples, we need not consider the legitimacy of additional interests posited by other appellants and amici curiae.
DISPOSITION
For the reasons discussed herein, the judgments in CCSF, Woo, Tyler and Clinton *727 are reversed. The judgments against CCF and the Fund in Thomasson (denoted Campaign for California Families v. Newsom on appeal) and Proposition 22 are affirmed on the ground that the cases do not present justiciable controversies. All parties shall bear their own costs on appeal.
PARRILLI, J., concur.
PARRILLI, J. concurring.
With complete respect to my colleagues, I join in the opinion of Justice McGuiness and write separately only to address what are more philosophical questions presented by the challenging legal issues before us.
In my view, this case is about two things: Who gets to define what marriage is, and an uncomfortable intersection of law, culture, and religion. The court must confine itself to the former question; it is not in a position to resolve the latter issue, though it must be conscious of the dynamic.
I also write separately to identify a major difficulty with all attempts at reasoned dialogue about this subject. There is a legitimate and meaningful disagreement in this country, and in many places around the world today, about what marriage is and should be.[1] Over the last 30 years we have seen a gradual reconfiguration of family; emerging models of family exist alongside traditional models. We have also witnessed an expansion of personal freedom to express who one really is that is desirable if each person is to become who he or she was created to be. The roots of the disagreement over what marriage should be necessarily intertwine cultural, societal, and religious ideas. There is a great tendency, out of zeal to eliminate genuine inequities, to be swayed emotionally and to overreach in applying legal principles. My colleague has done so in his dissent. Justice Kline writes passionately of the "profound nature of the liberty interest" at stake (dis. opn., post at p. 762) and of "autonomy privacy," (dis. opn., post at pp. 736, 745) but does not cite a single case where the asserted liberty or privacy interest has been identified as he would have us recognize. Most of the cases he relies upon are cases where the rights at issue have been discussed in the context of marriage as it has been understood historically, or in situations that criminalize acts of sexual intimacy. In the end the dissent advocates, from cases that do not lead inexorably to such a result, the existence of a fundamental right to participate in an institution that as historically defined excludes such individuals. And to suggest the majority's description and discussion of the California Domestic Partner Rights and Responsibilities Act of 2003 (DPA) (Family Code § 297 et seq.) is like the "`separate but equal' institution analysis" used in earlier United State Supreme Court cases (dis. opn., post, at p. 761) reflects but one example of the way passion can obscure understanding.
The DPA represents a legitimate effort by the Legislature to afford same-sex couples many of the rights and responsibilities currently attached to marriage, but is distinct from marriage. (Knight v. Superior Court (2005)
The forms marriages can take have changed over the centuries, and will continue to change if history is a reliable teacher. It seems rational that allowing more people to participate in the institution of marriage would only strengthen that institution, not diminish it. Loving covenant relationships encourage stability and mirror the Divine-human relationship of some religious traditions. Seemingly, it would be wise to encourage such formal commitment, especially where children and families are involved.
It is the legitimate business of the Legislature to attempt to close the distance between the parallel institutions (marriage and same-sex committed domestic partnerships) as they develop, and to address such concerns. The "public square" and the Legislature are the appropriate places within a democracy for the debate to fully develop and the evidence to be collected. When and if the Legislature, or the People through the initiative process, provide civil marriage to same-sex couples, we will be called upon to decide legal questions that emerge. Even though equity may favor recognizing such unions equally, it does not follow that courts are free to redefine how marriage has been historically understood under the guise of discovering a fundamental right to marry a person of the same sex. We would essentially have to conclude, as the dissent implies, that an undetected right to marry a member of the same sex has always existed under our state constitution. There is nothing in law or logic that compels such a conclusion.[3]*729 Of course, the arguments for and against the ascertainment of a "fundamental right" become circular when we start from a definition of marriage that presupposes and requires members of the opposite sex and moves inexorably to excluding same-sex couples from participating by definition. Yet, a common understanding and meaning of the word "marriage," or the term "to marry," is required before the word, and the institution, can be discussed intelligently. Or we must admit we are redefining the historical understanding to accommodate this discussion and the cultural developments that precipitated it. Words do matter and there is much in favor of using terms that differentiate to describe biologically different models.
A danger revealed through this debate is that the state has necessarily involved itself in a venture that combines civic process with religious symbolism. (Dis. opn., post at pp. 746-748.) When referring to a civil marriage, we speak of the "sacred" institution, the "spiritual meaning" and the "reverence" accorded to married status, yet avow that the state must remain separated from furthering any particular religious ideation and tradition, and that the institution we deal with is civil in nature. The often unspoken, but underlying, assumption about the current definition of marriage is that it comes from religious tradition. (Dis. opn., post, at p. 747.) Similarly, the opposition to same-sex partnerships comes from biblical language and religious doctrine.[4] This reality is nothing to avoid, and we must acknowledge it if we are to proceed honestly. Humanity did not simply arrive at a definition of marriage devoid of religious concepts informing and shaping that definition, or indeed, us as a people. If we conclude ultimately that marriage is an institution which cannot be separated from its religious history, we must examine whether in an increasingly pluralistic and secular society it can endure as a civic institution.[5] (Miller, Letting Go of a National Religion: Why the *730 State Should Relinquish All Control Over Marriage (2005) 38 Loy. L.A. L.Rev. 2185.) But it seems to me we cannot have it both ways. We say the state must not promote a particular religious viewpoint or establish religion, and then we watch it simultaneously enmesh itself with religious tradition, terminology, and teaching. As the dissent observes, the amici curiae briefs in this case report that some religious denominations that wish to solemnize marriages for same-sex couples are prevented from doing so by the current law; however, other amici curiae argue on behalf of religious denominations against same-sex marriages.[6] The parties to this litigation have not presented those issues directly, but to the degree the issue has been articulated it presents legitimate concern and reflects yet another matter better suited to legislative consideration and public debate.
We are now in the midst of a definitional process that will affect how the citizens of California go forward in the 21st century. The struggles gay men and lesbians have faced to become who they are individually is not to be understated. And though this record does not contain findings of fact nor evidence sufficient to support a conclusion one way or the other, if being gay or lesbian is an immutable trait or biologically determined, then we must conclude classification based on that status which deprives such persons of legitimate rights is suspect. Having endured the often long and difficult process of claiming their true identities, gay men and lesbians are now asking to be recognized as the equally loving and committed partners and capable family units they are, and to be afforded the same responsibilities and protections available to other families. The inequities of the current parallel institutions should not continue if one group of citizens is being denied state privileges and protections attendant to marriage because they were created with a sexual orientation different from the majority, if we are to remain faithful to our Constitution. Although we are being called upon to work together toward a mutual goal of liberty and justice, we must be careful about where the achievement comes from. If respect for the rule of law is to be maintained, courts must accept and abide by their limited powers. The Constitution is not some kind of "origami project"[7] to be twisted and reconfigured to accomplish ends better left to the democratic process. To those who are waiting for the rewards and responsibilities of marriage, this process will seem too slow; to those who feel the challenge to their "sacred" civic institutions and the likelihood of change, it will seem too fast. The courts must move only at the pace, and within the limits, the law permits.
Concurring and Dissenting opinion of *731 KLINE, J.[*]
I dissent from all portions of the majority opinion except the portion concluding that the Campaign for California Families (CCF) and the Proposition 22 Legal Defense and Education Fund (Fund) lack standing to pursue their purely declaratory relief claims, with which I concur.
As the majority rightly states, "whether California's marriage laws infringe upon a fundamental right depends almost entirely on how that right is defined." (Maj. opn., ante, at p. 699.) However, like the determination in Bowers v. Hardwick (1986)
The question at the center of this case is whether the reasons the United States Supreme Court and the California Supreme Court have deemed marriage a fundamental constitutional right are as applicable to same-sex couples as to couples consisting of members of the opposite sex. The majority's indifference to those reasons effectively divests the marital relationship of its most constitutionally significant qualities and permits marriage to be defined instead by who it excludes. Though not its purpose, the inescapable effect of the analysis the majority adopts is to diminish the humanity of the lesbians and gay men whose rights are defeated. The right to marry is "of fundamental importance for all individuals." (Zablocki v. Redhail (1978)
The majority's validation of the state's restriction of the freedom of lesbians and gay men to choose whom to marry rests on three determinations: that the right respondents assert is not the fundamental right to marry; that classifications based on sexual orientation do not constitute a "suspect classification" for purposes of equal protection analysis; and that the ban on same-sex marriage survives rational basis review because, while maintaining the traditional definition of opposite-sex marriage, the state provides same-sex couples "equal rights and benefits . . . through a comprehensive domestic partnership system," and "[t]he state may legitimately support these parallel institutions while *732 also acknowledging their differences." (Maj. opn., ante, at pp. 720-721.)
