*1 May S147999. 2008.] [No. see post, MARRIAGE CASES. consolidated appeals, page
In re [Six footnote 1.]
Counsel Fund, Alliance Bull, Defense Benjamin W. Glen Lavy, Donald Timothy Chandler, Stovall, R. Dale Christopher Advocates for Schowengerdt; Faith and Freedom, Robert Henry Tyler; Law Offices of L. L. Terry Thompson, Terry Law Offices of Thompson; Andrew P. Pugno Andrew P. for Pugno Plaintiff and Appellant Defense and Proposition Legal Education Fund. Sekulow, Roth, Hernandez, Alan Jay Stuart J. Laura B. Vincent P. McCarthy, Kristina J. Wenberg; Schuler and Brown and John D. Hardy American for Law & Justice as Amicus Curiae on behalf of Plaintiff Center Defense and Education Fund. Legal Proposition Appellant & John for Jews New Alternatives Offering Stewart Stewart and Stewart *9 and & Gays Evergreen Parents Friends and Homosexuality, Ex-Gays as International Amici Curiae on behalf of Plaintiff and Appellant Proposition Defense and Education Fund. Legal Counsel, Staver, E. D. Rena and Mary Mathew M. Lindevaldsen
Liberty Families. McAlister for Plaintiff and for California Appellant Campaign and T. Snider Matthew B. for Pacific Justice Institute McReynolds Kevin and as Curiae behalf of Plaintiffs and Resource Institute Amici on Capitol Defense and Education Fund and Legal Campaign Appellants Proposition California Families. for Brown, Jr., General, M. G. Manuel Attorneys
Bill and Edmund Lockyer Medeiros, General, S. Chief Attorney State Solicitor David Assistant Chaney, General, Mauro, E. Krueger, Louis R. Boulware Eurie and Stacy Christopher General, Humes, Woods, A. J. Kathleen Assistant James M. Attorneys Douglas General, Morazzini, Hirem Patel and P. Zackery Deputy Attorneys M. Lynch, of California. for Defendant and State Appellant Starr; & and Dushku The Church W. Kirton McConkie Alexander for Kenneth Conference, Saints, National Christ of California Catholic Latter-Day of Jesus Jewish Congregations Union of Orthodox Evangelicals Association State of on of Defendant and America as Amici Curiae behalf Appellant California. N. for United Families Law Foundation and Monte Stewart
Marriage International, as Leader Foundation Family Watch International Family State California. Curiae on behalf of Defendant Appellant Amici Kmiec, M. Law W. Helen for Douglas Natalie A. Panossian Professors Calabresi, Alvare, Dent, Jr., B. D. Lynn Steven Presser W. G. George Stephen of California. Amici on behalf of Defendant and State Appellant Curiae Wardle Mazur, Jr., Mazur, Leland E. for & Janice R. Mazur and William Mazur Amici Curiae on behalf of Defendant and Stewart Blandón as Traiman State California. Appellant M. R. and James Policy, Broyles Center for Law & Dean
The Western National for Organizations Marriage, Ethnic Religious for California Griffiths Conference, High Impact African-American Leadership Christian Hispanic Coalition, Freedom, Korean Church Leadership Coalition for North Korea California, Council of Korean Churches in Southern Traditional Family Coalition, Alliance, Chinese America Chinese Family Evangelical Seminary, View, The Lord’s Grace Christian Church of Mountain Grace Christian Gospel Mateo, Church, Church at San Mandarin Home of Christ Church at Baptist Church, Fremont Saratoga, Chinese Free Evangelical West Christian Valley Church, Francisco, Alliance Free Church of Evangelical San San Francisco Church, Christian HIS Agape Foundation and Chinese Christians for Justice as Amici Curiae on behalf of Defendant and State of California. Appellant Coverdale, N. Jeffrey Daly Professors of Law John Scott Fitzgibbon, Gardner, Kobach, Martin R. Maltz, Kris W. Earl M. Laurence C. Nolan and John Randall Trahan as Amici Curiae on behalf of Defendant and Appellant State of California.
Wild, Gorman; Carter & Patrick Tipton, J. Thomas More Thomas Society, and Paul Brejcha Linton for Benjamin of Columbus Knights as Amicus Curiae on behalf of Defendant and State of California. Appellant The Claremont Institute Center for Constitutional John C. Jurisprudence, Eastman; Institute for and Public Marriage and Joshua Policy K. Baker for Wilson, and Legal Allen, Scholars Family Q. Arkes, James P. Douglas Hadley Blankenhom, Calabresi, David Cohen, Steven DeWolf, G. R. David K. Lloyd Erler, Jacob, Edward J. Robert P. Bernard E. George, William H. Leon Jeynes, R. Kass, Kesler, Kmiec, Charles Lowenstein, Douglas W. Daniel Hays David Presser, Popenoe, B. Stephen Katherine Shaw and Thomas G. West Spaht as Amici Curiae on behalf of Defendant and State of Appellant California. Brian Chavez-Ochoa and Steven W. Fitschen for The National Legal Foundation as Amicus Curiae on behalf of Defendant and State of Appellant California.
Derek L. Gaubatz and Roger Severino for The Beckett Fund for Religious as Liberty Amicus Curiae on behalf of Defendant and State of Appellant California.
Robert A. Destro and Lincoln C. African-American for Oliphant Pastors in California Winters, Reverend Joshua Dr. Beckley, Pastor Pastor Timothy Chuck Singleton and Pastor Dr. W. Turner Raymond as Amici Curiae on behalf of Defendant and State of California. Appellant Mennemeier, Stroud, Mennemeier, Glassman & Kenneth C. Andrew W. Stroud and Kelcie M. for Gosling Defendants and Governor Arnold Appellants and State Schwarzenegger Registrar of Vital Statistics Teresita Trinidad. Watch, Inc., as E. Norris for Judicial Amicus Curiae on behalf of Sterling and Defendants and State California Governor Arnold Appellants Schwarzenegger. Herrera, Stewart, J. M. Chief
Dennis Therese City Attorney, City Deputy Friedlander, Chou, Chief Julia M. C. Litigation, Attorney, Danny Appellate Chhabria, Morris, Kathleen S. Sherri Sokeland Kaiser and Vince City Deputy Rice, Howard, Nemerovski, Rabkin, & Bobbie J. Canady, Falk Attorneys; and City Wilson and for Plaintiff and Amy Margolin County Respondent San Francisco. for J. Badgett
R. Sears and Clifford J. M. V. Lee and Bradley Rosky Gary City County on Plaintiff and Gates Amici Curiae behalf of Respondent of San Francisco. Francois; Berzon, J. B. Michael Rubin Barbara
Aderson Altshuler of Law Civil Clinic as Amicus Rights Chisholm Howard School University on of Plaintiff and of San City County Curiae behalf Respondent Francisco. Clarence; L. Amitai and Amitai Schwartz for
Nanci Law Offices of Schwartz as Amicus Curiae on behalf Plaintiff Bar Association of San Francisco Francisco. County of San City Respondent *11 Secular Humanism and
Ronald A. and Edward Tabash for Council for Lindsay City behalf of and Center for as Amici Curiae on Plaintiff Respondent Inquiry Francisco. County and of San Jenkins Los of San City Angeles, City
Michael and J. Lewis of Stephen Oakland, Jose, Beach, Santa of of City Long City City of San of Diego, City Monica, Cruz, Rosa, Santa City of Santa City City City Berkeley, Hill, of Signal City Palm of West Springs, City Hollywood, City Clara, Fairfax, Cloverdale, Santa County Town of City Sebastopol, Mateo, Amici Cruz and Marin as County County of San of Santa County and of San City County Curiae on behalf of Plaintiff and Respondent Francisco. Allred,
Allred, Steven Michael Maroko John & Gloria Goldberg, Maroko Olson, Troy Perry Robin Diane Tyler, West for Plaintiffs and Respondents De Blieck. Phillip Stoll, Bomse, DeNatale, Ehrman, F. V. Richard Christopher
Heller Stephen Tacorda; Simon, for Lesbian Rights, R. National Center David J. Ryan Sakimura, Rowen, Eisemann, Minter, Melanie Catherine H. Shannon Vanessa Joslin; Fund, Inc., Lambda Courtney Legal Defense and Education Jon W. Davidson, Pizer; California, Jennifer C. ACLU Foundation of Southern Sun, Pastore; Christine P. Peter J. Clare ACLU Foundation of Eliasberg, California, Schlosser, Northern Tamara Alan L. Alex M. Lange, Cleghom; Steefel, Weiss, Narbaitz, Wadsworth; Levitt & Dena J. Office of Clyde Law C. David Codell and David C. Codell for Plaintiffs Respondents Lancy Woo, Frazer, Gomez, Sabin, Tim Joshua Cristy Chung, Rymer, Jewelle Diane Beals, Matson, Adams, Baker, Myra Ida Arthur Frederick Devin Jeanne Wayne Rizzo, Shain, Sokolower, Wallace, Pali Karen Janet Deborah Cooper, Jody Hart, Davis, LeJeune, Lederman, Beach, Andre Corey Rachel Alexsis Stuart Lewis, Martin, Conner, Smith, John Gaffney, Del Sarah Phyllis Lyon, Gillian McShane, D’Amario, Chandler, Alexandra Margot David Scott Jeffery Wayne Chandler, Rivera-Mitchel, Theresa Michelle Cristal Our Petry, Family Coalition and California. Equality Q. Bolanos;
Law Offices of Waukeen Q. Waukeen Aldon L. McCoy, McCoy, Paul, & Hanley Harley Jason E. for Plaintiffs and Hasley Respondents Clinton, Morris, Beman, Gregory Gregory Anthony Andrew Neugenbauer, O’Brien, Faulkner, Janet Stephanie Arthur Levy, Kristen Joseph Healey, Anderson, Michele Bettega, Derrik Anderson and Wayne Edfors II. Block, Smith, Natalie F. P. Jenner & Paul Gilfoyle; M. William M. Association, Hohengarten and Anjan Choudhury for American Psychological Association, Association, California American Psychological Psychiatric National Association of Social Workers and National Association of Social Workers, California as Amici Curiae on behalf of Chapter Plaintiffs Respondents.
Keker & Van Nest and Jon B. Streeter for Professor H. Jesse Choper Amicus Curiae on behalf of Plaintiffs and Respondents. Obstler, & Peter
O’Melveny Myers, Nikhil Flora Shanbhag, Jee Vigo, Young You; Trasvina, Valenzuela; John D. A. Cynthia Law Office of Ellen Forman *12 Center, Obstler and Ellen Forman Obstler for Asian American Justice Asian Association, Center, Pacific American Bar Asian Pacific American Asian Legal Lesbian, Network, and Pacific Islander Bisexual and Women Transgender Council, Asian Pacific Islander Pride Education and Disability Rights Defense Fund, Association, Justice Equal Society, American Bar Japanese Lawyers’ Area, Committee for Civil of the San Rights Francisco Multicultural Bar Bay Foundation, Alliance of Los for the American Angeles, People Way United Association, Lesbians of African Heritage, Ventura Black Mexican Attorneys Fund, American Defense and Legal Educational Bienestar Human Aguilas, Services, Coalition for Humane La Raza Centro Immigrant Rights, Legal, Coalition, National Black Justice National Guild of San Francisco Lawyers and Zuna Institute as Amici Curiae on behalf of and Plaintiffs Respondents. for American Academy & Bancroft and Diana E. Richmond Sideman the American Academy California Matrimonial Northern Lawyers, Chapter the American Academy and California District of Lawyers of Matrimonial on behalf of Plaintiffs and Respondents. Pediatrics as Amici Curiae Winner, M. and Erin C. Smith Jolley & D. David Burling, Sonya Covington Association, American American Psychoanalytic Anthropological for of the San Francisco Committee for Civil Rights Association Lawyers’ Area as Amici Curiae on behalf Plaintiffs Bay Respondents. Deixler, Rose, Davidson, Gil N. P. Bert H. Clifford S. Scott Cooper, Proskauer Peles, Anti-Defamation D. for Alan Lois Lary Thompson Rappaport Center, and Lesbian Gay and Lesbian Sacramento Los League, Angeles Gay Center, Center, Community Bisexual and Gay, Transgender San Lesbian Diego Center, Center, Gay DeFrank Billy San Francisco LGBT Community Center, Beach, Lighthouse Desert Pride Long Lesbian Center of Greater Center, Pride Center as The Pacific Center and Stanislaus Pride Community behalf of Plaintiffs and Respondents. Amici Curiae on Pittman, Victor M. M. J. Fong; Daisy Hung, Shaw Kevin Pillsbury Winthrop Association of Asian American Bar Karin H. and Julie Su for Wang Hwang; Area, Bar Association of Los Angeles Asian Pacific American the Greater Bay American of Silicon Valley, Japanese Asian Pacific Bar Association County, Bar Association of Korean American Bar of Greater Los Angeles, Association Association, California, Bar Pan Pacific American National Asian Southern Association, South American Bar Diego, Asian of San Lawyers Philippine California, Bar Association South Asian Bar Association of Northern Asian California, Southern of Southern South Asian Bar Association San Diego, Association, American Bar Vietnamese Lawyers California Chinese California, Asian Pacific Islander Asian Equality, Association of Northern Outreach, Communities API Asian API Equality-SF, Legal Equality, Caucus, Alliance, Pacific Justice, Law Asian Law Asian Asian Reproductive Pride, Alliance-Alameda, Asian Family Asian Pacific Islander American Labor Shelter, Center, Chinese for Asian Women’s Islander Wellness Pacific Association, Action, for Affirmative Filipinos Chinese Progressive Affirmative Alliance, Action, Development for Leadership Asian Pacific Institute Gay Center Community Korean Religion, Asian North American of Pacific Study Center, House, American Legal Pacific Sister’s Asian of the East Bay, My Institute, California, American Asian API Equality-LA, Asian/Pacific Bar Center, Center of Legal Asian Pacific American Justice Asian American Fund, Education California, Defense and American Legal Asian Southern Association, Queer Women American Asian American Psychological Asian *13 Forum, Asian and Activists, Health American and Pacific Islander Asian Network, Asian Lesbian, Transgender Bisexual Women Pacific Islander Pacific and Friends of Lesbians and Asian Gays, Pacific Islander Parents Team, Alliance-Los Angeles, AIDS Intervention Asian Pacific American Labor Pacific Pacific for Asian Islander Progress-Los Angeles, Asian Americans Council, Council, Asian Pacific Pride Asian Pacific & Policy Planning Center, Youth Promoting Women’s Center for the Pacific Asian Asian Family, of Asian Pacific American Law Conference Advocacy Leadership, Network, Asian Pacific American Citizens Faculty, Gay Support Japanese Action, Center, Koreatown Khmer Korean Resource League, Girls Alliance, Workers National Asian Pacific American Law Student Immigrant Association, Forum, American Pacific Women’s National National Asian Consortium, American Korean & Education Asian Orange County Service Alliance, Pacific Islander of Chinese Americans San Community Organization Tomorrow, Francisco South Asian American Leaders Chapter, Satrang, Network, Alliance, South Asian Southeast Asian Southeast Asian Community Center and Southeast Asia Resource Action Center as Amici Community Curiae on behalf of Plaintiffs and Respondents. Olson, Tolies & Jerome C. Roth and Daniel J. Powell for Area
Munger, Bay Freedom, Children and Gays Everywhere, for Individual of Lesbians Lawyers Fund, Pride, The Education and Freedom to Family Defense Disability Rights Foundation, Human Human Marry, Rights Rights Campaign Legal Campaign, Center, Aid Law Lesbian and Association Gay Lawyers Society-Employment USA, of Los The National Lesbian and Law Angeles, Marriage Gay Equality Association, Parents, Inc., Families & Friends of Lesbians and Gays, People Work, Foundation, SacLEGAL and Tom for American Pride at Way Homann Law as Amici Curiae on behalf of Plaintiffs and Association Respondents.
Greines, Martin, Richland, Stein & Greines and E. Tobisman Cynthia Irving Association, Association, for Hills Bar Los Bar San Beverly Angeles County Association, Francisco Trial California Women Women Lawyers Lawyers Plaintiffs Association of Los as Amici Curiae on behalf of Lawyers Angeles and Respondents. Barker; Brown, Widiss, Jennifer K. Deborah A. Julie F. Irma D.
Vicky Kay; Herrera; Manella, Brill, Rosenblatt, Irell & Laura W. Elizabeth L. Douglas NeJaime, Bacchus, Simon; Michael Richard M. and Herma Hill Kay Momentum, Advocates, Center, California Women’s Law Legal Equal Rights Bench Bar Queen’s Aid Law Center Legal Society-Employment of the San Area as Amici Curiae on behalf of Bay Association Francisco Plaintiffs and Respondents.
Remcho, Purcell, Harrison, & C. Thomas A. Willis and Kari Johansen James Corbett, Kehoe, Sheila for Senators Elaine Ellen Christine Krogseng Alquist, *14 Kuehl, and Noreen Assemblymembers Carole and Darrell Migden Steinberg Hancock, Jones, Laird, Leno, Evans, Huffman, Dave John Mark Loni Jared W. Lieber, Ma, as Amici J. Fiona J. Portantino and Lori Saldana Sally Anthony Curiae on behalf of Plaintiffs and Respondents. Wolff; Paterson, Will & Emery, Anthony
Eva Tobias McDermott Barrington Alcuaz, K. Little and V. for Justice as Society de Vakil Rory Bijal Equal and Amicus Curiae on behalf Plaintiffs Respondents. Weixel, Jr.; White, Office, V. & Susan M.
Weixel Law James Chapman, Popik Baldwin; Bonauto, Merri A. L. Bennett H. Klein and Jamson Wu Mary Popik, Amici Federation and and Lesbian Advocates & Defenders as Gay for Equality Curiae on behalf of Plaintiffs and Respondents. Curiae on behalf of Plaintiffs and Respondents. R. Grodin as Amicus
Joseph Wallace, Gibson, Crutcher, Webb, Dunn & F. L. Sarah Jeffrey Wendy Blanco and for Children of Lesbians Douglas Piepmeier, Meghan Champion Force, and Task National Lesbian Gays Everywhere, Gay MassEquality, & Advocates and Levi Strauss Freedom to Out & Marry, Equal Workplace Co., behalf of as Amici Curiae on Plaintiffs Respondents. Rieman, Garrison, Roberta A. Rifkind Wharton & Walter Kaplan,
Paul Weiss Ehrlich; NAACP M. Shaw and Victor A. Bolden for Andrew J. Theodore Inc., Amicus Curiae on behalf of Defense and Educational Fund Legal Plaintiffs and Respondents. Hancock, and William N. Hancock Jon B.
Eisenberg Eisenberg the National Association for the Advancement California State Conference of Plaintiffs and as Amicus Curiae on behalf of Respondents. of Colored People Perkowski; Strawn, Peter E. Sexuality & Michael S. Brophy, Winston & Lesbian Gay B. for The National Goldberg Law Clinic and Suzanne Gender on behalf of Plaintiffs Foundation as Amicus Curiae Task Force Respondents. Kathleen M. Sullivan for Professors Law Center and
Stanford Constitutional Brownstein, Brest, Karlan, Paul Alan E. Law Pamela S. of Constitutional Estrich, Dudziak, Cohen, Cruz, Susan R. David David B. L. Mary William Karst, Liu, Caret, Kenneth L. Goodwin B. Ronald R. Frickey, Faigman, Philip Rao, Marshall, Winkler as Jonathan D. Varat and Adam Radkiha Lawrence C. Plaintiffs and Amici Curiae on behalf of Respondents. Law Scott of Family and Michael S. Wald for Professors
Herma Hill Kay Bowermaster, Banks, Carol S. Altman, Janet Blumberg, Grace Ganz R. Richard Forman, Cox, H. Bruch, Costello, L. Joan Deborah Jay Folberg, Jan Barbara J. C. *15 Kosel, Levine, Joslin, Ikemoto, Lawrence Maya Jan Lisa G. Courtney Hollinger, Lois Manían, Mason, D. Kelly Weisberg, E. Myers, Gary Spitko, Ann John Mary Plaintiffs and Curiae on behalf of as Amici Weithorn and Michael Zamperini Respondents. Cassel, Laurie J. Livingstone Blackwell and Brock & Novogrodsky;
Noah B. Toronto, Human Rights of Law International for The University Faculty Clinic, Professors Women’s Institute For Leadership Development, Cossman, Moran, Robert Choudhry, Brenda Sujit International Law Mayo Schaack, Berman, Yoshino, Wintemute, van William Beth Kenji Paul Schiff Aceves, Amici on behalf of and Barbara Cox as Curiae Satterthwaite Margaret Plaintiffs Respondents. Borenstein, Foerster, Paul S. Ruth N.
Noah B. Morrison & Novogrodsky; Toronto, Faculty Novak University and Vincent J. for Marchegiani Clinic, Law Professors of International Law International Human Rights Feldblum, Cossman, Aceves, Hari Chai Sujit Choudhry, William Brenda Amici Curiae on and Beth van Schaack as Osofsky, Jaya Ramji-Nogales behalf of Plaintiffs and Respondents. Peek for Santa McManis and Christine
McManis Faulkner & James Morgan, of Plaintiffs and Bar as Amicus Curiae on behalf Clara Association County Respondents. Proctor, Linda M. Burrow for
Caldwell & G. Caldwell and Leslie Christopher Jr., on behalf of Plaintiffs Professor William N. as Amicus Curiae Eskridge, and Respondents. Kass, Ramirez, Marder, Ellrod, L. Wm. Darin & Scott
Manning Davenport, Center as Amicus J. Molnar for The Southern Law Poverty Wessel Jason Curiae on behalf of Plaintiffs and Respondents. Bass, Harlan, Richards, Joren S. D. Elizabeth Nelson R. Kennedy,
Raoul Lee; Leider, Meuti, Jo Ann HoenningerLaw, A. Michael D. Stephen Philip Affirmation; Isaacson; and Silvio Nardoni for Eric Alan Reverend Hoenninger; USA, Mormons, Foundation, Alliance of Al-Fatiha Dignity and Lesbian Gay Lesbian, Bisexual Mennonite Council Gay, Brethren Baptists, United, Inc., Interests, Executive Committee Transgender Clergy Committee, and Lesbian Vaishnava Gay American Friends Service Christ, Association, Hebrew Union of the United Church of General Synod Orientation, USA, Jewish Integrity for Judaism Sexual College-Institute America, Federation, More Lutherans Concemed/North Reconstructionist Values, National Coalition of Progressive Muslims for Light Presbyterians, Nuns, American Network of Progressives, New Spiritual Ways Ministry, Justice, Religion-Outside-The-Box, Institute on Sexual Religious Morality, Inc., Healing, Adventist Seventh-day International Soka Gakkai Kinship, Intemational-USA, Judaism, The Rabbinical The Union Assembly, for Reform Unitarian Universalist Association of Unitarian Congregations, Universalist Association, Ministers United Centers of Universal Spiritual Living, Fellowship Churches, of Metropolitan Association of Community Welcoming & Affirming Area), IMPACT, California Church Baptists (Bay California Council of Churches, California Faith for Council of Churches of Equality, Santa Clara California, Friends Committee on County, Jews for Legislation Marriage *16 (Southern California), Equality Church Metropolitan Community One), (Califomia/Region More Light Presbyterian of Pacific Chapter Pacific Central Presbytery, District of the Unitarian Chapter Universalist Association, Ministers Pacific Central West Council of the Union for Reform Judaism, Judaism, Pacific Southwest Council of the Union for Reform Pacific Association, Southwest District of Unitarian Universalist Ministers Chapter Alliance-Califomia, Progressive Christians Jewish Uniting, Progressive Ministries of Reconciling Clergy Califomia-Nevada Conference of Church, the United Methodist Unitarian Universalist Legislative United Church Ministry-California, of Christ-Southern California/Nevada Conference, Church, All Saints All Saints Catholic Episcopal Independent Parish, Church, All Saints Area American Indian Metropolitan Community Bay Universalists, of Unitarian Buena Vista Two-Spirits, Berkeley Fellowship Church, United Methodist Chalice Unitarian Universalist Christ Congregation, Church, Lutheran Church of the Brethren of San Shepherd Diego, College Christ, Avenue Church United Church of Church of Congregational Community Christ, Church, Atascadero United Church of Community Presbyterian Conejo Unitarian Valley Universalist UCC Church of Fellowship, Community Atascadero, Chadashim, Ami, Beth Kol Congregation Chayim Congregation Za'hav, Hadash, Sha’ar Shir Congregation Congregation Conejo Valley Committee, Unitarian Faith in Universalist Action Diamond Bar Fellowship Christ, Church, United Church of Dolores Street Emerson Unitarian Baptist Church, Christ, Universalist First Christian Church of San Jose of Disciples Church, Christ, First First United Church of Congregational Congregational Francisco, Church, First Mennonite Church of First First Presbyterian San Oakland, Unitarian Church of First Unitarian Universalist Church of San Diego, Jose, First Church of Unitarian Church of San First Unitarian Universalist Stockton, Francisco, First Humboldt Society Unitarian Universalist San Ministries, Inner Unitarian Kol Hadash Universalist Fellowship, Light Judaism, for Humanistic Lutherans Concemed/Los Community Angeles, Community Church in the Metropolitan Community Valley, Metropolitan Jose, Church of San Church Los Monte Community Angeles, Metropolitan Trustees, Vista Unitarian Universalist Board of Mt. Diablo Congregation Church, Unitarian Universalist Mt. Church United Hollywood Congregational Church Board Christ, Universalist Unitarian Neighborhood Church of Christ, Pacific School Trustees, United Church Church Congregational Niles Church, Church, United Community Parkside Pacific Unitarian of Religion, Church, United Christ, Pilgrim Community Church of Peninsula Metropolitan Christ, Friends/Quakers Yearly Meeting, Pacific Society Religious Church of Church, Universalist Unitarian Sierra Foothills Community Leandro San Social Justice Universalist Fellowship Unitarian Berkeley Congregation, Church, Committee, St. Bede’s Episcopal at First Ministry Social Justice Church, Church, Church, Evangelist Episcopal St. John St. Francis Lutheran Church, Paul’s Church, Lutheran St. Matthew’s St. St. John’s Presbyterian Church, Starr King for the Ministry, Starr School King United Methodist Hillel, Church, The Center Spiritual Beth Unitarian Universalist Temple Awareness, The Ecumenical of All Peoples, Church for the Fellowship Church, Hollywood of West (Governing Body) The Session Catholic Church, Church, of Santa Society Unitarian Lutheran Trinity Presbyterian Trustees, Barbara, Unitarian of Anaheim Board Unitarian Universalist Church Trustees, Universalist Unitarian Board of Berkeley Universalist Church Desert, Davis, Unitarian Universalist Church Church of Unitarian Fresno, Beach Long Universalist Church Church of Unitarian Universalist *17 Peninsula, Trustees, the Monterey Church of Board of Unitarian Universalist Alto, of Unitarian Church Palo Universalist Unitarian Universalist Church of of Trustees, of Ventura Board Universalist Church Board of Unitarian Riverside Mountains, Trustees, Unitarian of Community Unitarian Universalist Sacramento, Unitarian Universalist Universalist Church Community Monica, Church Community Unitarian Universalist Church of Santa Community Marin, Unitarian Universalist Congregation of South Unitarian County, Rosa, Universalist Fellowship of Santa Unitarian Universalist Congregation Beach, Unitarian of Laguna Kem Unitarian Universalist County, Fellowship Universalist Fellowship Redwood Unitarian City, Universalist Fellowship Committee, Universalist Unitarian Dieguito Welcoming Congregation San Trustees, Unitarian Universalist Board of County of San Luis Obispo Fellowship Visalia, Unitarian Universalist County, Fellowship of Stanislaus Fellowship Clarita, Mateo, Santa Universalists of of San Unitarian Unitarian Universalists Sacramento, in Simi Church of Christ United Unitarian Universalist Society Paula, Church of Santa Universalist Unitarian in the Gold Valley, Unity Country, Church, Community Lutheran Ministries University Chapel, Valley Metropolitan Rachel Alfi, Reverend Dr. Pam Allen-Thompson, Mona Reverend Rabbi Aron, Anderson, Anderson, Melanie Rabbi Camille Rabbi Angel, Reverend Sky Baker, Atkinson, Reverend Elizabeth Dr. Brian Reverend Joy Reverend Banwart, Jr., Banks, Michael Reverend Canon Reverend K. G. O’Shaughnessy Bell, Beliak, Bartosh, Chris Barlowe, Haim Dov Reverend H. Rabbi William Blackert, Bertenthal, Reverend Benson, LeAnn Linda Pastor Reverend JD Rabbi Bowen, Boline, A. Blake, Kenny Pastor Reverend James E. Dr. O. Dorsey Brenner, Brecht, Rick Reverend Brody, Paul Rabbi Reverend Susan Pastor Brown, Burklo, Bums, Dr. Ken Reverend Kevin Reverend Jim Buey, Nancy Cameron, Reverend Dr. R. A. Reverend Butziger, Becky Reverend Canon Conrad, Carroll, Grant S. Reverend Carey, Matthew M. Reverend Helen Cartun, Chaffee, Rabbi Ari Reverend Lauren Reverend Craig B. Chapman, Cheatham, Christian, Reverend Barbara M. Reverend Jan Reverend Bea Chun, Clark, Cohen, Cohn, Reverend Anne June M. Reverend G. Rabbi Helen T. Colbert, Collier, Reverend Carolyn Reverend Kenneth W. Reverend Dr. B. Gary Collins, Conant, Conforti, Reverend RMary Rabbi Susan S. Reverend Meghan Conrad, Cox, Craethnenn, Rabbi Laurie Reverend Reverend Coskey, Lyn Sofia Cranch, Crane, Reverend Susan Reverend Craig, Robbie Reverend Alexie Crouch, Reverend Matthew Crary, Reverend Robert Reverend Dr. Donald J. Dallmann, Daniel, Davisson, Reverend Cinnamon Reverend Diann Pastor Jerry Devol, De Rabbi Reverend Jong, Lavey Derby, Susan Wolfe Reverend Frances A. Dew, Dixon, Dorff, Reverend Brian K. Rabbi Elliot Terri Reverend Echelbarger, Edwards, Rabbi Lisa A. Reverend Rabbi Denise Reverend Leroy Egenberger, Eger, Ellard, Elrod, Etzbach-Dale, Michael Diana Reverend Stefanie Pastor Brenda Evans, Evens, Extrum-Femandez, Interim Mark Minister Reverend Renae Fanestil, Farrell, Reverend John Reverend Reverend Jerry Lydia Favreult, Ferrante-Roseberry, Reverend Michelle Reverend Jeanne Favreau-Sorville, Plunder, Rabbi Joel Reverend Dr. Yvette Reverend Fleekop, Fox, Gaines, Dr. John Reverend Forney, Reverend Canon B. Jerry Winifred Garton, Geller, Gibson, Reverend Ronn Rabbi Laura Reverend Diana Reverend Goldstein, Goss, Dr. Robert Reverend Dr. Robert Reverend Dr. June Goudey, Grabowski, Grant, Reverend Robert C. Reverend Constance L. Reverend James Grant, Greenbaum, Greer, Rabbi Bruce DePriester Reverend William Reverend Griffen, Gmbbs, Dr. Ron Thomas Reverend E. Grogan, Reverend Sara Clyde Haldeman-Scarr, Hall, Hamilton, Reverend Caroline Reverend Dr. Susan Reverend Bill Reverend Barbara Hamilton-Holway, Reverend Bet Hamilton-Holway, Hannon, Headden, Hearn, Reverend Dr. Andrew F. Reverend Dr. Kathy Reverend *18 Heckles, Henkin, Hewitt, Jane Rabbi Alan Reverend Erika Rabbi Heyman, Jay Hilton, Hines, Reverend Carol C. Reverend Anne Felton Reverend Katie Hines-Shah, Holland, Reverend Martha Reverend Jackie Reverend Marcia Hodges, Hootman, Hostetler, Reverend Laura Reverend Sherri Reverend Horton-Ludwig, Huff, Reverend Minister Victoria Reverend Ricky Hoyt, Kathy Ingram, Keith Islander, Jacks, Reverend Steve Reverend E. Inouye, Rabbi Steven B. Alyson Jacobs, Jelane, Johnson, Reverend D. Reverend Jeff Berget Bryan Jessup, Johnson, Johnson, Reverend Beth Reverend Deborah L. Reverend Palmer Nancy Jones, Jones, Jones, Reverend Alan H. Reverend Reverend Julie Roger Kain, Kandarian, Kaufman, Reverend Rabbi Jim Reverend John M. Kathryn Kauffman, Reverend Canon Kathleen Rabbi Paul Reverend John Kelly, Kipnes, Kohn, Reverend A. Rabbi Reverend Kirkley, Benjamin Kocs-Meyers, Douglas Kolakowski, Kraft, Kuhwald, Kurt Reverend C. B. Reverend Vicky Douglas Kushner, Laarman, Joel L. Reverend Richard Reverend Peter Rabbi Kuykendall, Laemmle, Laibson, Laine, Susan Rabbi Howard Reverend Pastor Scott Darcey Linesch, Levin, Lewis, Landis, Catherine Tom Reverend Rabbi Moshe Reverend Lowe, Lovett, Lotker, Rabbi Reverend Carol Michael Reverend Marguerite Rabbi Malino, MacLean, Lutz, Ken Rabbi Tamar Max Reverend Lynn, Reverend Barry Manousos, Martell, Debbie Reverend Elder Luther J. Dr. Reverend Anthony Mathews, Matteson, Brian Martin, Rabbi Reverend Russell Michael-Ray Pastor McGowan, Reverend Joseph Reverend W. Zachary Mayer, Gregory McGonigle, McKenna, McKeithen, William Reverend Reverend Reverend Janet Gollery Margo Mendel, Meeter, D. Pastor Ross Susan Rabbi Norman McKinney, Reverend Metz, Merkel, Meter, Reverend Judith Meyer, Reverend Eric H. Charles Reverend Miller, David F. Reverend Beth Middleberg, Barbara Reverend Elisabeth Meyers, Miller, Miller, Miller, Terri Reverend John Millspaugh, Reverend Diane Reverend Miner, Sarah Rabbi Michelle Reverend Missaghieh, Reverend Dr. Curt Morehouse, Moldenhauer-Salazar, Monroe, Reverend J. Reverend John Douglas Moss, James A. Reverend Zucker Reverend David Reverend Morgenstem, Amy Newman, Nelson, A. Reverend Reverend Drew Reverend Canon James Nettinga, Older, Oliva, O’Rourke, Dr. Elaine Reverend Julia Reverend Claudene F. Reverend Owen-Towle, Owen, Owen-Towle, Donna Reverend Dr. S. Reverend Tom Carolyn Jones, Owens, Dr. Rebecca Reverend Kathleen Reverend Palmer Reverend Nancy Perez, Parker, Hannah Reverend Ken Reverend John Reverend Pennings, Petrie, Pierce, K. Ernest Reverend Elizabeth Mary Reverend Reverend Jay Pipes, Prescott, Dr. Lisa Reverend Pratt-Horsley, Georgia Reverend Reverend Presley, Prud'homme, Price, Quandt, Jane Reverend Reverend Reverend Carolyn Sherry Rabidoux, Ramsden, Reverend Fred Reverend Lindi Rabbi Lawrence Raphael, Richardson, Richardson, F. Reverend Dr. Mark Reverend Scott George Regas, Rosenbloom, Ride, Reverend Reverend Bear Boo Cantor Aviva Philip Riley, Rudisill, Russell, Robinson, Susan Reverend John Reverend Carol Reverend Sanchez, Sakamoto, Sammons, Lee Gerald Reverend David Marie Sanford, Michael Reverend William C. Reverend Charles Reverend Schepel, Schiefelbein, Schlosser, Scott, Reverend Dr. Rick Reverend Brian Reverend Scott, Scovell, Schmidt, Thomas Reverend Reverend Wayna Reverend Craig Sherwood, Dr. Michael Reverend Dr. Steven John M. Schuenemeyer, Shepard, II, Shirilau, Shockley Reverend Mark Reverend Robert Reverend Madison Shively, Simons, Bruce Dan Reverend Grace Reverend J. Reverend Simpson, Smith, June Reverend Linda Reverend Reverend Snyder, Jeffrey Spencer, Stefancic, Stanford-Clark, Dr. Rabbi Stanley Reverend Reverend Betty Stapleford, Stem, Stewart, Stiles, Reverend Janine Ron Reverend L. Reverend Bob Gregory Stock, Summers, Straube, Steven Dr. Reverend Reverend Arvid Reverend Archer Tenold, Tellstrom, Byrd Reverend Reverend Margo Reverend Paul Swope, Tetzlaff, Thomas, Lynn Reverend Neil Reverend David Reverend Mary Thompson, *19 Tobin, Tolbert, Tmeblood, Ungar, Reverend Mary Lynn A. Reverend Tarah Velimirovic, E. Lynell Reverend Nada Reverend Jane Reverend Canon Voigts, Waskow, Walker, Ward, A. Theodore Reverend Rabbi Arthur Reverend Greg Webb, Weller, Weldes, Roger Petra Reverend Vail Reverend Reverend Dr. Williamson, Wharton, Wienecke, Elder Reverend Bets Reverend Lee Reverend 778 Wilson, Wolf,
Nancy Reverend Ned Rabbi Rope Wright, Bridget and Wynne Reverend Michael Yoshi as Amici Curiae on behalf of and Plaintiffs Respondents. J. Thomas Kuna-Jacob as Amicus Curiae.
