Same Sex Marriage in California

By Veronika Melamed © 2008

Weighing in on one of the most-contested legal issues in California – and perhaps the United States – in the new Millennium, the California Supreme Court ruled on May 15, 2008, that it was unconstitutional to deny same-sex couples the right to enter into a marriage. In a decision affecting millions of people, both pro- and anti-same-sex marriage, the Court declared that the current statutes allowing marriage in California only between a man and a woman violated the equal protection and due process clauses of the California Constitution, and that the statutory scheme established by the Legislature known as “Registered Domestic Partnerships” failed to accord the same level of Constitutional rights as did marriage. In a single multi-page decision, the California Supreme Court made history by granting same-sex couples the right and privilege to enter into matrimony in California with all of the rights and responsibilities afforded to opposite-sex couples.

It had long been held as the law in California that only opposite-sex couples could marry, as defined both in statutory law and tradition. To address the growing numbers of same-sex couples in California, and the change in current social mores and traditions, the California State Legislature developed a statutory scheme allowing same-sex couples, and opposite-sex couples where at least one person was over the age of 62, to enter into a “domestic partnership” that could be registered with the State of California, thereby creating, or at least attempting to create, a system akin to marriage while still protecting the concepts of marriage.

As first enacted in 1999, and amended in 2001 and 2003, finally becoming effective as of January 01, 2005 in its current form, Family Code Section 297 states that couples who meet the requirements established by the statute could enter into a Domestic Partnership which could then be Registered with the State, giving such Registered Domestic Partners “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.” (Family Code Section 297.5).

In a further attempt to create a situation similar to that of marriage, the State Legislature included provisions that the date of registration was equivalent to the date of marriage, that the rights of registered domestic partners with respect to a child of either of them would be the same as spouses, and that the registered partnership would have to be terminated in the same manner as a marriage, with the Superior Courts of this state having jurisdiction over the termination. While this was meant to appease the population – both those in favor of same-sex relationships by recognizing the legal validity of these relationships and those against same-sex relationships by withholding the actual state of matrimony, the attempt failed as same-sex couples still called for the right to marry.

The issue of same-sex marriage as was addressed by the Supreme Court in the Marriage Cases first arose as a result of the actions of the Mayor of the City of San Francisco, Gavin Newsom who, on February 10, 2004, wrote a letter to the county clerk, directing that official to determine what changes should be made to the forms and documents used to apply for and issue marriage licenses, so that licenses could be provided to couples without regard to their gender or sexual orientation. In response, the county clerk designed revised forms for the marriage license application and for the license and certificate of marriage, and on February 12, 2004, the City began issuing marriage licenses to same-sex couples. The next day, two separate lawsuits were filed seeking an order from the court prohibiting the City’s issuance of marriage licenses to same-sex couples, claiming that the City’s actions were in violation of the law, and that the actions exceeded the scope of permissible conduct as stated in the various applicable Codes and Statutes. The Court denied the request and the City continued to issue marriage licenses to same-sex couples, eventually beginning to solemnize the marriages as well.

Following a denial of the request to stay the City’s actions, two separate cases were filed that were eventually consolidated into one. The case of Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 was filed asserting that the City's actions were unlawful and warranted immediate intervention by the Court and its prohibition of these actions by the City. On March 11, 2004, the Supreme Court directed City officials to enforce the existing marriage statutes and to refrain from issuing marriage licenses other than those specifically authorized by those provisions. The basis of the ruling in the Lockyer case rested on the principle that the City’s actions violated the law, rather than addressing the question of whether the law itself was valid.

Shortly after the court’s March 11th decision, and with the Lockyer case still pending in the courts, the City filed its own lawsuit, challenging the constitutionality of the current law and asking the court to declare the laws allowing marriage only between a man and a woman to be unconstitutional. (City and County of San Francisco v. State of California (Super. Ct. S.F. City & County, No. CGC-04-429539 (CCSF).) It is this case, along with the multitude of county-wide cases filed simultaneously asking for the same relief, that became known as the Marriage Cases.