The determinations that the fundamental right to marry is not at issue in this case and that the California Domestic Partner Rights and Responsibilities Act of 2003 (Fam.Code, § 297 et seq.) provides a rational basis upon which to uphold the traditional ban on same-sex marriage are, as I shall explain, unsupportable. As for the question whether sexual orientation is a suspect class for equal protection purposes, I acknowledge most courts have said it is not. However, sexual orientation satisfies the criteria our Supreme Court has used to determine whether a class is suspect.
Respondents' claim that the challenged statutes impose a discriminatory classification restricting their exercise of a substantial liberty rests on both article I, section 7 of the California Constitution, which guarantees equal protection of the law, and article I, section 1, which protects the right of privacy. Claiming privacy jurisprudence does not "fit" same-sex marriage, my colleagues say this case "is most appropriately analyzedlike other unequal access claimsunder equal protection principles." (Maj. opn., ante, at p. 716.) I see the matter a bit differently. The fact of unequal treatment is conceded by the state and is obvious, and I address the remaining equal protection issues (whether respondents are members of a suspect class and whether the restriction survives the appropriate level of judicial scrutiny). But I believe it most appropriate to focus judicial inquiry most sharply on respondents' privacy claim,[1] because privacy principles shed brightest light on what I consider the critical issue in this case, namely, whether the right respondents assert is a "novel" right designed specifically for gay men and lesbians, as appellants and my colleagues claim, or is instead a fundamental right available to all, as respondents maintain. If respondents are right about this, as I believe they are, it is irrelevant whether classifications based on sexual orientation are "suspect" for equal protection purposes, as the challenged restriction would be subject to strict scrutiny even if they are not, and the restriction clearly cannot survive such scrutiny.
Moreover, whether this case is viewed from the perspective of equal protection or that of the substantive due process that informs the right of privacy, the central question is the same: how much may be demanded of the state to justify its restriction of the right? Far from having separate missions and entailing different inquiries, substantive due process and equal protection are profoundly interlocked. (See, e.g., Zablocki, supra, 434 U.S. at pp. 391, 395,
*733 Part I of this opinion describes the state constitutional right of privacy and its application to this case, part II explains why it is time to abandon the increasingly transparent pretext that sexual orientation is not a "suspect classification" for purposes of equal protection analysis, and part III explains why the challenged restriction has no rational basis, let alone a compelling justification.
I.
The State Constitutional Right of Privacy
A.
The Protection of Individual Autonomy and Personhood
Article I, section 1 of the California Constitution states: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." (Italics added.) The only changes in this provision since its original adoption in 1849 were made in 1972. The word "people" was substituted for the original "men" and, much more significantly for our purposes, "privacy" was added to the list of protected rights.
The state constitutional right to privacy encompasses not just informational privacy but also "a variety of rights involving private choice in personal affairs." (Robbins v. Superior Court (1985)
The distinctive nature of the interests protected by the Privacy Initiative was discussed by the Supreme Court in detail in Hill v. National Collegiate Athletic Assn. (1994)
While drawing on federal privacy jurisprudence, our case law has repeatedly stressed that the state constitutional right to privacy is significantly more protective than the counterpart federal right. "[N]ot only is the state constitutional right of privacy embodied in explicit constitutional language not present in the federal Constitution, but past California cases establish that, in many contexts, the scope and application of the state right is broader and more protective of privacy than the federal constitutional right of privacy as interpreted by the federal courts. (Compare Hill[, supra,]
The autonomy interest protected by the state constitutional privacy clause, which our high court has described as a "fundamental" right (American Academy of Pediatrics v. Lungren, supra,
"The very idea of a fundamental right of personhood rests on the conviction that, even though one's identity is constantly and profoundly shaped by the rewards and penalties, the exhortations and scarcities and constraints of one's social environment, the `personhood' resulting from this process is sufficiently `one's own' to be deemed fundamental in confrontation with the one entity that retains a monopoly over legitimate violence the government. Thus active coercion by government to alter a person's being, or deliberate neglect by government which permits a being to suffer, are conceived as qualitatively different from the passive, incremental coercion that shapes all of life and for which no one bears precise responsibility." (Tribe, American Constitutional Law, supra, § 15-2, pp. 1305-1306.) This rationale is reflected in the statement in Roberts v. United States Jaycees (1984) 468 *736 U.S. 609,
The marital relationship is within the zone of autonomy protected by the right of privacy not just because of the profound nature of the attachment and commitment that marriage represents, the material benefits it provides, and the social ordering it furthers, but also because the decision to marry represents one of the most self-defining decisions an individual can make. "When two people marry . . . they express themselves more eloquently, tell us more about who they are and who they hope to be, than they ever could do by wearing armbands or carrying red flags." (Karst, The Freedom of Intimate Association, supra,
The protection of personhood provided by autonomy privacy does not divest the state of the ability to impose majoritarian views of morality; it simply tells the state that it cannot do so without justification. However, unlike privacy cases involving informational interests, in which "the federal courts have generally applied balancing tests that avoid rigid `compelling interest' or `strict scrutiny' formulations" (Hill, supra,
B.
The Federal and State Marriage Cases
The United States Supreme Court has in many cases significantly touched upon *737 why the right to marry is among "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men" (Meyer v. Nebraska (1923)
In holding Virginia's antimiscegenation laws unconstitutional, Loving, supra,
In Zablocki, supra,
Zablocki establishes that the right to marry is constitutionally protected even where restriction on the right is not based on race or membership in some other suspect class. As the court stated, "[a]lthough Loving arose in the context of racial discrimination, prior and subsequent decisions of this court confirm that the right to marry is of fundamental importance for all individuals." (Zablocki, supra,
Turner, supra,
Speaking for the court, Justice O'Connor conceded that prisoner marriages could be subjected to "substantial restrictions" (presumably referring to restrictions on conjugal visits), but explained that, "[m]any important attributes of marriage remain . . . after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated.[[5]] Finally, marital *739 status often is a precondition to the receipt of government benefits . . . property rights . . ., and other, less tangible benefits. . . ." (Turner, supra, 482 U.S. at pp. 95-96,
The majority's determinations that the restrictions challenged here "do not interfere with the ability of individuals in this state to enter intimate relations with persons of their choosing" and do not prevent such couples from "expressing their mutual commitment" (maj. opn., ante, at pp. 717, 718), and, therefore, that respondents have not asserted a legally protected privacy interest, are indifferent to the analysis and reasoning of Perez, Loving, Zablocki, and Turner and the pre- and post-Griswold cases they rely upon. Just as the ruling in Turner required the Supreme Court to determine whether the "incidents of marriage" described in that opinion were "unaffected by the fact of confinement," (Turner, supra,
The California Supreme Court attaches the same importance to the right to marry as the United States Supreme Court. It has repeatedly acknowledged a "`right of privacy' or `liberty' in matters related to marriage, family, and sex" (People v. Belous (1969)
The fact that the right to marry is a fundamental right does not, of course, mean that the legislative branch may not *740 define marriage in such a way as to as to limit the right to defined groups, or that the courts need pay no mind to a statutory definition or historical understandings. In striking a state statute that restricted the right of marriage, the Zablocki court rejected the view "that every state regulation which relates in any way to the incidents of or perquisites for marriage must be subjected to rigorous scrutiny," and made clear that "reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed." (Zablocki, supra,
If, after the interest balancing required by due process analysis, prohibitions of marriage involving an interracial couple, an irresponsible parent or a prison inmate exceed the constitutional limit, so too must the absolute ban at issue in this case, because there is nothing about same-sex couples that makes them less able to partake of the attributes of marriage that are constitutionally significant. My colleagues accuse me of positing a fundamental right of same-sex marriage on the basis not of "controlling precedent," (maj. opn., ante, at p. 685), but rather a social policy that cannot be judicially invented. This is not so. The right I posit is that which has been declared fundamental and available to all by the highest court of this nation in Loving, Zablocki, Turner, and other cases, and by our own Supreme Court in Perez. As will be seen, the state does not deny that the attributes of marriage which explain the fundamentality of the right to marry are as applicable to same-sex couples as to all others.
My colleagues' conclusion that respondents have no constitutionally protected privacy interest in marrying same-sex partners rests on "the reality that respondents have never enjoyed such a right before." (Maj. opn., ante, at pp. 715-716.) This differentiates the case from Zablocki and Turner, they say, because in those cases the state had "taken away" a right to marry that previously existed. This attempt to avoid the reasoning of Zablocki and Turner fails. No court has ever suggested, and it would be absurd to think, that a class of persons who have never enjoyed a fundamental right available to others can, for that reason, continue to be denied it. As earlier indicated, if that were true, Perez and Loving would not have been decided as they were, because interracial couples in California and Virginia never previously possessed the right to marry. The majority's reasoning is circular: same-sex couples have no fundamental right to marriage because same-sex couples "have never had a legal right to marry each other" (maj. opn., ante, at p. 716), as the rights and benefits marriage affords "have historically been reserved for others." (Maj. opn., ante, at p. 716.)