Opinion1 GEORGE, C. J. Lockyer and City County San Francisco v. (2004) 33 In of Cal.4th 1055 (Lockyer), P.3d Cal.Rptr.3d 95 this court con [17 459] cluded that of the officials of San Francisco public City County acted issuing in the unlawfully by marriage licenses absence of judicial a that the determination California statutes limiting marriage union between a are man a woman unconstitutional. Our decision in however, Lockyer that the substantive emphasized, constitu question tional validity of the California statutes was not before this court in and that our was not proceeding, decision intended to reflect view on any 1069; (Id. see also id. at (conc. Moreno, that issue. J.); at 1125 of p. p. opn. id. at Kennard, id. (conc. J.); 1132-1133 & dis. of opn. (conc. & J.).) dis. The Werdegar, present involving opn. proceeding, consolidated six cases that were in the court and litigated superior appeal Lockyer, the Court of in the wake of this court’s decision in Appeal squarely the' not substantive constitutional that was addressed in presents question Lockyer. we at the considering question, note outset that constitutional
issue before us differs in a from the significant constitutional issue respect that has been addressed of other number state courts and supreme occasion, intermediate courts that have had recently appellate interpreting constitutions, of their state to determine applicable provisions respective law validity statutory limiting or common rules provisions v. Deane e.g., Conaway (See, (2007) union of a man a woman. 401 Md. Public Health 571]; Goodridge Department (2003) A.2d v. [932 941]; Lewis v. Harris A.2d Mass. 309 N.E.2d 188 N.J. [908 City opinon are appeals six cases consolidated addressed in this are: whose County v. (A110449 San Francisco State City County, S.F. & [Super. Ct. of California Tyler CGC-04-429539]); (A110450 State [Super. v. Ct. L.A. No. California Lockyer BS-088506]); (A110451 Woo v. County, City [Super. County, No. Ct. S.F. & CPF-04-504038]); (A110463 Clinton v. State City S.F. [Super. County, No. Ct. & of California City Proposition Legal Fund CGC-04-429548]); and Education No. Defense County (A110651 CPF-04-503943]); San Francisco [Super. City County, Ct. S.F. & No. (A110652 Campaign City Families v. Newsom [Super. County, Ct. S.F. & for California CGC-04-428794]). No.
779
N.E.2d
821 N.Y.S.2d
v. Robles
(2006) N.Y.3d 338
196];
7
[855
Hernandez
v. King
Andersen
864];
A.2d
Baker v. State
170 Vt.
770];
194 [744
Court
v. Superior
Standhardt
963];
P.3d
(2006)
It also is to understand at the outset that important our task in this believe, a is not to decide whether we as matter policy, proceeding that the of should be officially of a recognized same-sex a relationship couple designated rather than a marriage (or term), domestic some other but instead partnership only to determine whether the difference in the official names of the violates the aware, course, Constitution. We are relationships California that very held differences of strongly exist on the matter of opinion policy, with those who the inclusion of persons support same-sex unions within the definition of that it unfair marriage maintaining is to same-sex couples detrimental to the fiscal potentially interests of the state and economic its institutions to reserve the designation marriage solely opposite-sex and others that it is couples, asserting to vitally important preserve and traditional definition of a long-standing union between a marriage woman, man and a even as the state extends comparable rights respon- sibilities to committed same-sex Whatever our views as individuals couples. with to a regard as matter of we question recognize as policy, judges and as a court our to limit our consideration of the responsibility question determination of the constitutional of the current validity legislative provisions. hereafter,
As
the determination whether
the current California
explained
scheme
statutory
relating
marriage
domestic
registered
partnership
only
high
comparable
out-of-state
court decision to address a
issue is
decision in
Opinions
the Justices to the Senate
under the California Constitution. marry”—a
First, “right nature and scope determine the we must constitutional of the fundamental as one cases establish past matter, as an historical Although, the California Constitution. embodied in *22 been have traditionally with it the associated rights civil and decision 60 years court’s landmark to this couples, afforded only opposite-sex that found P.2d Sharp (1948) 32 Cal.2d 17]4—which v. ago Perez were incon- marriages interracial California’s statutory prohibiting provisions the notwithstanding to marry, constitutional right with the fundamental sistent had existed circumstance on interracial that statutory prohibitions is not that alone history clear the of the state—makes founding since this and the determining meaning scope an for guide invariably appropriate Perez, ren- although decision in guarantee. fundamental constitutional court, and legitimacy whose divided by judicial opinion dered deeply universally recognized. are now constitutional soundness that below, decisions of the numerous California As discussed review upon of the constitutional bases and significance have examined the underlying as one has been why (and recognized illuminate this right to that right marry the basic, an individual by to guaranteed of the inalienable civil rights Constitution, that, the this state’s Constitution), we conclude under California to encom- must be understood based to right marry properly constitutionally attributes traditionally the core set of basic substantive legal and rights pass and an individual’s liberty that are so to integral associated with marriage or abrogated by not be eliminated that autonomy they may personal These initiative statutory through process. or the electorate Legislature include, of an fundamentally, most opportunity core substantive rights has chosen whom the individual with individual to establish—with person family recognized protected life—an officially or her to share his to the same respect and entitled mutual and responsibilities possessing As as marriage. past union traditionally designated accorded a dignity establish, loving share a two adults who right cases substantive family officially recognized an establish join together relationship chooses, own—and, family— within to raise children their if the couple liberty interest the fundamental attribute of constitutes a vitally important secures to all persons Constitution that the California autonomy and personal and society. of both the individual benefit Sharp confusion, reported in v. was decision in Perez we note possible To avoid judicial decisions Lippold v. P.2d regional reporter the unofficial as Perez the decision We refer to by that title. shall have referred to the decision other states sometimes Sharp. under correct official title of Perez its Furthermore, times, in contrast to earlier our state now that an recognizes individual’s to establish a capacity loving long-term committed relation- with another ship to care person for and raise children does responsibly orientation, and, not depend upon individual’s sexual more generally, an individual’s sexual orientation—like a race or not person’s gender—does constitute a legitimate basis which to or withhold We upon deny legal rights. therefore conclude that in view of the substance and significance fundamental constitutional to form a right family California relationship, Constitution must be this properly interpreted guarantee basic civil right Californians, heterosexual, all whether gay and to same-sex as couples well as to opposite-sex couples.5 scheme, defending of the current constitutionality statutory
Attorney General of California maintains that even if the constitutional right under the California marry Constitution to same-sex as applies well as to opposite-sex should not be understood couples, *23 the to a requiring Legislature designate official couple’s family relationship the term by as to “marriage,” some other nomenclature. The opposed General, that Attorney fundamental constitutional observing rights generally substance rather than are defined by form, by reasons that so as the long state affords a all the substantive incidents of of couple constitutionally protected the marriage, state does not violate the constitutional to couple’s right marry a name by their official simply assigning other than relationship “marriage.” Because the General maintains that California’s current Attorney domestic affords partnership legislation same-sex all of the core substantive couples be may to an individual or as elements plausibly guaranteed couple of the fundamental state constitutional to the General right marry, Attorney concludes that the current California scheme statutory to relating and domestic does not the violate fundamental constitutional partnership right to marry embodied in the California Constitution.
We need not decide in this case whether the name invariably is “marriage” a core element the of state constitutional to so that the state right marry would violate a constitutional even in order to couple’s right if—perhaps that this civil institution is distinct from the emphasize clarify religious institution of state to a name marriage—the assign were other than for all as the official formal designation family couples. relationship statutes, Under the current state has not revised name of the official for all but rather has drawn a between family distinction relationship couples, (mar- the name for the official family relationship opposite-sex couples (domestic and that for same-sex One of the core riage) couples partnership). economy language, opinion “gay,” For convenience and we the term shall use individual, man, gay “gay with reference to an to relate either to a lesbian or to a and the term couple” couple consisting to refer to a either men. two women or two is recognized family
elements of the to establish an officially right to embodied in the constitutional is a right marry couple’s right California their accorded dignity equal have family relationship respect families, a different desig- accorded other recognized assigning officially reserving nation for the of same-sex while couples family relationship historic designation “marriage” exclusively couples poses opposite-sex a of same-sex denying couples least serious risk family relationship We therefore conclude that although such equal dignity respect. afford same-sex legislation of the current domestic provisions partnership elements embodied in the constitutional most of the substantive couples nonetheless must be viewed as current California statutes marry, a right marry constitutional potentially impinging couple’s upon under California Constitution.
Furthermore, that the current California a assign circumstance statutes different name for the official of same-sex family relationship couples contrasted with the name for the official family relationship opposite-sex under the state only raises constitutional concerns not constitutional but also under the state clause. right marry, constitutional equal protection clause, of this differential treatment under the latter analyzing validity we first must determine which standard of review should be to the applied classification here at in most the deferen- statutory issue. instances Although tial “rational basis” standard of whether determining review applicable different treatment accorded violates the state statutory provision equal clause, a more standard of review—“strict protection exacting rigorous scrutiny”—is when distinction drawn statute rests applied upon *24 so-called classification” or a fundamental As “suspect impinges right. upon we shall we do not the claim the although with advanced explain, agree by the of the current scheme6 that the challenging validity statutory parties statutes should be viewed as an instance of discrimination applicable properly on the of the or and should be basis characteristic of sex suspect gender to strict on that we conclude that strict subjected scrutiny ground, scrutiny (1) nonetheless is here because the statutes in applicable question properly (post, 786-787), As noted below at of the in this coordination four six actions (the by City County proceeding parties couples, were filed and of San Francisco and same-sex organizations supporting parties) challenge validity and the these who the constitutional of statutes, (the marriage by parties current California and two of the actions were filed (hereafter Proposition Legal Proposition Legal Defense and Education Fund Fund or Fund) maintain that the Campaign (Campaign)) Defense and the for California Families who reference, opinion current statutes are constitutional. For and ease of in this we convenience collectively challenging constitutionality marriage shall refer the are the the parties who state, (the defending marriage plaintiffs. parties statutes as Because the various statutes General, Governor, Fund, Attorney Campaign) and the have represented statutes, generally differing legal arguments support opinion advanced in of the will refer individually. opinion parties refers to the parties to such In those instances in which collectively, defending marriage parties statutes those will be referred to as defendants. must be understood as or on the sexual classifying basis of discriminating orientation, race, a characteristic that we conclude gender, represents—like and which to differen- religion—a constitutionally basis suspect upon impose treatment, (2) tial and differential treatment at issue a impinges upon fundamental same-sex interest their couple’s having family relationship accorded same and an respect dignity enjoyed by opposite-sex couple. standard, standard, Under the strict unlike the scrutiny rational basis order to statutory demonstrate constitutional of a validity challenged (1) classification the state must establish that the state interest intended to be served the differential treatment not is a only constitutionally legitimate interest, interest, compelling but is state the differential necessary treatment not is related to but to serve that only reasonably is state interest. this standard to the classification compelling Applying statutory issue, we here conclude that differential treatment underlying the purpose and same-sex embodied in California’s current opposite-sex couples statutes—the interest in the traditional and well-established marriage retaining compelling definition of be viewed state marriage—cannot as properly clause, necessary interest for to serve purposes equal protection such an interest. First,
A number of factors lead us to this conclusion. exclusion necessary same-sex from the is not designation marriage clearly couples that currently order to afford full to all of and benefits protection are married same-sex enjoyed by opposite-sex couples; permitting couples access to the will not designation marriage deprive opposite-sex couples alter the of the institution of will not framework any rights legal be marry subject because same-sex who choose to will marriage, couples are on married currently the same duties obligations imposed Second, the traditional definition of retaining couples. opposite-sex named family affording couples only separate differently will, matter, as a realistic harm on same-sex relationship impose appreciable children, to the and their because such access denying couples couples to cast doubt on likely familiar and favored highly designation enjoys dignity whether the official of same-sex family relationship Third, because of the widespread to that of opposite-sex equal couples. *25 faced, have it is all the more historically individuals gay disparagement institution of legal same-sex from the excluding couples probable an official view that their to be viewed as marriage likely reflecting relation- are of lesser stature than comparable committed relationships designation marriage Finally, retaining ships opposite-sex couples. and and only separate for exclusively couples providing opposite-sex well have the effect may distinct for same-sex designation couples rejected by a more general premise—now emphatically perpetuating are in some individuals and same-sex couples respects state—that gay
785 from, law, under the be treated may, differently “second-class citizens” who than, and heterosexual individuals or opposite-sex couples. less favorably circumstances, retention of the traditional Under these we cannot find that interest. we compelling Accordingly, definition of constitutes state marriage limit conclude that to the extent the current California statutory provisions are unconstitutional. these statutes marriage opposite-sex couples, I 10, 2004, San Francisco
On of the and February Mayor City County clerk, determine a letter to the that official to county directing sent (City) for what should be made to the forms and documents used to changes apply licenses, and issue so that licenses could be marriage provided without to their or sexual orientation. In regard gender response, county and for the clerk revised forms for the license designed marriage application 12, 2004, and and the City began license certificate of on marriage, February same-sex issuing marriage licenses to couples. two actions were filed in San Francisco following day, separate relief, Court an immediate as well as writ seeking stay prohibit
Superior 22 couples. (Proposition issuance of licenses to same-sex City’s marriage and Education Fund v. San Francisco Legal City County Defense (hereafter Proposition CPF-04-503943) Ct. S.F. & No. City County, (Super. Fund); Thomasson v. Newsom &City Legal Ct. S.F. (Super. Defense retitled as Campaign CGC-04-428794) No. County, (subsequently Newsom, and hereafter referred to as Campaign).) Families v. As California noted, the Fund and the Legal Campaign actions are Proposition Defense are before us in the two six cases whose consolidated appeals present (Ante, 1.) fn. proceeding. immediate in the stay
After court declined to an grant superior Fund actions and the City Proposition Legal Campaign Defense to, solemnize licenses register marriages continued issue of, and a numerous the California General Attorney couples, to have this court seeking number of filed two taxpayers separate petitions mandate, were an actions original asserting City’s issue writ (Lockyer City unlawful and warranted our immediate intervention. Francisco, S122923; County San Lewis v. Alfaro, S122865.) On March an to show in those writ original proceedings, we issued order cause and, matters, officials to our determination of both directed City pending and to refrain from existing issuing marriage enforce statutes addition, March order such our licenses not authorized provisions. in San Francisco all in the two cases then stayed pending proceedings Fund and the Campaign Proposition Legal (the Court Superior Defense *26 actions), at the same time indicated that the did not stay but preclude direct to the raising challenge of a action in court filing superior separate of California’s current statutes. (Lockyer, supra, constitutionality 1055, 1073-1074.) Cal.4th 11, 2004, issued, and while the after our March order was
Shortly court, in filed a consolidated cases still were Lockyer pending City court, for relief in seeking writ petition complaint declaratory superior (1) section initiative statute proposed declaration Code 308.5—an Family to marriages 22 and enacted the voters—does not by by apply Proposition event, California, California in the State of and that all any solemnized between a man and a woman unions statutory provisions limiting marriage San Francisco v. (City County violate California Constitution. of Ct. S.F. & No. CGC-04-429539 County, State (Super. City California of Thereafter, (CCSF).) constitutionality two similar actions challenging same-sex current statutes were filed a number of by California’s are in committed relationships who maintain either that involved they couples California, or that their out-of-state but are not to marry permitted Several statewide are not under California law. recognized marriages thousands of same-sex joined organizations many couples representing (Woo Ct. & Lockyer City County, in these actions. v. S.F. (Super. plaintiffs Ct. L.A. CPF-04-504038) (Woo); County Angeles No. Los Tyler (Super. BS-088506) (Tyler).) No. County, corut, the filed in the trial named to declarations According a diverse of individu- are to these actions embody group who couples parties who come to more than 80 age years age, als who from 30 range years (or are and ethnic and who backgrounds, employed from various racial from) including pharmacist, have retired a wide variety occupations, administrator, teacher, serviceman, man- and transportation military hospital well over a decade and one have been together ager. Many couples 80’s, Martin, are in their have resided and Del who couple, Phyllis Lyon are raising for more than 50 years. Many couples as a together couple children together. actions, Woo, CCSF, with Tyler along previously
Subsequently, actions, were Campaign Fund and Legal filed Proposition Defense the Judicial coordinated, the Chair of a judge appointed order of (JCCP Council, entitled In re Cases Marriage a single into proceeding Proc., 4365; Cases). (Code Civ. the Marriage hereafter referred to as No. to San Francisco was assigned et That coordination proceeding seq.) § (Clinton v. State A. Kramer. A sixth action Court Richard Judge Superior CGC-04-429548) (Clinton)), & No. City County, Ct. S.F. (Super. California challenged similarly who of same-sex group filed by separate *27 statutes, of the current later to the constitutionality was added marriage Cases Marriage coordination proceeding. Cases coordination
On while the Marriage August proceeding court, in Lockyer, was in the our court rendered its decision pending superior supra, 33 Cal.4th that the officials had exceeded their concluding City authority licenses to same-sex in the absence of a issuing marriage couples determination that the judicial the statutory provisions limiting marriage unconstitutional, union of a man and a woman are and further that concluding 4,000 the approximately same-sex in San Francisco marriages performed 11, 2004, to our March order were void and of no effect. In prior legal light conclusions, of these we issued a writ of mandate the City compelling officials to with the and limitations of the current comply requirements statutes, statutes in marriage their duties under these performing directing the officials to all same-sex notify to whom the officials had issued licenses or marriage registered certificates marriage these same-sex were void (Lockyer, marriages from their and a legal supra, inception nullity. 33 Cal.4th 1120.) at p. Lockyer we concluded in Although City officials had acted and that unlawfully had marriages they void, authorized were noted our already made clear that opinion substantive question of California’s constitutionality statutory provi sions to a man and limiting marriage a woman was not before us in the Lockyer and that we were proceeding no on expressing this issue. opinion (Id. 1069; see also id. at at (conc. Moreno, id. p. J.); opn. Kennard, (conc. 1132-1133 & dis. id. J.); opn. (conc. & dis. at p. J.).) opn. Werdegar,
After the issuance of our decision in Lockyer, 33 Cal.4th court in the superior coordination matter proceeded expeditiously solicit a briefing conduct on the hearing under the California validity, Constitution, of California’s statutes limiting to a man and a 13, 2005, woman. On April court issued its on superior decision substantive constitutional question. Although that the statutes plaintiffs argued to a limiting marriage union of man and a woman violated a number of of the California provisions the fundamental Constitution—including right the due marry protected by process of the California privacy provisions Constitution and the clause of that equal protection Constitution—the supe- rior court confined its decision that was based challenge upon equal claim, clause. In protection analyzing court equal protection superior determined that the statutes in California to limiting marriage opposite-sex must be evaluated couples properly under the strict scrutiny equal protection standard, because those statutory enactments rest classification upon suspect (sex) and impinge (the fundamental constitutional upon right The court marry). considered the various state interests and justifications enactments, proffered of those support ultimately concluding a man and a woman not only to the union of limitation of statutory standard, meet the more but also does not scrutiny not the strict satisfy does view, because, in the court’s basis test superior deferential rational legitimate does not further any mandated the statute differential treatment *28 conclusion, that California’s the court held of this light state interest. the Constitution unconstitutional under state statutes are marriage current The court to couples. superior as limit they marriage opposite-sex insofar the coordinated cases. in each of entered in favor judgment plaintiffs decision, reversed in a two-to-one On the Court Appeal, appeal, issue, in a disagreeing the substantive constitutional court’s on ruling superior court’s of the analysis equal with the lower number of significant respects First, Parrilli, McGuiness, J., J.) P. joined issue. (Maj. opn. protection court concluded the superior in the Court of Appeal the majority opinion at upon issue statutory impinge that finding provisions erred that this determining right properly to right marry, fundamental constitutional a of the to right marry person to encompass only should be interpreted to actually sought that right and that the constitutional plaintiffs sex opposite the Court of that marriage—a right Appeal a to same-sex enforce is Second, the or precedential support. found historical lacking any majority that the court’s conclusion rejected superior Court of majority Appeal of sex and for on the basis statutes discriminate suspect California marriage review, the circumstance scrutiny relying upon are to strict subject this reason treat or women or either men against do not discriminate that the statutes other, rather members from the but permit differently either of genders Third, although gender. only opposite either to gender marry person statutes marriage that California’s found majority the Court of Appeal on the basis of differential treatment must be viewed realistically providing does orientation, that orientation went on to hold sexual the majority sexual of the state equal protection classification for purposes constitute a suspect not that, court’s contrary superior thus concluded clause. The majority review determination, scrutiny not to strict subject statutes are marriage basis stan- rational under the deferential evaluated only but rather must be standard, with the superior the majority disagreed that dard. Finally, applying marriage opposite- limitation of statutes’ marriage and found that court review, the state has that reasoning basis survives rational sex couples that definition the traditional interest in preserving legitimate Accordingly, to that interest. related rationally are the statute’s classifications erred in court the superior concluded majority the Court Appeal unconstitutional. statutes finding also wrote the majority opinion who joined of the appellate justices
One “more described as philo- her what addressing opinion concurring opinion, before us.” issues legal the challenging presented sophical questions view, that in her Parrilli, observed J.) concurring justice (Cone. opn. the domestic partnership legislation recognize “seems at this we stage, do not know whether the state must name and same-sex unions in privilege the same exactly traditional are The nuance at way marriages supported. moment in is that the history institution (marriage) institution emerging (same-sex and, are distinct we We are partnerships) hope, they equal. hope because of the equal great attached to each. consequences Childrearing on culture and traditions are passing of each. To the potential consequences degree committed any love and encour- relationship provides security, ages fidelity, creates a environment for children it is entitled to supportive same, Whether it be respect. must called the the state as supported by model, to the traditional time equal only attention to the patient models issue will with the Agreeing majority opinion, concurring justice tell.” concluded that is the business of the legitimate Legislature attempt “[i]t *29 close the distance the between parallel institutions and same-sex (marriage committed domestic partnerships) they to address such develop, concerns.”
The third court dissented from the appellate justice determina- majority’s tion that the marriage statutes do not violate the California Constitution. Kline, (Cone. & J.) dis. (1) opn. dissenting with the justice disagreed majority’s conclusion that the same-sex couples challenging the marriage statutes are seeking recognition of a novel constitutional to “same-sex right marriage” rather than the of an simply established fundamental application choice, constitutional right to a marry (2) of one’s person explained why, view, his sexual orientation should be considered a classification for suspect purposes equal protection principles, concluded that the finally challenged restriction statutory limiting marriage “has opposite-sex couples basis, no rational let alone a compelling justification.” In light of the of the substantive importance constitutional issues presented, we review. granted
II Before our discussion beginning of the significant constitutional issues case, by this we presented briefly address a much more limited procedural point relating to the only Proposition Legal Fund and the Defense Campaign two proceedings—the actions that were filed after immediately San Francisco officials began issuing licenses to same-sex and that were our court stayed by during Lockyer pendency The Court of concluded that proceeding. these two cases Appeal although filed, presented justiciable actions when were they initially once this court its issued decision in Lockyer, supra, Cal.4th these actions no longer controversies, justiciable presented because this court’s decision in Lockyer in those actions were all of the relief to which parties effectively granted continued illegal expenditure (including any entitled prohibition that the determined funds). superior Court Accordingly, Appeal public as moot. to dismiss these two actions at that failing, juncture, court erred the Court of take issue with Appeal’s the Fund and Although Campaign with that determination. agree on this we conclusion point, the Fund ruling, of the Court of Appeal’s challenging aspect Lockyer, superior this court’s decision notwithstanding maintains that that, between continuing find because there is dispute court could properly Code Family and constitutionality and the over the City scope the Fund the voters’ (the statute adopted by approval 308.5 initiative section Fund Legal the Proposition 2000), 22 in March Proposition Defense of Civil under Code vehicle which action constitutes permissible obtain a declaratory judgment the Fund can seek and Procedure section 1060 California decisions Past legal with regard question.7 against City however, establish, strong an advocacy political that notwithstanding group’s its with disagreement of a statute or ordinance—and or ideological support of the legislation—such challenge validity those who question intervene in itself afford group does not disagreement (See, e.g., of the measure. validity action challenging in an formally Brown (1975) 53 etc. Committee v. Socialist Workers Cal.App.3d did not err in rejecting trial court [holding 891-892 Cal.Rptr. 915] *30 action statutes challenging requiring to intervene in Common Cause’s request County rel. Rominger ex contributions]; People disclosure of campaign of Sierra [rejecting 662 Trinity (1983) Cal.Rptr. 147 Cal.App.3d 186] [195 environ of county’s in the enforcement that its interest strong Club’s claim in action it to intervene standing to afford laws was itself sufficient mental a the of spraying of an ordinance validity prohibiting the challenging reasons, of with the Court Appeal we chemical].) agree For similar specified that a direct interest that, legal Fund that it a the showing by possesses absent has not Fund (which acknowledges affected the or adversely will be injured with the disagreement here),8 strong ideological the Fund’s been established 22 is not of constitutionality Proposition or the regarding scope views City’s 7 in “[a]ny may, . . . part person that in relevant provides section 1060 Code of Civil Procedure respective parties, bring legal rights and duties controversy relating to the cases actual . . . .” premises and duties in the his or her ... for a declaration of original an action added.) (Italics action)—before (the CCSF City by the stage the action filed At an earlier seeking intervene Fund filed a motion was established—the proceeding coordination action, appealed from the motion. The Fund the CCSF the trial court denied formally but in court, holding that the Fund its the trial affirmed ruling, Appeal but the Court intervention.” support interest sufficiently direct and immediate “do have a members not... 1030, 1038 (2005) Cal.App.4th 128 (City County San Francisco v. State [27 of California 722].) Cal.Rptr.3d
791 sufficient to afford to the Fund to maintain a lawsuit standing obtain e.g., Newland v. Kizer declaratory (See, these issues. judgment regarding legal (1989) v. State 450]; Zetterberg Dept. Cal.App.3d Cal.Rptr. [257 Public Health 100].) 662-663 Cal.App.3d Cal.Rptr. the Fund is in a no different respect, from other position any member of the or public having strong ideological philosophical disagree that, ment with a advanced legal position by entity through public judicial otherwise, compulsion continues to with a contested measure.9 comply court, argues that the Campaign alternatively superior permitting these two actions to forward go this court’s notwithstanding opinion Lockyer, interim could view that properly decision as providing only manda- mus relief against City, leaving whether the should be question City permanently enjoined from granting licenses to same-sex for resolution in the Fund Proposition Legal and the Campaign Defense Lockyer, however, actions. Our decision in does not such an support interpre- tation. relief, We did not interim afford purport only but rather granted before us the same petitioners full and final mandamus relief to which the Fund and the would have been Campaign entitled in the mandamus actions filed in court superior against officials each of those parties. (Lockyer, City by 1120.) Cal.4th at our decision p. Although recognized of the constitutionality statutes remained resolution open judicial future, in the we indicated that the relief ordered clearly constituted a final (Id. resolution of the mandamus action rather than an interim order. simply Thus, 1112.) the decision court cannot be on the superior supported basis of the advanced interim-remedy theory Campaign. on this
Accordingly, initial procedural agree we with the Court of point, Appeal’s conclusion that once this court’s decision in Lockyer granted mandamus relief sought Fund and the their Campaign previously officials, filed lawsuits against City its court superior should have dismissed those actions moot.10 *31 9 The by amicus curiae brief filed in this court questions right the Pacific Justice Institute the City the declaratory judgment of to maintain a challenging action validity the of the state’s issue, however, marriage statutes. That was not- raised in either the trial court or the Court of Appeal, and its resolution validity would not affect the proceeding of this or the substantive us, issue before because the numerous who have parties been to this coordination action inception unquestionably from its bring are authorized to and maintain the
present challenge marriage to the necessary statutes. We therefore do not consider it or address, juncture, advisable for us to at present by the this issue raised amicus curiae for the first time in proceedings. these 10 conclusion, course, This of does not mean that the superior court should have denied organizations these opportunity participate the proceeding in the coordination as amici (ante, Although, 8), curiae. as noted above at p. fn. the Fund was denied the in the CCSF action that formally intervene part thereafter became of this coordination 792
III before us. constitutional issues substantive significant We now turn to relating statutory the relevant California examining provisions begin by We at the heart of this controversy. that lie and domestic partnership marriage A statehood, of civil institution legal California the 11 of beginning
From a man and between to refer to a relationship has been understood marriage XI, of the California Constitution 1849— section 14 of a woman. Article for constitutional protection explicit California’s first Constitution—provided statute added),12 and (italics separate property” “wife’s assumed clearly its first session Legislature during the California by adopted of opposite involved necessarily persons marriage relationship that the 140, 2, that would be 424 as [listing, marriages ch. (See p. Stats. § sex. void,” “incestuous, brothers “between marriages and absolutely considered uncles blood” and “between as well as the whole of the one half and sisters , id., . . . or nieces, Judge and p. aunts nephews”]; § [“No [or] California, supra, Cal.App.4th (see County v. State City San Francisco proceeding preserved its clear that the Fund 1030), in that matter made Appeal’s decision the Court (id. Moreover, 1044). superior status through amicus curiae ability present its views litigation, court, pending the conduct of broad discretion over exercising its traditional participation of these entities’ the manner and extent authority to determine retained the Bily Arthur we observed in to the court. As be of most assistance amici curiae that would 370, 405, 834 P.2d Cal.Rptr.2d 745]: footnote Young Co. 3 Cal.4th & issues raised by broadening perspective its on the the court presentations assist “Amicus curiae services, of a wide they judicial informed consideration facilitate Among other parties. legal questions.” may important on of view that bear variety points of information extensively received 45 this court has present proceeding, in the regard we note that In this briefs, on behalf of which have been filed some of amicus curiae and well-written researched cities, Legislature, and scores of of the state numerous members largest many of California’s commercial, bar groups, health religious, and mental variety of including a organizations, others, are divided associations, like some of the religious groups, professors. law has benefited from The court proceeding. in this respective parties support their significant analyzing curiae briefs by these amicus provided assistance considerable case. presented issues 11 of civil legal institution law has treated inception, California From the state’s XI, Constitution 12 of the California marriage. Article section religious as distinct from made, duly shall be invalidated marriage, if otherwise regard: “No contract of in this provided set provision is now any religious sect.” This conformity requirements to the want of (c). forth, subdivision Family section language, in Code in identical both real XI, property, in full: “All provided Constitution section 14 Article by gift, wife, acquired afterwards by marriage, and that or claimed owned personal, clearly passed more descent, laws shall be devise, property; and separate be her shall *32 to that held in wife, property, as separate to her relation as well rights of the in defining the registration of the providing for passed also be Laws shall with her husband. common separate property.” wife’s other shall person, in male join marriage any age under of twenty-one or female under the years, age of without the consent of the eighteen years, or . . . parent guardian
California’s current marriage statutes derive in from this state’s Civil part Code, 1872, enacted which was based in Field’s New York large part upon 1872, Draft Civil Code. As former section 55 of the Civil Code adopted contract, is “a provided marriage relation out of a civil personal arising which the consent of the it is parties capable making necessary,”13 code, turn, former section 56 of that unmarried male provided “[a]ny age eighteen or years unmarried female of the upwards, any age of fifteen or years and not upwards, otherwise are disqualified, capable to and consenting consummating marriage.” Although these statutory provi sions did not state that expressly could be entered into a only by woman, man and a the statutes were intended to have that clearly meaning (See were so Code, understood. Code commrs. note foll. 1 Ann. Civ. 55§ 1872, (1st Burch, ed. Raymond Thus, & commrs.-annotators) 28.) this p. court’s decisions of that era declared that the marriage “is one relationship which ‘by a man and woman to live with each reciprocally engage other lives, their during joint and to discharge toward each other the duties imposed ” law on (Mott by the relation of v. Mott husband and wife’ (1890) 82 Cal. “ 413, 416 P. 1140]), and that the contract [22 is one which ‘by a. man and woman capable into such a contract entering mutually engage with each other to live their whole lives in the state of together union which ” ought to exist between a husband (Kilburn v. Kilburn and his wife.’ (1891) 46, Cal. 636].) P. [26
Although California statutes governing marriage and relations family have undergone very significant changes in host of areas since the late th19 century, statutory designation marriage as between a man relationship and a woman has remained unchanged. 1969,
In 1969, 1608, Legislature (Stats. Law Act adopted Family ch. 8, which, 3314-3344) matters, other among § substantially revised 1872, As enacted in former section 55 of the Civil provided: Code further “Consent alone solemnization, will not by marriage; constitute it must be assumption or a mutual by followed duties, rights, obligations.'” (Italics added.) marital 1895, In that statute was amended to code,” language delete the italicized and to add by concluding “authorized this so clause of the statute read: by must be followed “[consent] solemnization authorized (Stats. 1895, 121.) (1898) code.” Norman v. Thomson ch. § 121 Cal. 627-629 143], P. this court statutory change [54 concluded that this operated to abolish common law marriage in require, marriage, California and to for a valid that solemnization be performed as Elden v. Sheldon applicable (See, authorized e.g., California statutes. 46 Cal.3d 582].) Cal.Rptr. P.2d *33 794 of the dissolution but retained and
statutory governing marriage, provisions Civil recodified former sections 55 and 56 of the Code as Civil Code former and sections 4100 4101.14 1971,
In the 26th following of Amendment federal adoption Constitution, which lowered the in elections to 18 of voting age years federal minimum age, our state a bill most Legislature passed lowering statutory ages 1971, 1748, 1, (Stats. California law to that ch. 3736 for age. [“Except p. § whenever, [limited, law, any of term specified exceptions], provision ‘21 it of or similar such shall be years age’ any regarding age phrase appears, ”].) deemed to mean ‘18 of As of this years age.’ part legislation, 4101, (a), of Civil Code former section which provisions previ- subdivision of for of ously marriage age had set the consent for men at 21 and age years for women at 18 of were modified to a uniform of years age age, provide age consent of 18 for both In section years genders. revising language women, 4101 legislation minimum for men the 1971 age equalize “female,” 4101, references to so that subdivi- eliminated “male” section 1971, (a), sion amended in unmarried “[a]ny person stated simply or not otherwise is capable of 18 age years upwards, disqualified, 1971, 1748, 26, (Stats. to and ch. marriage.” consenting consummating § There is no in the of the 3747.) legislative indication 1971 history enactment, however, that the in section 4101 was intended autho- change sex, rize two other of the same and numerous marriage persons marriage statutes, marriage under reflecting understanding long-standing woman, law refers to a union between a man and a remained California Code, Code, (See, (now 500) Civ. 4213 Earn. former unchanged. e.g., § § minors, been “as man and together unmarried not have persons, living [when wife,” license, married Civ. clergymember]; without be they may, any Code, Code, (now 2200) between . . . [“Marriages former Earn. § § . . . and uncles and or aunts and nephews, brothers and sisters between nieces Code, incestuous, .”]; are void . . former from the Civ. beginning § Code, (now 2210) is voidable if was of party Earn. § “[e]ither [a mind, reason, unless after cohabited coming freely unsound such party, wife”].) with husband the other as mid-1970’s, licenses from
In the several same-sex couples sought counties, upon in a number of California relying part clerks county Code subdivi- in the of Civil former section language 1971 change All clerks who were these (a), county sion noted above. approached (18 years age age limits set section 56 of the Civil Code forth in former males, females) marriage by any age upward authorize years for were revised (Stats. years any years unmarried female 18 or older unmarried male 21 older and 333-334), to Civil higher age and in were carried over Code ch. these limits § 4101. former section *34 denied
same-sex but in order to eliminate any applications, as to whether the then California statutes authorized uncertainty existing sex, between two of the same was introduced marriage legislation in persons 1977 of the California Clerks’ Association of to amend request County that of former sections 4100 and 4101 to provisions clarify applicable California statutes authorized man and a only between a woman. 1977, 339, 1, 1295, (Stats. ch. introduced as Assem. Bill No. 607 p. § (1977-1978 Sess.); Analysis see Sen. Com. on of Assem. Bill Reg. Judiciary, 23, 1977, 1; (1977-1978 No. Sess.) Reg. May as amended Governor’s p. Off., (1977-1978 Affairs Enrolled Legal Bill on Assem. Bill No. 607 Rep. 18, 1977, Sess.) Reg. 1.) Aug. p.