On August 12, 2004, while the Marriage Cases were in the process of being consolidated, the state Supreme Court issued its final ruling in the Lockyer case, concluding that the City officials had exceeded their authority in issuing marriage licenses to same-sex couples in the absence of a judicial determination that the statutory provisions limiting marriage to the union of a man and a woman were unconstitutional, and further concluding that the approximately 4,000 same-sex marriages performed in San Francisco prior to their March 11, 2004, order were void and of no legal effect. The Court also noted that its decisions addressed only the issue before it: whether City officials had acted appropriately and in keeping with current law. The Court went out of its way to state that this decision was in no way a ruling on the issue of whether the law allowing marriage only between a man and a woman was constitutional, as no one had raised that issue in this specific case.

To fully understand the impact and context of its decision in the Marriage Cases, and why the court ruled in favor of the Plaintiffs in Lockyer in 2004 yet seemingly ruled against them 4 years later in its decision in the Marriage Cases, one must look at what the issues were in each case, how they differed, and why the two rulings of the Supreme Court are actually both “correct.”

As stated above, the question presented to the Court in the Lockyer case was only a question of whether the laws were being followed, rather than a question of whether the laws were “right” or “constitutional” or “correct.” In that context, and without any challenge to the underlying laws, the Court could only look at the law as it existed at that time and determine whether City officials were complying with the law, or breaking the law. In particular, the Supreme Court looked to Family Code section308.5, which stated, “Only marriage between a man and a woman is valid or recognized in California,” and Family Code section300, which states, “(a) Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500). (b) For purposes of this part, the document issued by the county clerk is a marriage license until it is registered with the county recorder, at which time the license becomes a marriage certificate.”

Enacted on March 8, 2000, Family Code Section 308.5 was added by Initiative Measure Proposition 22, and clearly defined “marriage” in this state as being only between a man and a woman, and was a further articulation of the definition of “marriage” in Family Code Section 300. Given that this was the law at the time the Court ruled in the Lockyer case, and that there were no challenges to the substance of the law pending before the state Supreme Court at that time, the Court ruled that the City’s actions did, in fact, violate the laws of the State of California, and that its continued actions in issuing marriage licenses to same-sex couples and then performing solemnization ceremonies for these couples, would continue to be violative of the law. In essence, the Court stated that until such time as somebody actually challenged the law itself, and presented that issue to the Court for its ruling, the City officials had to follow the law as written, irrespective of whether they personally agreed with it, believed in it, or wanted to follow it.

Whereas the Lockyer case was one of procedure, and the Court went out of its way to make that distinction, the Marriage Cases was one of substance, in which the Supreme Court was asked to rule on the question of whether the Family Code Sections that addressed and defined marriage in California were Constitutional because they treated same-sex and opposite-sex couples differently. That is, could the state limit marriage to be only between a man and a woman, or was that limitation actually unconstitutional because it treated these two types of couples differently? To be sure, the Legislature created a statutory scheme designed to look like and act like a “marriage”(Registered Domestic Partnerships) but that still denied same sex couples the title and status of “marriage.” So while the substantive issue before the Court pertained to the constitutionality of the statutes, the question was framed to draw the Court’s attention to whether the same-sex couples were being treated the same as opposite-sex couples or whether same-sex couples were being denied their rights.

As the Supreme Court defined it, “the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a ‘marriage’ whereas the union of a same-sex couple is officially designated a ‘domestic partnership.’ The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.” Marriage Cases at 779-780. At no time in its decision, or in the issue presented, was the court asked to decide whether marriage for same-sex couples was appropriate, and this was not the issue that the Court examined. Rather, the Court looked at whether the State should give these two different groups essentially the same rights, yet withhold the appellation of “marriage” from one of the groups.

While some readers may wonder at the importance of having a union labeled a marriage so long as the underlying rights and responsibilities are the same, the Court addressed this point in its ruling that the State could not create a system where people were treated “separate but equal” as it pertained to the fundamental right to be married: “Upon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), we conclude that, under this state’s Constitution, the constitutionally based right to marry people must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish – with the person with whom the individual has chosen to share his or her life – an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own – and, if the couple chooses, to raise children within that family – constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society…. “We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.” The Court reasoned that the right to marry, and to have one’s union carry the title of “marriage” is a person’s fundamental right, their interest in the personal liberty guaranteed to us individuals, such as one’s right to enter into an interracial marriage.