In her concurring opinion, Justice Parrilli says we could not grant respondents *741 the right to marry without concluding "that an undetected right to marry a member of the same sex has always existed under our state constitution," a conclusion she finds incompatible with "law or logic." (Conc. opn., ante, at pp. 728-729.) Aware the Perez and Loving courts could have employed that reasoning to defeat the right to marry a member of a different race, but did not, Justice Parrilli distinguishes Perez and Loving (and presumably also Zablocki and Turner) on the ground that the individuals in those cases "were not excluded from the institution of marriage" because those cases "did not concern the definition of marriage." (Conc. opn., ante, at p. 729, fn. 3.) This reasoning is faulty. It is true that the legislative definition of marriage presented to the Perez and Loving courts was that which excluded interracial, not same-sex, couples. But the "definition" the marriage cases focus upon is that which relates to the nature and significance of the marital relationship; that is, to what Turner variously describes as the "attributes," "elements," or "incidents of marriage" (Turner, supra, 482 U.S. at pp. 95-96,
The majority's statement that I have not and cannot "explain precisely how the marriage laws intrude upon respondents' right to privacy and intimate association" (maj. opn., ante, at p. 716) is bewildering. As earlier noted, the constitutional right to marry and that of intimate association are "synonymous." (Ortiz v. Los Angeles Police Relief Assn., supra,
C.
The Significance of Lawrence v. Texas
Use of the concept of privacy autonomy to sustain the right of homosexuals to marry persons of the same sex was, for a time, cast in doubt by the majority opinion in Bowers, supra,
Because the Lawrence majority went out of its way to endorse the view of the dissenters in Bowers, it is useful to examine their views before turning to Lawrence itself. In his dissent, which was joined by Justices Brennan, Marshall and Stevens, Justice Blackmun declared that Hardwick stated a cognizable claim that the Georgia anti-sodomy statute "interferes with constitutionally protected interests in privacy and freedom of intimate association." (Bowers, supra,
The Bowers dissenters also refused to agree that "either the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from this Court's scrutiny." (Bowers, supra,
In his separate dissent in Bowers, Justice Stevens reinforced this point, stating that prior Supreme Court cases made two propositions abundantly clear. "First, the fact that a governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of `liberty' protected by the Due Process Clause of the Fourteenth Amendment. Griswold v. Connecticut [, supra,]
The principle defect of Bowers was its erroneous definition of the right at stake as "`whether the Federal Constitution confers *743 a fundamental right upon homosexuals to engage in sodomy. . . .'" (Lawrence, supra,
Speaking for the Lawrence majority, Justice Kennedy acknowledged that Bowers "was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives." (Lawrence, supra,
Lawrence goes on to explain how the rationale of Bowers was undermined by Planned Parenthood of Southeastern Pa. v. Casey, which reconfirmed that constitutional protection is accorded to personal decisions relating to "marriage, procreation, contraception, family relationships, child rearing, and education" because "`[t]hese matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.'" (Lawrence, supra, 539 U.S. at pp. 573-574,
My colleagues purport to downplay and distinguish Lawrence on the grounds that the majority in that case did not apply strict scrutiny to Texas's antisodomy law, and that having intimate relations is private conduct while civil marriage is a public institution to which the reasoning of *744 Lawrence is inapplicable. (Maj. opn., ante, at pp. 711-713.) Neither attempt to differentiate Lawrence succeeds.
First of all, as our Supreme Court has observed, federal courts generally apply strict scrutiny "to serious intrusions of specific autonomy rights such as marriage, family and procreation" (Hill, supra,
The theory that Lawrence has no application to the public institution of marriage because that case related to private conduct is also refuted by the language and clear meaning of the opinion. "The Lawrence opinion not only denies that the Court's decision was just about sex, it also goes out of its way to equate the insult of reducing a same-sex intimate relationship to the sex acts committed within that relationship with the insult of reducing a marriage to heterosexual intercourse. Besides, . . . the evil targeted by the Court in Lawrence wasn't criminal prosecution and punishment of same-sex sodomy, but the disrespect for those the Court identified as `homosexuals' that labeling such conduct as criminal helped to excuse. . . . Similarly, by denying a same-sex couple a civil marriage license that it would have given them if only they were of opposite sexes, a state tells the couple that they should keep their love behind closed doors rather than `flaunt' that love by proclaiming marital intentions or pronouncing marriage vows. By imposing this lopsided regimetelling a same-sex couple that its members are guilty of unseemly display when they say and do in public no more than what, for a mixed-sex couple, would be described as displaying reassuring signs of affection and symbols of enduring commitmentthe state engages in what amounts to discriminatory, viewpoint-based suppression of expression." (Tribe, Lawrence v. Texas: The "Fundamental Right" That Dare Not Speak Its Name, supra, 117 Harv. L.Rev. at pp. 1948-1949, fns. omitted.) As Justice Scalia has observed, the majority opinion in Lawrence leaves no room to "deny[ ] the benefits of marriage to homosexual couples exercising `[t]he liberty protected by the Constitution.'" (Lawrence, supra, 539 *745 U.S. at p. 605,
In short, a fair reading of Lawrence undermines my colleagues' belief that the opinion provides no authority for subjecting the restriction on same-sex marriage to strict judicial scrutiny.
D.
The Right to Marry Asserted in this Case is That Which Has Been Declared a Fundamental Right
My colleagues accept, as they must, that a fundamental right to marriage exists, but consider Perez, Loving, Zablocki, Turner and the many other cases bearing upon the right to marry largely irrelevant because they view this case as presenting the different question whether there is a fundamental right to same-sex marriage, and no court, save the Supreme Judicial Court of Massachusetts, in Goodridge, supra,
Washington v. Glucksberg (1997)
It also bears emphasizing that, except for the aberrant and now overruled decision in Bowers, supra,
My colleagues' view of the right at issue here rests largely on opinions of some courts in other states concluding that the institution of marriage is by its very nature necessarily restricted to opposite-sex couples. The rationale of these opinions, which embodies no serious inquiry into the attributes of marriage the Supreme Court considers constitutionally significant, and is therefore entirely blind to the nature and importance of the liberty interest at stake, is the only justification the majority can muster for its most crucial determinationthat the right to marry of a same-sex couple is different from and not included within the right to marry that has judicially been declared fundamental.
According to the cases my colleagues rely upon, the word "marriage"in and of itself, even if not specifically described as between a man and a womanpertains to a relationship that can only be between a man and a woman. (Maj. opn., ante, at p. 700.) For example, in Adams v. Howerton (C.D.Cal.1980)
Courts adopting this circular reasoning invariably rely upon dictionary definitions showing the common usage of the word "marriage" (e.g., Jones v. Hallahan, supra,
The scriptural basis of marriage as between a man and a woman, which appears to be the subtext of some opinions that do not dwell on the subject (e.g., Baker v. Nelson (1971)
The relationship between marriage and procreation emphasized by some religions is not a factor the United States Supreme Court has ever relied upon. The first statement of that court indicating the reasons marriage is a fundamental right, from which all of that court's later analyses of the right have evolved, is the frequently quoted description of marriage in Griswold, supra,
Furthermore, as is often pointed out, "[n]o State marriage statute mentions procreation or even the desire to procreate among its conditions for legal marriage. No State requires that heterosexual couples who wish to marry be capable or even desirous of procreation. Moreover, many heterosexual couples who discover they cannot procreate in the usual way have chosen to procreate using the technologies of artificial insemination, sometimes involving strangers to their marital relationship; or they have availed themselves of adoption provided by state law. Artificial insemination and adoption, which all States today permit, are equally available as a practical matter to same-sex couples who wish to have and raise children." (Doherty, Constitutional Methodology and Same-Sex Marriage (2000) 11 J. Contemp. Legal Issues 110, 113.)
The nuanced argument that the state's primary interest in recognizing and regulating marriage is "responsible procreation," i.e., steering procreation into marriage, focuses on the protection of children resulting from potentially unplanned natural procreation. (See, e.g., Hernandez v. Robles, supra, ___ N.Y.S.3d at p. ___, ___ N.E.2d at p. ___,
The Attorney General's failure to claim that the state has an interest in "steering procreation into marriage" is understandable. California has decided to provide same-sex couples who register as domestic partners the same legal rights and obligations with respect to a child of either of them as are enjoyed by spouses. (Fam. Code, § 297.5, subd. (d).) Our law also authorizes same-sex second parent adoptions (Sharon S. v. Superior Court (2003)
Because the ability of spouses to procreatenaturally and/or responsiblyis not among or necessarily related to the reasons the United States Supreme Court deems the right to marry a fundamental constitutional right, and because the reasons the high court has relied upon to reach that conclusion are as applicable to same-sex couples as to others, the right of such couples to marry is as highly protected by our Constitution as the right of opposite-sex couples.