The 1977 added the legislation “between a man and a woman” to phrase 4100, the first sentence former so that of section the sentence read: “Marriage ais relation a a personal out of civil contract between a man and arising woman, to which the consent of the of that making contract is parties capable necessary.” The measure also of revised former section 4101 to language reintroduce the references to had been in gender that eliminated 1971. As we 1055, 1076, Lockyer, in explained Cal.4th footnote 11: “The legislative history of the [1977] measure makes its objective clear. (See Sen. Com. Sess.) on Analysis (1977-1978 of Assem. Bill No. 607 Judiciary, Reg. 23, 1977, as amended bill May of the is to purpose prohibit [‘The 1992, of the sex from persons same lawful In entering marriage’].)” when the enacted, Family Code was of former sections 4100 and provisions Code, 1977, of Civil as amended in were without reenacted as change Code Family (Stats. sections 300 ch. respectively. § 464, 474.) Code Accordingly, Family section 300 in relevant currently provides part: is a out “Marriage arising relation of a civil contract between a man personal woman, and a to which the of the consent that parties making capable contract is necessary.”15 of its all light language legislative history, before parties us section agree 300 limits be marriages lawfully may in California to performed marriages opposite-sex couples. however,
There is no agreement similar between the as to the parties, meaning a second of the Family Code—section scope provision 308.5—that also contains a union language limiting marriage to between (a), Family provides “Marriage Code section in is a personal subdivision full: woman, arising relation out civil contract a man of a between and a to which the consent of the parties making capable necessary. that contract Consent alone does not constitute marriage. be by Consent must followed the issuance of a as license solemnization division, except by authorized provided (commencing this Section 425 and Part 4 with 500).” Section Hereafter, specified, statutory Family otherwise unless all references are to Code. 308.5, man and woman. Section an initiative statute to the voters submitted 7, 2000, California 22 at the March election and as Proposition primary election, the voters at that in full: approved provides “Only between man and a woman is valid or in California.” Plaintiffs recognized not limit maintain that section 308.5 should be or to interpreted apply entered into but instead to marriages California, only marriages apply entered into another take jurisdiction', although plaintiffs position California from recognizing marriages provision prohibits out-of-state it should not be control couples, interpreted speak validity marriages question performed Proposi- California. *35 22 Legal tion Defense Fund and the contest Campaign plaintiffs’ proposed 308.5, that the must be of section statute interpretation maintaining properly marriages marriages to to and to limit both out-of-state interpreted apply in California. performed noted, limits marriages
As it clear that section 300 itself is in already but the in California to opposite-sex couples, proper interpretation performed because, unlike section is section quite significant 308.5 nonetheless that, the section 308.5 is an initiative statute—a measure under provisions II, Constitution, be (c) of the California cannot article section subdivision the modification to a by submitting modified the without Legislature proposed the if to Accordingly, marriages vote of section 308.5 applies people.16 well as to measure marriages, any in California as out-of-state performed authorize of same-sex marriages the to by Legislature purports passed to the by in California would have be submitted to approved couples before it could become effective. voters the it to determine the Court of
Although thought unnecessary Appeal both the in our view it is of section 308.5 in scope present proceeding, proper of that statute this meaning juncture, to address prudent appropriate us is that our of the constitutional issue before both to ensure resolution full and accurate of the source California’s understanding rendered with a woman, and a and to to a union between man marriage current limitation or uncertainty regarding Legislature’s ability eliminate and confusion any to in California without couples authorize inability marriage electorate, recently of the as the has Legislature attempted vote confirming do.17 16 Constitution, II, (c) part: provides in relevant article section subdivision California statute that becomes may an initiative statute another Legislature repeal . . . amend or “The amendment or only permits electors unless the initiative statute approved effective when permits repeal or Nothing in amendment repeal approval.” Proposition without their approval. section 308.5 without voters’ section 300 to Legislature passed bills that would have amended In 2005 and provisions not to of section purported and that affect of same-sex permit below,
For the we conclude that of both the light reasons discussed 308.5, reasonably and the of section this must be language purpose provision California and both to those interpreted marriages performed apply in other performed jurisdictions.
First, noted, in full: “Only marriage section 308.5 already provides between a man a woman in California.” This recognized is valid does not to limit statutory statute’s language purport application out-of-state or to distinction between in-state and out-of- marriages draw any state of the least on its marriages. contrary, language On statute—at the statute intended to not to the face—suggests only was apply recognition of out-of-state but also to more marriages, specify broadly between a man and a woman is valid in California. only Although wording section 308.5 could be plaintiffs acknowledge both in-state and out-of-state maintain interpreted marriages, they apply ambiguous one takes into account the location language when in the provision Family Code—its section immediately following sequence *36 308, which relates to out-of-state Plaintiffs out specifically marriages.18 point that section the 308 term with reference to employs “valid” out-of- specific that, state maintain as a the use of the marriages, they word consequence, “valid” the word with in section 308.5 is not (along “recognized”) inconsis- tent with an of the statute that limits its to application out-of- interpretation state marriages. 308.5, which the Legislature applicable only marriages performed viewed as to outside of 3, 4; (Assem. (2005-2006 Sess.) Reg. (k), California. No. Bill 849 subd. Assem. Bill 43No. §§ (2007-2008 Sess.) (m), 4.) Reg. subd. §§ The Governor vetoed both measures. returning In Assembly signature, the 2005 bill to the without the Governor his stated he
believed Proposition required legislation that 22 a such to be submitted to vote of the people—a condition that the 2005 bill did not fulfill—and the Governor further noted that regarding constitutionality ultimate prohibition against “[t]he issue the of section and its 308.5 marriage currently Appeal likely is before the in and will Court San Francisco be []Q by decided the Supreme simply Court. This adds a bill confusion to constitutional issue. If unconstitutional, the marriage necessary. ban of same-sex is this bill is not If the ban is constitutional, (Governor’s is message this bill ineffective.” veto Assem. on to Assem. Bill 29, 2005) (2005-2006 Sess.) 3737-3738.) No. (Sept. Reg. Recess J. 4 pp. Similarly, 849 No. in returning the to Assembly signature, 2007 bill his Governor a without noted that challenge court, currently to 22 Proposition pending position was before this and reiterated his “that the appropriate resolution to to rule Proposition this issue is allow the Court to on 22.” (Governor’s 12, 2007) message (Oct. to veto Assem. on Bill No. 43 J. 9 Assem. Recess No. (2007-2008 Sess.) 3497-3498.) Reg. pp. light In ongoing controversy, question of this it appropriate scope is to resolve the section 308.5 at this time. provides marriage Section 308 in full: “A contracted state that would outside this be valid by the jurisdiction marriage laws of the in which the was contracted is valid in this state.” statute, view of the asserted this court to ambiguity plaintiffs urge consider measure’s as reflected in initiative’s “legislative purpose In this maintain that to history.” regard, relating plaintiffs arguments forth in the voter that this set information indicate Proposition guide initiative was that measure concern other states prompted by proponents’ and nations might marriages authorize of same-sex couples, by to desire ensure that California would not such mar- proponents’ recognize Guide, (See (Mar. 2000) Voter Information Elec. riages. Primary arguments v. Miles Armijo 52-53; favor of in see also against Prop. 623].) that 1422-1424 Plaintiffs assert Cal.App.4th Cal.Rptr.3d that 22 was in and the circumstance when light objective, Proposition to the electorate needed to submitted of section 308.5 were not provisions a establish limitation on in California because section marriages performed in to already that California limited specified opposite-sex 308.5 be only section should out-of-state couples, interpreted apply marriages and not to solemnized California. marriages we with that factor Although agree motivating plaintiffs principal that to have been to ensure California underlying Proposition appears not might validly would of same-sex be recognize marriages statutory entered into in another we conclude the jurisdiction, provision voters—which, we this initiative measure and adopted proposed a man and again, note full between “[o]nly provides be is valid or in California”—cannot recognized woman properly interpreted outside of California. Unlike section marriages apply only performed no that the statute is indicating section 308.5 itself contains language directed outside California. only marriages performed applies Further, a man states both that between only marriage because section 308.5 “recognized” only marriage and a woman is California also *37 California, a the voter is between man and woman is “valid” in average to to marriages to have understood the statute likely proposed apply per- in to formed California as well as out-of-state marriages.19 ballot or of the initiative Nothing background in the materials other to limit to out-of-state indicates that its intended its proponents scope to and the California free Legislature of same-sex leave marriages couples 19 “recognized,” 308.5 City in both the “valid” and section argues employing that terms not marriage involving couple mean a same-sex interpreted could be to that an out-of-state addition, that, California, in an marriage in but only will not be considered a “valid” any couple “recognized” in California in marriage of a same-sex will not be out-of-state view, as, interpretation the example, partnership. for a domestic our capacity—even language, section because City interpretation is not a reasonable 308.5’s proposed any comparable to or to and there is partnership contains no reference domestic status statute recognition of a status. or restrict such no indication that the measure was intended affect 14, 687].) Knight Superior v. Court (See (2005) Cal.Rptr.3d Cal.App.4th 128 23-25 [26
799 rule in validating marriages different same-sex adopt Indeed, California. in view of thrust of the measure as in the explained ballot rebutting initiative and arguments supporting proposed argu- it, ment it would be unreasonable to conclude that the measure was against (and free intended should be to leave to revise interpreted) Legislature (See California law authorize of same-sex Voter marriage couples. Guide, 7, (Mar. 2000) Information Elec. in favor of argument Primary 22, ‘Only 52 22 marriage is 14 words Prop. p. [“Proposition exactly long: between a and a is man woman valid or in recognized That’s [f] California.'’ doubletalk, it! No no hidden common legal agenda. Just sense: Marriage woman, should be between a man and a . . . It’s tough enough [][] [f] stay families to these it harder together days. telling make children Why is just anyone a word can re-define and until it no marriage again again id., italics)]; has longer any (original rebuttal meaning?” against argument 22, Prop. say traditional [“Opponents anybody marriage supporting extremism, hatred and guilty discrimination lesbians bigotry, gays, towards Q] and their families. unfair That’s and nonsense. THE divisive TRUTH [][] IS, choices, we EVERYONE’S freedom to make but draw respect lifestyle the line at for the . re-defining rest of . . . . . ‘YES’ marriage society. [f] [][] clear, on 22 sends message children between a positive institution, man and a woman is a valuable and and now forever.” respected (Original we with the conclusion of the capitalization.)].) Accordingly, agree Court, Court of in Knight Superior supra, 128 Cal.App.4th Appeal 23-24, that section 308.5 was intended to ensure “that California will not . . . legitimize or same-sex other recognize from marriages jurisdictions will not within permit validly marry partners California state.” (Italics added.)20
Second, not only does to be most appear reasonable interpre tation of section 308.5 the statute’s light language but purpose, serious constitutional under the clause and problems immunities privileges Proposition was one (commonly of a number similar measures denominated “little acts]) many DOMA’s” that were proposed adopted [defense states in the early 1990’s and Baehr v. 2000’s the wake of the Court in Supreme decision of the Hawaii Lewin (1993) 74 Haw. Congress’ P.2d enactment of 44] the federal Defense of (Pub.L. Marriage 1996) (Sept. Act No. Stat. codified 1 U.S.C. § 104-199 1738C). Duncan, Revisiting Marriage (See Recognition State 28 U.S.C. Provisions § Duncan, 237-238; Creighton Discrimination? Coolidge L.Rev. also see & Definition *38 Marriage Recognition State Marriage” Statutes in the “Same-Sex (1998) Debate 32 22, 3.) Creighton Proposition only L.Rev. Like a these that provided number of measures a state, “recognized” between a man and a would or adopting woman be “valid” in the commentary and a law review on these measures concluded that the the term “valid” use of that, signify the (accompanying “recognized”) term in these was intended measures to with state, marriages respect performed enacting only marriages to the opposite-sex within between Duncan, Revisiting Marriage Recognition (See State couples valid. legally would be considered Provisions, 233, 261.) Creighton 38 L.Rev. 800 clause federal
the full faith credit of the Constitution would be presented be as a rule out-of-state were section 308.5 to distinct for interpreted creating as with Under marriages. contrasted in-state marriages plaintiffs’ proposed from section 308.5 would the state the recognizing interpretation, prohibit solemnized in other states without marriages couples lawfully same-sex the to the vote of the resubmitting confirming voters question obtaining electorate, but to recognize validity marriages would state permit in same-sex California action alone without couples legislative performed electorate, of the real that the state could raising very vote possibility that marriages of same-sex are in validity performed approve couples to continuing recognition marriages California while to of same-sex deny ante, (See, that in at lawfully are another state. performed couples 796-797, out-of- 17.) fn. treatment discriminatory against such Imposing as with of same- marriages marriages state of same-sex contrasted couples, state, within the would be difficult to with performed square sex couples Orbeck (See, federal constitutional Hicklin v. governing e.g., precedents. 518, 397, 2482]; (1978) U.S. 523-526 L.Ed.2d S.Ct. Toomer v. [57 1460, 1156].) (1948) Witsell 334 U.S. L.Ed. 68 S.Ct. 398-399 [92 it is to limitations section Accordingly, interpret imposed appropriate well as to to in California as applicable marriages performed 308.5 constitutional out-of-state order to avoid serious federal marriages, (Accord, that a contrary would be NBC questions posed by interpretation. (KNBC-TV), Inc. v. Court Subsidiary Cal.4th Superior 337].)21 P.2d Cal.Rptr.2d sum, statutory we that current restriction of conclude California’s to a of a man and a woman rests consisting upon couple 300 and section 308.5. Plaintiffs’ constitutional both section provisions prescribe a rule currently because 308.5 does not Plaintiffs contend that section marriages, marriages to no applies different from the rule California in-state out-of-state only interpreted apply if the problems presented are even statute is constitutional statute, rely marriages, interpreting upon potential it is improper, out-of-state and that adopt in the problems only would arise in the event the state future were constitutional however, above, marriages. because section 308.5 is explained rule for in-state As different law, statute, 308.5, interpretation of section California plaintiffs’ proposed an initiative under time, marriages of recognition it more to obtain of out-of-state present would make difficult Moreover, recognition marriages of such couples. than to obtain of in-state statutory provision, appropriate of a it is assessing interpretations the merits of alternative posed by be each alternative potential problems constitutional would consider statute, (See, e.g., problems. avoids such interpretation of the and to favor an construction Superior (Romero) (1996) Cal.Rptr.2d People 917 P.2d Court 13 Cal.4th 509 [53 constructions, it constitu of which will render susceptible ‘If a statute is two one 628] [“ or in or raise serious and doubtful part, and the other unconstitutional in whole tional which, doing without violence to questions, adopt court will the construction constitutional used, entirety, free from will render it valid in its meaning language the reasonable ”].) constitutionality, though equally even the other reasonable.’ doubt as to its construction
801 thus must be viewed challenge as to the limitation relating embodied each of these statutory provisions.
B Although California statutes have limited and always continue to limit opposite-sex as noted at the outset of this couples, opinion California enacted has recently domestic comprehensive legislation partnership that affords same-sex into a couples opportunity, by entering domestic benefits, to obtain all of partnership, virtually the legal privileges, responsibili- ties, and duties that California law affords to and married imposes upon The recent couples. domestic comprehensive constitutes partnership legislation the culmination of a gradual that have been made expansion available in this state to same-sex who couples choose to as domestic register partners. We briefly review the history domestic partnership legislation California. 1999,
In the Legislature enacted the initial legislation statewide creating 1999, 588, domestic (Stats. Code, partnership registry. ch. 2 Fam. [adding § 297-299.6].) In §§ “California adopting legislation, became one of the first states to allow adults of the cohabitating same sex to establish ‘domestic in lieu of the right many.” (Holguin v. Flores partnership’ 428, 122 Cal.App.4th 749].) The Cal.Rptr.3d defined legislation “domestic as “two partners” adults who have chosen to share one another’s lives in an intimate and committed 297, (§ mutual relationship caring.” (a).) subd. In addition to other for requirements registration as domestic partners, legislation that a provided must share a couple common residence and to be agree jointly each other’s responsible basic living incurred expenses domestic during be at least partnership, years age and unrelated blood in a way would them from married prevent being other, each not be married or a member of another domestic partnership, and either be of the same sex or at persons least one of the must be persons 297, more than 62 (§ however, years age. (b).) subd. The 1999 legislation, afforded those who couples register domestic limited sub- partners only benefits, stantive granting domestic visitation partners specified hospital 1999, 588, (Stats. privileges Code, ch. Health & [adding 1261]), Saf. § § authorizing state to health benefits to the provide domestic partners 588, some state (Stats. Code, employees ch. Gov. [adding § 22867-22877]). The following year, §§ included Legislature domestic within the partners category access persons granted specially designed housing (Stats. reserved for senior citizens. ch. 3.5 §§ [amend- Code, 51.3].) Civ. ing § the Legislature expanded benefits afforded to scope who as domestic register a number of partners, providing additional *40 death, the to use rights, wrongful to sue for
significant including sick an ill an ill child leave to care for or of one’s partner partner, employee medical on behalf receive to make decisions of an incapacitated partner, forced to because of a and to benefits if relocate unemployment partner’s job, 2001, (Stats. child. employ stepparent adoption procedures adopt partner’s 893, 2002, 1-60.) of ch. the treatment Legislature equalized §§ domestic and married in a few additional areas. registered partners spouses 2002, Code, 447, (See Stats. ch. 1-3 Prob. 6401 to [amending provide §§ § of a automatic inheritance of a deceased portion partner’s property]; separate 2002, Code; 412, ch. domestic [amending Stats. Prob. to add § § to the against list of from relationships prohibition partners exempted 2002, draft]; that the beneficiary of a will Stats. being beneficiary helped 901, 1-6 of the Code to ch. various Ins. [amending provisions Unemp. §§ care six weeks of leave to for a sick employees paid family spouse provide domestic partner].)
Thereafter, 2003, of the in Legislature dramatically expanded scope domestic enacting comprehensive of domestic in California rights partners Partner Rights Responsi- the California Domestic and legislation: partnership 2003, 421, Act). (Stats. ch. (hereafter bilities Act of 2003 Domestic Partner (2003-2004 Sess.).) Bill No. 205 The Reg. Legislature introduced Assem. (an uncodified of the set forth the of this act section 1 purpose provision) closer to “This act is intended to California move legislation, declaring: help and contained of inalienable fulfilling promises rights, liberty, equality all 1 and 7 Article 1 of the California Constitution by Sections providing and of their or sexual orienta- regardless gender committed caring couples, tion, and to to obtain essential and benefits rights, opportunity protections, and and to further assume duties corresponding obligations, responsibilities, and lasting family relationships, the state’s interests in stable promoting from the and social consequences Californians economic protecting abandonment, ones, and crises.” the death loved other life separation, lesbian, 2003, 421, 1, (a).) (Stats. “many gay, ch. subd. Finding § committed, and relation- caring have formed lasting, bisexual Californians sex,” with the same concluded Legislature persons “[ex- ships domestic creating responsibilities registered partners panding family relationships would further California’s interests promoting crises, life and would reduce discrimina- during members family protecting with the bases and sexual orientation in manner consistent tion on of sex (Stats. ch. California Constitution.” § of the requirements that the (b).) provisions further subd. Legislature specified in order to secure Partner be construed liberally Domestic Act “shall legal range as domestic register partners who eligible couples full obliga- all the responsibilities, as well as benefits, rights, protections children, other, tions, third and to the parties to their and duties each state, as the laws extend upon spouses.” to and impose (Italics of California added.) (Stats. 15.) ch. §
To effectuate this the Domestic Partner Act amended legislative purpose, to domestic existing statutory provisions relating partnership by adding *41 Code, several new to the most section entirely significantly provisions Family 297.5, which the would become on legislation January provided operative 297.5, (Stats. 14.) (a), 2005. ch. Section subdivision provides § the same “Registered domestic shall have broad and terms: partners sweeping and and rights, protections, benefits, shall be to the same subject responsibili- ties, law, statutes, and duties under whether derive obligations, they from rules, law, administrative court regulations, common or government policies, law, other or sources any provisions as are to and granted imposed upon spouses.” (Italics added.)22
Further, as we noted in Koebke v. Bernardo Heights Country Club (Koebke), Cal.4th 838-839 P.3d other Cal.Rptr.3d 1212] subdivisions of section effectuate the similarly 297.5 intent Legislature’s “by to, the broadest terms using and possible grant registered impose upon, domestic the same and partners rights responsibilities spouses specified current, areas of laws whether are they former or domestic surviving partners. 297.5, For (c), to section a example, pursuant subdivision ‘surviving regis tered domestic the death of the other all partner, [upon] partner,’ granted the same and is rights to all the same from whatever subject responsibilities, law, source in the as those to and ‘granted widow or imposed upon 297.5, widower.’ Similarly, (d) section subdivision states: ‘The rights obligations of registered domestic with to a child of either of partners respect them shall be the same as those of The rights spouses. obligations of former or child domestic with to a surviving registered partners respect either of them shall be the same as those of former or surviving spouses.’ that, (e) Subdivision the extent that of California law requires provisions ‘[t]o to, refer or . . . federal law’ and that this reliance on federal adopt, rely upon law would domestic to be treated than require partners differently spouses, domestic shall ‘registered be treated California law as if federal partners law recognized domestic in the manner same as California law.’ partnership 297.5, (§ (e).)” subd. 297.5, (b), Section comparable expansive language equalizing subdivision contains registered responsibilities partners of former spouses. domestic of former provision registered declares: partners rights, protec “Former domestic shall have the same tions, benefits, subject responsibilities, obligations, and shall to the same be and duties law, statutes, rules, they regulations, under govern derive from administrative court whether law, law, policies, any ment provisions granted common other or sources of as are to and imposed upon spouses.” former Koebke, 824, 839,
We concluded in 36 Cal.4th is clear “[i]t from both the of section and the language Legislature’s 297.5 explicit intent that a chief of the Domestic Partner Act is to statements of goal and married status of domestic equalize registered partners couples.” under the Domestic Partner Act treatment Although generally equalized and married there was California law domestic registered partners couples, did one area—state income taxes—in which the 2003 enactment significant 297.5, (g)—a not treatment. Section former subdivision provide part equal section, in of the 2003 in this regard: “Notwithstanding act—provided returns, their income tax domestic shall use the same state filing partners returns, or that would have status as is used on their federal income tax filing tax returns. Earned income not may been used had filed federal income they income tax be treated as for state community purposes.” property *42 2006, eliminated this in the treatment of the Legislature disparity to state income regard domestic and married with registered couples partners delete the of former subdivi- taxes section 297.5 to by amending provisions 2006, 297.5). (Stats. (and renumber the subdivisions of sion to (g) subsequent § 802, declared that is the intent 2.) ch. The 2006 legislation specifically § “[i]t between the this bill that the enacting inconsistency of Legislature to state income taxation domestic and with registered spouses respect partners removed, their income tax domestic be to file registered permitted be partners and on similar to those governing spouses, returns or terms jointly separately be recognized appropri- the earned income of domestic registered partners bill, this domestic registered as As a result of ately community property. each shall one-half of the who file income tax returns report partners separate do, rather earned both domestic as combined income partners, spouses 2006, (Stats. the taxable their individual incomes for year.” than respective 802, 1, (d).) ch. subd. § a and the Governor into law signed the recently, Legislature passed
Most to contain a of Domestic form Partnership bill the Declaration requiring name of a of change either or both parties option section affording party 567, as Assem. (Stats. ch. introduced of the registration as part process. 12, 2007.) Sess.) Oct. (2007-2008 signed Bill Reg. No. Act that suggests to the Domestic Partner
Although preamble the final or the enactment as did not view legislation of this proponents to the official status available same- with to regard ultimate legislative step 421, 1, act is intended (a) ch. subd. (see Stats. § sex couples [“This inalienable rights, move closer to fulfilling promises California help of Article 1 of the California contained in Sections 1 and 7 liberty, equality (italics added)]),23 . . nonetheless virtue of (by explicit Constitution Act) under the current California governing of the Domestic Partner provisions statute, rights, domestic “have the same registered generally protec- partners tions, benefits, obligations, to the same subject responsibilities, [are] 297.5, (§ are and duties under law ... as granted imposed upon spouses.” (a).)24 subd. 23 796-797, (ante, 17), Legislature passed As noted above at fn. in 2005 and 2007 the (but marriage of same-sex permit bills that would have amended section 300 to 308.5, legislation applicable viewed as purported provisions not to affect the which § California). only marriages outside of The Governor vetoed both measures. performed have the same Although governing registered partners statutes domestic provide legal rights subject obligations response married spouses, substantive and are to the same request briefing by parties a have identified various supplemental for court (nine number) the domestic corresponding provisions differences that exist in the partnership marriage statutory provisions. statutes and in a few other and constitutional First, although have a partnership provisions require partners the domestic that both (§ (b)(1)), at the a subd. there partnership common residence time domestic is established Second, marriage. although legislation requirement partnership is no similar the domestic (§ requires years age persons partnership both be least 18 when established (b)(4)), marry marriage permit person age subd. statutes a under the of 18 to with the Third, (§§ 303). guardian a domestic parent consent of or a court order to establish partnership, persons desiring partners complete the two to become domestic must and file a State, Secretary registers the declaration Partnership Declaration Domestic with the who 298.5, (§ (a), (b)); registry partnerships marry, couple in a statewide for such must subds. clerk, marriage registry marriage county obtain license and certificate of from the have individual, solemnized an authorized and return the license and issued, county registry county certificate of to the recorder of the in which the license was who *43 registry original a certificate to
keeps copy marriage of the certificate of and transmits 306, 359; Code, 102285, 102330, (§§ Registrar the State of Vital Statistics Health & Saf. §§ Fourth, 102355). although' marriage procedure a under which an statutes establish residing together unmarried and and wife man unmarried woman who have been husband may marriage” marriage enter into a “confidential in which the certificate and date of the (§ marriage partnership are law public seq.), not made available to the 500 et domestic Fifth, although provisions partnership.” contains no similar for “confidential domestic both marriage summary of the partnership provide procedure domestic and statutes a for dissolution circumstances, summary a dissolution partnership domestic under the same limited joint filing a Notice of Termination of partnership partners’ of a domestic is initiated any Partnership Secretary may Domestic with the of State and become effective without court action, summary spouses’ joint filing a a whereas dissolution of is initiated only entry judgment; petition superior upon a court and becomes effective of a court in both instances, the not take effect six months the date dissolution dissolution does for least from 299, (§§ sought, during summary period party may is and that either terminate the dissolution. Sixth, (a)-(c), seq.) although proceeding partnership subds. et a to dissolve a domestic of, may a or maintains a superior partner be filed in court “even if neither domestic is resident in, (§ (d)), judgment proceedings domicile the state at the time the are filed” subd. marriage may parties not be obtained one of the has been a resident of dissolution unless county for three proceeding California for six months and a resident of the in which the is filed Seventh, (§ 2320). filing petition protect months to the for in order to prior dissolution (California Retirement tax-qualified Employees’ the federal status of the CalPBRS Public (see summary System) long-term program Appropriations, insurance Sen. Com. on fiscal care course, Of although Domestic Partner Act affords generally registered domestic the same substantive benefits and and partners privileges imposes law affords to them the same upon duties that responsibilities California (and married the act does not imposes upon lawfully spouses, purport law, not) could modify which applicable provisions currently federal do not for domestic and which define for provide partnerships marriage, law, (See of federal as the union of a man and a woman. 1 U.S.C. purposes l.)25 law, of the current of federal federal light provisions many § (and benefits) benefits the amount of those to a married or to a granted person married on the basis of their married status are not available to couple registered domestic Included within this are partners. category significant Medicare, benefits such as those to Social federal relating Security, housing, food federal and veterans’ federal stamps, military programs, employment status for federal income tax All of these filing programs, purposes. 21, 2003; (2003-2004 Sess.) Reg. Aug. of Assem. Bill No. 205 as amended 26 U.S.C. 7702B(f)(2)(C)), partnership provides “nothing the domestic statute that in this section § 297.5, (§ applies modify eligibility long-term plans” (g)), care subd. which means [such] although plan may provide coverage employee’s spouse, may such a for a state it not however, coverage provide employee’s partner; disparity, for an domestic this same would law, permitted marry exist even if same-sex were under California because for (See purposes nonemployee partner spouse. federal law would not be considered a 1 U.S.C. Constitution, 7.) Eighth, an provisions additional difference stems from the of California § XIII, $1,000 (o) (p), granting property article section subdivisions tax to an exemption $10,000; spouse property “unmarried of a deceased veteran” owns valued at less than who however, Legislative Analyst provision as the when this constitutional last was explained (see (Nov. 1988) analysis by Legis. Pamp., Prop. amended in Ballot Gen. Elec. 60), Analyst, p. persons exemption, may few claim this because a homeowner not claim both (Rev. generous exemption property on & exemption and the more homeowner’s the same Code, 205.5, (f)), exemption to both married Tax. subd. homeowner’s is available § 297.5, Ninth, (See (a).) appellate one held persons partners. and domestic subd. decision has § (codified 2251) putative to an asserted putative spouse apply that the doctrine does not § (Velez partner. Cal.App.4th Cal.Rptr.3d domestic v. Smith 1172-1174 [48 642].) brought Plaintiffs have to the court’s attention a statement of decision in recent also declares, ruling Registered Partnership Domestic is not the superior part, court “[a] (Garber equivalent marriage. equivalent of a It is the functional of cohabitation.” v. Garber 04D006519).) Orange County, ruling currently trial court on (Super. Ct. No. That appeal precedential and has no effect. *44 25 determining meaning in “In provides Title section of the United States Code full: any ruling, regulation, of the various any Congress, interpretation Act of or of or States, ‘marriage’ only means a agencies administrative bureaus and of the United the word wife, ‘spouse’ legal one man and one woman as husband and and the word union between only who a husband or a wife.” person opposite refers to a of the sex is in treatment caused federal attempts disparity The Domestic Partner Act to ameliorate 297.5, (e) provisions the extent that by providing in section subdivision that “[t]o law to, way rely of federal law in a that otherwise adopt, upon, provisions California law refer or registered differently spouses, than registered partners domestic to be treated would cause recognized a by California law as if federal law domestic partners domestic shall be treated partnership in the same manner as California law.” benefits, however, to same-sex would be denied also federal important a union of such couples the official designated even if California couples because, noted, federal law as domestic rather than a marriage partnership, between union legal of federal law as “only marriage defines purposes 7.)26 (1 man and one woman.” U.S.C. one § afford
Thus, sum, generally current California statutory provisions in and a domestic to enter into partnership same-sex couples opportunity afforded the benefits and responsibilities obtain all of thereby virtually law married couples. California opposite-sex substantial Partner Act affords that the Domestic acknowledging While that legislation characterize benefits to same-sex couples, plaintiffs repeatedly benefits of the “material” or “tangible” same-sex granting couples only mini- inaccurately this characterization At least in some marriage. respects, afforded by and nature of the benefits and responsibilities mizes scope reach of this legislation domestic law. The broad California’s partnership law common statutory extends to the wide network of extremely provisions, rules, to the institution legal and administrative that substance give practices others, rules and various marriage, including, among many policies civil of chil- affecting raising concerning parental responsibilities dren, the fiduciary relationship mutual duties of fidelity support, respect, communications be- between nature of confidential partners, privileged when tween and a to make health care decisions authority partners, partner’s act or herself. These legal rights his or her is unable to for himself partner “material” or “tangible” more than embody merely responsibilities to married As we financial benefits that are extended by government couples. Koebke, enter decision ... 36 Cal.4th 843: explained “[T]he more than a in the status change legal into a domestic is partnership a new the decision is the creation of individuals .... consequence[] [T]he Act and the provisions in the of the Domestic Partner In addition to the differences (ante, 805-806, 24), plaintiffs point out marriage pp. statute above at fn. set forth rather than partnership as a domestic designation California’s of the union of same-sex standing to couples lack led at one federal court to conclude that same-sex has least County (See Smelt v. challenge Marriage Act. maintain a constitutional to the federal Defense of however, 673.) Orange (9th 2006) does not question, Cir. 447 F.3d The federal decision standing federal constitutional suggest couple that a would lack to mount direct alternatively equal a direct federal challenge to mount to the California statutes of federal benefits that are made challenge partners to the denial to domestic protection theory impermissible differential treatment is couple, available to a married on such legal rights equal benefits to those afforded partners when state law affords domestic concluded The court in Smelt simply properly instead held that the trial court spouses. married litigation subject of the light pending state that abstention was warranted 28), (Id. (post, 681-682.) at fn. in this case explained As below present appeal. Constitution, solely of the California plaintiffs’ challenge upon provisions is based any claim under the federal Constitution. plaintiffs have not advanced *45 unit with all of its commitment family in terms of implications personal well as legal rights obligations.”