What exactly does the decision issued on May 15, 2008, and effective as of 5:00 p.m. on June 16, 2008, mean to the California population? As established by the state Supreme Court, the State of California, until such time as the decision is overruled by another state Supreme Court ruling or by a newly-enacted law as voted on by the citizens of California, must issue marriage licenses to same-sex couples and solemnize marriages between same-sex couples. With the implementation of this ruling, same-sex couples now have the right to call each other “spouse” and to fully partake in the social system of being married, giving their children the right and privilege of saying their parents are married and giving them the same. Further, upon entering into their marriage, same-sex couples become entitled to the same state rights as opposite-sex couples, including the right to file joint state income tax returns, and to receive all of the benefits afforded opposite-sex couples under California state law; in essence, everything that was provided for in the legal concept of Registered Domestic Partners, but now with the state-recognized title of “marriage.”

In the context of family law, same-sex couples fall within the full scope of the Family Code as it pertains to dissolution and separation proceedings, and will be getting a divorce as opposite-sex couples have been doing for years. With the creation of same-sex marriage, there will no longer be any differentiation for the termination of same-sex unions and opposite-sex unions, so long as the couples are married. Unlike with Registered Domestic Partnerships, dissolution proceedings for same-sex couples will entail the filing of the same Petition for Dissolution and/or Legal Separation, and use the same forms, processes, procedures, and legal concepts and principles as are used and addressed in dissolution proceedings for opposite-sex couples.

While the ruling in the Marriage Cases grants same-sex couples the right to marry under the California Constitution and affords them the rights of spouses, the Federal Government has enacted its own law that still prohibits the recognition of same-sex marriage. Signed into law on September 21, 1996, the Defense of Marriage Act (DOMA) explicitly defines marriage as between a man and a woman for the purposes of federal law, bars federal recognition by any federal agency or act of same-sex marriage, and grants states the option to forego recognition of same-sex marriage or same-sex unions as allowed by other states, and as would normally be recognized under the principle of the Full Faith and Credit Clause of the United States Constitution, which directs states to respect the public acts, records and judicial ruling of other states, which has traditionally included the solemnization of marriage. The impact of this on same-sex married couples is tremendous: according to the federal government’s General Accounting Office, more than 1,138 rights and protections are conferred to U.S. citizens upon marriage by the federal government, (a complete list of which may be obtained from that federal agency).

One specific area where DOMA will affect California same-sex marriages is in the filing of federal income tax returns: while the state now allows couples to file joint returns as they would opposite-sex couples, DOMA forbids the Internal Revenue Service from recognizing these marriages and allowing these spouses to file joint tax returns. In a very real economic sense, same-sex couples will lose the financial benefit often associated with, and specifically created by, the filing of a “Married Filing Joint” tax return. In fact, given the existence of DOMA, same sex couples will likely still have to file tax returns as “single” individuals, losing out on the multitude of tax benefits and breaks afforded to married opposite-sex couples.

The question and issue of same-sex marriage in California is far from over and still has a ways to go before it is settled law. The first challenge to the Court’s decision will come on the November 2008 General Election ballot, where California voters will once again be given the option to define marriage as “between a man and a woman” and override the state Supreme Court’s decision in the Marriage Cases. The California Marriage Protection Act, also known as Proposition 8 and titled “Limit on Marriage,” places before the public the choice of nullifying the Court’s decision by once again enacting into law provisions that would deny same-sex couples the right and recognition of marriage. Originally intended to amend the state Constitution to “provide that only marriage between a man and a woman is valid or recognized in California,” the Proposition itself is the subject of controversy following a title change made by California Attorney General Jerry Brown on July 22, 2008, which now titles the Proposition: “Eliminates Right Of Same-Sex Couples To Marry.” What impact, if any, the title change will have on the voters in the November election remains to be seen, as does the status of same-sex marriage in California.