E.
Recognizing Same-Sex Marriage Would Not Usurp a Legislative Function
Central to the majority's resolution of this case is its position that respondents and this court cannot make "marriage" a legally protected privacy interest without impermissibly invading the legislative right to define the term. The majority says that "[o]ur role is limited to determining whether the Legislature's definition comports with constitutional standards" (maj. opn., ante, at p. 705), but in the next breath declares that "[w]ere we to expand the definition of marriage to include same-sex unions, we would overstep our bounds as a coequal branch of government." (Maj. opn., ante, at p. 705.) We are not being asked to redefine marriage, but simply to say that the Legislature cannot define it in a way that violates the Constitution. As our Supreme Court has declared, "`The regulation of marriage and divorce is solely within the province of the Legislature, except as the same may be restricted by the Constitution.'" (Lockyer v. City and County of San Francisco (2004)
The majority feels free, indeed obliged, to defer to the legislative definition of marriage, and leave the matter to the political process, because of its conclusion that the right to marry asserted in this case is different from, and not as highly protected as, the right to marry that the Supreme Court has declared a fundamental constitutional right. That conclusion is unjustified because, in the end, it rests on no more than the facts that same-sex marriage has not traditionally been recognized and there is no public consensus favoring recognition of such marriage. Thus, the majority finds it significant that some states have reacted to the "controversial" decision of the Massachusetts Supreme Judicial Court in Goodridge, supra,
Moreover, the fact that same-sex couples have traditionally been prohibited from marrying is the reason this lawsuit was commenced; it cannot be converted into the dispositive reason it cannot succeed. The inquiry whether the right claimed in this case is fundamental should include its historical applications, to be sure, but it must consist of a careful weighing of the values at stake against the justifications asserted by the state for their restriction, not a mechanical application of a historical definition of marriage and popular opinion. The jurisprudential purpose of declaring a right fundamental is, of course, to remove it from the vagaries of popular opinion and the political process. What Justice Jackson said in Board of Education v. Barnette, supra,
The doctrine of separation of powers is thus modified by the principle of checks and balances, which appropriately comes into play in this case. "It is precisely because we cannot expect the Legislature, representing majoritarian interests, to act to protect the rights of the homosexual minority, that our courts must take the necessary steps to acknowledge and act in protection of those rights. [¶] Moreover, the assumption that `a majority of citizens has the right to insure by legal fiat that marriage continue to have its historical associations . . . contradicts a very basic principle of human dignity, which is that no person or group has the right deliberately to impose personal ethical values the values that fix what counts as a successful and fulfilled lifeon anyone else.' [Citation.]" (Hernandez v. Robles (2005)
Perez and Loving demonstrate that the fundamentality of the right to marry does *751 not depend in any way upon whether its application would be consistent with the norms of the dominant culture. Interracial marriage was certainly not "deeply rooted in this Nation's history and tradition" when those cases were decided.[9] Indeed, the dissent in Perez emphasized the depth of the then-existing antipathy toward interracial marriage, arguing that in light of scientific, judicial and religious support for the traditional prohibition of such marriages, it was not within the court's province to upset the legislative determination. (Perez, supra, 32 Cal.2d at pp. 744-760,
Nor could the Loving and Perez courts have reached the result they did if the *752 Supreme Courts of this nation and state accepted my colleagues' constricted view of the scope of judicial review. It is telling that the majority's theory that judicial invalidation of the challenged restrictions would usurp the Legislature's function was the basis not only of the dissent in Perez, but also of the unanimous decision of the Supreme Court of Appeals of Virginia in Loving. (Loving v. Commonwealth (1966)
The analysis of the Supreme Court of Appeals of Virginia is strikingly similar to that of my colleagues here. Ignoring the reasons Brown repudiated the doctrine of separate but equal, which rested heavily on its stigmatizing effect (Brown, supra,
II.
A Classification Based on Sexual Orientation Should Be Subjected to Heightened Scrutiny
The legislative exclusion of same-sex couples from civil marriage should be subjected to strict scrutiny not only because it affects the fundamental constitutional right to marry, but also because it burdens a suspect class. Whether a classification is "suspect" depends on three factors: (1) The classification is based on "an immutable trait, a status into which the class members are locked by the accident of *754 birth"; (2) the defining characteristic "frequently bears no relation to ability to perform or contribute to society"; and (3) the characteristic defining the class is associated with a "stigma of inferiority and second class citizenship" and history of "severe legal and social disabilities." (Sail'er Inn v. Kirby (1971)
Homosexuality was once widely considered a biological disease or psychological disorder that could be medically "cured" by a horrifying array of surgical procedures, as well as by electroshock treatment, psychoanalysis and other more bizarre conversion therapies. (Katz, Gay American History (rev. ed.1992) pp. 129-207.)[13] This has long ceased to be the case. The American Psychiatric Association stopped considering homosexuality a disease in 1973 (Bayer, Homosexuality and American Psychiatry (1981) p. 138), and in 1994 mention of homosexuality completely disappeared from the Association's authoritative manual of mental disorders. (See Am. Psychiatric Assn., Task Force on DSM-IV, Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994) pp. 493-538.)
Concluding that "[s]exual orientation and sexual identity are immutable" and "so fundamental to one's identity that a person should not be required to abandon them," the Ninth Circuit has found that the imposition of conversion therapies by foreign nations may constitute "persecution" within the meaning of the Immigration and Nationality Act. (Hernandez-Montiel v. I.N.S. (9th Cir.2000)
Our Supreme Court has also recognized the centrality of sexual orientation to individual identity, viewing it, for purposes of the Unruh Civil Rights Act (Civ.Code, § 51), as akin to sex, race, color, religion, ancestry, national origin, disability and medical condition, in that all these categories "represent traits, conditions, decisions, or choices fundamental to a person's identity, beliefs and self-definition." (Koebke v. Bernardo Heights Country Club (2005)
The proposition that homosexuality is not a freely elected characteristic also comports with common sense. "Given the personal and social disadvantages to which homosexuality subjects a person in our society, the idea that millions of young men and women have chosen it or will choose it in the same fashion in which they might choose a career or a place to live or a political party or even a religious faith seems preposterous." (Posner, Sex and Reason (1992) pp. 296-297.)
Turning to the second Sail'er Inn factor, our state law clearly recognizes that sexual orientation is unrelated to an individual's ability to contribute to society. Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979)
Finally, the record of discrimination against lesbians and gay men is long and well known. In western culture since the time of Christ the prevailing attitude has been "one of strong disapproval, frequent ostracism, social and legal discrimination, and at times ferocious punishment." (Posner, Sex and Reason, supra, at p. 291.) Courts have recognized that "[t]he aims of the struggle for homosexual rights, and the tactics employed, bear a close analogy to the continuing struggle for civil rights waged by blacks, women, and other minorities." (Gay Law Students Assn. v. Pacific Tel. & Tel. Co., supra,
Examples of discrimination against lesbians and gay men abound. Because of their sexual orientation, lesbians and gay men have been denied custody of children (e.g., Thigpen v. Carpenter (1987)
Simply put, as an Oregon court stated in finding sexual orientation a suspect *758 class under that state's constitution, "it is beyond dispute that homosexuals in our society have been and continue to be the subject of adverse social and political stereotyping and prejudice." (Tanner v. Oregon Health Sciences Univ. (1998)
To say that the factors which determine whether a classification is suspect do not all apply to homosexuals requires us to deny as judges what we know as people.
III.
There is Not Even a Rational Basis for the Challenged Restriction
As indicated, I believe the challenged statutes must be subjected to strict scrutiny both because they burden a fundamental right and, independently, because they target a suspect class. However, the statutes do not bear any reasonably conceivable rational relationship to a legitimate state purpose even assuming that is the proper test.
The state encapsulates its rational basis argument as follows: "The word `marriage' has a particular meaning for millions of Californians, and that common understanding of marriage is important to them. [¶] At the same time, Californians do not want to deny same-sex couples the rights, benefits and protections afforded to spouses. Accordingly, the California Legislature approved, and the Governor signed, sweeping laws dictating that registered domestic partners shall have the same rights, benefits and protections as spouses. [¶] . . . The resulting statutes create an appropriate and constitutional balance of legitimate interests, and the statutes are rationally related to those interests." Accepting this argument, the majority concludes that "it is rational for the Legislature to preserve the opposite-sex definition of marriage, which has existed throughout history and which continues to represent the common understanding of marriage in most other countries and states of our union, while at the same time providing equal rights and benefits to same-sex partners through a comprehensive domestic partnership system. The state may legitimately support these parallel institutions while also acknowledging their differences."[19] (Maj. opn., ante, at pp. 720-721.)