The nature and breadth of the afforded rights same-sex under couples the Domestic Partner Act is significant, because under California law the of that enactment is relevant to the scope directly of the constitu question tional of the validity California’s provisions marriage statutes limiting Merlo, in Brown v. marriage As court opposite-sex couples. explained supra, 8 Cal.3d 862: “In of the class out determining scope singled benefits, burdens or special court cannot confine its view to the terms of attack, statute under but must specific enactment’s judge operation against of other background legislative, administrative direc judicial tives which govern legal rights situated As the similarly persons. United States Court ‘The Supreme recognized long ago: constitu question tional is not to be determined artificial validity by standards review [confining action, “within the four comers” of a What is state required statute]. another, whether one or through agency one enactment or more through one, than shall be consistent with the restrictions of the Federal Constitution.’ [Citations.]” of both the current statutes and the
Accordingly, provisions marriage current domestic statutes must be considered in partnership determining whether violate the challenged marriage statutes constitu- provisions tional of same-sex rights the California Constitution.27 couples guaranteed by any potential misunderstanding, To avoid we note that the circumstance that the constitu challenge provisions marriage light tional to the of California’s statutes be evaluated in must marriage partnership legislation any both the statutes and the domestic does not in sense matter, signify plaintiffs by are in a position, worse as a constitutional virtue of the Legislature’s enactment of the Domestic Partner Act. California, comprehensive partnership If a domestic law had not been enacted in and if brought challenge plaintiffs marriage had a constitutional to the California statutes and our they court had concluded that those statutes were unconstitutional because did not afford couples rights couples under the equal opposite-sex benefits to those available statutes, might we well have further concluded—as other state courts have deter- Legislature appropriate disposition mined in similar situations—that the would be to direct the instance, provide equal leaving Legislature, treatment to same-sex to the in the first couples, provide the decision whether to such treatment a revision of the statutes or State, (See comprehensive partnership enactment of a domestic or civil union law. Baker v. 864, 886-889; Harris, 196, 221-223.) supra, supra, A.2d Lewis v. 908 A.2d Legislature already comprehensive partner- Because the California has enacted a domestic virtually legal rights ship broadly grants law which to same-sex all of the substantive enjoyed by opposite-sex couples, plaintiffs and benefits married have been relieved of the successfully prosecuting challenge burden a constitutional to obtain those substantive Thus, only proceeding, question and benefits. in this we are faced with the narrower whether, light partnership logically ensues: the enactment domestic of California’s legislation, statutory the current California scheme is constitutional. State, 864, 886, Harris, supra, A.2d We note that in Baker v. Lewis 196, 221-222, Supreme Jersey Supreme A.2d Court and the New Court Vermont
IV couples, to opposite-sex limiting marriage that by Plaintiffs contend the California of a number of provisions violate statutes California’s statutes the challenged contend plaintiffs Constitution.28 particular, by as marry” guaranteed “right fundamental violate same-sex couple’s Constitution of the California due clauses and process free speech, privacy, 1, 2, Const., I, protection violate 7), additionally equal and (Cal. art. §§ I, Const., 7).29 Because the art. (Cal. Constitution § clause of the California or statutes violates of the the challenged aspect whether question be determinative to marry may the fundamental right upon impinges in evaluating be of review to applied standard deciding appropriate whether address the question we first challenge, plaintiffs’ equal protection constitutional a fundamental infringe statutes challenged independently Constitution. the California by right guaranteed
A refer not contain any explicit Constitution does our state Although beyond cases establish question California marry,” ence to “right past is guaranteed is a whose marry right protection that the right fundamental (See, Conservatorship e.g., the California Constitution. by to all persons of 387, 707 P.2d (1985) Cal.Rptr. 760] N. 40 Cal.3d Valerie [219 are now (Valerie N.) recognized and right marriage procreation [“The . . . These fundamental, rights interests. constitutionally protected [Citations.] 1 of article in section which ... express are aspects privacy the inalienable among which includes I of the California Constitution be that would analogous question constitutional judgment on the state specifically reserved benefits, the substantive to extend to same-sex presented legislature should the decide date, addressed this marriage. neither of these courts has designation, of To but not the official issue. 28 solely challenge upon provisions this case their constitutional Plaintiffs base (See Cal. any under the federal Constitution. and do not advance claim California Constitution Const., I, on those by dependent are not [“Rights guaranteed this Constitution art. § Constitution.”].) guaranteed the United States Constitution, I, and are nature free provides: people “All article section 1 California defending enjoying and life rights. Among these are and have inalienable independent safety, obtaining liberty, pursuing protecting property, acquiring, possessing, added.) privacy.” (Italics happiness, may Constitution, I, (a), “Every person provides: subdivision article section California being for the subjects, responsible his or her sentiments on all freely speak, publish write and (Italics liberty speech press.” or abridge right. may law not restrain or abuse of this A added.) Constitution, I, (a), “A part: in relevant provides article section subdivision California process law or denied liberty, due life, without property may deprived of person not be added.) (Italics protection laws . . . .” equal state, all possessed by ”]; in this Williams v. Garcetti persons ‘privacy.’ 5 Cal.4th 853 P.2d have . Cal.Rptr.2d . . 507] [“we recognized that concept liberties and personal ‘[t]he fundamental human *47 rights entitled to protection against overbroad intrusion or regulation by government . . . extends to . . . such basic civil liberties and not listed in the explicitly Constitution “to right establish a home marry, [as] ...’”]; and bring v. Los Angeles children” Police Assn. up (2002) Ortiz Relief 1288, 98 Cal.App.4th 1303 the state Cal.Rptr.2d [120 Constitu 670] [“under tion, the right to and the marry of intimate right association are virtually . . . synonymous. will refer to the privacy right [W]e this case as the right In re to (1978) 788, marry.”]; 77 791 Cal.App.3d Cal.Rptr. [143 848] Carrafa to right is a marry fundamental constitutional . (citations [“[t]he . .” right omitted)].) The United States Court Supreme initially discussed the constitu tional to right as an marry of the fundamental aspect substantive “liberty” the due protected by clause of the federal Meyer v. process (see Constitution Nebraska 390, (1923) 1042, 262 U.S. L.Ed. 625]), 399 43 S.Ct. but [67 thereafter in Griswold v. Connecticut (1965) 510, 381 U.S. L.Ed.2d 479 [14 (Griswold), the federal 85 S.Ct. court high identified the additionally 1678] to right as a marry of a component “right the federal privacy” protected by (Griswold, 486.) Constitution. With p. California’s of a adoption 1972 constitutional amendment to the explicitly adding “inalienable “privacy” I, of all rights” Californians protected by article section 1 of the California Constitution—an amendment whose demonstrates that it history was in tended, other to among the federal purposes, encompass constitutional right of privacy, with Griswold as it “particularly developed beginning Connecticut[, (Hill supra,] v. National Athletic 381 U.S. . . .” Collegiate 479 Assn. 1, (1994) 7 Cal.4th 633])—the 865 P.2d Cal.Rptr.2d state [26 constitutional to right while still embodied marry, presumably as a component clause,30 of the liberty the state due protected by now also process clearly falls within the reach of the constitutional afforded to an individu protection al’s interest in California’s personal autonomy by state constitutional explicit Assn., Hill v. National Athletic (See, clause. Collegiate privacy supra, e.g., Cal.4th at interest personal autonomy state protected by [the constitutional clause “the includes freedom to privacy consensual pursue N., Valerie familial supra, relationships”]; 161.)31 40 Cal.3d 30 People v. Belous (“[t]he See 71 Cal.2d Cal.Rptr. 458 P.2d 194] right fundamental of the woman to choose whether Supreme to bear children follows from the acknowledgment Court’s and this court’s repeated ‘right privacy’ ‘liberty’ of a in matters marriage, sex”). family, related to Assn., 1, 35, Collegiate in Hill v. National Athletic recognized As we 7 Cal.4th Constitution, I, privacy protected interests under California article section fall into two categories: autonomy privacy privacy. right marry and informational constitutes an to marry the right agree in this all
Although proceeding parties Constitution, there is the state right a fundamental protected constitutes of this fundamental and content as to the scope disagreement considerable that because concluded The Court right. Appeal constitutional state limited has been (and elsewhere) historically in California California under the marry right the constitutional couples, opposite-sex marry right to afford only be should interpreted Constitution properly sex, right plaintiffs and that the constitutional of the opposite person “right is a constitutional the court to recognize are actually asking support historical or precedential the absence of any marriage.” state, determined plaintiffs’ the Court of in this Appeal for such right the California Constitution under the denial of a fundamental claim of must be rejected. *48 of the constitu- characterization the Court of challenge Appeal’s
Plaintiffs and on this marriage, to same-sex right seek to invoke as right they tional 32 Cal.2d Sharp, supra, v. we with Perez agree plaintiffs’ position. point statutory the California provi- decision holding 711—this court’s 1948 not court did were unconstitutional—the marriage sions interracial prohibiting that case to sought that the in characterize the constitutional right plaintiffs did not dismiss the plaintiffs’ “a interracial marriage” obtain as to right had been never marriages on the that such ground constitutional challenge on the sub- Instead, decision focused in California.32 Perez permitted is, to an the importance stance at issue—that right constitutional one’s the person with “to in join individual of the freedom the plaintiffs’ whether the statute impinged upon choice”—in determining 715, 717, added.) italics (32 Cal.2d at right. pp. fundamental constitutional N., to challenge in Valerie 143—which involved supra, 40 Cal.3d Similarly, disabled freedom of developmentally a statute limiting reproductive at right of the constitutional did not analyze scope woman—our court historically women disabled whether examining developmentally issue by freedom, consid- but rather a constitutional enjoyed right reproductive had whether the right in right determining of that constitutional ered the substance to a extending developmen- one that should be interpreted was properly And, 160-164.) addressing in (40 Cal.3d at disabled woman. tally pp. in Lawrence Court the United States Supreme somewhat analogous point, concluded 123 S.Ct. Texas U.S. 558 L.Ed.2d 2472] [156 U.S. 186 L.Ed.2d v. Hardwick (1986) 478 decision Bowers its prior right the constitutional characterizing narrowly S.Ct. had erred in 2841] Hill, consensual (See [describing pursue “the freedom to p. at autonomy privacy. aspect of autonomy”].) personal fundamental to relationships” as an “interest familial explicit contained an legislative first session enacted in California’s statute are negroes mulattoes with or marriages persons of white declaring that provision “[a]ll 424.) (Stats. ch. illegal § and void.” declared to be to be sought invoked in that case as the to right engage intimate conduct, homosexual instead determining that the constitutional there at right issue should be properly understood in a broader and more neutral fashion so as to focus the substance of the upon interests that the constitutional right (Lawrence, intended to protect. 565-577.)33 539 U.S. at The flaw in characterizing constitutional right issue as the to right same-sex marriage rather than the to right marry goes mere seman- beyond tics. It is both important analytically from the of fairness to standpoint plaintiffs’ argument we recognize they are not seeking create a new constitutional right—the right “same-sex marriage”—or change, modify, (as some have suggested) “deinstitutionalize” the institution of existing Instead, that, marriage. contend plaintiffs the state properly interpreted, constitutional right affords marry the same the same mutual benefits—accompanied by responsibilities obliga- tions—as this constitutional right affords to For this opposite-sex couples.34 reason, us, evaluating constitutional issue before we consider it to direct our focus appropriate to the meaning substance of the constitu- tional and to avoid the marry, potentially misleading implications inherent in the issue in terms analyzing of “same-sex marriage.” *49 in
Accordingly, whether the deciding constitutional to right marry pro- tected the by California Constitution to same-sex applies well as to couples and, further, whether the opposite-sex couples current California domestic statutes partnership deny same-sex this fundamental consti- tutional we shall examine the right, nature and substance the of interests the by constitutional to protected right marry. In this undertaking we inquiry, to the side for the put moment the whether the substantive question embodied within the constitutional to include the right marry to have the right official the name couple’s designated rather than relationship by “marriage” term, by some other such as “domestic The latter issue is partnership.” (See, 830-831.) addressed below. at post, pp. 33 Similarly, addressing in validity under the federal the prison Constitution of a rule that
permitted prisoner marry only superintendent to if the prison of the found there were compelling permit marriage, high reasons to the the court did not characterize the constitu right tional at right marriage,” issue as “the to inmate but rather considered whether the general purposes right marry attributes of the fundamental applicable prison to were in the (Turner Safley (1987) 2254].) context. v. 482 U.S. 95-96 L.Ed.2d 107 S.Ct. [96 right marry Because the to enter into a consensual right to refers to the of an individual relationship person, with another find appropriate right marry we it and useful to refer to the to right by as a possessed couple both each individual member of the couple as a (Cf. (1958) N. A. A. C. P. v. Alabama whole. 357 U.S. 458-460 L.Ed.2d 78 S.Ct. [2 [holding nonprofit may right privacy association 1163] assert of its members under association].) right the federal constitutional
813
Sharp, supra,
to
in
v.
marry
In
the constitutional
discussing
right
Perez
in the lead
(Perez),
quoted
then Justice Traynor
opinion
Cal.2d 711
in
decision
Meyer
States
Court’s
seminal
from United
Supreme
passage
court,
Nebraska,
describing
U.S.
There the
in
high
scope
supra,
390.
of the federal Constitu-
the due
clause
“liberty”
process
protected by
“
tion,
doubt,
from
‘[wjithout
denotes not
freedom
merely
bodily
it
stated
contract,
restraint,
in
engage
any
also the
the individual to
to
right
but
life,
to
knowledge, marry,
the common
to
useful
acquire
occupations
children,
according
to
God
to the
establish a home and bring up
worship
and,
conscience,
those
enjoy
privileges
own
to
generally,
dictates of [one’s]
long
orderly pursuit
at common law as essential
recognized
”
714, italics
men.’’
at
added
happiness by
(Perez,
Cal.2d
supra,
p.
free
390, 399.)
Perez),
262 U.S.
Meyer,
italicized
marry”
quoting
supra,
[“to
than
continued:
is thus
more
a civil
“Marriage
something
decision
Perez
state;
right
it is a
subject
regulation by
contract
fundamental
of free
(Perez,
added.)
men.”
at
italics
Cal.2d
p.
Perez,
nature
decisions
of mar-
discussing
Like
California
subsequent
linkage
and the
between
riage
recognized repeatedly
have
marry
home,
establishing
raising
identifying
children
civil
marriage,
establish, with
as the means available to an individual to
a loved
choice,
one
his or her
an
officially recognized family
relationship.
598],
De
v. De
Cal.2d 858
P.2d
Burgh
Burgh
example,
(id.
863),
at
“the
interest in the institution of
explaining
public
marriage”
“The
unit of
court stated:
is the basic
our
center of the
family
society,
affections that
and enrich
It channels
personal
ennoble
human life.
biological
destructive;
otherwise
it ensures
might
socially
drives
become
the care
environment;
and education of children
continuity
stable
it establishes
another;
from
one
it nurtures and
individual
generation
develops
initiative that
a free
Since the
is the core of our
distinguishes
family
people.
(Id.
863-864.)
the law seeks
foster and
society,
preserve marriage.”
*50
267,
Sheldon,
Elden v.
46 Cal.3d
in
claim that
rejecting
in an unmarried
that
was akin to a
persons
relationship
allegedly
cohabitant
similarly
marital
should be treated
to married
for
persons
pur
relationship
distress,
an
of emotional
this
bringing
negligent
of
action for
infliction
poses
“
court
that
is accorded
of
in
degree
dignity
explained
‘[mjarriage
special]
[a
that
the man and
is at once
recognition
of
woman
joining
“[t]he
individually
that one
socially productive
fulfilling relationship
most
’ ”
274-275,
(46
can
in the course
a
Cal.3d at
italics
enjoy
pp.
of
lifetime.”
added,
(1982)
Nieto v.
Los
City
Angeles
Cal.App.3d
quoting
[188
of
660,
31],
(1976)
Marvin v. Marvin
18 Cal.3d
quoting
Cal.Rptr.
[134
815,
106].)
557 P.2d
The court in Elden
Sheldon further ex
Cal.Rptr.
“Our
the state’s interest in
on
plained:
emphasis
promoting
morality.
is not based on anachronistic notions of
policy
relationship
favoring marriage
‘rooted in the necessity
an
providing
institutional
basis
defining
relational
rights
responsibilities ...
fundamental
organized society.’
married
Formally
are
granted signifi-
[Citation.]
cant rights and bear important responsibilities toward one another which are
not shared by those who cohabit without
. . .
marriage.
Plaintiff does not
a
suggest
convincing reason why cohabiting unmarried
who do not
couples,
bear such
another,
legal obligations toward one
should be
permitted
recover for
to their
injuries
to the
partners
same extent as those who
275,
undertake
(46
these responsibilities.”
Cal.3d at
added.)
italics
p.
Garcetti,
In Williams v.
supra, Cal.4th
a case in which a criminal
statute that
to the
prohibited contributing
of a minor was
delinquency
on the
challenged
ground the statute was unconstitutionally vague, this court
stated: “Plaintiffs
emphasize
fundamental nature of the
at stake in
matters of child
We need no
rearing.
of their
convincing
we
significance;
have already
recognized
concept
personal liberties and funda-
‘[t]he
mental human rights entitled to
overbroad
protection against
intrusion or
regulation by government . . . extends to . . . such basic liberties and rights
not
listed in the
explicitly
Constitution
“to
right
marry, establish a
[as]
;
home and
children” . . .
bring up
to educate
right
one’s children as one
chooses
and the
right
and to be let
privacy
alone
’ ”
in “the
government
realm of
private
(5
577.)
life.”
Cal.4th at
family
p.
And in
v. Peninsula
Country
&
Club
As these and other California decisions make to many right of an individual to a marry represents right establish legally recognized
815 such, choice, and, is of fundamental as with the of one’s family person the individual.35 both to and to society significance ways. in marriage many of civil is served the institution Society children, and course, welfare of interest in the of has an overriding Society, which children in setting in a stable facilitating family the role marriage plays the welfare of furthers be raised two may loving parents unquestionably addition, and educating in family and the role of children society. the social and children serves interest society’s by perpetuating socializing for over society genera- and continuing support culture providing political in mind in authorities have It is these features that the California tions.36 (See, of society. the “basic unit” or block” “building describing marriage 858, is De v. De family Cal.2d 863 Burgh Burgh, supra, 39 [“[t]he e.g., 87, Baker v. Baker .”]; (1859) 13 Cal. 94 basic unit of our . . society [“[t]he of its and the maintenance interested in the relation marriage is public Sheldon, Elden v. .”]; . . of the social system as it is the foundation integrity, Broussard, 267, 281, J.) to “the (dis. of [referring Cal.3d fn. 1 opn. 46 of society”]; as the block building maxim that serves well-accepted 871, 932, Dawn D. v. Court (1998) Cal.4th 968 Superior Cal.Rptr.2d 17 [72 Chin, the foundation J.) ‘the (dis. family provides P.2d of 952 opn. [“ 1139] cherished values which its most which our is built society through upon Furthermore, of that are ”].) the legal obligations support are best transmitted’ relieve society marital and family relationships an integral part 35 Court, discussing marriage and the in Supreme Numerous of the United States decisions right significance of this lies right marry, similarly recognize that the federal constitutional to (1978) (See, family. e.g., Zablocki v. Redhail relationship to the establishment of a its 618, to surprising not that the decision L.Ed.2d S.Ct. is [“It 434 U.S. 98 [54 673] relating procreation, marry importance level of as decisions placed has been on the same childbirth, recognize family ... would make little sense rearing, relationships. child [I]t respect and not with family other matters of life privacy respect with society.”]; family of the in our relationship that is the foundation decision to enter the [“[Marriage] is the (1888) 8 S.Ct. Maynard 723] 125 U.S. L.Ed. v. Hill [31 nor be neither civilization family society, without which there would foundation of the and of (1977) L.Ed.2d 431 U.S. Organization Foster Families progress.”]; Smith v. family society”].) in our [describing marriage as basic foundation S.Ct. 2094] “[t]he experience kinship parents both children and “Through the commitments of forms. duty pristine in their most authority, responsibility, the need for and value only family on the not society to a extent (cid:127) American (cid:127) (cid:127) (cid:127) (cid:127) (cid:127) has ‘relied considerable HO HD self-governing citizenship for young required but also to instill the habits nurture others, . . . to moderate community. family on the to teach to care [and] We have relied us society only family a democratic not perspective, self-interest With duty. . and civic . . source of moral companionship, principal emotional but also provides authority, and love that characterize the formal Something permanence, about the combined HO (Hafen, teaching . . . .” enterprise family possible performance of this uniquely makes Privacy—Balancing the Individual Marriage, Kinship and Sexual Status Constitutional 463, 476-477, (hereafter omitted Constitutional Mich. L.Rev. fns. Social Interests Marriage).) Status *52 816
obligation for individuals caring who become may or who incapacitated are otherwise unable to (See, themselves. Elisa B. support e.g., v. Superior (2005) Court 37 Cal.4th 123 P.3d 660].)37 Cal.Rptr.3d [33 view of significant interest in public’s marriage, California decisions have that the recognized Legislature has broad in authority to and seeking protect regulate incentives to and relationship creating marry adopting measures (See, to the marital protect McClure v. Donovan relationship. e.g., (1949) 33 Cal.2d P.2d Legislature has full control of 17] [“the and fix subject marriage the conditions under which the may marital status bemay .”].) created or terminated . .
Although California cases that past is an institution in emphasize marriage interest, which as a whole has a time society vital our decisions at the same that the and recognize legal right to enter into such an opportunity officially recognized also is of relationship overriding to individual and importance above, affected As noted California decisions have couple. past described as “the most and marriage socially productive individually fulfilling Marvin, that one can in the course a relationship enjoy (Marvin lifetime.” 660, 684; accord, Hill, 18 Cal.3d supra, Maynard v. 125 U.S. supra, [describing life”].) as “the most in relation The important ability committed, an individual to in a join long-term, officially recognized family with the of his or her choice is often relationship person of crucial signifi- cance to the individual’s The commitment to happiness well-being. legal mutual long-term emotional and economic that anis support integral part an an officially recognized marriage individual with the relationship provides in ability invest a with another adult in rely upon loving relationship that be crucial to the way may individual’s as a development person achievement of his or her full potential.38 37 individuals, “Although legal system has shifted society its focus from families to still sick,
relies on play caring young, aged, severely families to crucial role in for the disabled, states, needy. and the major Even in advanced welfare families at all levels are a government, sharing agencies resource for dependency public burdens of with in various (Glendon, ways greater degrees.” and to Family lesser The Transformation of Law 306.) expectations personal “The formal commitment of is . . . the basis of stable relationships. willingness marry permits important legal and personal assumptions Marriage permanence arise about one’s intentions. . . . carries with it a commitment toward places category it temporary. different of relational interests than if it were A ‘justifiable indefinitely’ . expectation relationship permits parties . . will continue [the] relationship invest themselves in the with a reasonable belief the likelihood of future (Constitutional Marriage, Status of benefits warrants the attendant risks and inconvenience.” 463, 485-486, omitted; also id. [“Mediating Mich. L.Rev. fns. see 479-480 value-generating value-maintaining agencies society.’...[][] structures are ‘the A recent analysis mediating family major concept structures identifies the as ‘the institution many thing private sphere, people within the and thus for the most valuable in their lives. Here commitments, emotions, they . plan make their moral invest their for the future . . .’ The [and]
Further, formal, relationship officially recognized family into a entry become a of one’s with the to part an individual opportunity provides economic critical network of a wider and often family, providing partner’s v. East Cleveland Moore (Accord, e.g., and emotional security. no is by S.Ct. 431 U.S. 504-505 L.Ed.2d 1932] [“Ours the members of uniting for the bonds the means a tradition limited to respect choice, family or a sense of necessity, responsibil- nuclear . . . Out of family. in and close relatives to draw together participate it has been common for ity, times of . . . the of a common home. Especially the duties and satisfactions mutual to come together the has tended family ... broader adversity life.”].) The or rebuild a home opportunity sustenance and to maintain secure of their own not only an officially recognized family of a to establish couple to join extended but also family permits couple access to an grants feature of community social structure that is a family significant broader Moreover, love and one’s officially express life.39 to publicly opportunity a family to another by establishing for and commitment long-term person that also is an element of self-expression with together person important course, the to have ability one’s of Finally, can to life. give special meaning and with a loved one who can share the joys children and raise them of that endeavor is without doubt a most valuable component challenges and and can have children autonomy. Although one’s liberty personal persons official raise them outside of the institution of civil affords marriage, unit, a family granting sanction and to governmental sanctuary parent a to afford or her children the substantial benefits that flow from his ability environment,40 means of estab- stable family ready public two-parent basis one’s to one’s legal others the lishing parental relationship fulfillment, comfort, has family’s role in emotional and as well as human providing spiritual omitted)].) (Fns. long sociological literature.” been dominant theme in 39 “Middletown scholarly sociological updated researchers in an reported, As one article “ city) single important ‘the most fact (involving representative American found that project” that it is not isolated’ from kinship family contemporary about the nuclear Middletown is organized on the basis structuring, groups ‘the kin standpoint networks. From the of social [f] larger integrates into the social provide people the substance which and descent parents and their children . . . The moral sentiments established in the interaction structure. (and groups loyalties which bind social produce are extended and elaborated to consensus ” (Constitutional Marriage, supra, Status societies) a cohesive whole.’ possibly into 463, 482, omitted.) Mich. L.Rev. fns. develop enables optimize child] conditions that ‘a home environment which [a “[T]he and reinforced clearly encouraged patterns are cultural responsible into a mature and adult’ child-parent expectations legal expectations permanency that create a sense of stable families, Supreme Court By giving relational interests within priority permanent, relations. (Constitutional stability.” that maximize reinforced the law’s insistence on conditions has 463, 473, omitted.) Marriage, supra, quoted article Status Mich. L.Rev. fn. stable, “[njot necessarily provide nor do all acknowledges all formal families are children, and divorce continuity prevailing levels of child abuse wholesome for their (Id. Nonetheless, 475.) indicates that “the commitments the article amply demonstrate.” continuity for children. stability inherent in formal families do increase likelihood Koebke, Sheldon, 824, 844-845; Elden (cf. children supra, 36 Cal.4th supra, 267, 275), 46 Cal.3d and the additional security comes from the that his or her knowledge with a child will be parental afforded relationship protection by government the adverse against actions or claims of others. Court, Dawn D. v. Superior (Cf., e.g., 932,[when 17 Cal.4th biological birth, mother was married at the time of a child’s husband is conception child, father of the and another man presumed who claims to be the child’s father has no biological constitutional an action bring child].) establish a legal with the relationship *54 are, course,
There of and many who choose not to enter persons formal, into such a and who to live their relationship lives without the prefer sanctioned, and officially recognized commitment to another long-term legal Nonetheless, person signified by or an marriage our equivalent relationship. opportunity to establish an officially recognized cases that the recognize with a family loved one and to obtain the substantial benefits such a offer is of the relationship may and utmost to deepest any importance individual and who wish to make such a choice. couple
If civil were an only marriage institution whose role was to the serve interests of it society, could be asserted that the reasonably state should have full to decide whether to authority establish of abolish the institution of institution, (and similar any such as domestic partnership). however, basic, the to constitutionally recognizing, right marry is protected (Perez, civil fundamental free right—“a of men right [and women]” 711, 714)—the 32 Cal.2d supra, California governing cases establish that this right embodies fundamental interests of an individual that are from protected or elimination the state.41 our abrogation by Because cases make clear that the to is an right marry integral of an individual’s interest component I, autonomy 1, personal of article protected by section privacy provision development they may justify legal Those factors are so essential to child alone traditionally given and preferences permanent kinship marriage.” incentives to units based on (Id. 475-476.) noteworthy recognizing It is that the California and federal Constitutions are not alone in right marry to is not properly simply privilege viewed as a benefit or that a fit, constitutes a basic government may right establish or abolish as it sees but rather that the right people. civil or human all Rights, Article 16 of the Universal Declaration of Human 1948, adopted Assembly provides: the United Nations General “Men and women of full race, age, any nationality religion, right marry without limitation due to have the and to (cid:127)[] n (cid:127) family. family found a ... (cid:127) The unit group natural fundamental [1D (cid:127) (cid:127) (cid:127) society by society protection and is entitled to and the State.” Numerous other international similarly recognize right marry family” human treaties “to and to found a as a basic 23, 1976, 23; (Internat. right Rights, human Covenant on Civil and Political Mar. art. see Freedoms, European Rights Convention for the of Human and Fundamental Mar. Protection 12; 18, 1978, 17), Rights, July art. American Convention on Human art. and the many throughout family explicitly constitutions of nations the world link I, of article the due clause interest liberty protected by process and of the right Constitution that under the California section it is apparent children—has a home and raise independent to establish many—like right content, right be understood as simply and cannot properly substantive chooses to (but only if) Legislature enter into such a relationship if 497, (1961) 367 U.S. (Accord, and retain it. Poe v. Ullman establish Harlan, (dis. J.) intimacy L.Ed.2d 81 S.Ct. opn. [“the 1752] [6 an feature of and wife is essential necessarily accepted husband allow, but only the State not must institution of an institution which marriage, (italics which and in it has fostered always every age protected” added)].)42 afforded of the substantive
One very important aspect protection is, course, an individual’s right right marry California constitutional with) (or integral intrusion into interference be free from undue governmental is, the of marital or familial privacy. features of this relationship—that (See, In re Wellman e.g., Marriage Cal.App.3d Griswold, accord, child]; one’s raising e.g., Cal.Rptr. 148] [manner *55 Cleveland, 431 U.S. U.S. Moore v. East supra, contraception]; [use embod- with extended The substantive family].) protection 494 [cohabitation however, ied in the to what is marry, goes beyond constitutional right sometimes characterized as a “negative” right insulating couple’s simply interference, intrusion or overreaching governmental from relationship a take at affirmative includes to have the state least some “positive” right action to unit. family acknowledge support obligate the constitutional to does not
Although right marry clearly the basis of a state to afford tax or other benefits on governmental specific take to does the state to marry obligate couple’s family relationship, right Wardle, Protection (See Federal Constitutional provide special protections to these institutions. Marriage: Why (2006) and How [describing 453-461 constitutional 20 BYU J. Pub.L. for nations].) provisions of other marry legal suggested right simply that the to One commentator has federal constitutional that the state affords to the “comprises right expressive a of access to the and material benefits marriage offending the marriage may . . abolish without institution of . states [and that] 2081, 2083-2084, Right Marry (Sunstein, (2005) to L.Rev. Constitution." 26 Cardozo concedes, however, omitted.) right suggested that its view of the question italics The article in identify right marry to as an marry governing with the federal cases that inconsistent (26 at integral liberty by the due clause Cardozo L.Rev. protected process feature of the interest abolished, 2096-2097), marriage acknowledges that even official was and further “[i]f arrangements might give people right to some of the benefits Due Process Clause (id. 2093). ordinarily existing under state law” As people are entitled which married above, light governing identifying explaining cases the source and explained of the marry, that under the California right we conclude significance of state constitutional right having viewed as substantive content. properly this constitutional must be Constitution official, affirmative action to grant to the public recognition relation couple’s (Perez, supra, In re Carrafa, 711; as ship family Cal.2d 788, 791),43 as well as to the core Cal.App.3d elements of the protect family from at least some relationship (Cf. interference others. types improper Sesler v. Montgomery 78 Cal. P. holding 488-489 [21 185] [in ,wife, that a confidential conversation between husband and over allegedly heard an “does not constitute a eavesdropper, within the publication slander,” of the law of meaning court sound explained “every consideration of for the public policy, every just regard inviola integrity of the relation . . . —the bility most confidential relation known to the law”—dictated that conclusion].) This constitutional also has the right additional affirmative substantive effect of assurance to each mem providing ber of the that the will enforce the mutual relationship government obliga tions between the (and children) to their that are an partners important In re (Cf. commitments which the aspect rests. upon relationship Marriage Bonds (2000) 24 Cal.4th 5 P.3d 27-29 Cal.Rptr.2d [contrasting fiduciary during with relationship 815] relationship to marriage].) prior of the fundamental nature light substantive embodied
in the right their central to an marry—and individual’s importance to live a life as a full member opportunity happy, meaningful, satisfying California society—the Constitution must be to guar properly interpreted to all individuals and antee this basic civil without couples, regard their sexual orientation.44 true, course,
It is
an
as
historical matter in this state marriage
has been limited to a union
always
between a man and a woman. Tradition
alone, however,
has not been viewed
generally
sufficient
justification
*56
43 Three of the
Supreme
four decisions of the United States
Court
that have found state
right
marry,
right
statutes invalid as violative of the
to
that
as
is embodied in
federal
Constitution,
prohibited
involved circumstances
in which an individual was
under state law
Loving Virginia
(See
(1967)
v.
entering
officially
family
from
into an
relationship.
sanctioned
Redhail,
1010,
374;
1817];
supra,
Zablocki v.
perpetuating, Inn, Perez, Inc. v. 711, 727; Sail’er supra, constitutional right. (Cf. 32 Cal.2d (Sail’er 329, Kirby 1, P.2d (1971) 5 Cal.3d 17-19 Cal.Rptr. 529] [95 Belous, 954, Inn).)45 supra, People 71 Cal.2d observed in As this court “ 967, what . . .” ‘In determining are not static. concepts “[constitutional have never been confined to lines are we unconstitutionally discriminatory, have restricted due to a historic notions of more than we any process equality, deemed to be the limits of fixed of what was at time catalogue given ” In re (See, (1970) 3 Cal.3d e.g., Antazo fundamental rights.’ [89 255, 473 P.2d of this long-standing recognition practice Cal.Rptr. 999] [“the the continued evolution of does not foreclose its reassessment in the light .”].) . . system fundamental of our constitutional precepts decades, that, in recent there has been a There can be no but question in understanding fundamental and dramatic transformation this state’s California has treatment of individuals legal gay gay couples. repudiated that that were based on once common past practices viewpoint policies individuals, and at one character and morals of denigrated general gay time even a mental illness rather than as characterized as homosexuality one of the of our and diverse humanity. numerous variables common simply This current and conduct regarding homosexuality recognize state’s policies individuals are entitled to the same and the same gay legal rights respect 45 Perez, describing supra, opinion, 32 Cal.2d the lead in the historical basis of statute, earlier antimiscegenation quoted judicial California’s from a California decision of an forth, (1854) 404), (People assertedly an established and era v. Hall Cal. which set as (Perez, alleged proposition, persons. uncontrovertible inferior nature of all non-Caucasian 720.) supra, rejected demeaning at and unsubstantiated 32 Cal.2d court Perez characterization, racially discriminatory justification and found there was no for the restriction (Id. 722-727.) right marry. on the Inn, court, Similarly, holding statutory unconstitutional a in Sail’er 5 Cal.3d bartenders, generally being took note of provision prohibited employed women from significant society’s appropriate had occurred in views of the role of women evolution that society Pointing and women. to the United capacities and of the relative abilities and of men Oregon U.S. 412 Supreme early-20th-century States Court’s decision in Muller v. 324], judge today justify L.Ed. the court in Sail’er Inn observed: “No would 28 S.Ct. wholly openly to such biased and chauvinistic statements classification based on sex resort *57 ‘[Hjistory the fact by pp. as this one made Justice Brewer in Muller discloses 421-422]: [at by always dependent upon man. He established his control at the outset that woman has been forms, diminishing intensity, has superior physical strength, and this control in various with rights may Though personal and contractual be present. upon continued to the . . . limitations operate will by legislation, disposition there is that in her and habits of life which removed . . . but against rights. exceptions . . . Doubtless there are individual full assertion of those life, looking independent position an in she is viewpoint at it from the of the effort to maintain ” 17, (5 15.) p.at upon equality.’ not an Cal.3d fn. 822
and afforded all other individuals and are from dignity discrimina- protected orientation,46 and, tion on the basis of their sexual more specifically, recog- nize that individuals are into the kind of gay fully entering capable loving committed enduring serve as the foundation of a relationships may 47 and of for and family caring children responsibly raising to the assertions in Justice Baxter’s
Contrary
concurring
dissent
861, 864,
(see
867-869),
at
ing
post,
our reference to numerous
opinion
pp.
statutes
California’s current
demonstrating
recognition
individuals
gay
46, 47)
are entitled to
(ante,
treatment
fns.
equal
nondiscriminatory legal
does not
that an individual’s entitlement to
suggest
treatment under the
equal
of his or her sexual
law—regardless
orientation—is
grounded upon
recent enactment
Legislature’s
Domestic Partner Act or
other
any
legislative measure.
individuals to enter into
capability
gay
loving
enduring
to those entered into
heterosexuals is in
relationships comparable
Act;
no
way
enactment of the Domestic Partner
dependent upon
of that legislation
constitutes an
official
adoption
simply
recognition
explicit
of that
recent
Similarly,
numerous
enactments
capacity.
legislative
prohib
discrimination on the basis of sexual
were
iting
orientation
not
required
order to confer
individuals a
status
to that
upon gay
legal
equal
enjoyed by
heterosexuals;
of,
these measures
official
simply provide
recognition
explicit
for,
Indeed,
and affirmative
status.
in this
support
equal legal
change
state’s
treatment of
individuals and homosexual conduct is reflected in
gay
past
administrative,
scores
actions that have occurred
legislative,
judicial
1975,
71,
7, 10,
(See,
over the
30 or more
ch.
years.
e.g., Stats.
past
§§
133, 134
statutes
consensual
and oral
pp.