*759 The theories that California provides same-sex partners rights and benefits equal to those provided spouses and that the state has a legitimate interest in perpetuating a traditional form of discrimination are both unsustainable.
A.
Domestic Partnership and Marriage are Not Equal
The California Domestic Partner Rights and Responsibilities Act of 2003 does not provide same-sex couples the same benefits as spouses, even if consideration is limited to those rights, protections and benefits the state has the power to grant, and ignoring also the disparity between the tangible benefits of domestic partnership and those of marriage, which is not great. The real problem lies in the disparity between the intangible disparities which, though difficult to measure precisely, is enormous. (See Brown, supra,
To begin with, because domestic partnership is significantly easier to enter and leave than marriage (see Fam.Code, §§ 298-299), denying same-sex couples the right to marry denies their children the greater stability of home environment offered by the marital relationship. Permitting their parents to marry would much more effectively protect the interests of these children and permit them to see their family as more normal than is now the case. More stable same-sex relationships would also benefit the individuals involved and the larger community.
More fundamentally, my colleagues' disclaimer notwithstanding, their claim that domestic partnership and marriage are "parallel institutions" is not very different from that made in Plessy, supra,
The point is not that relegating same-sex couples to domestic partnerships rather than marriage is as "bad" as racial segregation, for it clearly is not; but it is similar to the doctrine of "separate but equal" in that it also serves to legitimate and perpetuate differential group treatment. Offering homosexual couples the opportunity to become domestic partners *760 does not eradicate the stain of their exclusion from the institution of civil marriage our society venerates so highly and makes readily available to everybody else. The difference between the terms "civil marriage" and "domestic partnership" "is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status." (Opinions of the Justices to the Senate (2004)
I do not say the domestic partnership act cannot bear legal or constitutional scrutiny, or that it is bad policy, which I do not believe; but there seems to me something perverse about relying upon a law which tells the public homosexual unions may be treated less well than heterosexual unions as a basis upon which to constitutionally justify a law that bars homosexuals from marrying.
B.
The State Has No Legitimate Interest in Perpetuating Traditional Disapproval of Same-Sex Marriage
The state says the traditional understanding of marriage as excluding same-sex couples is "important" to "millions of Californians," but does not explain why. It is fair to assume that it is because permitting same-sex marriage would acknowledge that homosexual relationships can be as loving, committed, and socially useful as heterosexual relationships, and thereby offend those who for religious or moral reasons reject that possibility. Preserving the traditional understanding of marriage may thus be seen, as Justice Scalia says, as simply a "way of describing the State's moral disapproval of same-sex couples." (Lawrence, supra, 539 U.S. at p. *762 601,
I do not take the position that the state can have no interest in promoting a moral view, but the state constitutional right of privacy would be meaningless if government repression of expressive and intimate associational conduct can be justified by the risk that a competing moral view will gain acceptance. Lawrence, supra,
The interest the state claims in maintaining the ban on same-sex marriage ignores not only the profound nature of the liberty interest it denies to an entire class of citizens, but also the dramatic extent to which traditional concepts of marriage are constantly evolving, so that many of the features that once most significantly defined marriage have been discarded. Such changes were almost always strongly resisted. When the New York Legislature was considering whether to allow married women to own property independently of their husbands, a legislator claimed that the measure would lead "to infidelity in the marriage bed, a high rate of divorce, and increased female criminality," while turning marriage from "its high and holy purposes" into something that merely facilitated "convenience and sensuality." (Graff, What is Marriage For? (1999) pp. 30-31.) The fundamental changes that have been made in the institution of marriage include not just divorce and property reform "but also the abolition of polygamy, the fading of dowries, the abolition of childhood betrothals, the elimination of parents' rights to choose mates for their children or to veto their children's choices, the legalization of interracial marriage, the legalization of contraception, the criminalization of marital rape (an offense that wasn't even recognized until recently), and of course the very concept of civil marriage. Surely *763 it is unfair to say that marriage may be reformed for the sake of anyone and everyone except homosexuals, who must respect the dictates of tradition." (Rauch, Gay Marriage (2004) p. 168.)
Because marriage is central to one's sense of self, resistance to change in the traditional concept of the institution is to be expected, particularly when the change is related to sexual identity. Nevertheless, the state has not even claimed, let alone shown, that same-sex marriage conflicts with any legitimate interest it has in preserving and strengthening the institution of marriage. Respondents "seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit." (Goodridge, supra,
The majority acknowledges that Family Code section 300 was enacted for the express purpose of prohibiting persons of the same sex from marrying. (Maj. opn., ante, at pp. 691-692.) But rational basis inquiry is meant to "ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law . . . ." (Romer v. Evans (1996)
Much the same reasoning applies here. Though the ban on same-sex marriage does not have as many different applications as the constitutional amendment at issue in Romer, it is just as completely unconnected to any legitimate governmental purpose. The state and the majority agree that the restriction of marriage to opposite-sex couples cannot be justified by reliance upon the procreation rationale that focuses on the only trait genuinely distinguishing same-sex from opposite-sex couples. The same-sex marriage ban thus singles out a defined group to completely exclude from a crucial social institution, *764 without basis in any characteristic of the group that distinguishes it for any relevant purpose. There is here no connection whatsoever between the exclusion of same-sex marriage and the quality of opposite-sex marriage. Neither the rights or interests of opposite-sex couples nor those of their children are in any conceivable way advanced by banning same-sex marriage, though the ban substantially impairs the rights of same-sex couples and their children. The ban on same-sex marriage is thus as discontinuous with the reasons offered for it as the disability imposed by the amendment stricken in Romer.
IV.
CONCLUSION
To say that that the inalienable right to marry the person of one's choice is not a fundamental constitutional right, and therefore may be restricted by the state without a showing of compelling need, is as terrible a backward step as was the unfortunate and now overruled opinion in Bowers, supra,
We are told by the Supreme Court of the United States that the right to marry which is among "the vital personal rights essential to the orderly pursuit of happiness by free men" (Loving, supra,
For the foregoing reasons, I dissent from all portions of the majority opinion except that concluding that CCF and the Fund lack standing to pursue their declaratory relief claims.
NOTES
[*] City and County of San Francisco v. State of California (A110449 [S.F. City & County Super. Ct. No. CGC-04-429539]); Tyler v. State of California (A110450 [L.A. County Super. Ct. No. BS-088506]); Woo v. Lockyer (A110451 [S.F. City & County Super. Ct. No. CGC-04-504038]); Clinton v. State of California (A110463 [S.F. City & County Super. Ct. No. CGC-04-429548]); Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco (A110651 [S.F. City & County Super. Ct. No. CPF-04-503943]); Campaign for California Families v. Newsom (A110652 [S.F. City & County Super. Ct. No. CGC-04-428794]).
[1] Although Mayor Newsom addressed Alfaro as the "County Clerk," there is some indication that she is in fact the Director of the County Clerk's Office, while Daryl M. Burton is the actual San Francisco County Clerk. (See Lockyer, supra,
[2] An organization called the Campaign for California Families (CCF) is the sole appellant in Thomasson; accordingly, the case is denoted Campaign for California Families v. Newsom (A110651) on appeal.
[3] In addition, the advocacy groups Our Family Coalition and Equality California participated as plaintiffs in the Woo case, and Equality California was granted leave to intervene as a plaintiff in the Tyler case.
[4] In separate opinions, Justices Kennard and Werdegar argued the marriages already performed should have been allowed to stand pending a decision on the constitutionality of the marriage statutes. (Lockyer, supra, 33 Cal.4th at pp. 1131-1133,
[5] Because of the differing procedural postures of the cases, the proceedings in CCSF, Woo, Tyler and Clinton were styled hearings on applications for writ of mandate, while the proceedings in Thomasson and Proposition 22 were styled hearings on motions for summary judgment or judgment on the pleadings.
[6] Requests for judicial notice were filed by the respondents in Thomasson and Proposition 22 and by the respondent-interveners in Tyler. We grant these requests, though it appears all of the documents in question may be found elsewhere in the record of these consolidated appeals.
[7] A broad reading was required because the complaints did not mention the constitutionality of the statutes. Rather, in virtually identical passages, both complaints sought "a judicial determination of the rights and duties of the parties and a declaration that Defendants have failed to comply with state statutes governing the issuance of marriage licenses by unlawfully issuing marriage licenses to same-sex couples; and that all marriage licenses issued and marriages solemnized under circumstances not provided by law are invalid."
[8] At oral argument, counsel confirmed the Fund is not claiming injury-based standing in this appeal.
[9] Although one might, more concisely, describe such relationships as "heterosexual unions," the marriage laws make no such reference to sexual orientation. California law does not prohibit gays and lesbians from marrying, so long as they marry a person of the opposite sex. It is therefore more accurate to refer to "same-sex" or "opposite-sex" unions, rather than a moniker that assumes facts about the sexual orientation of the participants.
[10] For example, the argument in favor of Proposition 22 included a letter from a "fellow voter" stating: "When people ask, `Why is this necessary?' I say that even though California law already says only a man and a woman may marry, it also recognizes marriages from other states. However, judges in some of those states want to define marriage differently than we do. If they succeed, California may have to recognize new kinds of marriages, even though most people believe marriage should be between a man and a woman." (Ballot Pamp., Primary Elec. (Mar. 7, 2000) argument in favor of Prop. 22, p. 52.)
[11] "A domestic partnership shall be established in California when both persons file a Declaration of Domestic Partnership with the Secretary of State pursuant to this division, and, at the time of filing, all of the following requirements are met: [¶] (1) Both persons have a common residence. [¶] (2) Neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity. [¶] (3) The two persons are not related by blood in a way that would prevent them from being married to each other in this state. [¶] (4) Both persons are at least 18 years of age. [¶] (5) Either of the following: [¶] (A) Both persons are members of the same sex. [¶] (B) One or both of the persons meet the eligibility criteria under Title II of the Social Security Act as defined in 42 U.S.C. Section 402(a) for old-age insurance benefits or Title XVI of the Social Security Act as defined in 42 U.S.C. Section 1381 for aged individuals. Notwithstanding any other provision of this section, persons of opposite sexes may not constitute a domestic partnership unless one or both of the persons are over the age of 62. [¶] (6) Both persons are capable of consenting to the domestic partnership." (Fam.Code, § 297, subd. (b).)
[12] The Legislature ameliorated this disparity to the extent possible by providing that, where California law adopts or relies upon contrary federal law, domestic partners shall be treated as if federal law recognized domestic partnerships in the same manner as California law. (Fam.Code, § 297.5, subd. (e).)
[13] A new law, signed by the Governor on September 30, 2006, resolves this discrepancy, in part, by enabling registered domestic partners to file joint state income tax returns and allows their joint income to be treated as community property. (Sen. Bill No. 1827 (2005-2006 Reg. Sess.) as amended June 14, 2006.) These changes will go into effect January 1, 2007.
[14] Of course, the state imposes other limits on the right to marry a person of one's choosing. For example, one's intended spouse must be at least 18 years old, or else parental consent or a court order is required for the marriage to occur. (Fam.Code, §§ 301-303.) The intended spouse cannot be a blood relative within a specified degree of relationship, or else the marriage will be prohibited as incestuous. (Fam.Code, § 2200.) Bigamous and polygamous marriages are also illegal and void when entered. (Fam.Code, § 2201.)
[15] Although the dissent assumes this question involves the mere application of Supreme Court precedents holding marriage is a fundamental right, the precise nature of this right is far from clear. "The Supreme Court has said that there is a constitutional `right to marry'; but what can this possibly mean? People do not have a right to marry their dog, their aunt, June 29, a rose petal or a sunny day." (Sunstein, The Right to Marry (2005) 26 Cardozo L.Rev.2081, 2081.)
[16] To date, the only appellate decision holding that same-sex couples have a constitutionally protected right to marry is the controversial decision of the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health (2003)
[17] The Woo respondents argue it is just as improper to speak of a right to "gay marriage" as it would be to speak of a right to "women's vote" or to "Negro citizenship." While they have semantic appeal, these comparisons are flawed because gender and race are both recognized as constitutionally suspect classifications. (See, e.g., City of Richmond v. J.A. Croson Co. (1989)
[18] The trial court dismissed respondents' description of the asserted right as one to same-sex marriage by asserting, "The point is not to define a right so as to make it inexorably inviolate from governmental intrusion." However, it is not the narrow and accurate label "same-sex marriage" that forecloses constitutional protection for this asserted right; rather, it is the requirement that the right in question find support in history. The label in itself is benign, or should be. It is the newness or novelty of this right, narrowly defined, that precludes its recognition as "fundamental."
[19] Indeed, the Massachusetts Supreme Judicial Court acknowledged that its decision to extend marriage rights to same-sex couples "[c]ertainly . . . marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries." (Goodridge v. Department of Public Health, supra,
[20] "[M]ost appellate courts that have addressed the issue have rejected the claim that defining marriage as the union of one man and one woman discriminates on the basis of sex. [Citations.]" (Baker v. State of Vermont, supra,
[21] Respondents seize upon the Connerly court's statement made in regard to racial classifications that a law need not "confer a preference" for strict scrutiny to apply. (Connerly v. State Personnel Bd., supra,
[22] As proof that the marriage definition is gender-discriminatory, the Woo respondents point to the Legislature's findings and pronouncements in Assembly Bill No. 205. In this bill, the Legislature declared expanding domestic partnership rights and responsibilities was "intended to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality . . . by providing all caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties. . . ." (Stats.2003, ch. 421, § 1, subd. (a), italics added.) Assembly Bill No. 205 also recited the Legislature's finding that "[e]xpanding the rights and creating responsibilities of registered domestic partners . . . would reduce discrimination on the bases of sex and sexual orientation. . . ." (Stats.2003, ch. 421, § 1, subd. (b), italics added.) While identifying gender discrimination is undoubtedly within the Legislature's competence (Catholic Charities of Sacramento, Inc. v. Superior Court, supra,
Notes
[23] Indeed, as intervener Equality California notes, the statutory definition does not merely have a "greater impact" on lesbian and gay couples; it excludes 100 percent of them from entering marriage.
[24] Justice Scalia's dissent challenged this "more searching form" of rational basis review as ill defined and unsupported by precedent, arguing the cases Justice O'Connor cited had merely concludedunder a conventional rational basis analysis"that no conceivable legitimate state interest support[ed] the classification at issue." (Lawrence v. Texas, supra,
[25] The dissent's suggestion that Romer requires invalidation of the marriage laws (dis. opn., post, at pp. 763-764) is unconvincing. Quite unlike Colorado's notorious Amendment 2, which stripped gay men and lesbians of many rights and completely crippled their ability to participate in the political process (see Romer v. Evans, supra, 517 U.S. at pp. 627-631,
[26] In describing equal protection requirements, our colleagues in Division Two of this District once mentioned "race or sexual orientation" as suspect classifications warranting strict scrutiny. (Children's Hospital & Medical Center v. Bonta, supra,
[27] Even the meaning of "immutability," and its appropriate place in equal protection analysis, is the subject of debate. (See Marcosson, Constructive Immutability (2001) 3 U. Pa. J. Const. L. 646 [discussing academic criticism of the immutability requirement and proposing that the concept of immutability be expanded beyond inherent biological traits to encompass socially constructed aspects of identity].)
[28] Article I, section 1 of the California Constitution states: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." (Italics added.)
[29] The federal Defense of Marriage Act limits "marriage," for purposes of federal law, to opposite-sex couples. (1 U.S.C. § 7; see Knight v. Superior Court, supra,
[30] Indeed, though the dissent assumes all gay and lesbian couples wish to enter a traditional marriage, some of these couples may value, perhaps even prefer, a separate type of union that is not inextricably tied to conservative, heterosexual norms. (See Johnson, In Praise of Civil Unions (2002) 30 Capital U. L.Rev. 315, 339-342 [arguing civil unions offer gay and lesbian couples the chance to develop a vibrant alternative institution that maintains and celebrates their separate identity, "to obtain all the rights and responsibilities of marriage without being totally swallowed up in the straight community"]; see also Eskridge, Equality Practice: Civil Unions and the Future of Gay Rights (2002) pp. 206-213 [discussing arguments against same-sex marriage advanced by some progressive theorists within the gay and lesbian community].)
[31] The refusal of the federal government and many other states to extend such rights and benefits to same-sex couples does not defeat the rationality of California's dual system of marriage and domestic partnership. No matter whether California calls a solemnized same-sex union "marriage" or "domestic partnership," at present other jurisdictions will treat this union differently than it will an opposite-sex marriage. One Massachusetts Supreme Court Justicea dissenter in Goodridge has posited that such substantive differences provide, in themselves, a rational basis for calling the license issued to same-sex couples by a different name. (Opinions of the Justices to the Senate (2004)
[32] Indeed, noted scholar and gay-rights advocate William N. Eskridge, Jr. has argued that the creation of civil unions is a valid and useful incremental step for states to take along the path toward social and political acceptance of same-sex relationships and, ultimately, same-sex marriage. (Eskridge, Equality Practice: Civil Unions and the Future of Gay Rights, supra, pp. 153-158.)