[revising
criminalizing
sodomy
4, 1979)
Governor’s Exec. Order No.
copulation];
[barring
B-54-79 (Apr.
sexual-orientation discrimination
state
Morrison v. State
against
employees];
175,
(1969)
Board
Education
In of this sections 1 and 7 of article I of the California light recognition, Constitution cannot be to withhold from individuals properly interpreted gay the same basic civil (including right personal autonomy liberty establish, choice, an right with of one’s person officially recognized and sanctioned that the family) California Constitution affords to heterosexual individuals. and due of our state privacy process provisions Constitution—in . . . have inalienable declaring right[] people “[a]ll [the] I, (art. 1) and that no be privacy” may “liberty” person deprived [of] § I, due (art. 7)—do without of law not process to reserve to purport persons § of a sexual orientation the particular substantive afforded those protection by In of the evolution of our state’s provisions. light understanding concerning equal dignity to which all are entitled without respect regard persons orientation, to their sexual it is not these in appropriate interpret provisions that, matter, as a way excludes individuals from the practical gay protective N., 143, 154, Valerie (Cf. reach of such basic civil 40 Cal.3d rights. 160-165 that the [holding state constitutional right personal autonomy matters of choice must be to afford reproductive interpreted incompetent developmentally disabled women the benefits accorded that constitutional right].) reaching contrary conclusion that the right marry guaranteed by
the California Constitution should be understood as an only protecting individual’s right to enter into an officially recognized family relationship sex, with a person the Court of relied a number opposite Appeal upon of decisions that have cautioned at against defining too level of high those generality constitutional that are of the substan- protected part due (See, tive doctrine. e.g., Washington Glucksberg process (1997) 702, 722, 521 U.S. L.Ed.2d 117 S.Ct. in case [holding, [138 2258] suicide, constitutional of statute assisted challenging validity forbidding liberty interest issue should not be defined as an interest in “how choosing “ ”; to die” or ‘the time and manner of one’s death’ instead issue was whether the interest the due liberty clause “includes a protected process to commit right suicide which itself includes a right assistance doing so”]; Reno v. Flores 507 U.S. L.Ed.2d 113 S.Ct. 1439] [holding, in case federal challenging policy placing deportable juveniles adults, custodial child care rather than them to unrelated that the releasing “ ” at issue should not be viewed as ‘freedom from restraint’ physical but rather “the of a alleged right child who has no available close parent, relative, or and for whom the legal guardian, government to be responsible, in the of a rather than of a placed custody willing-and-able custodian private *59 824 institution”]; or child-care government-selected
government-operated Court, 932, in D. 17 Cal.4th case supra, [holding, Dawn v. 941 Superior a an father an to establish biological sought which alleged opportunity another a child whose mother was married to biological with relationship birth, the child’s that the man at the time of conception appropriate interest in whether a father has a biological generally liberty was not question child but rather whether the a with his establishing biological relationship a father’s “interest in a biological establishing federal Constitution protects at the child bom to a woman married to another man with his relationship child’s birth”].) time of the conception the importance None of the decisions—in foregoing emphasizing “ fundamental liberty a ‘careful of the asserted
undertaking description’ 702, 721)—suggests, v. 521 U.S. (Washington Glucksberg, supra, interest” however, fundamental constitutional or right that it is to define a appropriate afforded the by right interest in so a fashion that the basic protections narrow a sharing a class of individuals are withheld from persons—composed histori as a sexual orientation—who characteristic such particular personal above, our the benefit of such As noted rights. have been denied cally 711, Perez, the right 32 Cal.2d to define declining narrowly decision in supra, interracial the fact that discrimination against did not consider marry, a to be reason many years” reject was “sanctioned state looked to (Id. 727.) Instead the court claim in that case. plaintiffs’ rooted in itself right marry, right deeply the essence and substance of nation, whether the our state and to determine and tradition of history constitutional For right. upon plaintiffs’ statute challenged impinged reasons, not a justifica alone does history provide similar it is apparent one’s marry only the constitutional right protecting tion for interpreting with a person officially recognized family relationship to enter into an ability Chief with the view expressed In this we regard, agree sex. opposite in her dissenting York Court of opinion New Judge Kaye Appeals Robles, once 23: rights, 855 N.E.2d supra, “[Fundamental Hernandez that these ground denied to on groups cannot be recognized, particular (Cf. v. Louisiana Taylor denied those rights.” have been historically groups is no longer L.Ed.2d S.Ct. U.S. 537 95 [“it 419 692] [42 automatic given be excluded or may that women as class tenable to hold criminal jury is that on sex if solely consequence based exemptions that women were ... If it was ever the case are almost male. totally venires be that none of them should or were so situated to sit on juries unqualified service, that time has since long passed”].) jury required perform Furthermore, decisions in several prior unlike the situation presented of a constitutional of a claim in which recognition party’s this court diminish- reducing have had effect would invariably necessarily Cal.4th (1993) (see, Johnson v. Calvert e.g., of other persons ing 84, 92, fn. P.2d [noting, Cal.Rptr.2d rejecting 776] child, mother’s claim of a interest in the of a surrogate liberty companionship of such an interest would recognition interests impinge upon liberty Court, Dawn D. v. of the child’s Superior 17 Cal.4th legal parents]; asserted [rejecting biological establishing father’s claim of interest in liberty with a child whose mother was married to another relationship biological *60 man when bom]), the child was conceived and in the context our present recognition that the constitutional to to same-sex right marry applies couples as well as to does not diminish other any opposite-sex couples person’s constitutional will continue to rights. Opposite-sex couples enjoy precisely the same constitutional have rights they traditionally possessed, unimpaired well, our that by recognition this basic civil is to right gay applicable, individuals and same-sex couples. 22 Legal Defense Fund and the that the Proposition agree Campaign
constitutional to is right related to the of two to marry integrally right persons to establish an join together but contend that officially recognized family, they that can be only family possibly encompassed by right constitutional to is a headed a man and a marry family woman. out that Pointing past cases often have linked and these procreation, parties argue because a man a only and woman can children with one produce biologically another, the constitutional to is limited right marry necessarily to opposite-sex couples.
This contention is flawed for a number of To fundamentally reasons. with, begin although legal institution of civil well have marriage may originated large to a stable part promote relationship procreation Baker, e.g., Baker v. (see, of children supra, raising 13 Cal. [“the first purpose matrimony, by laws of nature society, procre ation”]; Blankenhorn, see (2007) The Future generally Marriage 23-125), to and to often are although right marry procreate treated as related closely interests aspects privacy liberty protected N., the state and e.g., Valerie (see, federal Constitutions 40 Cal.3d 143, 161; Skinner v. Oklahoma 316 U.S. L.Ed. 1110]), 62 S.Ct. the constitutional to never has viewed as right been marry the sole preserve individuals who are physically having capable children. Men children and women who desire to raise with a loved one in a child recognized but who are to a with family unable conceive physically their loved one never have been excluded from the to right marry. Although Defense Fund and the Proposition Legal assert Campaign circumstance that has not been limited to those who can bear children can be reference to the state’s reluctance explained justified by to intrude of individuals into their if upon privacy by inquiring fertility, that were an accurate and for the absence of such adequate explanation limitation it would that in follow instances in which the state is able to make an it would a determination of an individual’s without such fertility inquiry, state to an individual who is be for the constitutionally preclude permissible however, is, children from into There entering marriage. incapable bearing that an individual who is no whatsoever to authority support proposition children does not fundamental bearing incapable possess physically is untenable. A to Such a right marry. proposition clearly person constitutional children still has the who is of bearing potential physically incapable means of through and raise a child through adoption become parent and the constitutional ensures marry assisted reproduction, raise children in an officially recognized family individual the opportunity to share or her life. with whom the individual has chosen his with the person Thus, be to channel marriage may an underlying although important purpose cannot be viewed as into a stable family relationship, purpose procreation who are the constitutional limiting right marry capable a child together.48 biologically producing *61 to who the that the to is limited right marry couples
A variant of contention is to marriage is that the of purpose promote are capable procreation right exclusively and that a restriction this limiting procreation” “responsible of recent state from this A number to follows couples purpose. opposite-sex standard, decisions, have the rational basis equal protection court applying for a a conceivable justification relied this reasonably upon purpose decisions have to These limitation of statutory marriage opposite-sex couples. children through can have or obtain that although explained demonstrates, methods or resort to such assisted adoption, reproduction is an intended necessarily that case of a same-sex couple, parenthood two methods considerable plan- because each of these requires consequence a child often an couple whereas in the case of opposite-sex ning expense, These sexual intercourse. couple’s is the unintended consequence that although affording could conclude courts reason that a state plausibly an incentive needed to ensure to is benefits of marriage opposite-sex couples a channeled into a stable family relationship, that accidental procreation because cannot they for same-sex couples incentive is not required similar Sadler, v. (See, supra, Morrison e.g., children accidentally. produce Robles, 15, 23-29; 7.) N.E.2d 855 supra, v. 821 N.E.2d Hernandez encouraging procreation interest in responsible Whether or not state’s for the justification a conceivable reasonably can be viewed as properly or concealment misrepresentation types hold that one of Although California cases or marriage misrepresentation intentional nullity of is the justify judgment a that will (1942) v. Vileta (see, 53 Vileta e.g., inability children to have concealment of an individual’s 376]; 311 P.2d Cal.App.2d [49 v. P.2d Cal.App.2d Aufort Aufort to a inability have children—when disclosed 620]), suggested that an to has no case nullifying a denying marriage a license or a for constitute basis prospective partner—would marriage. limitation of to man and a woman for of the statutory purposes standard, rational basis this interest does not protection clearly provide equal for an basis or constitutional appropriate defining limiting scope to right None of the cases to many. discussing right marry—and past as one of the fundamental elements of au- identifying right personal our Constitution—contains tonomy liberty protected by any suggestion constitutional to individuals right marry is who are possessed only by risk of children or that this producing accidentally, constitutional implies is not right for and important guaranteed individuals equally responsible can be who counted to take upon for appropriate precautions planning Thus, the state parenthood. although undeniably legitimate has interest in be that interest cannot viewed as a valid promoting “responsible procreation,” basis the class of defining limiting who claim the persons may of the fundamental constitutional protection right marry.
Furthermore, although promoting facilitating stable environment for the procreation raising of children is one of the vitally unquestionably important the institution of and the purposes underlying constitu to, tional right cases make clear that this is not marry, past confined right Baker, or restrictively by, (See, defined alone. Baker e.g., purpose Cal. second is the matrimony purpose promotion [“[t]he . happiness .”].) of each other . As parties by society noted above, our cases have that the past recognized is the right marry enter into a that is “the center of the relationship affections personal *62 ennoble and (De enrich human life” v. De Burgh Cal.2d Burgh, supra, 39 863-864)—a that once is “at the most relationship socially and productive individually fulfilling one can in a that the course relationship enjoy of Marvin, (Marvin 660, 684; lifetime.” v. 18 Cal.3d see v. supra, also Elden Sheldon, Cal.3d supra, 274.) 46 The enrichment afforded personal by to be right obtained not marry may a whether or to by couple they choose children, have and to never right has been limited to those who marry Indeed, Connecticut, or desire to have children. in Griswold v. plan supra, U.S. of the 479—one seminal federal cases down a state as striking law violative of the federal of right constitutional court privacy—the high upheld a married to use right to demon couple’s contraception prevent procreation, strating that the of is quite clearly not the sole or promotion procreation defining in Turner purpose marriage. Similarly, Safley, 482 U.S. supra, 78, the court that the held constitutional to extends to an right marry individual confined in state who has no to prison—even prisoner right conjugal visits with his would-be that spouse—emphasizing “[m]any impor tant attributes of remain . . . after into account the limitations taking life . . . imposed by of emotional prison [including expressions support the] and public commitment are an and of the important significant aspect [that] (482 95-96.) marital U.S. at Griswold and Although Turner relationship.” pp. Constitution, relate to to under the they accurately federal right marry reflect the to as Accord- right state constitutional well. scope marry this cannot be or interest defined limited to state’s ingly, right properly by a favorable raising in environment for fostering procreation children. Defense Fund and also Legal rely upon Proposition Campaign
several academic commentators who maintain the constitutional right should be viewed as to same-sex because marry inapplicable couples would sever link that contrary assertedly marriage pro interpretation message” vides between and child would “send a rearing procreation immaterial by to the that it is to the state whether children are raised public Blankenhorn, mother father. The Future (See, e.g., their biological 201-212; Wardle, “Multiply Replenish": Marriage, Interests in Marital Same-Sex State Marriage Light Considering 771, 797-799; J.L. & (2001) Pol’y Gallagher, Procreation Harv. Pub. Law Marriage Is For? The Public Marriage Purposes What 773, 779-780, 790-791.) we La. L.Rev. Although appreciate genuine children we conclude concern for the well-being underlying position, (cid:127) claim merit. that the core substantive recognition lacks Our well as right marry the constitutional to same-sex as encompassed by apply or not that it is any way does opposite-sex couples imply unimportant or her biological immaterial the state whether a child is raised his by we do not alter or By mother and father. this circumstance recognizing diminish owe to their biological legal parents either responsibilities incentives that the state a child’s children or the substantial provides stable, to enter into and raise their child in long-term biological parents Instead, such an constitutional interpretation committed relationship.49 that a family relationship, confirms stable marry simply two-parent as the state’s official recognition protection, equally supported being children California are raised the numerous who for important raised being those children by opposite-sex same-sex couples This (whether biological interpretation are they parents adoptive parents).50 *63 49 marriage, and relationship procreation As our earlier of between noted in discussion many opposite-sex choose not have children and other many opposite-sex couples married to through variety a couples parents through adoption assisted-reproduction or of married become (whose surely acceptance marriages these exceed techniques. societal of numbers If unions) message” to the a that it is immaterial potential of same-sex does not “send number there and we conclude by biological are raised their mother father—and state whether children why message would be our message—it to sent clearly is no is difficult understand such (See, Baker right marry. e.g., a recognition possess constitutional to couples that same-sex State, 864, supra, 744 A.2d 882.) 50 census, of from at the time report upon a review of data the 2000 According to based 70,000 (See raising than children. couples census in California were more that same-sex Couples Raising Sears, Couples And Children In Same-Sex Same-Sex Badgett & California: also guarantees individuals who are in a same-sex and who are relationship, children, raising to obtain opportunity from state the official recogni- tion and accorded a to take on the support family by agreeing substantial and mutual long-term and that obligations are an essential and responsibilities of a inseparable part family relationship.51
Accordingly, we conclude that to as embodied in right marry, I, article Constitution, sections 1 7 of the and California same-sex guarantees the same couples substantive constitutional rights to opposite-sex couples choose one’s committed, life and enter with that partner into a person officially and recognized, protected all family relationship of the enjoys constitutionally based incidents of marriage.52 2004) data (May census 2000 p. 2 <http://www.law.ucla.edu/williamsproj/publications/ from 15, 2008].) CaliforniaCouplesReport.pdf> May report [as also states that the 2000 that, date, census data indicates as of that percent of female couples same-sex and 28.4 percent children, of all same-sex couples raising in California were and further notes that those figures do not include being (Id. 10.) foster children couples. raised same-sex at p. 51 support argument recognizing right marry the constitutional to applies to couples eventually “will devalue marriage] the institution to the detriment [of children,” (brief one Justice) amicus curiae brief of the American Center upon for Law & relies passage attributed to the philosopher John respect Rawls with to the institutions of family, and in which Rawls states that one of the essential family functions of the to “is orderly establish the production reproduction and society and of its culture from one generation to the next” and that “[Reproductive socially (Rawls, necessary labor is labor.” work, Justice as (2001) 162.) however, Fairness: A Restatement In the cited after explaining that “essential to the family role of the the arrangement in a way reasonable and effective children, raising caring for ensuring development their moral and education into the culture,” view, wider proceeds Rawls to observe that in his “no particular family form of the heterosexual, (monogamous, otherwise) is so required by political far conception justice long so arranged as it is to fulfill effectively these tasks and does not run afoul of other (Id. political 162-163.) values.” Rawls then adds that way “this observation sets the justice which duties, as fairness deals the question gay with rights and lesbian and how they family. affect the If these and duties are orderly family consistent with life and the children, are, education they ceteris paribus things being fully other equal], [all admissible.” 163, (Id. 42.) p.at fn. emphasize We that our right conclusion that the marry constitutional properly must be interpreted apply gay gay individuals does not mean that this constitutional right similarly must be understood polygamous to extend to or incestuous relationships. Past
judicial explain why decisions our nation’s culture has considered the types latter of relation ships mutually inimical to the supportive healthy family relationships promoted by the (See, 145, constitutional marry. e.g., Reynolds (1878) v. United States 98 U.S. 165-166 244]; (1890) 333, L.Ed. Davis 299]; [25 v. Beason 133 U.S. L.Ed. 10 S.Ct. [33 People (2007) v. Scott Cal.App.4th 592]; Cal.Rptr.3d 192-194 State v. Freeman [68 155 Ohio App.3d 909]; Ohio 801 N.E.2d Smith v. State 1999) (Tenn.Crim.App. 518-520.) Although 6 S.W.3d the historic disparagement of and against gay discrimination gay couples clearly individuals and longer constitutionally is no permissible, the state continues to have a strong adequate justification refusing officially polygamous sanction or incestuous relationships potentially because of their detri *64 (Accord, mental effect on family a sound e.g., Murray City (C.D. environment. Potter v. Utah
B General, court, if, before this that even The as Attorney briefing argues concluded, we the extends to right have state constitutional to same- marry sex as well as to the current California statutes couples opposite-sex couples, do “because all not violate the fundamental of same-sex of the rights couples, the right that have informed to dignity traditionally interests personal been to the Domestic Partner given through have same-sex marry couples the Act.” that “under the domestic word Maintaining system, partnership that the to domestic the denying registered is all state is ‘marriage’ partners,” can no General asserts that fundamental to more Attorney right marry “[t]he be the to denominate their the basis for same-sex to state couples compel anyone than it could the basis for to committed be relationships ‘marriage’ the marital institution changing the state from name of prevent legislature ” General that in argues itself to ‘civil unions.’ Accordingly, Attorney Act, Partner afforded same-sex the Domestic light couples of the to be the right California statutes cannot found to violate current to marry. same-sex couples occasion in to determine whether the state constitu-
We have no this case right all the constitutional to couples tional to affords right marry necessarily a “marriage,” official or designate family relationship the state to their require whether, not Legislature would violate Attorney suggests, as the General order to constitutional to right marry if—perhaps emphasize couple’s institution is distinct from the institution religious that this civil clarify other than as official marriage were to a name marriage—it assign all The current California couples. of the designation family relationship for all course, statutes, do not a name other than assign couples, the traditional desig- but to exclusively instead reserve opposite-sex couples a different designation—domestic partner- nation of marriage, assign available to same-sex couples. official only family relationship ship—to abstract, is considered a or not the “marriage,” Whether name one of the core the state to right marry, core element of constitutional have right couples is the right elements of this fundamental dignity, respect, their accorded same family official relationship officially family relationships. accorded to all other recognized stature as that name assigned a distinction between the statutes—by drawing current 1068-1071, 1985) 1137-1140, (10th 1984) cert. affd. Cir. 760 F.2d F.Supp. Scott, 145]; People 106 S.Ct. den. U.S. 849 L.Ed.2d Thus, 193-194.) interpret it state improper our conclusion Cal.App.4th not marry gay does affect inapplicable individuals constitutional against validity existing legal prohibitions polygamy constitutional close relatives. *65 available to family and the name relationship opposite-sex couples assigned to available to family same-sex and relationship couples, by the historic and reserving highly of exclu- respected designation to while sively same-sex the new opposite-sex couples offering only couples and unfamiliar designation domestic a serious risk of partnership—pose denying official family same-sex relationship couples dignity equal ais core element of the respect constitutional to As right marry. Perez, observed by at oral City argument, this court’s conclusion in 32 Cal.2d that the statutory interracial provision barring marriage was unconstitutional, would have been the same undoubtedly even if alternative nomenclature, union,” such as “transracial had been made available interracial couples. we
Accordingly, although with the General agree Attorney that the provi- sions of the Domestic Partner Act afford same-sex most of the couples substantive attributes to which are they entitled under the constitutionally state constitutional right we conclude marry, the current statutory of different assignment to the designations official family relationship and of opposite-sex same-sex couples must be couples properly viewed as potentially the state impinging constitutional upon right same-sex couples to marry.
V The current statutory assignment different names for the official family hand, relationships opposite-sex on the one couples of same-sex other, on the couples raises constitutional concerns not in the context only the state constitutional but marry, also under the state constitutional equal clause. Plaintiffs contend protection that by permitting only opposite-sex to enter couples into as a relationship designated “marriage,” as a “domestic designating partnership” into which parallel relationship enter,53 same-sex scheme couples may denies statutory impermissibly laws, same-sex I, couples article equal protection guaranteed by section of the California Constitution. The California relevant statutes treat clearly and same-sex opposite-sex in this couples differently respect, the initial we must consider in question issue addressing equal protection is the standard of review that should be in evaluating this distinction.54 applied 53 Although the Domestic Partner Act also partnership opposite- makes domestic available to sex couples partners (§ (b)(5)(B)), if at least one of the age years is over the of 62 subd. under sections relationship designated “marriage” 300 and 308.5 the only is available opposite-sex couples only and thus relationship designated partnership” “domestic available couples. to same-sex defendant, Fund, One Proposition Legal argument Defense advances a threshold couples opposite-sex “similarly regard are not situated” with to the are two
There different standards California traditionally applied courts in under the evaluating challenges legislation made equal protection *66 v. City Hernandez (2007) clause. As we 41 recently explained of Hanford “ ‘ 442, (Hernandez), Cal.4th P.3d first is Cal.Rptr.3d 279 159 33] [59 “[t]he the and basic and conventional standard economic social reviewing welfare there is a or of which ‘discrimination’ differentiation legislation treatment between classes or individuals. . . . invests legisla [That standard] tion with such differentiated treatment constitu involving presumption and that distinctions drawn statute by challenged tionality ‘requires] merely bear a conceivable state . . some rational . legitimate purpose.’ relationship invalidity burden of the a classification under this demonstrating [T]he ’ the who assails party it.” first standard rests This squarely upon [Citation.] basic is to as the standard referred ‘rational protection generally equal (41 298-299.) or ‘rational standard.” Cal.4th at basis’ relationship’ pp. Hernandez, supra, 279, 41 Our decision in Cal.4th further explained: ‘ is test second standard more is equal protection stringent “[T]he “[a] [that] in cases classifications’ or on touching ... applied involving ‘suspect interests.’ Here the courts ‘an attitude active and adopt ‘fundamental . . . critical the classifications strict Under the analysis, subjecting scrutiny. the state bears the burden cases, strict standard in such establishing applied compelling not it has a interest which the law but that the justifies only necessary its distinctions drawn law are further by purpose.’ [Cita- ’ is referred to as the ‘strict . . . This second standard generally tion.]” 299, (41 omitted.)55 standard.” Cal.4th at citation scrutiny’ (1969) (Purdy Fitzpatrick legitimate & State 71 challenged purpose statute’s v. of California 566, 77, 645]), assertedly obviating any need for court Cal.Rptr. Cal.2d 578 456 P.2d [79 plaintiffs’ equal protection applies even to which standard of review claim. consider (conc. 872-874) Although post, pp. & at and separate opinions opn., Justice Baxter dis. 881-882) (conc. argument, opn., post, Justice & dis. embrace this which in Corrigan any meaningful equal protection reality statutes from challenged would insulate review, pairs clearly groups lacks merit. Both at issue consist we conclude this contention formal, officially legally binding recognized, enter individuals who wish to into a imposes the same long-term family relationship privileges the same affords circumstances, but obligations question there is no that these responsibilities. Under these sufficiently bring play equal protection into categories two of individuals are similar “ the two groups a court to ‘whether distinctions between principles require determine ” 1185, (2006) (People treatment.’ 37 Cal.4th justify unequal [39 Hofsheier 821, 29].) P.3d Cal.Rptr.3d 279, Hernandez, 299, applying 12: “In As 41 Cal.4th footnote we noted standard— n clause, a third Supreme applied Court has federal United States equal protection illegitimacy.’ scrutiny’—‘to discriminatory classifications based on sex ‘intermediate 465, 1910].)” 456, (1988) Past California (Clark 486 U.S. L.Ed.2d 108 S.Ct. v. Jeter 461 [100 decisions, contrast, evaluating discriminatory scrutiny applied have standard when strict 15-20; Inn, (see, Arp v. supra, 5 Workers’ e.g., on sex Sail’er Cal.3d classifications based 849]; (1977) Cal.Rptr. P.2d Michael M. v. Comp. Appeals Bd. 19 Cal.3d 572]; (1979) 601 P.2d Catholic Superior Cal.Rptr. 25 Cal.3d 610-611 [159 Court maintain, Plaintiffs on three that strict grounds, scrutiny separate case, drawn standard that should be in this the distinctions contending applied (1) and same-sex statutes between discriminate opposite-sex is, sexual (that (2) on the basis of sex discriminate on basis of gender), orientation, each of a fundamental We discuss right. impinge upon these three in turn. claims
A statutes, Plaintiffs contend that relevant California initially by drawing *67 a distinction between of a man and a woman and consisting couples couples of two of the same sex or discriminate on the basis consisting gender, persons of sex and for that reason should be to strict under the state subjected scrutiny clause. California cases have equal protection Although governing long established that statutes that discriminate on basis of sex or are gender Catholic (see, to strict under the California Constitution subject scrutiny e.g., Sacramento, Court, 527, 564; Charities Inc. v. Superior 32 Cal.4th supra, Inn, 1, 17-20), Sail’er supra, 5 Cal.3d we conclude that the challenged statutes cannot be viewed as on the basis of sex or properly discriminating gender for of the California clause. purposes equal protection
In a drawing distinction between and same-sex opposite-sex couples, challenged marriage statutes do not treat men and women differently. Persons of either are treated and are gender equally permitted a marry only of the person gender. opposite light equality treatment between the distinction the relevant genders, by statutes prescribed does not constitute discrimination on the plainly basis sex as concept understood. commonly contend, however, Plaintiffs distinction nonetheless statutory should be as sex or gender viewed discrimination because the statutory limitation in a case is an individual upon marriage particular dependent upon sex or gender. Plaintiffs that because a woman who wishes to person’s argue another woman would be do if rather marry so she were man permitted woman, than and a man who wishes to another man would be marry man, to do so if he were a woman rather than a the statutes must be permitted seen as discrimination on the basis of sex. Plaintiffs on the embodying rely Perez, decisions in 32 Cal.2d supra, Loving Virginia, supra, v. U.S. in which this court and the United States subsequently Supreme Court found that statutes at issue in those cases antimiscegenation Sacramento, Superior Charities Inc. v. Court Cal.Rptr.3d 32 Cal.4th 564 [10 67]), scrutiny P.3d applied equal protection and have not an intermediate standard under (or principles any involving suspect case quasi-suspect) classification. race, White discriminated on basis of even statutes though prohibited from Black and Black from marrying persons marrying persons persons White persons. Perez, 32 Cal.2d supra, Loving Virginia, supra, decisions case, 1, however, because the
388 U.S. are from this clearly distinguishable treated members of antimiscegenation statutes issue those cases plainly races from White minority differently only intermarriage persons, prohibiting (in that involved White in order to words undisguised persons prevent Perez) “the race from being the defenders of the statute in Caucasian and mentally contaminated races whose members are nature physically (Perez, 722; also Loving, inferior to Caucasians.” 32 Cal.2d at see supra, p. 388 U.S. at fact that interracial Virginia only prohibits [“The white demonstrates that the racial classifications involving marriages persons stand on their measures to maintain White designed must own as justification, circumstances, Under there can be no doubt that the these Supremacy”].) to race in the at issue in and Loving unquestionably reference statutes Perez reflected the kind of racial discrimination that has been always recognized for strict under calling scrutiny analysis. equal protection *68 Perez, (see, and a number of other decisions v. e.g., McLaughlin In Loving, 283]), 85 S.Ct. courts (1964) Florida U.S. L.Ed.2d 379 192 [13 that a statute that treats a based couple differently upon have recognized the race or of different races whether the consists of of same persons couple the or close reflects a of generally integration relationship policy disapproving and as such of individuals of different races in the setting question, as an instance of racial discrimination with embodying is viewed properly contrast, and both of its members. By past to the interracial couple respect decisions, elsewhere, hold that virtually uniformly in California and judicial but that accords or that treats men women equally statute policy of based whether it consists differential treatment either to couple upon sexes, an individual based the rather than or to of same sex opposite persons of the same he or attracted generally sexually persons whether she upon characterized as than the is more gender, accurately rather gender opposite than of orientation rather differential treatment on the basis sexual involving discrimination, be on the analyzed should an instance of sex properly terms, that, a statute or in realistic recognize These cases ground. former or from differently couples, that treats same-sex couples opposite-sex policy the attracted to of same treats individuals who are sexually persons are attracted to from individuals who sexually persons gender differently man or an individual woman does not treat an individual opposite gender, differential but rather accords because his or her gender differently orientation. treatment because the individual’s sexual 490-491, Students, 24 Cal.3d Gay example, In Law supra, discriminating alleged contended that an employer’s policy plaintiffs the basis of “sex” within constituted discrimination on homosexuals against In statute.56 support of California’s fair meaning employment practice contention, homosexuals against “discrimination argued this plaintiffs the homosexual’s based on the gender part is in effect discrimination of racial 490), to a series (24 “analogizing ner . . .” Cal.3d at p. 388 U.S. (Gay cases” including Loving Virginia, supra, discrimination Students, 18), & asserted that 24 Cal.3d at fn. plaintiffs Law supra, p. (id. 490). of sex” at is discrimination on the basis “such discrimination that “as a semantic Gay court Law Students Although recognized this (ibid.), we have some might contention argument” plaintiffs’ appeal claim, that the statute explaining proscribing nonetheless squarely rejected ‘sex,’ did discrimination “discrimination on the basis of not contemplate conclusion, (Ibid.) relied not only homosexuals.” In we against reaching sex against that the identical statutory prohibition on circumstance of the federal Civil set forth in title VII discrimination employment not discrimina Act had been as Rights uniformly encompassing interpreted but also on homosexuality, tion on basis of sexual orientation the California circumstance that the with agency charged administering had of sex discrimination statute consistently interpreted prohibition claims (Gay of discrimination based sexual orientation. upon inapplicable Students, 490-491; accord, In re Maki Law supra, e.g., P.2d administration forbidding 639-640 Cal.App.2d 64] [ordinance violate constitutional to a sex did not state massage opposite person no be from any shall provision mandating person disqualified pursuing “ ”].) lawful vocation ‘on account of sex’ Gay that have our decision in Law the three decades since elapsed Students, of contexts 24 Cal.3d decisions in a judicial variety *69 statutes, or or actions have concluded that similarly policies, public private treatment either to a that treat the but that accord differential genders equally sex or of based whether are of same they opposite couple upon persons sexes, he or she is generally sexually or to a based whether person upon rather than the do gender, attracted to of the same gender opposite persons (either within the of meaning not constitute instances of sex discrimination on discrimination or for of purposes equal sex statutory prohibitions the federal amendments contained within clauses protection equal 56 rendered, Gay Law Students decision was applicable California statute At the time the sex, explicitly prohibit but did not employment on the basis of prohibited discrimination Students, (See Gay Law homosexuality on the basis of or sexual orientation. discrimination 458, 489.) supra, explicitly employment current discrimination statute 24 Cal.3d California’s (Gov. of sexual orientation. either on the basis of sex or on basis prohibits discrimination Code, 12940, (a)-(d), (j).) subds. § 836 constitutions),
and various state but rather are more viewed as properly instances of differential treatment on the basis of sexual orientation and Medina v. Income (See, should be evaluated on that accordingly ground. e.g., Div., New Mexico 1131, Support (10th 2005) Cir. 413 F.3d 1134-1135 Co., harassment]; DeSantis Tel. & Tel. Inc. (9th v. Cir. [workplace Pacific 327, Com. v. Wasson 1979) F.2d 608 329-330 of employment]; [termination 487, 499-502, 1992) 842 S.W.2d (Ky. 507 “deviate sexual prohibiting [statute v. sex”]; State Walsh (Mo. 1986) intercourse with another of the same person Deane, 508, 571, v. [same]; 713 S.W.2d Conaway 510-511 A.2d supra, 932 Harris, 585-602, 196, Lewis v. supra, 908 605-616 A.2d 212-215 [marriage]; Robles, 1, v. supra, [marriage]; 855 N.E.2d 10-11 Hernandez [marriage]; State, Baker v. 864, 880, Andersen v. supra, King 744 A.2d fn. 13 [marriage]; 963, 974-976, Madsen, County, supra, (lead J.); 138 P.3d 988-990 of opn. 997-998, id. In re (cone. (J.M.), J.) 1010 Johnson opn. [marriage]; 123, accord, Kandu (Bankr. 2004) W.D.Wn. 315 B.R. 142-144 [marriage]; Services, Oncale v. Sundowner Inc. 523 U.S. Offshore L.Ed.2d 118 S.Ct. whether same-sex harass determining 998] [in ment in the constitutes “discrimination because of sex” within the workplace “Act, title VII the 1964 federal Civil critical meaning Rights ‘[t]he issue ... is whether members of one sex are to disadvantageous exposed terms or conditions of to which members of the other sex are not employment Texas, ”]; Lawrence v. supra, (conc. 539 U.S. exposed’ opn. O’Connor, J.) that makes a crime if a sodomy only engages person [statute “ ” such conduct ‘with another individual of the same sex’ treats persons and, on the basis of their “same-sex sexual orientation” for differently equal on that see also analyzed ground]; protection purposes, appropriately C-249/96, 1-261, Grant v. South-West Trains (Eur. Justice) E.C.R. Ct. of 24-28, 37-47 based on sex” art. 119 of pars. prohibited [“discrimination Economic not cover Treaty “does establishing European Community orientation”].)57 discrimination based on sexual text, virtually As illustrated the numerous cited in the all of the decisions authorities rejected that have addressed this issue have the contention that a that treats same-sex statute discrimination, although couples differently opposite-sex couples from constitutes sex we are concurring dissenting separate aware that one state court decision and number of and/or opinions filed in other recent court decisions have found such differential state purposes equal protection treatment to constitute sex discrimination clause or (See, Baehr equal rights e.g., amendment contained in the state constitution. applicable
Lewin, Levinson, J.), by majority justices (plur. opn. 852 P.2d endorsed clarification, (Haw., in Baehr v. Miike explicated on motion for reconsideration or and further 9, 1999, *6, 20371) history [explaining Dec. No. Haw. Lexis fn. 1 that the equal protection provision “expressly Hawaii’s state clause indicates the framers of that *70 proscription against declared their that a discrimination based on sexual orientation intention sex”]; Conaway v. against based prohibition be subsumed within the clause’s discrimination on Deane, 571, Department supra, Goodridge (dis. J.); Battaglia, A.2d of v. opn. 932 677-686 of Health, 941, supra, v. (conc. J.); Public Greaney, opn. 798 N.E.2d 971-972 Hernandez State, Robles, 1, supra, v. (dis. J.); supra, Baker Kaye, A.2d opn. 855 N.E.2d C. 29-30 in treatment pre- that the difference further contend
Although plaintiffs discrimination for treated as sex statutes should be the relevant scribed illegiti- treatment reflects the differential because protection purposes equal to that men are attracted on the view based mate gender-related stereotyping men, argument again improperly and women are attracted women sex, discrimina- on the basis two conflates concepts—discrimination viewed as have been traditionally of sexual orientation—that tion on basis 12940, Code, (a)-(d), (j) subds. (See, Gov. e.g., § distinct phenomena. harassment) on the (or discrimination employment [prohibiting, separately, 51, Code, orientation”]; Civ. § the basis of “sexual basis of “sex” on ... or matter what their sex ... no (b) subd. [guaranteeing persons “[a]ll in all business accommodations ... orientation ... the full and equal sexual on the basis of discrimination establishments”].) argument, Under plaintiffs’ on the a subset of discrimination sexual orientation constitute always would basis of sex. review judicial standard determining
For applicable purposes clause, that discrimination we conclude under the California equal protection be viewed as a subset orientation cannot on the basis of sexual appropriately of, within, the basis of sex. seminal discrimination on subsumed of which equal protection California decisions that address question on the classifications discriminate statutory standard should apply the California Constitution and that under why basis of sex or gender, explain classifications, look standard is to such the strict scrutiny applicable orientation) does (rather does or (1) whether a than sexual gender person’s society, one’s or contribute ability not bear relation to perform (rather women against of societal and discrimination long legal history 1, Inn, Cal.3d individuals). (See, supra, than Sail’er against gay e.g., Bd., 18-20; 404-405.) Cal.3d supra, Workers’ Arp Comp. Appeals v. in which the addressed instances Each of these seminal California decisions another, different over or prescribed statutes favored one gender applicable to the other based upon stereotype treatment for one as gender compared County, supra, Johnson, King J.); Andersen v. (conc. 138 P.3d opn. & dis. 904—912 time, J.).) separate opinions (dis. Bridge, a number of these opn. of At the same 1037-1039 viewed, as the court should be the distinction in treatment before also have concluded that Robles, well, (See, e.g., orientation. Hernandez as discrimination on the basis of sexual J.); County, supra, King Andersen v. P.3d (dis. Kaye, opn. of C. 855 N.E.2d 27-29 (dis. J.).) Bridge, opn. of 1029-1032 that, 837-838), (post, at purposes we conclude explained pp. For the below reasons clause, equal protection review under the California determining applicable standard of couples and same-sex opposite-sex statutes between distinction drawn sexual orientation analyzed a difference in treatment on the basis of appropriately is more standard of question is which Accordingly, pertinent rather than as sex discrimination. statutory provisions clause to equal protection the California applies review under We address couples on the basis of sexual orientation. discriminate between individuals or (Post, 839-844.) opinion. part issue in the next of this *71 to one relating gender, rather than particular instances which a statute treated the but genders differential treatment equally imposed based upon whether or not an individual was of the same as his or gender her sexual Inn, Sail’er (See, partner. e.g., Cal.3d restricting [statute women’s access to the of bartender occupation to be based “appears upon notions of what is a ‘ladylike’ for a woman in our proper pursuit society rather than ascertainable evil any effects of women to labor permitting bars”]; behind . . . Arp, supra, 19 Cal.3d 405-406 statutory [conclusive that all widows presumption were totally their economically dependent upon deceased husbands “was the of . . . ‘archaic product and overbroad’ role stereotypes” ... is outmoded in a “clearly where more often than society not a standard of family’s living depends financial contributions of upon both marital partners”].) of the light reasoning underlying these we rulings, conclude that of discrimination or differential type treatment between same-sex and reflected in the opposite-sex couples challenged marriage statutes cannot be viewed as fairly the same embodying discrimina- type tion at issue in the California decisions that the establishing strict scrutiny standard to statutes that applies discriminate on the basis of sex.58 we conclude in the context
Accordingly, of California’s equal clause, the differential treatment protection the relevant statutes prescribed by sex, cannot be found to properly constitute discrimination on the basis of thus that the classification statutory embodied statutes is not marriage to strict on that subject scrutiny ground. 58 Relying upon appearing legislative history statement in the of the 1977 statute that phrase (see added the “between a man and a woman” to section 300 Assem. Com. on 14, 1977, (1977-1978 Sess.) Judiciary, Dig., 1-2), Reg. Assem. Bill No. 607 Apr. plaintiffs and a additionally statutory number of amici curiae contend marriage limitation of opposite-sex couples is based upon stereotype marriage comprised outdated of a of a father, stay-at-home mother and a breadwinner and for that reason should be viewed as
reflective of sex Neither legislation any provision discrimination. the 1977 nor other law, however, purports California to limit the partner marriage, role of either in a and the bulk that, legislative (ante, history enactment—a measure as noted above 794), was County introduced at the behest of the Clerks’ Association California— legislation primarily clarify indicates that the simply existing was intended that the marriage marriage California statutes retained the historic definition of as the a man union of Furthermore, arguments pertaining Proposition and a woman. the ballot 22 indicate that 308.5, woman, independently section which limits to the union of man and a was retained, intended to ensure that the traditional definition of would be and these arguments any suggestion grounded do not contain that the initiative in an measure was outdated stereotypical appropriate marriage. view of the roles of men and women in a Under circumstances, agree plaintiffs’ theory they these we cannot with that under the contention advance, the relevant provisions properly of sections 300 and 308.5 should be viewed as embodying sex discrimination.