[33] There are obvious biological reasons why marriage developed through history as an opposite-sex institution. As CCF and the Fund and several amici curiae have stressed, only heterosexual unions have the potential of producing unintended offspring. Marriage, with all the social and legal benefits it confers, apparently developed as an incentive to encourage heterosexual couples to raise their children together, in a reasonably stable and structured environment. (See, e.g., Baker v. Nelson, supra, 291 Minn. at pp. 312-313,
[34] "[W]hen the Court seeks to situate itself at the vanguard of cultural change, it can interrupt the process by which society arrives at a consensus on its own: ordinary democratic politics and the cultural redefinition that invariably occurs over time. Constitutionalizing a matter, and thereby removing it from democratic politics, also can serve to radicalize opponents." (Rosen, Why the Defense of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith and Credit, and the Many Societal Actors that Determine What the Constitution Requires (2006) 90 Minn. L.Rev. 915, 928.)
[35] Lest there be any speculation that the Legislature is powerless to address this issue, because Governor Schwarzenegger vetoed its one attempt to do so in Assembly Bill No. 849, one should not oversimplify what the Governor's veto message actually said. In exercising his veto power, the Governor expressed doubts about the Legislature's ability to amend Fam.Code, section 308.5 without submitting the matter to voters, because section 308.5 was enacted by initiative, and appropriately urged restraint while constitutional issues concerning same-sex marriage were determined by the courts. As his press release explained, the proposed legislation risked adding confusion to the issues on appeal and, depending on the appeal's outcome, could have proven unnecessary. (Governor's veto message to Assem. on Assem. Bill No. 849 (Sept. 29, 2005) Recess J. No. 4 (2005-206 Reg. Sess.) pp. 3737-3738.)
[36] As the City notes, when the Legislature most recently spoke to this issue, it expressed a desire to extend marriage to same-sex couples. (Assem. Bill No. 849 (2005-2006 Reg. Sess.) as amended June 28, 2005.) Assembly Bill No. 849 was not ultimately enacted into law, however. Although the Governor did not openly disagree with the bill's intentions, neither did his veto message endorse the idea of extending civil marriage rights to gay and lesbian couples. (See Governor's veto message to Assem. on Assem. Bill No. 849 (Sept. 29, 2005) Recess J. No. 4 (2005-2006 Reg. Sess.) pp. 3737-3738; cf. Johnson v. Calvert (1993)
[1] The Netherlands, Belgium, Canada and Spain have enacted legislation allowing same-sex couples to marry. Denmark, Norway, Sweden, Iceland, France, Germany, Finland, Luxembourg, and Britain allow same-sex registered partnerships or civil unions. (Eskridge & Spedale, Gay Marriage: For Better or for Worse? What We've Learned from the Evidence, pp. 43-87. (Oxford U. Press, USA 2006), pp. 43-87.) The rights available vary from country to country.
[2] One of the reasons the later institution seems so inadequate is the nomenclature, in my view. "Domestic partnership" connotes neither the achievement nor dignity of "marriage." Even "civil union" sounds more permanent and dignified. Though both terms describe commitment to a partner, "civil union" would denote a state-recognized unity of persons and purpose. Under specified circumstances, however, the DPA affords rights to opposite-sex couples that do not seek a "union" of this sort.
[3] The individuals in Perez v. Sharp (1948)
[4] Such arguments were presented to this court, for example, in the amicus curiae brief filed by the Church of Jesus Christ of Latter-Day Saints, California Catholic Conference, National Association of Evangelicals, and Union of Orthodox Jewish Congregations. Historically, passages from sacred scripture were also used to justify support of slavery and to assert the superiority of men over women. (Rogers, Jesus, The Bible and Homosexuality: Explode the Myths, Heal the Church. (Westminster John Knox Press, 2006) pp. 17-51.)
[5] In what is undoubtedly an oversimplification, one religious leader has written: "Let all marriages be conducted in the private realm with no legal sanction by the state, and then those religious communities that oppose gay marriage will not sanction them, and those like mine that do sanction gay marriage will conduct them, and the state will have no say one way or the other, nor any role in issuing marriage certificates or divorces. It will enforce laws imposing obligations on people who bring children into the world, and it will enforce contracts between consenting adults (civil unions), but it will get out of the business of giving state sanction to what had always been a sacred sacrament." (Lerner, The Only Winning Way to Fight the Ban on Gay Marriage, Baltimore Chronicle & Sentinel, June 6, 2006 [as of Oct. 5, 2006].)
[6] The first argument was raised in the amicus curiae brief filed by the General Synod of the United Church of Christ and dozens of other religious associations. The second was raised in the amicus curiae brief filed by the Church of Jesus Christ of Latter-Day Saints, et al.
[7] Lilek, The Fizzle in Filibuster Fission, Newhouse News Service (May 25, 2005) (as of Oct. 5, 2006).
[*] Presiding Justice of the Court of Appeal, First Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] As the majority recognizes, this privacy claim was asserted in respondents' complaint for declaratory relief and petition for writ of mandate. All parties addressed the privacy issue theory in their briefs on this appeal, albeit not at great length, and at oral argument. The trial court declined to address the issue only because it felt that its decision for respondents on their equal protection claim rendered it unnecessary to do so. Although the majority says otherwise (maj. opn., ante, at p. 717), my discussion explores concepts falling directly within the parameters of the constitutional right to privacy invoked by respondents and also by several amici curiae.
[2] The Hill court went on to state that the United States Supreme Court "has not recognized a general right to engage in sexual activities done in private," citing Bowers, supra,
[3] The right of privacy protected under article I, section 1 of California's Constitution is distinct from that protected under the federal search and seizure clauses of the Fourth Amendment and the counterpart provision of our state Constitution (Cal. Const., art. 1, § 13), which are also referred to as "privacy" provisions. "Collectively, the federal cases `sometimes characterized as protecting "privacy" have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.' (Whalen v. Roe (1977)
[4] The fact that our state Constitution offers broader protection of the right to privacy than does the federal Constitution distinguishes California from many other states. For example, in Hernandez v. Robles (2006), 7 ___ N.Y.3d 338, ___ N.Y.S.2d ___, ___ N.E.2d ___,
[5] In his dissent in Goodridge, supra,
[6] If it were permissible to use so imprecise a notion as the "natural order of things" to distinguish between those acts protected by the right of privacy and those that are not, contraception and abortion would be unprotected, which is, of course, not the case. The many problems created by the use of this factor in constitutional analysis are discussed in Richards, Unnatural Acts and the Constitutional Right to Privacy: A Moral Theory (1977) 45 Ford. L.Rev. 1281.
[7] The religious aspect of marriage is emphasized by amici curiae who represent certain Christian, Jewish, and other religious denominations that recognize and sanctify same-sex unions, and also the California Council of Churches. They maintain that the state ban on such marriages places the state in one religious camp over another and therefore violates the principle of separation of church and state and the religious clauses of the state and federal Constitutions. (Cal. Const., art. I, § 4; U.S. Const., 1st Amend.) As they emphasize, "[o]urs is a religiously diverse nation. Within the vast array of Christian denominations and sects, there is a wide variety of belief and practice. Moreover, substantial segments of our population adhere to non-Christian religions or to no religion. Respect for the religious choices of the people of this country requires that government neither place its stamp of approval on any particular religious practice, nor appear to take a stand on any religious question." (Sands v. Morongo Unified School Dist. (1991)
These amici curiae also claim the ban on same-sex marriage violates the free exercise clause of the California Constitution, which is stronger than the counterpart federal right (Sands v. Morongo Unified School Dist., supra, 53 Cal.3d at pp. 882-883,
[8] The majority supports its deference to the statutory definition of marriage by noting "the exclusionary intent of California voters who passed Proposition 22," which prevented California from recognizing same-sex marriages entered into in jurisdictions that authorize such marriages. (Maj. opn., ante, at p. 710.) However, the sentiments of the people reflected in a referendum or initiative are entitled to no greater deference than the legislative sentiments embodied in a statute. As Chief Justice Burger stated in Citizens Against Rent Control v. Berkeley (1981)
[9] "The first antimiscegenation law in the colonies was enacted in Virginia in 1691 and thus antedated the Constitution by almost a century. Thirty-one states still had such laws at the end of World War II; sixteen states still had them in 1966, shortly before Loving was decided. [Citation.] In the Dred Scott decision, Chief Justice Taney cited the antimiscegenation laws of several states, including Massachusetts, Connecticut, New Hampshire, and Rhode Island, as evidence that blacks could not be citizens of the United States; such laws represented the fact that `intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but in the person who joined them in marriage.' Scott v. Sandford,
[10] The Perez dissent explained that marriage between Whites and Negroes was prohibited by our Legislature at its original session, and the ban was thereafter extended to marriages between White persons and Mongolians. When the district court of appeal decided in 1933 that those laws did not prohibit a marriage between a White person and a Filipino (Roldan v. Los Angeles County (1933)
[11] The Virginia Supreme Court of Appeals noted in Loving v. Commonwealth that the defendants' claims that the prohibition of interracial marriage denied them due process of law and equal protection of law had been earlier addressed and rejected in Naim v. Naim (1955)
The Virginia court was equally unimpressed with the defendants' reliance on "numerous federal decisions in the civil rights field in support of their claims that the Naim case should be reversed and that the statutes under consideration deny them due process of law and equal protection of the law," because "none of them deals with miscegenation statutes or curtails a legal truth which has always been recognizedthat there is an overriding state interest in the institution of marriage." (Loving v. Commonwealth, supra,
[12] The court's condemnation of judicial reliance on "texts dealing with the sociological, biological and anthropological aspects of the question of interracial marriages" was a not-so-veiled criticism of the opinion in Perez, supra,
[13] The treatments included "surgical measures: castration, hysterectomy, and vasectomy. In the 1800's, surgical removal of the ovaries and of the clitoris [were considered] a `cure' for various forms of female `erotomania,' including . . . Lesbianism. Lobotomy was performed as late as 1951. A variety of drug therapies have been employed, including the administration of hormones, LSD, sexual stimulants, and sexual depressants. Hypnosis, used on Gay people in America as early as 1899, was still being used to treat such `deviant behavior' in 1967. Other documented `cures' are shock treatment, both electric and chemical; aversion therapy, employing nausea-inducing drugs, electric shock, and/or negative verbal suggestion; and a type of behavior therapy called `sensitization,' intended to increase heterosexual arousal, making ingenious use of pornographic photos. Often homosexuals have been the subjects of Freudian psychoanalysis and other varieties of individual and group psychotherapy. Some practitioners . . . have treated homosexuals by urging an effort of the will directed toward the goal of sexual abstinence. Primal therapists, vegetotherapists, and the leaders of each new psychological fad have had their say about treating homosexuals. Even musical analysis has reportedly assisted a doctor in such a `cure.' Astrologers, Scientologists, Aesthetic Realists, and other quack philosophers have followed the medical profession's lead with their own suggestions for treatment." (Katz, Gay American History, supra, at p. 129, fn. omitted.)