B do California statutes that even if applicable next maintain Plaintiffs basis of so on the do they of sex or gender, on the basis not discriminate of sexual orientation, on the basis that discriminate that statutes and sexual California Constitu- under the to strict scrutiny be subject orientation should do not discriminate statutes marriage assert the defendants tion. In response, do, orientation, and, on the discrimination even if they on the basis of sexual strict scrutiny. should not trigger of sexual orientation basis on the basis discriminate statutes do not marriage that the arguing statutes, that these orientation, the circumstance rely defendants upon sexual and do not face, prohibit to sexual orientation do not refer explicitly on their Defendants sex. a of the opposite marrying person individuals from gay circumstances, not be statutes should the marriage under these contend that sexual the basis of or on discriminating classifying viewed as directly on a impact” viewed as having “disparate but at most should be orientation gay persons. man and a view, to a marriage restricting
In our the statutory provisions on gay impact as having merely disparate woman cannot be understood directly classifying be viewed as but instead must persons, properly limiting orientation. By on the basis of sexual distinct treatment prescribing viewed, statutes, realistically the marriage to couples, opposite-sex individuals different treatment on gay clearly directly impose operate definition, are individuals gay persons their sexual By because of orientation. thus, if inclined to sex and attracted to of the same who are sexually persons of their to marry person would choose enter into a marriage relationship, to a union persons A statute that limits own sex or gender.59 leading mental health by curiae brief filed a number explained As in the amicus Psychiatric and the American Psychological Association organizations, including the American individual, of the commonly as a characteristic is discussed Association: “Sexual orientation sex, sexual incomplete because identity, age. perspective This biological gender like or relationships with necessarily involves always relational terms and orientation is defined in or categorized as homosexual attractions are individuals. Sexual acts and romantic other them, relative the individuals involved according biological to the sex of heterosexual Indeed, individuals person another acting—or desiring to act—with it is each other. Thus, orientation is homosexuality, bisexuality. . . . sexual heterosexuality, express their others to beings form with relationships that human integrally personal linked the intimate behavior, love, attachment, intimacy. In addition to sexual deeply meet their felt needs for values, goals and partners, shared physical affection between encompass these bonds nonsexual commitment, merely a not orientation is Consequently, sexual ongoing support, [ft] mutual Rather, orientation defines one’s sexual defined in isolation. characteristic that can be personal fulfilling satisfying likely to find with whom one is persons the universe of individuals, identity.” that, component personal many comprise an essential relationships sexes, opposite thereby placing marriage outside the reach of couples sex, same different unquestionably imposes treatment on the basis of sexual view, orientation. In our it is that this sophistic suggest conclusion is avoidable reason of the circumstance that the marriage statutes permit sex, man or a lesbian to gay someone of the marry because opposite making such a choice would the negation of the sexual require orientation. person’s Just as a statute that restricted marriage only same sex would discriminate against heterosexual on the basis of their hetero- persons orientation, sexual the current California statutes must be viewed realistically *73 as discriminating against gay on the basis of their persons homosexual Controls, (Accord, orientation. Johnson Inc. v. Fair Employment & Housing 517, (1990) 533, 541, Com. 218 158].) fn. 7 Cal.App.3d Cal.Rptr. [267 Having concluded that the California statutes treat marriage persons orientation, on the basis of differently sexual we must determine whether sexual orientation should be considered classification” under “suspect clause, the California so that equal protection statutes a distinction drawing on this are basis to strict subject scrutiny. As out pointed parties statutes, defending great of out-of-state majority decisions that, that have addressed this issue have concluded unlike statutes that impose race, sex, differential treatment on the basis an of individual’s or religion, national origin, statutes treat because of their sexual persons differently orientation should not be viewed as constitutionally thus should suspect not be to strict subjected The issue is one of scrutiny.60 first impression California,61 however, and for the reasons discussed we conclude that below sexual orientation be should viewed as a classification for of suspect purposes Andersen Robles, be Egan v. Canada be In under the Children’s ordinances Cal.Rptr.2d to determine whether clauses. classifications, One intermediate therein; subject state classification for the Cal.Rptr.2d 157 60 See, considered a analogous Ore.App. In supreme was supra, for Citizens see also Standhardt v. (See for example, Baker v. equal protection relating 648], 629], King County, supra, invalid under to enumerated Hernandez 502 courts Hospital such as race or sexual 855 N.E.2d suspect [1995] the court held that a proposed appellate to purpose Responsible recently heightened scrutiny appellate gay rights P.2d classification for purposes 2 & Medical Center v. Bonta v. S.C.R. the rational basis clause of the Canadian 1, 9-10; court in classifications, Robles, of that have court, Superior State, 513, 528-529, 446-447]), 138 P.3d Behavior v. similarly state’s Andersen v. Oregon required orientation,” supra, dicta, Court, should equal protection such equal protection 855 N.E.2d concluded that sexual orientation and, held that sexual 744 A.2d voter Superior 1029-1032 referred in an off-hand comment as King County, be applied. supra, ordinance that would have as noted Charter].) of race but the court cited no approval [¶¶ analysis (2002) or 864, 878, Court P.3d 11 5 & sex, above, clause (conc. 27-29 standard, (1 22] for under their state orientation constitutes a that are (1991) supra, Cal.App.4th 451, 456-457; [finding any footnote Cal.App.4th (see opn. (dis. number of future and thus found no need 138 P.3d Tanner OHSU v. constitutionally suspect opn. Cal.App.4th sexual orientation to authority addressing Bridge, 10, ordinances on at repealed justices equal protection properly and cases cited 963, Hernandez Kaye, J.); 769 [118 975-976. “suspect 1013 [2 see also existing of other suspect should C. (1998) fn. J.); 8.) v. and that statutes
the California Constitution’s clause equal protection sub- orientation should be differently treat because their sexual persons to strict under this constitutional jected scrutiny provision. issue, “For a in the Court of stated: Appeal addressing majority be considered
statutory ‘suspect’ equal protection pur classification to met. characteristic defining three must be generally poses, requirements trait’; (2) no relation must be based an ‘immutable upon [a ‘bear[] (3) be associated ability contribute person’s] perform society’; with a and second class manifested ‘stigma inferiority citizenship,’ (Sail’er Inn, Kirby, Inc. v. and social disabilities. group’s history legal supra, Cal.3d 18-19.) While two seem the latter would requirements lesbians, more to be satisfied in the case first is readily gays sexual immutable controversial.” “whether orientation Concluding record had not been a factual which an adequate presents question” court, trial Court held that in the presented Appeal ultimately “[flack our decisions our sister Courts of ing guidance from Court or from Supreme the court would review the statutes under the rational Appeal,” *74 basis, rather than the strict standard. scrutiny, that
Past California cases the Court of conclusion fully support Appeal’s a to (1) sexual orientation is characteristic that bears no relation a person’s Students, Gay supra, Law (see, to to ability or contribute perform society e.g., 458, 488), 24 Cal.3d of (2) inferiority that is associated with a stigma of legal second-class manifested and social citizenship, group’s history Garcia (See, (2000) v. People e.g., disabilities. 77 1269 Cal.App.4th [92 . . . a of gay history men share Cal.Rptr.2d persecution 339] [“Lesbians (id. 1276); that of at “Outside of racial to Blacks women.” comparable p. minorities, we can think no which has suffered such religious group ‘immediate [citation], and severe hostility’ and sustained and such ‘pernicious (id. 1279)].) as homosexuals.” at opprobrium’ p. [citation] however, it is We with the conclusion that Court of disagree, Appeal’s classification, to sexual orientation a in applying appropriate reject suspect clause, there the California on the that ground Constitution’s equal protection is a as to is or is not “immutable.” whether characteristic question Inn, 1, we noted in Sail’er supra, 5 Cal.3d that a Although generally person’s (id. is not 18), is viewed as immutable at gender immutability an trait to for a characteristic be considered a invariably suspect order required that a classification for California cases establish equal protection purposes. (see, is a for equal classification person’s religion suspect protection purposes Hill (1984) 123, v. City Signal Owens 154 128 e.g., Cal.App.3d [201 classification, a and this reference question suspect whether sexual orientation is brief (and have) any significance. clearly precedential was intended to have does not not 842 Son, 70]; v. (1980) Williams Inc.
Cal.Rptr. Kapilow & 105 Cal.App.3d course, 176]), 161-162 and one’s is not Cal.Rptr. religion, immutable [164 is a but matter over which an (See individual has control. also Raffaelli Committee Bar Examiners Cal.3d 7 292 Cal.Rptr. P.2d [alienage treated as a suspect notwithstanding classification 1264] citizen].) circumstance that alien can become a Because a sexual person’s orientation is so an one’s it is not integral aspect identity, appropriate a or his or her sexual orientation require person repudiate change in order to avoid discriminatory (Accord, treatment. v. I.N.S. Hernandez-Montiel (9th 2000) Cir. F.3d orientation and sexual [“[s]exual ... are identity so fundamental to one’s that should be identity a not person them”]; Canada, to abandon Egan v. S.C.R. required or not based sexual orientation is on or biological physiological [“whether factors, which a matter of be some it is may controversy, deeply personal characteristic that is either unchangeable changeable only unacceptable .”].) costs . . personal court,
In his before this does briefing Attorney General not maintain that sexual fails orientation three for a satisfy requirements suspect classification discussed Court but instead that a Appeal, argues should be before a is requirement characteristic considered imposed fourth basis for classification for constitutionally suspect equal protection pur- “a is classification poses—namely, ‘suspect’ appropriately recognized are minorities who unable to use their only political address process needs.” The General’s brief asserts and lesbian Attorney gay “[s]ince community California able wield in defense obviously power political interests, its should this Court not hold sexual orientation constitutes *75 classification.” suspect California in discussing some decisions classifica
Although suspect have (see, tions referred to a v. group’s powerlessness” e.g., “political Raffaelli Examiners, 288, 292), Bar Cal.3d our cases have not supra, Committee 7 of identified a current as a necessary group’s political powerlessness prerequi Indeed, if a current site treatment as a class.62 suspect group’s political were a to a considered being characteristic’s powerlessness prerequisite 62 36, 376, Superior Court (1991) 600], In Bowens v. Cal.Rptr.2d 1 Cal.4th 820 P.2d [2 discussing equal protection are relevant under the federal clause to the issue factors that classification, explained: suspect the court “The determination of whether class exists suspect [any] system alleged it have focuses on whether discrimination and the class defines ‘[t]he disabilities, or suspectness: traditional as a saddled with such indicia of [such class] treatment, relegated to such a subjected history purposeful unequal position to such a majoritarian powerlessness extraordinary protection political command from the political as to ” 1, Rodriguez (1973) Antonio School District v. San (Quoting U.S. process.’ Bowens, 1278], added.) bracketed added in L.Ed.2d 93 S.Ct. material italics [36 treatment, be impos- it would differential basis for
constitutionally suspect sex, race, and to treat that continue numerous decisions to sible justify Instead, clear that make our decisions classifications.63 as religion suspect should be consid- a characteristic whether factors in deciding most important the class are whether classification basis for ered a constitutionally suspect has been subjected historically a certain characteristic who exhibit persons treatment, recognizes now society and whether invidious and prejudicial to the individu- no relationship bears generally the characteristic question Thus, must look “courts to society. or contribute al’s ability perform lest outdated social that characteristic based on at classifications closely Inn, (Sail’er supra, 5 Cal.3d laws or practices.” result in invidious stereotypes Bd., supra, Appeals v. added; see, Comp. Workers’ 1, 18, e.g., Arp italics classifica- 404-406.) statutory rationale clearly applies This Cal.3d of sexual orientation. treatment on basis mandate differential tions that on sum, differential treatment that statutes imposing we conclude under constitutionally suspect should be viewed basis of sexual orientation clause. the California Constitution’s equal protection as a is viewed that éven if sexual orientation General Attorney argues are on such basis statutes that classify persons classification and suspect review, intermediate scrutiny an this court should apply subject heightened the United States to the standard applied of review (comparable standard illegitimacy based on sex or Court to classifications discriminatory Supreme Jeter, 461)), rather than strict scrutiny, (see Clark 486 U.S. supra, their sexual on the basis of that draw distinctions between persons statutes the California Constitution’s equal protection orientation.64 In enforcing clause, however, an intermediate cases have not applied California past (or any suspect to classifications involving standard of review scrutiny the federal equal Unlike decisions applying characteristic. quasi-suspect) review, clause, scrutiny under strict cases continue to California protection differential those statutes scrutiny, impose rather than intermediate Charities Catholic (See, e.g., of sex or gender. treatment on basis 527, 564; Sacramento, Court, see also 32 Cal.4th Superior Inc. v. L.Ed.2d 93 S.Ct. v. Richardson 687-688 In Frontiero 411 U.S. prohibiting sex 1764], enactment of laws pointed Justice Brennan to the opinion the lead *76 widespread subjected been of individuals had confirming class discrimination scrutiny heightened judicial need for supporting and thus as past discrimination in the of such a characteristic. treatment on the basis statutory provisions impose differential Jeter, supra, 486 U.S. in Clark v. scrutiny describing standard its intermediate statutory scrutiny, a classification intermediate high explained: “To withstand court contrast, By under the objective.” important governmental an substantially related to must be standard, demonstrating disparate that the treatment scrutiny the state bears the burden strict Hernandez, (See, e.g., necessary compelling state interest. to serve a by a statute is imposed 279, 299.) supra, 41 Cal.4th Darces v. Woods 35 Cal.3d 888-893 P.2d Cal.Rptr. strict [applying scrutiny rather than the 458] intermediate scrutiny standard that was decision].) a related federal applied
There is no basis for persuasive statutes that applying classify persons on the basis of the classification of suspect sexual orientation a standard less than rigorous to statutes that on applied the basis of the classify suspect race, classifications of orientation, gender, Because religion. sexual like race, or gender, is a religion, characteristic that has been the frequently basis for biased and treatment and that improperly stereotypical bears no generally relation to an individual’s ability or contribute to perform it is society, for appropriate courts to evaluate with care and great with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is to statutes that applicable differential impose treatment on the basis of sexual orientation.
C Plaintiffs contend that the strict additionally standard scrutiny here applies not because the only statutes question differential treatment impose between individuals on the basis of the classification of suspect sexual orientation, but also because the classification drawn statutes impinges fundamental, a same-sex upon couple’s constitutionally protected privacy interest, and detrimental creating unequal consequences same-sex couples children. and their (ante,
As discussed 830-831), above one of the core elements embodied in the state constitutional is the right marry right of an individual and a to have their own couple official accorded family relationship respect to that accorded the dignity equal family other relationship couples. Even when the state affords substantive legal rights benefits to couple’s that are family to the relationship comparable rights benefits afforded to other the state’s of a couples, assignment different name to the couple’s that the poses risk different name itself will have the relationship effect of such denying to which the couple’s relationship equal respect dignity entitled. couple constitutionally Plaintiffs contend that in the present context, the different nomenclature the current California prescribed by statutes must be understood as such a properly having just constitutionally effect. suspect
We with agree contention in this plaintiffs’ regard. some Although contexts the establishment of institutions or structures to separate remedy denial of or benefits has been found past to be constitutionally
845 circum- of some to conceive it be and although may possible permissible,65 of category to one the name “marriage” of in which assignment stances another category to a name other than and of family relationship constitu- or raise special be likely stigmatizing would not family relationship in the concerns,66 conclude that present of reasons we for a number tional institution context, only separate access affording couples to the established such access and denying domestic partnership, the right as upon must be viewed impinging of marriage, institution properly accorded respect family relationship to have their of those couples couples. of opposite-sex the family relationship accorded dignity equal “mar of the term First, history and celebrated long because of a union term describes that this understanding and the riage” widespread is a there clearly the community, and favored by unreservedly approved Thus, it to this designation. symbolic importance and undeniable considerable exclusively opposite- access to this designation that affording is apparent a novel access to only same-sex couples while sex couples, providing signifi as constituting must be viewed realistically alternative designation, In this regard, plaintiffs to same-sex couples. treatment cantly unequal the United States Supreme the decisions of invoke by analogy persuasively for Black a law school a state’s creation of separate Court finding inadequate of Texas University access to the rather than such students granting students 1114, 629, 634 L.Ed. (1950) U.S. (Sweatt Law School v. Painter 339 [94 for military of a 848]),67 founding separate program S.Ct. and a state’s 70 (United Institute Military women to the Virginia rather than admitting women 65 collegiate athletic separate and maintenance of women’s example, For the establishment of athletic against women in the allocation long-standing discrimination teams to address the v. Bd. Ed. O’Connor (See, e.g., constitutionally been found to be valid. resources has City 582; Pierce R-VI 578, Force Force v. 1981) 23 (7th School Dist. No. Cir. 645 F.2d 1020, 1026.) similarly held it is (W.D.Mo. 1983) Courts have Dist. F.Supp. School 570 resulting from remedy problem the constitutional constitutionally for a state to permissible establishing public separate inability indigent defendants to retain counsel criminal by government-selected through represented defendants are defender’s office which such their they which can obtain defendants with attorneys, by providing funds such instead (1972) Cal.Rptr. e.g., People v. Miller (See, Cal.3d 574 attorneys. [102 own self-selected P.2d Hughes 1089]; Cal.Rptr. People Cal.2d 97-99 v. P.2d 33].) 66 statutory scheme (albeit unlikely) would be example One such conceivable union’s during years five “marriage” the first designated family formal unions as all “enduring existence, an purposes, official as relationship, and thereafter renamed enduring union union,” long couple for so additional benefits to the provided all designation “marriage” to withholding setting, of the official remained intact. In this warrant, necessarily stigmatizing or to be long-term relationships appear would not formal itself, scrutiny standard. application of the strict Painter, “What regard: in this high court stated In Sweatt U.S. greater degree those to a far University possesses of Texas Law School important, more standing in the . . . objective measurement incapable as] which are qualities [such *78 States v. Virginia (1996) 518 U.S. 555-556 L.Ed.2d 116 S.Ct. 2264]). maintain, As these plaintiffs high court decisions demonstrate that even when the state grants benefits a ostensibly equal excluded previously institution, class through creation of a new the intangible symbolic differences that remain often are constitutionally significant.
Second, of the historic particularly light of and disparagement discrimination there against gay is persons, very significant risk that a distinction retaining in nomenclature with to this most regard fundamental the term relationships whereby is denied “marriage” only same-sex will cause the new couples inevitably institution that parallel has been made available to those to be viewed as of a lesser stature couples than marriage and, effect, as a mark of second-class As the Canada citizenship. Supreme Court observed in an context: “One analogous factor which demonstrate may legislation treats the claimant differently has effect of demeaning the claimant’s is the existence dignity of pre-existing disadvantage, stereotyp or ing, prejudice, vulnerability individual or experienced by group that, at cases, issue. ‘. . . It is to conclude logical in most further ...[][] differential treatment will contribute to the perpetuation promotion their unfair social them, since they are characterization, already vulnerable.’ and will have a more severe impact upon ” (M. H. [1999] 2 S.C.R. 54-55 68].) [¶
Third, it also is significant although of the term “mar meaning is well riage” understood the status of domestic public generally, is not. While it is true that this circumstance partnership may over change time, it is difficult that the of the deny term “domestic unfamiliarity time, considerable partnership” likely, period pose significant difficulties and for same-sex most complications couples, perhaps poi children, if, for their that would be gnantly not like presented opposite-sex same-sex were access to the couples, established and couples permitted (See well-understood N.J. family marriage. Civil relationship generally Com., Union (Feb. 2008) Review First Interim 6-18 Rep. <http://www.nj.gov/oag/dcr/downloads/1st-InterimReport-CURC.pdf> [as 15, 2008].) May circumstances,
Under these we conclude that the distinction drawn the current California statutes between the designation family available to and the available to relationship opposite-sex couples designation the fundamental interest of same-sex couples impinges upon community, prestige. It traditions is difficult to believe that one who had a free choice (339 634.) question between these law schools would consider the close.” U.S. accorded dignity their official family relationship in having the family relationship opposite-sex to that conferred equal upon
respect couples. addition, the different in which way briefs disclose further plaintiffs’ *79 the constitution- the current statutes upon established
designations by impinge that Plaintiffs out interest of same-sex couples. point ally protected privacy of familial relation- one of the coexistence of two parallel types consequence social, and governmen- is that—in the numerous everyday employment, ships or he or she “is married tal in which an individual is asked whether settings re- accurately is a domestic and who individual who single”—an partner matter) be (as will a realistic to the that status by disclosing sponds question orientation, rather even if he or she would his her homosexual or disclosing is totally the circumstances and even if that information not do so under in Because the constitutional right irrelevant in the setting question.68 from to disclose his or having would an individual ordinarily privacy protect in which that information is her sexual orientation under circumstances Garcia, 1280; (see, irrelevant supra, v. e.g., People Cal.App.4th (1991) 1140-1141 Cal.Rptr. Urbaniak Newton Cal.App.3d [277 354]), the existence two available designations—one only separate family and the other to same-sex opposite-sex couples—impinges upon couples interest, individuals to detrimental treatment may gay privacy expose that have been by those who continue to harbor by rejected prejudices California society large. reasons, all and differential
For of these we conclude that the classifications treatment significantly embodied in the relevant statutes impinge upon fundamental a further accordingly interests of same-sex couples, provide be evaluated under reason that requiring statutory provisions properly scrutiny strict standard of review.
D circumstances, here, as in which the strict As in already explained, the state bears a burden of scrutiny heavy standard of review applies, standard, not In order to the state must demonstrate justification. satisfy rational, interest that constitutionally that there is a simply legitimate supports issue, treatment at but instead that the state interest is differential treatment one that constitutionally compelling justifies disparate pre Woods, (See, 35 Cal.3d scribed the statute in Darces v. by question. e.g., registered does not Although partner the disclosure that an individual is a domestic necessarily relationship, opposite-sex couples in because mean that he or she is a same-sex may register domestic comprised partner years age of at least one who is than 62 more partner will be understood partners, most instances the revelation that one is domestic (accurately) signify gay. that the individual is Furthermore, 893-895.) unlike instances in which the rational basis test the state does not meet its under the burden strict applies, justification scrutiny standard that the classification established merely by showing statute related to such a state interest. rationally reasonably compelling state, Instead, must demonstrate that the distinctions drawn the statute necessary (or scheme) (See, are further statutory interest. e.g., v. Brown Ramirez Cal.3d 207-212 507 P.2d Cal.Rptr. 1345].) case, before us is whether the state has a present question
constitutionally compelling interest reserving designation from access to only opposite-sex excluding couples necessary and whether this restriction is to serve a designation, statutory court, state interest. In their before this various defend- compelling briefing statutes, have advanced ants different contentions of the current support *80 and we each of these arguments. discuss 22
The Defense Fund and the Proposition Legal Campaign initially that contend retention of the traditional definition of not marriage only interest, (and a but that the the Legislature constitutes state compelling people definition, statute) an initiative had no choice but to retain this adopting because to these the California itself according defendants Constitution mandates this limitation on the of the term The Fund meaning “marriage.” the and the assert that the common law definition of as marriage Campaign union of a man and a woman is enshrined in the California Constitution by virtue of in the that the 1849 1879 Constitutions language employed “wife,” and terms “husband” in constitutional “marriage,” providing protec- the or the tion for rights,69 thereby precluding Legislature separate-property the initiative from the current statutory modifying people through power however, indication, statutes to same-sex There is no marry. permit couples law the constitutional were intended to the common provisions place Dow v. Gould & (see control understanding marriage beyond legislative Curry Silver Co. Mining the (1867) 31 Cal. 640 laws in force at [“the ante, 792-793, XI, article section 14 of the California pages As set forth at footnote wife, personal, “All both real and of the owned provided property, Constitution of in full: devise, descent, by gift, or shall be her by marriage, acquired or claimed and that afterwards wife, clearly defining be more the separate property; passed and laws shall to that held in common with her husband. Laws separate property, relation as well to her registration separate property.” the wife’s passed providing shall also be for the XX, provision, the contained a similar Article section 8 of California Constitution by marriage, or wife before stating: personal, “All real and owned either husband property, devise, descent, by by gift, separate or shall be their acquired either of them afterwards property.” I, in article analogous of the California Constitution is contained provision The current during marriage acquired or provided: “Property owned before section and since 1970 has will, property.” marriage by gift, separate or inheritance is in force until altered the were continued
time of the Constitution adoption this state’s throughout history . . by Legislature repealed course, in the fundamental changes has effected numerous Legislature, from how it existed at institution of its nature marriage, dramatically altering above, common an initiative law. because section 308.5 is As discussed statute, to include same-sex action any by Legislature redefining marriage (see, would a vote of the electorate confirming by require approval ante, no constitu- 797-801), but the California Constitution imposes bar a statutes with marriage tional revision of legislative consistent Cal. (Accord, of voter In re Mana requirement approval. women to sit as 214-216 P. that a statute [holding authorizing 986] to trial even did not violate the defendant’s constitutional jurors by jury, law, men].) at common a was though, jury only composed In contrast to the advanced Defense Legal position Proposition Fund and the General and the Governor Attorney recognize Campaign, that the California Constitution does not define or limit the relation- to a that the union of man and woman. These officials ship acknowledge (consistent with the Legislature constitutional limitations imposed initiative or the exercise of initiative provisions) (through people have the revise the current statutes power) authority permit maintain, and the couples marry. General Governor Attorney however, (both because institution of marriage traditionally world) California and most of the has been limited to union throughout *81 woman, between man and a in that status is a matter any change necessarily Thus, solely for the that the legislative process. they suggest separation-of- doctrine a court from the traditional definition of powers precludes modifying marriage. (ante, as noted at this at
Although, the outset of opinion 780), we with the General and the Governor that the p. agree Attorney doctrine a court from separation-of-powers precludes “redefining” marriage on the basis the court’s view that or the interest would policy public public revision, be better served with the by such we General disagree Attorney and the Governor to the extent that the traditional or suggest long they nature of the current definition of standing statutory marriage exempts that definition the constraints statutory embodying imposed provisions from Constitution, by or that the doctrine separation-of-powers California a court from that constitutional On the determining precludes question. under “the constitutional of ‘checks and balances’ that contrary, theory v. County doctrine is intended to serve” Court separation powers (Superior (1996) 1046]), P.2d Mendocino 13 Cal.4th Cal.Rptr.2d a court an the limitations that the California obligation has enforce measures, shirk the Constitution and a court would imposes upon legislative it owes to each member of the were it to consider such responsibility public review. to be insulated from statutory judicial provisions As Chief Justice Poritz of the New Court observed Jersey Supreme Harris, A.2d supra, in her in Lewis v. concurring dissenting opinion in this branches will right wrong presented 196: “Perhaps political the fundamental fully case statutes to by amending marriage recognize That does not relieve this marry. same-sex couples possibility no matter how Court of its to decide constitutional questions, responsibility . to civil marriage by difficult. . . access question [][] not a but of constitutional ‘is matter of social policy interpretation.’ [Cita (conc. & (Id. It is a for this Court to decide.” 230-231 question tion.] Poritz, “the J.).) C. noted Professor Jesse Choper, dis. As opn. generally unabated its judgment Court should review individual rights questions, criticism, or be hostility, about whether a result will subject particular the National Political Process: A disobedience.” Judicial Review and (Choper, 167.) Court Functional Reconsideration of the Role of the Supreme limitation that in the instance the statutory upon The circumstance present contained in statutory enter into the marriage relationship who may rather marriage be viewed as may defining relationship, provisions than, that a stating marriage in a statutory provision for example, separate void, sex is does not render aspect between same persons constraints. The statutory provi- scheme immune from constitutional statutory Perez, 32 Cal.2d at issue in marriage sions interracial prohibiting deferential, from, constitu- or to a more subject would not have been exempt that case defined marriage had the relevant statutes in tional scrutiny race, than that an of the same rather providing union between two persons in which a limitation statutory was void. The form interracial marriage different constitutional is set forth does not justify on prohibition review. treatment or preclude judicial
Furthermore, traditionally element that any belies the notion history constitutes or definitional feature of been as an integral has viewed *82 exist of legal scrutiny. Many examples an of subject judicial impermissible institution of the civil viewed as central components doctrines that once were legal the wife’s of coverture under which as the doctrine marriage—such of husband, she her whose property into that of merged was treated as identity became, which limited significantly of recrimination or the doctrine terminated, or the a could be legally under which circumstances aby historically occupied roles differing numerous rules based legal upon life generally. and in family a in the marriage relationship man and woman by scrutiny to judicial such doctrines subject legal Courts have not hesitated rule was chal- the doctrine or of continuing validity when the fairness or of such it as a result modifying invalidating ultimately on occasion lenged,
851 Stone, (See, Sex and judicial scrutiny. e.g., Family, Marriage England (1979) [coverture]; 1500-1800 221 De v. De Cal.2d Burgh Burgh, supra, 39 p. [recrimination]; Bd., 858 v. Workers’ Cal.3d 395 Arp Comp.Appeals supra, husband]; nature of wife but not v. [assumption dependent Kirchberg (1981) Feenstra U.S. 455 L.Ed.2d 428. 101 S.Ct. over [67 1195] [control community we the contention that property].) Accordingly, reject doctrine renders because the separation-of-powers judicial scrutiny improper statutory an provisions of the definition of question embody integral aspect marriage. token,
By the same circumstance the limitation of marriage ato union between a man and a woman embodied in section 308.5 was enacted anas initiative measure a vote by of the electorate neither similarly exempts statutory from constitutional provision nor scrutiny justifies more deferential standard of review. California Although decisions consis have tently vigorously safeguarded the voters exercise the afforded authority (see, initiative Associated Home process e.g., etc., Builders Inc. v. City (1976) Livermore 18 Cal.3d 591 [135 473]), 557 P.2d Cal.Rptr. our cases at the past same time uniformly establish that initiative measures the electorate are adopted by to the subject same constitutional limitations that to statutes apply adopted by Legisla ture, and our courts have not hesitated to invalidate measures enacted through the initiative when run process they afoul of constitutional guarantees pro vided either the federal or California Constitution.