[14] The majority in Watkins did not find homosexuality to be a suspect classification, and High Tech Gays v. Defense Industrial Security Clearance Office (9th Cir.1990)
[15] The Legislature codified the decision in People v. Garcia, supra,
[16] Koebke stated: "[T]he Legislature has found that expanding the rights and obligations of domestic partners `would reduce discrimination on the bases of sex and sexual orientation in a manner consistent with the requirements of the California Constitution.' (Stats.2003, ch. 421, § 1, subd. (b).)" (Koebke, supra,
"[D]iscrimination based on marital status implicates discrimination against homosexuals who, as the Legislature recognized in the Domestic Partner Act, have been subject to widespread discrimination. For example, in its findings with respect to [Code of Civil Procedure] section 297.5, the Legislature notes that gay, lesbian, and bisexual Californians have established `lasting, committed, and caring relationships' despite `longstanding social and economic discrimination' (Stats. 2003, ch. 421, § 1, subd. (b).) Additionally, the Legislature declared that one purpose served by expanding the rights of domestic partners is to combat such discrimination. (Ibid.)" (Koebke, supra,
[17] According to a national survey conducted in 2000, 74 percent of lesbians, gay men and bisexuals reported having been subjected to verbal abuse because of their sexual orientation and 32 percent reported being the target of physical violence. (Henry J. Kaiser Family Foundation, Inside-Out: A Report on the Experiences of Lesbians, Gays and Bisexuals in America and the Public's View on Issues and Policies Related to Sexual Orientation (2001) pp. 3-4 [www.kff.org/kaiserpolls].)
The Federal Bureau of Investigation reported that 15.6 percent of hate crimes in the United States in 2004 resulted from sexual orientation prejudice (FBI, Hate Crime Statistics 2004 (2005) p. 5); in California in 2004, 18.7 percent of hate crimes were based on sexual orientation. (Cal. Dept. of Justice, Criminal Justice Statistics Center, Hate Crime in California 2004 (2005) p. 7 [www.ag.ca.gov.cjsc/publications/hatecrimes/hc04/preface. pdf].) These statistics are vastly disproportionate to the percentage of lesbians and gays in the general population: One study found approximately 2.1 percent of the United States population self-identified as gay or lesbian. (Rubenstein, et al., Some Demographic Characteristics of the Gay Community in the United States (2003) pp. 3-4) [www.law.ucla.edu/williamsinstitute/publications/Gay Demographics.pdf].
[18] (See, e.g., Clines, For Gay Soldier, A Daily Barrage of Threats and Slurs, N.Y. Times (Dec. 12, 1999) p. 33, col. 1 [gay soldier harassed for months, then bludgeoned to death while sleeping in barracks]; Firestone, Trial in Gay Killing Opens, To New Details of Savagery, N.Y. Times (Aug. 4, 1999) p. A8, col. 1 [gay man brutally murdered then set on fire]; Brooke, Witnesses Trace Brutal Killing of Gay Student, N.Y. Times (Nov. 21, 1998) p. A9, col. 1 [Wyoming college student beaten, chained to fence and left to die by attackers, one taunting him with "It's Gay Awareness Week"].)
[19] As noted above, and unlike the recent decisions of the New York Court of Appeals and the Supreme Court of Washington (Hernandez v. Robles, supra,
[20] The domestic partnership act provides that "persons of opposite sexes may not constitute a domestic partnership unless one or both of the persons are over the age of 62." (Fam. Code, § 297, subd. (b)(6)(B).)
[21] This point was made in Brown, supra,
[22] Declarations submitted to the trial court eloquently illustrate the distinction between marriage and domestic partnerships. Helen Zia, a Chinese-American woman, explained: "In Chinese culture . . . marriage is a very important institution because it is regarded as the social expression of family, and affirms the strong values and obligations that family members owe one another. . . . [¶] . . . [¶] Neither we nor our families have been blessed with the sense of legitimacy and social support that comes with marriage. Marriage is something that Asian cultures, including Asian American culture, view in an almost spiritual way. It is a bonding of two families, the family of each person in the couple. It signifies lifelong commitment not only of the individuals in the couple to each other, but of each person in the couple to the family of the other and vice versa. . . ."
Zia married Lia Shigemura in San Francisco on February 16, 2004. "My 15-year-old niece has only ever known us as being together. Yet, when we told her we had married, she said to Lia: `Now you're really my auntie. . . . How can you explain domestic partnership or civil union to a child or even to an older person? These concepts mean nothing to most people and certainly not to children. Marriage, on the other hand, has an acquired meaning that everyone understands. Now everyone in our families and our livesincluding the children `gets it.' [¶] . . . [¶] In the eyes of the law and of much of society, our commitment and our union, to each other and to our families, is not legitimate and not real, including because the stigma associated with being lesbian or gay in the Asian American community is deeply rooted. . . . Our relationship with our families has changed inalterably, and indescribably, as a result of our very brief civil marriage. . . ."
Zia's mother confirmed the point. "When you tell somebody that your daughter or son is `married,' they know what you mean. They know your son or daughter has someone they love and someone they are committed to. [¶] When your son or daughter is married, you know how to introduce their spouse to your friends: you call them your son or son-in-law or your daughter or daughter-in-law. Everyone knows what it means. It means they are related to you and are part of your family. [¶] . . . [¶] For many years, Helen and Lia lived together and loved each other but could not get married. I almost never talked with my friends about Helen and Lia's relationship because I did not know how to describe it. . . . I didn't call Lia my `daughter' even though I thought of her as a daughter, because it was not official and I didn't have the right words to explain what she means to Helen or why she is part of my family. [¶] Now I tell people that all of my children are married. I introduce Lia to my friends as `my daughter' or `my daughter-in-law.' I feel that Lia and her family are now truly our relatives."
Cecilia Manning described marrying Cheryl (Sher) Strugnell, with whom she had lived for 28 years: "I finally got to say out loud the vows that I had lived by with Sher my entire life. We felt like we were full-fledged citizens for the first time. [¶] . . . When we became domestic partners we did not receive gifts or gift certificates or bottles of wine, and we did not receive one single card. But when we got married, we received an abundance of cards and other gifts which signified the recognition of our legal union. That is something domestic partnership could not give us because in other people's eyes domestic partnership is not marriage and it never will be. There is something about the institution of marriage that is not only about the benefits that you get and the tax breaks that you get because you're married, but there's a homage, almost, that is paid by the rest of society because you are spouses."
Michael Allen Quenneville pestered his two mothers to get married in February 2004 because he felt "marriage is the way to show the highest form of love to someone" and wanted his mothers to be "equal with everyone else." "Even though they've been together for a very long time, they seem less equal in other people's eyes because they are not married. . . . It's an acknowledgement of a relationship and it isn't the real thing until you get married. . . . [¶] . . . [¶] I'll never forget my parents' wedding day. I cannot say the same for when they became domestic partners."