For
v.
example, Mulkey
(1966)
Reitman
Cal.3d 658
669
Cal.Rptr.
[194
invalid under a state constitutional
initiative measure was
reapportionment
valid,
once-a-decade
single,
to
limiting legislative reapportionment
provision
initia
statutory
that
“elementary
redistricting,
principle”
“[a]
emphasizing
are the
federal constitutional limitations as
to the same state and
tive is subject
also,
(Id.
674.) (See
e.g.,
enacts.”
and the statutes which it
p.
Legislature
805,
(1989) 48 Cal.3d
831-837
Cal.Rptr.
Ins. Co. v. Deukmejian
[258
Calfarm
constitutional
161,
provi
as violative
state
[invalidating,
Indeed,
majority
the same point
made
Burger
Chief Justice
Berkeley
Rent Control
Against
Court in
United States Supreme
Citizens
434], observing emphatically
102 S.Ct.
L.Ed.2d
(1981)
853 the electorate voted in favor of the traditional definition of retaining marriage review, does not limitation from exempt statutory constitutional nor does it demonstrate that the voters’ objective represents constitutionally compel- state interest for ling of purposes equal protection principles. the state’s defending interest the traditional proffered retaining woman,
definition of as limited to a marriage union between a man and a General and Attorney the Governor rely the historic primarily upon well-established nature of this limitation and the circumstance that designation of marriage continues to a only between apply relationship opposite-sex in the couples of in the overwhelming majority jurisdictions United Because, States and around the world.70 until there has been recently, societal widespread disapproval disparagement homosexuality many cultures, it is hardly that the institution of surprising civil marriage generally has been limited to and that opposite-sex have couples many persons considered the designation to be marriage to a appropriately applied only of an relationship opposite-sex couple.
Although
understanding
as limited to a
marriage
union of a
man and a
one,
woman is
undeniably
if we have learned
predominant
from the
anything
significant evolution in the
societal views and
prevailing
official
toward
policies
members of
races and toward
minority
women over
the past
it is that even the
half-century,
most familiar and generally accepted
time,
(Massachusetts
At
only
jurisdictions
nations—Canada,
six
foreign
and five
Africa,
Netherlands, Belgium,
South
and Spain) authorize
couples marry.
same-sex
Of
jurisdictions,
(Massachusetts, Canada,
these six
three
Africa)
and South
position
arrived
that
through judicial
Health,
(Goodridge Department
941;
decision
v.
supra,
Public
798 N.E.2d
Halpern
161;
Canada,
2003)
v. Canada (Ont.Ct.App.
65 O.R.3d
EGALE
Inc. v. Canada
2003)
472;
(B.C.Ct.App.
Quebec
225
2002)
D.L.R.4th
R.J.Q.
Hendricks v.
(Que.Super.Ct.
2506;
(S.Afr.Const.Ct. 2006)
Minister Home
355),
(the
v. Fourie
BCLR
and three
Affairs
Netherlands, Belgium,
Spain) adopted
position legislatively,
that
compulsion
without
(Netherlands:
code,
judicial
direction from a
2000];
decision.
Civ.
art. 30
amended Dec.
[as
code,
Belgium:
13, 2003];
code,
Civ.
art. 143
amended
Spain:
Feb.
[as
Civ.
art. 44
amended
[as
13/2005,
2005].)
Africa,
July
law
In Canada
judiciary
and South
after
invalidated
limiting marriage
statutes
to opposite-sex couples,
legislative
branch enacted laws
complying
(Canada:
Act,
S.C.,
judicial
33;
with the
Marriage
decisions.
Civil
2005
ch.
South
Act,
(art.
Africa:
2006).)
Civil Union
No. 17 of
Although to date
Supreme
Judicial
only
high
Court of Massachusetts is the
state
court in
this nation to
limiting
have found a statute
opposite-sex couples
violative
its
constitution,
state
we note that in each of the
high
other instances in which a state
court has
years,
addressed this issue in recent
rejecting
each decision
challenge
the constitutional
was
court,
(See,
Deane,
determined
a divided
frequently by a
margin.
e.g., Conaway
one-vote
v.
[Md.;
supra,
decision];
Robles,
organization, or other no any religion will be person; required change its religious with to same-sex policies practices regard couples, no religious officiant will be to solemnize a in contraven required marriage Const., I, tion of (Cal. his or her religious 4.)72 beliefs. art. § While retention of the limitation of is not opposite-sex couples needed to preserve benefits opposite-sex couples, exclusion of same-sex from the works a real couples designation harm appreciable and their children. upon As discussed above, because of the and celebrated long of the term history “marriage” *86 that this widespread understanding word describes a family relationship unreservedly sanctioned by that community, statutory provisions continue to limit access to this designation exclusively opposite-sex novel, couples—while a providing only alternative institution for same-sex be couples—likely will viewed as an official statement that the family of same-sex is not relationship couples stature or comparable equal dignity to the Furthermore, family relationship opposite-sex couples. because of the historic disparagement gay retention of a distinction in persons, nomenclature which the by term “marriage” is withheld from the only family of same-sex relationship is all the couples more to cause the new likely parallel institution that has been established for same-sex to be couples considered a mark of second-class in addition to the citizenship. Finally, harm potential from the flowing lesser stature that is to be afforded to likely the family of same-sex relationships couples by them domestic designating there partnerships, exists a substantial risk that a decision judicial upholding the differential treatment of and same-sex opposite-sex would be couples understood as validating a more general that our state proposition by now has law, it is repudiated: under the permissible, to treat society gay from, than, individuals and same-sex and less differently couples favorably heterosexual individuals and opposite-sex couples. circumstances,
In light of all of these we conclude that retention of the traditional definition of marriage does not constitute a state interest standard, sufficiently under the strict compelling, scrutiny equal protection that status justify withholding from same-sex insofar as couples. Accordingly, 72 Contrary Proposition Legal to the contention of the Campaign, Defense Fund and the the distinction in nomenclature between and domestic partnership cannot be defended on the basis of an asserted difference in the being by effect on children of raised an opposite-sex couple by a couple. instead of the governing Because California statutes permit same-sex couples adopt additionally and raise children and draw no distinction between couples partners regard married and domestic legal rights with to the and responsibili relating ties to children family raised within each of these relationships, asserted difference in the provide justification effect on children does not for the differentiation in nomenclature challenged set forth in the statutes. of sections and 308.5 draw distinction between provisions opposite- sex and same-sex and exclude the latter from access couples couples we these designation marriage, conclude statutes are unconstitutional.73
VI and 308.5 unconstitutional to the concluded sections 300 are Having exclusively extent each statute reserves the designation that designation, denies same-sex access to opposite-sex couples determine we must proper remedy. categories
When a statute’s differential treatment of separate court found to must individuals is violate equal protection principles, or determine whether constitutional violation should be eliminated cured to the excluded class treatment or benefit that the by extending previously class, remedied statute affords to the included should be alternatively both the included class and the benefit from withholding equally previously the excluded class. A court makes determination generally considering classes, whether the benefit to both or instead extending withholding equally the Legislature, it be most consistent with intent of likely would equally, *87 had treatment constitutionally that that was body recognized unequal imper (1995) 11 Cal.4th (See, v. Fair Pol. Practices Com. e.g., Kopp missible. 1248]; Arp Comp.Appeals 626-662 905 P.2d v. Workers’ Cal.Rptr.2d [47 Bd., 395, 407-410.) Cal.3d supra, case,
In it is that the extending designation the readily apparent present same-sex is more consistent with couples clearly probable marriage both designation opposite-sex intent than that from legislative withholding other, designation. of some uniform In and same-sex in favor couples couples term to describe the view the use of the history “marriage” of the lengthy issue, that both the supporters here and importance family relationship who voted in of the to the statutes and the electors marriage amendment of mar- designation favor attached to the of Proposition unquestionably marriage can be no riage, extending designation there doubt it to all is the equal protection rather than denying couples, same-sex couples, our state’s general legislative policy that is most consistent with remedy preference. marriage do not that the current reaching suggest that in this conclusion we emphasize We Robles, v. (Cf. purpose. an or Hernandez
provisions enacted with invidious intent were this belief lightly everyone conclude that who held [that court should not 855 N.E.2d 8 [“A irrational, ignorant couples] was marriage did not extend to same-sex impose provisions on bigoted.”].) of the detrimental effect that such We conclude because orientation, are inconsistent their sexual the statutes gay couples on basis of individuals accordingly principles embodied in California Constitution with the constitutional cannot upheld. be
Accordingly, of the conclusions we reach light constitu- concerning resolution, tional to us questions brought we determine that the language of section 300 to a limiting designation marriage union “between a statute, man and a woman” is unconstitutional and must be stricken from the and that the remaining must be understood as statutory language making designation available both to and same-sex marriage opposite-sex couples. addition, because the limitation of marriage opposite-sex couples section 308.5 can have imposed by no effect in constitutionally permissible of the constitutional light conclusions set forth in this opinion, provision cannot stand.
Plaintiffs are entitled to the issuance of a writ of mandate directing state officials to take all appropriate actions to effectuate necessary our ruling in this case so as to ensure that clerks and other local county officials state, throughout the their to enforce the performing duty statutes in their jurisdictions, those in a manner apply provisions consistent with the Further, decision of this court. as the are entitled prevailing parties, plaintiffs to their costs. reversed, of the Court judgment and the matter is Appeal
remanded to that court for further action consistent with this opinion.
Kennard, J.,
J., Moreno, J.,
Werdegar,
concurred.
KENNARD, J.,
I write
Concurring.
separately
how the court’s
explain
decision here is consistent with Lockyer City
County
San Francisco
As the indicate, words of the Chief opening Justice’s majority this opinion There, case ais continuation of Lockyer. this court held that local officials had acted unlawfully by issuing gender-neutral marriage licenses to same-sex after the couples officials made a legal determination that same-sex depriving of the to couples right marry was unconstitutional. (Lockyer, 33 Cal.4th Here, at 1104-1105.) pp. this court holds that under the state Constitu- tion’s equal protection guarantee, same-sex have a to and couples right marry, that state officials should take all necessary so that local appropriate steps officials may begin issuing marriage licenses same-sex (Maj. couples. opn., ante, at 855-857.) pp.
From such brief these two decisions descriptions, inconsistent. may appear What this court determined to be unlawful in Lockyer, ordered city now, the same that must immediately officials to is action doing, stop here, court’s be recommenced—issuing virtue of this decision marriage is licenses to of either two women or two men. There no couples consisting however, decisions. In this court did Lockyer, these two not inconsistency, decide whether the California Constitution’s af- equal guarantee protection fords a same-sex Cal.4th at right marriage couples. (Lockyer,supra, Rather, 1069.) this court that lacked only decided local officials p. authority to decide the constitutional of the state statutes instead validity marriage (Ibid.) that to the should have submitted for resolution. question judiciary Now that court has resolved the authoritatively underly- this conclusively that state laws are constitu- ing holding marriage constitutional question by orientation, on the invalid insofar discriminate basis of sexual tionally they lawful, and licenses to same-sex indeed marriage issuance couples constitutionally required. 4,000 court void all of declared Lockyer, approximately San Francisco under licenses issued same-sex
marriages performed court 1117-1118), Cal.4th at and the here (Lockyer, supra, 33 couples marriages. does undertake of those I any validity not reconsideration Lockyer's with nullification of those marriages. Recognizing disagreed had “waited of the individuals whom those licenses had been issued many wed, decades, a chance to to obtain the sometimes several years, yearning can only marriage give” (Lockyer, supra, validation public Kennard, (cone. J.)), validity I took the position & dis. opn. be “after the of California constitutionality those should determined marriages laws has been restricting marriage authoritatively to opposite-sex of California” now in the courts through judicial proceedings pending resolved (id. 1125). at p.
' the issuance of a I in these words: “Whether my position explained license to in violation of state laws a same-sex gender-neutral couple, is a defect that any restricting marriage opposite-sex couples, precludes resolution of the of a valid well marriage may depend possibility upon restriction is consti- of that restriction. If the validity statutory constitutional tutional, be a sex would legal then a between same persons no ever have existed. But if restriction would impossibility, could be quite situation right, violates a fundamental constitutional validity to determine the different. A court then be might required the laws that had been marriages prohibiting performed before on When a grounds, those had been invalidated constitutional marriages [f] *89 unconstitutional, the effect of that a law about questions court has declared events, actions, and ‘are most among on transactions determination prior courts, state the attention of and difficult of those which have engaged federal, an all-inclusive manifest numerous decisions that and it is from be justified.’ retroactive cannot invalidity statement of a absolute principle
859
329,
(Chicot
(1940)
County Dist. v. Bank
308 U.S.
374
L.Ed.
60 S.Ct.
[84
317]; accord,
[(1973)
192,]
Lemon
U.S.
L.Ed.2d
198 [36
Kurtzman
that,
1463].)
has
93 S.Ct.
This court
in
circum
acknowledged
appropriate
stances,
statute
an unconstitutional
be
reformed to retroac
may
judicially
extend its benefits to a class that the
but
tively
statute expressly
improperly
excluded.
v. Fair Pol. Practices Com.
11 Cal.4th
624—625
(Kopp
Lucas,
(lead
(cone.
J.),
P.2d
C.
&
Cal.Rptr.2d
opn.
1248]
Baxter,
Thus,
J.)
dis.
in
it is
Ill of lead
opn.
[joining
pt.
opn.].)
possible,
certain,
no means
that if the
though by
state
laws
marriage
prohibiting
Constitution,
same-sex
were held to violate the state
same-sex
before that
could then
marriages
recognized
determination
be
as
performed
(Lockyer,
valid.”
&
(conc.
Recognizing Lockyer this court’s decision in finally conclusively invalidated the of same-sex in Francisco in marriages performed San couples here, have not asked this court to address that issue parties again Nevertheless, view, and this court has not done so. it is my important how could recognize today’s holding have affected decision on the validity of those In our marriages. light of determination here that same-sex couples are under entitled the state the same marriage Constitution to rights opposite-sex this court—had it in couples, Lockyer deferred until now a decision on the validity of the previously performed marriages would have that the couples—necessarily defects those mar recognized words, (in not riages were other no substantive valid law prohibited (the but rather marriages) were in the procedural sense marriages premature were they before rather than performed judicial after determination of couples’ right that the to these were marry), marriages parties good faith to exercise attempting their under the state Constitution. however, ceremonies, Because of those Lockyer, with performed celebration, great joy must remain ... in the “empty meaningless of the law.” eyes (Lockyer, (conc. Cal.4th at & dis. opn. Kennard, J.).) Justice,
The court’s authored opinion, by the Chief carefully fully explains why constitutionality marriage laws’ exclusion of same- court, sex is an issue for decision this particularly appropriate rather social than a issue consideration. political inappropriate judicial (See ante, 849-853.) of its maj. opn., Because importance, point deserves special emphasis. that the state holding today Constitu marry guaranteed by orientation,
tion be not withheld may anyone ground from on the of sexual this court its and most under our discharges gravest responsibility important *90 860 is a the why form of There reason words government. “Equal
constitutional the the are inscribed the to courthouse of Justice Under Law” above entrance state States Court. Both the federal and the Constitutions United Supreme Amend.; Const., (U.S. to all of laws” 14th guarantee protection the “equal Const., I, 7), art. it the judiciary and is the of particular responsibility Cal. § and Constitu those The architects of federal state to enforce our guarantees. lead and rooted may tions understood that widespread deeply prejudices minority fundamental freedoms deny institutions majoritarian unpopular is an and that most effective this form remedy groups, oppression the solemn charged interpret with judiciary responsibility independent fundamental freedoms and the constitutional provisions guaranteeing enforce (See Davis v. Passman (1979) L.Ed.2d 442 U.S. 241 protection. [60 equal means” for S.Ct. as “the judiciary primary [describing 2264] Bixby v. Pierno Cal.3d rights]; enforcement constitutional that, our constitutional [stating system 481 P.2d under Cal.Rptr. 242] balances, lies in the most fundamental [protection] of checks “probably acts light to test executive by the courts legislative power rights, and in constitutional constitutional mandate particular preserve by or from minority, majority”].) whether individual obliteration Here, under guarantee we of the equal decide only scope protection Constitution, of the federal Constitution. which operates independently state Const., I, are not (See this Constitution guaranteed by Cal. art. [“Rights § Constitution.”].) Absent a United States on guaranteed by those dependent as not may deny our state justification, government compelling Whether an unconstitu- any segment society. fundamental a matter to be decided has occurred is not tional denial a fundamental right vote, branch, an but instead by the executive or legislative popular by branch of state law for resolution the judicial of constitutional issue Indeed, that the Lockyer made it clear decision court’s government. be- from excluding decide whether individuals courts alone must our state Constitution’s can be reconciled with cause of sexual orientation 1068-1069.) (Lockyer, supra, 33 Cal.4th protection guarantee. equal resolving obligation by constitutional today discharges The court its issue. observations, authored opinion I the court’s fully these concur
With the Chief Justice. reflects J., The majority
BAXTER, Dissenting. opinion Concurring case, research, and sensitive effort on significant thought, considerable However, I conclusions. with several of actually majority’s and I agree gives Constitution California the majority’s holding cannot join *91 decision, believe, the to I right reaching same-sex In this marry. and commits
majority thereby violates the separation profound powers, error. one other state the the announces
Only recognizes majority American right far, issue, So the has today. court to consider Congress, every virtually Constitution, it. in our the or rejected Nothing implicit, express compels majority’s conclusion the age-old understanding that of mar- startling riage—an understanding confirmed an initiative law—is no recently by longer valid. California statutes already recognize same-sex unions them grant legal all substantive this state can bestow. If there is to be a further rights itself, sea in the social and that change legal understanding evolution should occur similar by democratic means. The forecloses majority and, so, this ordinary democratic its process, doing oversteps authority. The mode majority’s analysis particularly troubling. majority heavily Legislature’s relies on the civil adoption progressive protec- tions and lesbians to find a to same-sex gays marriage. constitutional effect, gives the does majority Legislature indirectly power body directly not to amend the Constitution and an initiative possess statute. repeal I cannot subscribe to the result. or to its majority’s reasoning, above, I
As noted do not At the everything majority says. dispute outset, I “[fjrom join majority’s observation that beginning statehood, California institution of legal civil has been under- to refer stood to a a man woman.” between and a relationship (Maj. opn., ante, omitted.) at fn. p.
Moreover, I endorse the of California’s Domestic majority’s interpretation Code, (DPA; Act Fam. et Partnership As makes majority seq.). § clear, the DPA now allows same-sex partners legal enter unions which . “afford . . all of virtually benefits and responsibilities [substantive] ante, afforded law to by California married (Maj. opposite-sex couples.” opn., 807; Code, at Fam. 297.5.) see also further correctly As majority § observes, California has done all can do it with these regard providing benefits, substantive rights, (Maj. to same-sex partners. responsibilities ante, 806-807.)1 opn., acknowledges, As the majority jurisdictions recognize cannot California force other Indeed, Marriage legal partnerships, by any California same-sex name. Defense federal (DOMA; 1738C, 104-199, 2(a) by 1996),
Act (Sept. § U.S.C. as added Pub.L. § 2419) state, specifies territory, may Stat. that an American Indian possession, or tribe refuse state, recognize any legal territory, relationship created under the of another laws tribe, concedes, possession, marriage” by majority and “treated as a As the entity. other many jurisdictions refusing American authority, have exercised this enacted laws have I with the agree majority’s also construction of Code section 308.5. Family statute, vote majority As the initiative explains, adopted popular unilateral (Cal. 61.4 immune thus from percent repeal Legislature Const., II, (c)), art. subd. does not California’s merely preclude § elsewhere, of same-sex consummated but also recognition “maniage[s]” “maniage[s]” invalidates same-sex contracted under name this state. *92 addition, I am in accord with the conclusion that fully Family majority’s 308.5, Code sections and as relation- they recognize only legal 300 insofar do not between as discriminate on partners “marriage[s],” ships opposite-sex the of gender. basis the in 22 Legal I concur that actions and Finally, Proposition Defense Fund City City
Education v. and San Francisco Ct. S.F. & County (Super. of CPF-04-503943) No. and Families v. County, Campaign for California CGC-04-428794) Ct. S.F. & No. should have City County, Newsom (Super. in City been dismissed moot in the wake of this court’s decision Lockyer as (2004) Cal.4th 95 County and San Francisco Cal.Rptr.3d of P.3d 459].
However, I with the remainder of the conclusions disagree respectfully the reached by majority. It to
The this case is and stark. comes down presented by simple question laws, the recently through Even though progressive adopted this: California’s same-sex to enter rights partners democratic have the process, pioneered unions, do the substantive benefits of legal unions with all legal opposite-sex laws nonetheless violate the California Constitution because present, those tradition, vote, in to and a deference universal long by convincing popular 2,1, (see ante), reserve in accord national fns. they and with express policy I must that the the label for unions?3 conclude legal “marriage” opposite-sex no. answer is the marriages equivalent legal or same-sex unions created under laws of recognize same-sex Moreover, DOMA, affecting regulations under all laws and jurisdictions. other the federal apply only opposite-sex benefits rights, responsibilities, expressly marital or spousal 104-199, 1996), 2419.) 3(a) (1 by (Sept. added Pub.L. 110 Stat. § § unions. U.S.C. as 2 recognize Code section 308.5 does Family represent decision not Insofar as California’s sanctioned, marriages jurisdiction, expressly is same-sex contracted in another that choice ante.) 1738C, (See course, part fn. This by Code section of the DOMA. 28 United States Const., (U.S. and credit provision Congress’s power is an under full faith clause exercise of (Wilson).) IV, (M.D.Fla. 2005) 1). (E.g., Wilson v. Ake 1303-1304 F.Supp.2d art. § only actually presented by this case—the addressing the “label” issue—the one Before a fundamental constitutional right is and effort find that there
majority spends much time on recognized partner a the same sex. The focus this legally a familial union with enter concedes, for, already provides, to the law subject puzzling, majority is as the California legal unions with all the substantive power, extent of the a to same-sex maximum state’s The have directly through every their elected People, representatives, civil right to laws historic abrogating understanding adopt and a of statutory between man woman. California growth rapid lesbians, individuals, as as protections gays parents, committed evolution of atti- partners, suggests quickening community tudes on issues. of an intense these Recent have seen years development debate about of this cause have had real marriage. Advocates ideas, success attention and considerable marketplace gaining public devices, Left its own democratic well support. ordinary might process long, ere consensus most Californians the term produce, among should, “marriage” civil include unions of same-sex legal parlance, partners. court,
But a bare
with
majority
not satisfied
democratic
pace
substitutes,
fiat,
now
change,
abruptly
forestalls
process
judicial
its own social
for those
views
themselves.
policy
expressed by
People
Undeterred
of state
federal
strong weight
law and
authority,
*93
a
majority
invents
new constitutional
immune
the ordinary
from
right,
legal
Thus,
opposite-sex counterparts.
majority
benefits of their
as the
acknowledges,
further
plaintiffs have no
to
a
basis
rights,
occasion
establish constitutional
for these
and the issue is
“whether,
simply
light
partnership legislation,
in
the enactment
domestic
the
of
of California’s
ante,
808,
27,
statutory
(Maj.
current California
scheme is
at
opn.,
p.
constitutional.”
fn.
italics.)
original
majority’s objective appears
The
to be to
that the
establish
so-called
includes,
element[],”
right
legal
fundamental
to same-sex
a
right
unions
as
“core
the
to have
those unions
dignity, respect,
legal
“accorded the same
stature”
opposite-sex
partner
as
(Id.,
This,
turn,
ships enjoy.
830.)
majority’s
at
supports
in
the
conclusion
the
later
that
labeling
in
infringes
distinction
the
directly
right,
current scheme
this fundamental
and is
subject
therefore
strict scrutiny
theory
to
for reasons
of the
independent
equal protection
also
(Id.,
844-847.)
by majority.
advanced
the
pp.
at
below, however,
explain
As I
I
that
a
right
conclude
there is no fundamental constitutional
to
legal
equates
every
marriage.
reject
same-sex
union that
respect with
I would also
the
clause,
majority’s
theory,
equal
subjecting
labeling
alternative
the
protection
based on
the
Hence,
view,
scrutiny.
my
naming
distinction to
preserved
strict
the
distinction
upheld
California’s statutes must be
under our
By
Constitution unless it is irrational.
that
standard, the
the
People’s
marriage
decision to retain
traditional definition of
as between a man
a
amply justified.
is
woman
4 Among
jurisdictions, only
high
(Goodridge
American
the
court of Massachusetts
Department
(2003)
(Goodridge);
Public Health
440 Mass.
N.E.2d
see also
[798
941]
565,
Opinions
(2004)
572])
the
to
Justices
the Senate
indirectly what the Constitution it from Under article doing directly. prohibits II, an (c), section subdivision cannot body unilaterally repeal statute, 308.5, initiative such as Code section unless the initiative Family measure itself so Section 308.5 contains no such Yet provision. provides. that, by other statutes which do substan majority suggests enacting provide which, tial domestic gays lesbians—including rights partnership 308.5, the call “marriage”—the Legisla under section could not Legislature ante, 822, 823) has given recognition” (maj. opn., ture official “explicit . which, right to a California treatment because it includes the right equal .5 invalidates section 308.5 marry, thereby own join Legislature’s
I cannot
this exercise in
which
legal jujitsu,
cloth,
it
from
to create
constitutional
whole
weight
against
used
will,
from
defeat
and invalidate
statute otherwise immune
People’s
otherwise,
insists
its
interference.
legislative
Though majority
pronounce-
ment
seriously oversteps
judicial power.
majority purports
apply
Constitution,
but it
afoul of
certain fundamental
state
runs
provisions
III,
another
as fundamental—article
section
just
separation
powers
are
of state government
clause. This clause declares
powers
“[t]he
executive,
charged
and that
with
“[pjersons
legislative,
judicial,”
as the
exercise of one
not exercise either
the others”
may
except
power
*94
added.)
(Italics
Constitution itself specifically provides.
217,
Meanwhile,
1994,
3).
greater
substantially
number
§
Sess. Laws
Act
amended
Haw.
(E.g.,
rights
marriage.
rejected
of
constitutional
to same-sex
of courts have
claims
state
571];
(2006)
Conaway
v. Robles
(2007)
v. Deane
7 N.Y.3d
The has majority violated these It does not have the principles. simply erase, recast, then definition of age-old as all marriage, virtually it, societies have understood in order to own its notions satisfy contemporary equality justice. The California Constitution about says nothing of same-sex rights couples concedes, On the marry. as the contrary, majority our original Constitution, statehood, effective from the moment of evidenced an assump- tion that marriage was between sex. partners Statutes enacted opposite at the state’s first legislative session confirmed this which has assumption, continued to the When present day. realized Legislature that 1971 Code, amendments to the reasons, Civil enacted for other had created an corrected, on the ambiguity point, oversight was quickly the defini- tion of as between a man and a woman was made explicit. (Maj. ante, 792-801.) The opn., themselves reaffirmed this People definition when, in the year they a 61.4 adopted Proposition percent majority. this
Despite history, first insist plaintiffs they have fundamental right, protected by California Constitution’s due process clauses privacy Const., I, 1, 7, (Cal. (a)), art. subd. the adult marry consenting §§ partners choice, of their regardless gender. majority largely accepts I, contention. It holds that “the right marry, as embodied in article sections Constitution, 1 and 7 of the California guarantees the same substantive constitutional to . . . enter with opposite-sex couples committed, chosen life into a partner] [one’s officially recognized, *95 protected family all of the relationship enjoys based constitutionally ante, 829, incidents of Further, at marriage.” (Maj. omitted.) fn. opn., the p. declares, majority a “core of this fundamental is of right right element[] same-sex to have their official couples accorded the family same relationship dignity, stature as that respect, accorded to all other officially recognized {Id., family 830.) at relationships.” p.
To the extent this means same-sex have a fundamental right enter legally recognized family (or, unions called as the “marriage” majority 866 name to both
unrealistically by another common same-sex suggests, I find unions), I cannot no basis in our agree. opposite-sex persuasive or Constitution our such a transformation jurisprudence justify cataclysmic venerable of this institution. entitled are those
Fundamental to the Constitution’s protection are, in this tradi “which rooted objectively, ‘deeply [society’s] history tion,’ [citations], and in the ordered such that ‘implicit concept liberty,’ of sacrificed,’ if liberty they ‘neither nor could exist were justice [citation].” 772, 702, v. Glucksberg (1997) (Washington 521 U.S. 720-721 L.Ed.2d [138 see, Dawn D. v. Court Superior (1998) 117 S.Ct. (Glucksberg); e.g., 2258] 932, 871, Moreover, 1139].) Cal.4th P.2d an Cal.Rptr.2d “a or interest is at stake right assessment whether fundamental requires of the . . . ‘careful asserted fundamental interest. description’ [Citations.]” D., 721; (Glucksberg, supra, Dawn 941.) at p. p. are crucial exercise of
These restraints principles upon overreaching in violation have Courts judicial authority separation powers. “ been reluctant of substantive due ‘always expand concept process this area because in unchartered guideposts responsible decisionmaking are scarce and constitutional By extending protection open-ended.’ [Citation.] extent, interest, we, matter to an asserted or liberty great place debate and action. We must therefore legislative outside arena of public ‘exercise the care whenever we are asked to break new in ground utmost field,’ [citation], subtly lest the Due Process Clause be liberty by protected judges. (Glucksberg, supra, transformed into the preferences” policy 702, 720.) U.S. in this case majority
It is the Court beyond dispute, Appeal indicated, that there is no rooted tradition of same-sex deeply persuasively true. The the nation or this state. is marriage, Precisely opposite novel unknown in distant and is past, was our concept of mar- our recent because the understood universally history, definition union of a a woman.6 has been the or man and riage legal religious “marriage” understanding certainly by confirmed the definitions of This traditional (See, New Internat. Dict. e.g., contained in standard dictionaries. Webster’s Third husband or being person opposite col. 3 a: the state of united to sex as p. [“1 wife, .”]; Random Webster’s the mutual of husband and wife: WEDLOCK .. House b: relation (2d 2001) under a man and College p. Dict. ed. col. 1 the social institution which rev. [“1. .”]; English religious . . legal live as and wife or commitments IX Oxford woman husband wife; . . . (2d 1989) being a husband or p. ed. cols. The condition of Dict. [“La. fl|] are ceremony persons 2.a. which two made husband procedure ... ... [f] (2d 1985) wife”]; being The state married: Heritage Dict. ed. col. 1 American [“La. wedlock, .”].) light of the man and wife. . . legal b. The union of a and woman as husband issue, dutifully allude to late editions of some such works development recent *96 state, Massachusetts,
One has within the five same- past years recognized 941; 4, However, ante.) sex marriage. (Goodridge, supra, A.2d see fn. as observed, the Court of in our case “the Massachusetts Appeal majority Judicial Court’s decision has been controver Supreme establishing right Note, Civil in the (See, United and a Moderate sial. Partnership Kingdom e.g., in the United Proposal Change States (2005) J. Ariz. Int’l & L. Comp. for 613, 630-631 controversy engendered by Goodridge]; [describing see Lewis v. Harris 259, also [(2005) 378 N.J. A.2d Super. 274]] [concluding from ‘the strongly negative Goodridge, reactions’ to public states, similar decisions from lower courts of other that ‘there is not yet any consensus of same-sex public favoring recognition Several other marriage’].) states have reacted negatively by, their constitutions example, amending Stein, on Civil (See same-sex Symposium Abolishing prohibit marriage. An Marriage: Introduction 1155, 1157, 27 Cardozo L.Rev. fn. 12 2006, as of [noting, January states ‘39 either laws or amended passed [had] their (or both) constitutions done same-sex prohibit marriages, deny of same-sex recognition from other marriages and/or to jurisdictions, deny to other recognition of same-sex types relationships’].)” California’s falls history this nationwide squarely along spectrum, though at its more end. As the progressive itself majority explains, despite Legislature’s of the DPA and passage other statutes pioneering gay lesbian rights, California law has assumed that always itself marriage between a man and a woman. years, recent both the and the Legislature People themselves have enacted measures to make that assumption explicit. circumstances, Under these there is no basis for a conclusion that same-sex is a rooted California deeply tradition. Undaunted, the majority nonetheless claims California’s legal history evidence of the constitutional it to the espouses. According majority, has, time, fact that very the Legislature over laws such as adopted progressive DPA, lesbians, thereby granting many substantial gays ante, 822, constitutes official 823) “explicit recognition” (maj. opn., pp. i.e., state’s current and conduct policies regarding “[t]his homosexuality,” concept (See, 1073, marriage. e.g., (4th 2000) of same-sex Heritage American Dict. p. ed. having col. 1 A customary usually union legal marriage: [“d. but not force of same-sex marriage”]; compare, e.g., (8th 2004) Black’s Law Dict. ed. p. [noting col. government United States recognize “[t]he most American states do not marriages,” issue], citing (7th 1999) but recent decisions on the with Black’s Law Dict. ed. 2, 987, 1-2, 988, 1; also, e.g., col. cols. col. compare Collegiate Merriam Webster’s (11th 2004) p. (10th 2000) Dict. ed. Collegiate col. with Merriam Webster’s Dict. ed. 1-2.) acknowledgements cols. But such recent in reference books do not undermine that, very recently, fact until universally the institution of has been understood as the union of opposite-sex partners. *97 and the same respect are entitled to the same legal rights “that individuals gay from discrimina- all individuals and are afforded other dignity protected 821-822, ante, at (Maj. tion on the basis of their sexual orientation.” opn., concludes, the “sections omitted.) “In of this recognition,” majority fn. light cannot be interpreted article I of the California Constitution properly and 7 of with heterosexual rights from individuals” full gay equality to withhold that are fully same-sex unions legal equiva- to including right persons, (Id., 823; at those of partners. p. in name—to lent—including opposite-sex 830-831, id., 844-856.) see also at pp. outset, it the most flawed. At the overlooks
This is analysis seriously rights gay indeed granted many facts. The has Legislature salient individuals, with all enter unions legal including right lesbian As the else- majority of civil marriage. and benefits substantive scheme, however, which includes our current statutory where acknowledges, reserves enacted by People, specifically an initiative measure Code, 300, 308.5.) Under these (Fam. for unions. §§ itself opposite-sex reflects a circumstances, history it difficult to see how our legislative that must now be favor of same-sex marriage current value in community enshrined in the Constitution.7 which mode of analysis, places concern is the majority’s
Of even greater aWhen right. to establish a constitutional statutory reliance on law heavy clear, the majority current values community makes legislation pattern itself.8 locked into the Constitution those values can become seems say, Constitution; has course, the Legislature can amend the only People Of However, Const., XVIII.) the effect (Cal. art. unilateral to do so. no power can the Legislature accomplish is to suggest reasoning majority’s not, reflecting to do so or by whether it intends amendment indirectly, such it enacts. attitudes in the laws current community 7 Massachusetts, only that of materially from situation differs respect, In this California’s finding marriage. such right to same-sex recognizes a constitutional other state that now imposed no marriage statutes Judicial Court addressed right, Supreme Massachusetts (See Goodridge, couples. marriage licenses to same-sex the issuance of prohibition facial on do, law, confront, 951-952.) did not as we court The Massachusetts 798 A.2d voters, community standard prevailing to a gave explicit voice recently adopted marriage. definition of retaining the traditional man-woman favor of assertion, that, is not it finds contrary my the constitutional majority protests laws, legislation any and such the DPA or other Legislature’s passage of “grounded upon” the (Maj. opn., gay and lesbian individuals. rights on equal order to confer required’’ not “[was] ante, noted, however, heavily Legisla analysis on the 822.) majority’s depends p. at As (id., 822) recognition” official “explicit gays and lesbians ture’s efforts behalf concluding, despite an consequent justification subject, and as policies on this California’s statute, right marry. grants gays and lesbians a contrary that our Constitution express
The notion that can become “constitutionalized” is mischievous legislation above, for several reasons. As indicated it violates the constitutional scheme It which can amend the state’s charter of only government. People *98 the to reconsider what the law should be as abrogates legislative power public And, reason, debate an it may on issue ebbs flows. for that very laws, efforts to out of fear that such efforts will discourage pass progressive the ultimately, legislation the issue of inadvertently, place beyond power to affect. case,
As in this the has also the applied majority’s analysis given Legisla- ture, it does not otherwise to thwart the indirectly, power possess People’s above, 10, II, will. As noted under article legislative section express Constitution, (c) subdivision of the California amend Legislature may “[t]he ... an initiative statute another statute that becomes effective repeal by the only by when electors unless the initiative statute approved permits amendment or their repeal without (Italics added.) Code approval.” Family 308.5, 22, section by includes no its adopted Proposition provision allowing unilateral or amendment the repeal by Legislature. however, to the the
According majority, of Legislature’s adoption progres- DPA, sive on the laws and lesbian subject gay the makes rights, including a constitutional it not to impossible recognize right to same-sex unions legal with full unions. This the equivalency opposite-sex legal development, concludes, majority ultimately the invalidation of Code requires Family words, view, section 308.5. In other Legislature’s own in the the majority’s have, actions indirection, caused this initiative statute to be erased from by least, the books. To the I find such a constitutional say troubling.9 approach true, majority suggests, It is as the that initiative statutes are not immune from constitu “ scrutiny, may tional ‘the by enacting voters no more violate the Constitution a ballot ” ante, legislative body may by enacting measure than a legislation.’ (Maj. opn., do so at Against Berkeley Rent Control v. p. quoting 454 U.S. L.Ed.2d Citizens 295 [70 434].) suggest say only majority 102 S.Ct. I do not that otherwise. I has made three here, serious mistakes en route to Family its conclusion that the initiative statute at issue Code 308.5, First, section violates the due process majority clause of the California Constitution. largely prevailing finds such violation on the basis of contemporary its assessment values state, though in this yet section 308.5 itself clear that our not makes citizens have embraced the Second, concept marriage. prevailing community as evidence attitudes support rights couples, majority Legislature’s full marital for same-sex cites efforts to lesbians, gays accord various including right benefits to to enter same-sex substantively equivalent marriage. effectively Legislature unions that are But this means the has, indirection, 308.5, by though expressly undermined section the Constitution denies Const., Third, body (Cal. (c).) express power to do so. art. subd. and most § fundamentally, majority judicial always has eschewed the restraint and caution that should apply, separation powers principles, expressions under before clear popular will on fundamental are issues overturned. claim of a fundamental
Other advanced for its grounds majority unconvincing are equally unpersuasive. majority accepts plaintiffs’ “ ” ante, seek no new to same-sex they ‘right marriage’ (maj. claim opn., 811), right marry but that the well-established simply recognition is not limited to those who wish to marry persons one’s chosen partner However, as whether the undoubted framing sex. issue opposite simply mischaracter- right marry couples, majority opposite-sex confined begs izes the entitlement claim. The thus actually majority plaintiffs “ ” that and violates the ‘careful description’ properly question requirement when a court is asked to break new in the area of substantive ground applies 702, 721-722.) due 521 U.S. process. (Glucksberg, supra, *99 otherwise, seek, and the majority insists Though majority plaintiffs new to same-sex a that has been marriage only recently urged grants, right our social and Because civil is an institution legal system. marriage upon woman, could defined as the union of a man and historically legal plaintiffs in our an not succeed this court to insert Constitution by convincing except that includes same-sex marriage—one altered and definition of expanded invitation, By majority for the first time. accepting partnerships and the realm of debate legislative this controversial issue beyond places wisdom of the its own in the matter for considered judgment substitutes no and their elected The advances majority persuasive People representatives. reason for taking step. entitlement without
In
of its view that
is
constitutional
marriage
support
cites the many
for the
of the
partners,
majority
regard
genders
respective
the basic
and federal decisions broadly describing
personal
California
to
including
right
marry, procreate,
and
autonomy
family intimacy,
ante,
809-820.)
home,
(See
at
children.
bring
maj. opn.,
establish a
up
holds,
However,
that any
or remotely suggests,
none of the cited decisions
the traditional
the Constitution extends
beyond
right marry recognized
definition of
to include same-sex
marriage
partnerships.
(Perez) does
P.2d
Sharp
(1948)
Certainly [198 17] racial There we struck down view. majority’s not support expansive But nothing of a man and a woman to marry. Perez restrictions on the right as a union of opposite- an intent to alter the definition marriage suggests sum, or California there no basis in federal convincing sex In is partners. have a funda- claim that same-sex couples for the majority’s jurisprudence to marry.10 mental constitutional right (2003) U.S. 558 v. Texas majority [156 can draw no comfort from Lawrence (Lawrence), prohibiting down a state law same-sex which struck
L.Ed.2d
That creates the for further extension of this approach judicial opportunity that, Who can right territory. constitutional into perceived dangerous say 10, 15, or 20 an activist court not on the years, might rely majority’s analysis conclude, values, to the a that on basis of evolution in perceived community the laws were no marriages longer incestuous prohibiting polygamous constitutionally justified? clause, law, adults, consenting process emphasized applied
under the due that the to behavior, conduct, an the human in the constituted intrusion into most intimate form of sexual private places, personal relationships most the Even if the in which such consensual home. law,” recognition majority the private conduct occurred were “not entitled to formal in the concluded, 567.) (Lawrence, government prohibit p. the could not the conduct itself. at Scalia, majority made response expressed to concerns in dissent Justice clear that recognition any government give case not involve whether must formal “[did] O’Connor, (Id., 578.) relationship persons p. that homosexual seek to enter.” at Justice grounds, concurring judgment, antisodomy equal protection in the found the law invalid on mean, seeing no rational limitation to homosexual conduct. This did not basis for statute’s clear, gay similarly fail. persons she made that all distinctions between and heterosexual would hand, noted, a any legitimate In the case at “Texas cannot assert state interest such [in she classification], (Id., marriage.” preserving such as . . . the traditional institution of O’Connor, (conc. J.).) opn. of In no do I same-sex unions with incestuous and way equate polygamous as a matter of social or social California’s relationships policy acceptance. of the DPA makes clear that our citizens find merit in the desires of adoption and lesbian of their committed gay legal recognition partnerships. Moreover, said, I I as have can foresee time when People might agree least, the label itself to such unions. It assign marriage unlikely, say is that our would ever confer such favor on incest and society polygamy. is that the has removed the sensitive issues
My majority’s point approach from their forum—the arena of surrounding legis- marriage proper other, lative resolution—and risks the door to similar treatment of opening claims debate less thus deserving, right marry. By moving policy court, from the to the legislative majority engages faulty process constitutional violates analysis separation powers.
I would avoid these difficulties that there is no by confirming clearly is, That as it constitutional to same-sex is because right marriage. marriage been, has of a woman and an unrelated man to each always right marry other. conclusion, follows,
From this it for substantive due process purposes, (see, are valid unless unreasonable or arbitrary e.g., statutes Rent Control Bd. 16 Cal.4th Kavanau v. Santa Monica 851]), P.2d and are not to the strict subject scrutiny Cal.Rptr.2d a fundamental or interest. As I discuss when statute applies infringes below, California’s of the traditional definition of preservation due claim. reasonable. I would entirely Accordingly, reject plaintiffs’ process and 308.5 are subject Besides Code sections 300 concluding Family *101 an on the fundamental state constitutional strict scrutiny infringement holds that such is scrutiny required the also marry, majority independently so, This is under the clause of the California Constitution. equal protection declares, unions legal because from same-sex by withholding majority unions, the discriminates on label that is scheme legal applied opposite-sex orientation, to be a which the now deems majority suspect the basis of sexual classification. reasons, reject For two I would
I find this flawed at several levels. analysis if that were not claim at the threshold. And even equal protection plaintiffs’ classification. I that sexual orientation is disagree suspect appropriate,
873 Hence, due I would not strict theory, apply as with the majority’s process I my would scheme as reasonable. scrutiny, statutory explain uphold conclusions. be valid and will be
“The rule is that is general legislation presumed related to a sustained if the drawn the statute is rationally classification at When social or economic is legislation state interest. legitimate [Citations.] latitude, issue, [citations], wide Protection Clause allows States Equal decisions will eventu Constitution even improvident presumes (Cleburne v. Cleburne Living be rectified the democratic ally processes.” Center, 432, 313, 3249], Inc. (1985) L.Ed.2d 105 S.Ct. 473 U.S. 440 [87 (Cleburne).) added italics initial is whether are any analysis
“The inquiry equal protection persons (In re ‘similarly situated for of the law challenged.’ purposes [Citation.]” 33, 597, Lemanuel C. (2007) 148].) 47 158 P.3d A 41 Cal.4th Cal.Rptr.3d [58 when it real distinctions recognizes statute does not violate equal protection v. Smith (E.g., People (2007) that are 40 to the law’s aims. pertinent legitimate 483, 245, Cooley Superior 1224]; v. Cal.4th 527 150 P.3d Cal.Rptr.3d [54 228, 177, 654]; Court P.3d (2002) Cal.4th 57 Cal.Rptr.2d [127 Coleman v. Personnel Administration (1991) Cal.3d Department of State Purdy & 300]; Fitzpatrick 805 P.2d Cal.Rptr. [278 645]; 456 P.2d see 71 Cal.2d Cal.Rptr. California Cleburne, cases, 441.) 473 U.S. In such deference supra, judicial choices is consistent with “our legislative respect separation (Cleburne, 441.) at powers.” ante, 831-832, (see maj. insists otherwise
Though majority opn., 54), fn. I with Justice agree Corrigan couples opposite-sex Family to the valid are not situated with couples similarly respect purposes indicates, has a Justice the state Corrigan Code sections 300 and 308.5. As will that enforcing legislative popular interest legitimate express be Same-sex and traditional definition of marriage preserved. opposite-sex cannot be situated for that limited similarly purpose, precisely a union of because the traditional definition of partners sex. opposite course, state interests classifications do not serve legitimate
Of statutory *102 sake, of animus toward a disfavored group. when for their own out adopted 855, 620, L.Ed.2d Romer v. Evans (1996) 517 U.S. 633-635 (E.g., [134 874 (Romer); 116 S.Ct. U.S. v. Moreno 413 U.S. Dept. Agriculture 1620]
528, 782, Lawrence, 558, 2821]; 534 L.Ed.2d 93 S.Ct. see U.S. supra, [37 O’Connor, 432, Cleburne, (conc. J.); 582-583 see also 473 U.S. opn. supra, Here, however, 441.) itself disclaims majority any suggestion expressly “that the current were enacted with an intent or marriage invidious provisions ante, 73.) at fn. I therefore (Maj. concur purpose.” opn., p. fully Justice conclusion that fails Corrigan’s challenge plaintiffs’ equal protection for this reason alone. that,
I also with the different disagree majority’s by assigning premise unions, labels to state discriminates opposite-sex legal on the basis of sexual orientation. The statutes are directly marriage facially neutral on that allow all whether homosexual or subject. They persons, heterosexual, not, to enter into the called do relationship marriage, they terms, their two from each other on the prohibit any persons marrying Perez, (Cf. that one or both of the 32 Cal.2d ground gay. supra, partners 711, 712-713 between certain on the prohibited partners [statutes races].) basis their respective statutes have a on and lesbian may disparate impact gay
individuals, insofar as these laws
such
from
marrying, by
prevent
persons
name,
But,
would
choose.
as we
partners they
actually
explained
(1996)
875 all the substantive and lesbian couples grants gay that legislation pioneering lurks an invidious intent the notion that further marriage dispels incidents above, itself majority expressly As indicated in our scheme. statutory for were passed laws defining that the disclaims any suggestion well, our equal I believe reason as For of discrimination. purpose no further. go need analysis protection under equal examination to further subject if the distinction were
Even standard clause, is the applicable that strict scrutiny I disagree protection hold, decision to majority’s with the I do not agree review. This is because circumstances, classification. orientation is suspect that sexual under current declared, for federal constitu- Court has never The United States Supreme is entitled orientation based on sexual tional classification purposes, Cleburne, supra, 473 (See rational basis review. beyond form of any scrutiny race, 432, national as origin suspect alienage, 440-441 [recognizing U.S. review, as and illegitimacy and gender strict scrutiny classifications requiring review].)11 heightened” “somewhat classifications requiring quasi-suspect Moreover, concedes, orientation is that sexual its conclusion majority contravenes “the great majority scrutiny classification to strict subject suspect decisions”—indeed, majority. cited all but one of those of out-of-state ante, 60.)12 at 840 & fn. (Maj. opn., p. 11 558, Lawrence, prohibiting law majority held that Texas’s supra, U.S. In 539 consenting right of all fundamental sodomy due-process-derived
homosexual violated the conduct, 564-579.) (Id., pp. at including private. engage activity, sexual adults to in intimate found, purposes, equal protection Concurring judgment, in the Justice O’Connor disapproval moral on dislike and simply a distinction based insofar as the law drew (cone. homosexuals, (Id., opn. of at pp. interest. 581-585 legitimate it served no state above, O’Connor, careful to state J.).) majority O’Connor were both the and Justice As noted gay and legal recognition to denying formal they calling question were not into laws Romer, that a Colorado majority found supra, 517 U.S. relationships. lesbian enacting agencies or and local from prohibited which all state constitutional amendment minority bisexuality the basis for claims of whereby homosexuality or could be enforcing laws animus, status, discrimination, an obviously by antigay motivated or of was protected or majority Romer basis review. The and thus could not survive rational illegitimate purpose, state theory that (id., 625), Supreme Court’s adopt, did not the Colorado specifically noted but rights. political scrutiny it invaded fundamental subject to strict because the amendment was quasi- suspect is not a have held that sexual orientation Numerous other decisions 2004) Family (11th & Cir. Secretary Dept. Children (E.g., v. suspect classification. Lofton 1997) 804, 818; (6th F.3d City Cir. 128 v. Cincinnati Equality F.3d Foundation 358 292-293; 1126, 1132; (9th 1997) 124 F.3d Army Cir. Holmes v. National Guard California 256, 260; Gays Ind. Sec. (8th 1996) High Tech v. Richenberg Perry F.3d Cir. 97 Defense Gays); v. U.S. (9th 1990) (High Tech Woodward F.2d 573-574 Clearance Cir. 895 Off. 1984) 1076; (10th F.2d Secretary Army Cir. 735 (Fed.Cir. 1989) F.2d Rich v. 1220, 1229; Wilson, and Florida 1307-1308 F.Supp.2d [DOMA 260, 265-266, 1996) (4th statutes]; 1995) Cir. Perry (D.Md. affd. F.Supp. Selland v. *104 notes, As the majority also the issue is one of first impression California. I find that circumstance highly significant. the current Considering status California, and as gays lesbians citizens of 21st century fails majority me we should persuade now hold that under our state they qualify, Constitution, for the accorded to extraordinary protection classes. suspect
The that certain identifiable are entitled concept to extra groups protection stems, under the clause equal protection most from the basically, that premise minorities, because these are or otherwise share a groups unpopular history and are politically powerless, they discrimination, insularity, persecution, are especially susceptible abuse continuing Laws that majority. out single this for different treatment groups category are presumed “reflect prejudice view those in the burdened are antipathy—a class and because such reasons, not as worthy deserving as others. For these means,” discrimination is to be unlikely soon by legislative rectified (Cleburne, deference accorded normally to legislative choices does not apply. supra, 432, 440, see also San Antonio School District v. added; 473 U.S. italics Rodriguez 16, (1973) 411 U.S. L.Ed.2d S.Ct. [noting 1278] relevance, class, of identification as purposes is suspect group “relegated such position as to command political powerlessness from the extraordinary protection majoritarian political process”].) that the need for Recognizing constitutional arises from special protection of an insular and political impotence disfavored several courts group, holding sexual orientation is not a class have focused suspect particularly that, least, on a determination times at contemporary gay lesbian (High Gays, Tech supra, does not lack community F.2d political power. Deane, Conaway v. 563, 574; supra, A.2d 609-614 [same-sex State, Andersen marriage]; [same].) 138 P.3d 974-975 California, of the emergence and lesbian political gay community state, In this particularly apparent. achieved democratic progress through that, described in detail means—progress majority—demonstrates “ discrimination, undeniable despite past injustice now ‘is group ” able to wield in defense of obviously its interests.’ political power (Maj. ante, brief.) at General’s opn., p. quoting Attorney Nor are these so and fortuitous gains fragile as to require extraordinary state constitutional On the declares contrary, itself protection. majority that recent decades have seen “a fundamental and dramatic transformation in this state’s treatment of individuals and understanding legal gay gay ante, 821), “California has couples” (maj. opn., whereby repudiated past 950; 915, 928; (4th 1996) Perry F.3d see Thomasson v. Cir. 80 F.3d Ben-Shalom v. Marsh (7th 1989) 464.) Cir. 881 F.2d morals of character and the general that. . . denigrated and policies practices one homosexuality “simply and now recognizes individuals” gay (ibid.). Under humanity” diverse our common and numerous variables of lack circumstances, submit, currently in this state and lesbians I gays these which vulnerability upon and consequent political the insularity, unpopularity, is founded. the notion of classifications suspect disfavored historically a determination whether insists that majority current political not on group’s is a class should suspect depend group *105 the Otherwise, to justify “it would be impossible the majority posits, power. sex, race, as religion suspect that continue to treat numerous decisions ante, omitted.) fh. (Maj. classifications.” opn., status was At the times suspect-class with those decisions. I do not quarrel race, there were ample to and religion, to and in California sex first assigned all of those cases. exist in some or so. still They may well grounds doing found in need of Moreover, a I do not that once suggest group properly circumstances “declassified” when it should later be extraordinary protection, change. here, that, when, matter of first the is before us as a
I as issue only propose case, a we should current such reality. we cannot ignore impression, discrimination, whether, group history particular consider despite disfavored, abuse that to majoritarian remains so susceptible unpopular, draw that I would not rights. status is its necessary safeguard suspect-class conclusion here. to determine the rational basis test I would normal
Accordingly, apply whether, and benefits of all the substantive rights same-sex granting couples by unions, California’s but the label for opposite-sex marriage, reserving By the state Constitution. guarantee laws violate equal protection standard, by struck on issue currently for the balance I find ample grounds and the both Legislature People.
First, same-sex having granted for the Legislature, it is reasonable certainly those assign rights its all substantive marital within power, couples all, a 61.4 by statute adopted than After an initiative marriage. name other vote, the Legis- from immune constitutionally repeal popular percent lature, sex. opposite as a union partners defines that,
Moreover, law for purposes of federal light provisions (1 benefits, couples the definition of marriage opposite-sex federal limit from opposite-sex must 7), distinguish U.S.C. California § are governed numerous federal-state programs administering federal law. A nomenclature separate applicable family relationship of same-sex facilitates the couples undoubtedly administration of such programs.
Most fundamentally, themselves cannot be considered People irrational for the time deciding, the fundamental being, definition of marriage, it has universally existed until very should be recently, As New preserved. observed, Court Jersey Supreme “We cannot that the shared escape reality societal meaning of down the common marriage—passed through law into our statutory law—has been the always union of a man and a woman. To alter that would render a meaning in the profound change conscious- public Harris, ness of a (Lewis social institution of ancient origin.” A.2d supra, 908 196, 222.) occur,
If such a in this ancient profound change social institution is to conscience, and their People who representatives, should represent public have the and the right, responsibility, control the of that change pace the democratic through Code process. Family sections 300 and 308.5 serve *106 The salutary decision purpose. majority’s it. erroneously usurps reasons, For all these I would affirm the Court of judgment Appeal. Chin, J., concurred.
CORRIGAN, J., view, and Concurring Californians Dissenting. In my should allow our and lesbian gay call their unions neighbors marriages. I, court, But and this must that a acknowledge of Californians hold a majority view, different and have said so their vote. This court can explicitly overrule a vote if the Constitution us to do people only so. compels Here, Therefore, the Constitution not. does I must dissent. law,
It is be clear. Under California domestic important partners have all of the “virtually benefits and available to traditional responsibilities” ante, 807.) at I (Maj. believe Constitution spouses. opn., p. requires However, a matter this as in this case equal protection. single question whether is domestic have a constitutional to the name of partners “marriage.”1 Baxter, agree following (1) Like I with majority subsidiary Family Justice on the issues: (2) applies marriages; Code section 308.5 to both in-state and out-of-state statutes gender;
do not discriminate on the Appeal properly basis and the Court of dismissed as Proposition Legal City County and Education Fund v. and moot the actions in Defense Campaign Francisco CPF-04-503943) San (Super. City County, Ct. & S.F. No. majority a substantial eight ago. By 22 was enacted only years
Proposition those unions between only as recognize, “marriage,” voted people Code, that the 308.5.) The concludes (Fam. majority and a woman. man § unconstitu- is to retain the traditional definition of voters’ decision tional. I disagree. it not for this court to set social policy
The notes that majority correctly Rather, law. of constitutional based on our individual views. this is question 780-781, ante, 849-850.) majority at I also with agree (Maj. opn., pp. and the domestic that we must consider both the statutes defining marriage 779, 808.) Domestic Partner (Id. statutes. at The California partnership (DPA), and other recent legislative Act of 2003 Rights Responsibilities and fundamental transformation of the rights a dramatic changes, represent and lesbian It is a remarkable achievement of legislative Californians. gay have the that the law now that domestic recognizes partners process expressly same obligations substantive spouses. however, to the DPA. fails to full and fair consideration majority, give
Indeed, current recognition its conclusion that “California’s majority says are entitled to treat- nondiscriminatory legal individuals gay equal ante, 822.) ment” is not on the DPA. grounded (Maj. Surely opn., “[regis- consideration is due to greater legislation broadly proclaiming benefits, tered domestic shall have the same partners rights, protections, and shall be to the same and duties under obligations, subject responsibilities, law, statutes, rules, derive from administrative court regulations, whether they law, law, common other or sources government any policies, provisions 297.5, Code, (Fam. as are to and granted imposed upon spouses.” § (a).) As the intended that Legislature subd. majority acknowledges, *107 DPA be to secure for domestic the full range liberally applied, partners ante, at legal rights by (Maj. opn., responsibilities enjoyed spouses. 802-803.) pp. the is to
This court has held that the “chief goal previously [DPA] and married couples.” the status of domestic equalize registered partners (Koebke (2005) v. 36 Cal.4th Heights Country Bernardo Club [31 case, however, the fails to 1212].) 115 P.3d In this majority Cal.Rptr.3d the Legisla- honor that Instead of the conferred goal. recognizing equality ture, novel alternative the domestic as majority denigrates “only partnership treatment,” and “a mark of . . . designation constituting significantly unequal ante, 845-846.) at Without founda- second-class (Maj. opn., pp. citizenship.” tion, laws constitu- the claims that to hold the domestic majority partnership law, under the for society tional would be a statement “that it is permissible, CGC-04-428794). Families v. Newsom City County, & No. I confine (Super. Ct. S.F. California my central issue before the court. disputed discussion from, to treat individuals and same-sex gay and less couples differently than, heterosexual individuals and favorably opposite-sex couples.” (Maj. ante, 855.) at This is not so. The opn., narrow p. simply majority’s inaccurate are assertions of what the intended. just opposite Legislature violation, To make its case for a constitutional distorts and majority DPA, diminishes the historic achievements and the efforts of those who worked so it law. diligently into pass
Domestic have the marriages same partnerships legal standing, grant- to both heterosexual and homosexual a societal ing couples recognition Constitution, their commitment. This does not violate the it is lifelong parity is, view, with it. keeping same substantive Requiring legal rights my a matter of But this does not mean the traditional definition equal protection. is unconstitutional. cases,
The
refers to
race
from which our
majority
equal protection
has evolved. The
does not hold. The civil
jurisprudence
analogy
rights cases
racial discrimination were based on
banning
enacted amendments to the
duly
Constitution,
United States
and ratified
proposed by Congress
people
shame,
the states. To our
through
nation’s
individuals and
great
many
entities
refused to
governmental
obdurately
follow these constitutional im-
Jim Crow and other
peratives
nearly
century. By overturning
segrega-
laws,
tion
the courts
held the
accountable
courageously
properly
people
to their own constitutional mandates. Here the situation is
different. In
quite
decade,
than a
less
democratic
have
through
process,
are
legal
been
to which
entitled.
given
equal
they
17],
What is about this case is that seek both plaintiffs unique The institution of and at the same time to alter its definition. marriage the existing maintains that are not to change majority plaintiffs attempting ante, 812.) institution of at This claim is irreconcil- marriage. (Maj. opn., p. “[f|rom of California beginning able with the declaration majority’s statehood, to refer has been understood institution of civil legal 792, (Id. omitted.) at fn. to a between a man and woman.” p. relationship in the understanding this traditional The are entitled people preserve law, unions that same-sex recognizing opposite-sex terminology treat them differently under do are different. What are not entitled to is they the law. makes this case
The distinction between substance and nomenclature to educa- rights different from other cases. The definition of rights civil tion, vote, celebrated civil an office or and the other pursue occupation, courts, to all were not altered them by extending vindicated fundamentally races and both institution of was not genders. The encumbered it. formerly the racial restrictions changed by removing Plaintiffs, however, of the marital seek to the definition change relationship, understood, it been new. could something They has into consistently quite the initiative As a such a redefinition certainly accomplish through process. voter, not for judges I But that is for might agree. change people adopt, to dictate. on both an view on this rests
My question terminology equal protection As a judicial authority. of the analysis recognition appropriate scope in the same as married matter of while are equal plaintiffs position protection, when it comes to the substantive legal rights responsibilities members, to the title of are not the same with family they position regard “ 1 “The of the laws “marriage.” compels concept equal protection recognition of the situated with persons similarly respect proposition ’ like of the law receive treatment.” ‘The legitimate purpose [Citation.] clause is a first to a meritorious claim under the prerequisite equal protection that the state has a classification that affects two or more showing adopted similarly situated manner.’ This initial in an groups unequal [Citations.] not are situated for all but whether inquiry persons similarly purposes, ‘whether are situated for of the law they similarly challenged.’ purposes 228, Court (2002) (Cooley Superior 29 Cal.4th [Citation.]” Center, Cleburne Living see also Cleburne v. 654]; 57 P.3d Cal.Rptr.2d Inc. 3249].) S.Ct. (1985) 473 U.S. L.Ed.2d 439 [87 The is to defining marriage statutes legitimate purpose preserve are For that traditional institution.2 understanding purpose, plaintiffs majority recognizes purpose. that these statutes were not enacted with an invidious ante, Thus, Mulkey v. Reitman 73.) (Maj. not a like opn., p. at fn. this is case 825], declared an initiative measure Cal.Rptr. Cal.2d 413 P.2d where this court 529 [50 laws” enacted “with the clear intent to overturn state unconstitutional because it was (Id. 534.) prohibiting racial discrimination. *109 not situated with While their unions are of similarly legal spouses. equal are different dignity, they because of the same they join partners gender. tradition, Plaintiffs are in the a new unfettered process founding by boundaries of the old one.
The majority threshold of “similar situation” to a relegates question footnote, “[bjoth that observing at issue consist of of individuals groups pairs formal, who wish enter into a and legally binding officially recognized, long-term family that affords the same and relationship rights privileges ante, the same at imposes obligations (Maj. responsibilities.” opn., 831-832, 54.) fn. The the fact that have pp. majority ignores already plaintiffs those under the rights DPA. The articulates how privileges majority aptly domestic are the same. But it marriages recognize fails partnerships that this case involves the names of those unions. The fact that only plaintiffs substantive does not situate them with married enjoy equal similarly of the terms traditional if it couples designation marriage. Society may, chooses, that some authorized familial unite recognize legally relationships same while others sexes. partners gender join partners opposite There is defective in this nothing pernicious constitutionally approach.3
The voters who 22 not decided to passed Proposition long ago keep as it meaning has been understood California. The marriage always on the of the voters majority infringes by overriding improperly prerogative their decision. It does that which it it should not do: it acknowledges (See redefines because it believes should be redefined. marriage ante, 780-781, 849-850.) at It decision maj. finding its opn., pp. justifies are free to take their case infirmity constitutional where none exists. Plaintiffs to the to let them vote on whether are now such they ready people, accept a redefinition. Californians have domestic but decided legalized partnership, not to call it Four votes on. this court should not disturb the “marriage.” balance reached the democratic balance is still tested being process, in the arena.4 political 3 similarly married majority correctly plaintiffs The observes if are not situated to couples they challenge, equal for the of the those laws are insulated from purpose laws ante, 831-832, 54.) (Maj. purpose That is the
protection opn., pp. review. at fn. they plaintiffs making equal protection an claim first show that requirement well-settled Court, (Cooley 253.) Superior similarly particularly Cal.4th at It is are situated. thwart the will of the appropriate employing equal protection for us to refrain from doctrine to expanded should be to include same-sex voters in this case. Whether institution question properly political process. is a reserved for the moves, majority legislative gubernatorial which occurred in 2005 details the latest ante, 796-797, 17.) (Maj. fn. opn., and 2007. *110 review. initiative measures are not immune from constitutional
Certainly However, we should hesitate to use our to take one side in an authority debate. The accommodation of views is democra- ongoing political disparate never more than when its essential is tested cy’s challenge. Democracy citizens held circum- based on beliefs. such honestly disagree, deeply stances, the be to work out the should legislative process given leeway differences. It is for the inappropriate judiciary interrupt process members, the views of its individual while the of the impose opinions people are still evolving.
Restraint is the hallmark of review. the is to judiciary constitutional “[I]f fulfill its role in our of as the final arbiter of system government tripartite issues, it constitutional cannot the tension between hope legislative escape the determinations and raised those who would seek policy challenges can, however, We thereto. while such seek exceptions entertaining challenges, to hold the tension in check by always validity constitutional presuming (Dawn of acts and doubts in favor of the statute.” D. v. legislative resolving Court 17 Cal.4th P.2d Superior Cal.Rptr.2d 1139], added.) italics
The abandons this Instead of majority judicious approach. presuming of the statutes validity defining marriage establishing domestic partner- in effect the ship, constitutionally them to be invalid majority presumes domestic as a “mark of second-class characterizing partnership citizenship.” ante, 855.) (Maj. at This opn., judicial contravenes presumption express intent of the and domestic Legislature equalize spouses partners.
The restraint is a covenant between and the judicial judges principle from their whom derives. It people power against judicial protects people It overreaching. is no answer can break the covenant so say judges are long they enlightened well-meaning.
The in the reform familiarization should forward process go legislative at We are in the midst of a sphere society large. major social Societies seldom make change. such For some changes smoothly. slow. For others it is fast. In a process frustratingly jarringly democracy, should be a fair chance given to set without people pace change interference. That is the democracies work. are judicial way Ideas proposed, debated, resisted, tested. Often new ideas are to be initially only ultimately embraced. But when ideas are hardens imposed, opposition progress may be hampered. achievements embodied in the domestic
We should allow significant to be a new statutes to continue to take root. If there is partnership California, it should understanding meaning develop state and find its ballot box. among expression our people Defense and rehearing Legal petition appellants Proposition *111 denied for California Families was Education Fund appellant Campaign Baxter, J., Chin, J., J., June 2008. were Corrigan, opinion should be granted. petition