In re Marriage Cases

Supreme Court of California

Argued March 4, 2008

Decided May 15, 2008

Full case name: In re MARRIAGE CASES. [Six consolidated appeals.]
Citations: 43 Cal.4th 757 (2008) [Cal.Rptr.3d 683, 183 P.3d 384 76]
Prior appellate history: Judgement for Plaintiffs' reversed, 143 Cal.App.4th 873 (2006) [49 Cal.Rptr.3d 675]
Subsequent appellate history: Rehearing and Stay of Remittitur Denied June 4, 2008
(1) Gay men and Lesbians are commonly subject to biased treatment that has no basis upon their ability to be a contributing member of society. Therefore, sexual orientation, like race, religion, or gender, is a suspect class for purposes of the Equal Protection Clause of the California Constitution. This suspect classification requires that the highest level of scrutiny be applied to laws potentially infringing upon the rights of these persons.

(2) Under the above standard the statutory denial of marriage licenses to same-sex couples is unconstitutional.

Court membership
Chief Justice Ronald M. George
Associate Justices Joyce L. Kennard, Marvin R. Baxter, Kathryn M. Werdegar, Ming W. Chin, Carlos R. Moreno, Carol A. Corrigan
Case opinions
Majority by: George
Joined by: Kennard, Werdegar, Moreno
Concurrence by: Kennard
Concurrence and Dissent by: Corrigan
Concurrence and Dissent by: Baxter
Joined by: Chin
Laws applied
Cal. Const. art. 1 §§1, 7, and Cal. Fam. Code §§300, 308.5

In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], is a California Supreme Court case holding "that the California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying."[1]

On May 15, 2008, the court ruled in a 4–3 decision that laws directed at gays and lesbians are subject to strict judicial scrutiny and that marriage is a fundamental right under Article 1, Section 7 of the California Constitution, thereby holding unconstitutional the previously existing statutory ban on same-sex marriage embodied in two statutes, one enacted by the Legislature in 1977, and the other through the initiative process in 2000. The Court's ruling also established that any law discriminating on the basis of sexual orientation is constitutionally suspect, making California the first state in the United States to set such a strict standard.[2] On June 4, 2008 the court denied the request for rehearing by the same 4-3 majority while unanimously denying a petition for a stay, affirming that the decision would take effect as scheduled.[3] The Writ of Mandate directing the State Registrar of Vital Statistics and all County Clerks to comply with the ruling was issued by the Superior Court on June 19, 2008.[4]

Proposition 8 is an attempt to overrule the court's decision by amending the state's constitution. The initiative defines marriage as a union between a man and a woman and may appear on the November 4, 2008 General Election ballot.[5][6] However, it is noteworthy that the Court, at footnote 41, indicated that "the right to marry is not properly viewed simply as a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people." This language echoes that of then-Associate Justice Roger J. Traynor in his landmark ruling in Perez v. Sharp (1948) 32 Cal.2d 711: "The freedom to marry the person of one's choice has not always existed, and evidently does not exist here today. But is not that one of the fundamental rights of a free people? Blackstone said that: 'Liberty consists in being limited only by that Supreme Law which is the expression of abstract right....It is material that the few who do so desire have the right to make that choice. It is only ignorance, prejudice and intolerance which denies it." (ibid. at 32 Cal. 2d at 734-735). In light of this, at least one legal scholar has raised doubts as to whether the initiative process can amend the constitution and whether any change in this fundamental right has to occur through a constitutional revision which is also provided for in the California Constitution.[7]

The Supreme Court of California joins the Supreme Judicial Court of Massachusetts as only the second state to have its highest court rule prohibitions on same-sex marriage unconstitutional, although for somewhat different reasons.

Procedural history

At the direction of Mayor Gavin Newsom The Office of the County Clerk of San Francisco "designed revised forms for the marriage license application and for the license and certificate of marriage, and on February 12, 2004, the City and County of San Francisco began issuing marriage licenses to same-sex couples." On February 13, two organizations, the Proposition 22 Legal Defense and Education Fund, and the Campaign for California Families, filed actions in San Francisco Superior Court (the court of first instance) seeking an immediate stay to prohibit the City from issuing marriage licenses to same-sex couples.[8]

The Superior court refused to grant the groups' request for an immediate stay, and the City and County continued to issue marriage licenses to same-sex couples. Following this, the California Attorney General and a number of taxpayers filed two separate petitions seeking to have the California Supreme Court issue an original writ of mandate, asserting that the City's actions were unlawful and warranted [the court's] immediate intervention." On March 11, 2004, the California Supreme Court ordered officials of San Francisco "to enforce the existing marriage statutes and to refrain from issuing marriage licenses not authorized by such provisions." The Court later held in Lockyer v. City and County of San Francisco that the City and County had acted unlawfully, but was free to bring an action challenging the constitutionality of the marriage laws if it wished.[9] The City and County of San Francisco then filed a Petition for Writ of Mandate in Superior Court, seeking a declaration that "all California statutory provisions limiting marriage to unions between a man and a woman violate the California Constitution." All six actions were consolidated (coordinated) in a single proceeding called In re Marriage Cases.[10]

San Francisco Superior Court Judge Richard A. Kramer held for the plaintiffs, finding that the marriage restriction was invalid under the strict scrutiny standard based on a suspect classification of gender. In October 2006, in a two-to-one decision, the First District of the Court of Appeal of California reversed the superior court's ruling on the substantive constitutional issue, disagreeing in a number of significant respects with the lower court's analysis of the equal protection issue."[11]

The opinion, written by Chief Justice Ronald George, cited the court's 1948 decision that reversed the state's interracial marriages ban. It found that "equal respect and dignity" of marriage is a "basic civil right" that cannot be withheld from same-sex couples, that sexual orientation is a protected class like race and gender, and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of the California State Constitution.[12] It was the first state high court in the country to do so.[13] The Massachusetts Supreme Judicial Court, by contrast, did not find sexual orientation to be a protected class, and instead voided its gay-marriage ban on rational basis review.[14]

After the announcement, the Advocates for Faith and Freedom and the Alliance Defense Fund, among others, stated they would ask for a stay of the ruling. Governor Arnold Schwarzenegger immediately issued a statement pledging to uphold the ruling, and repeated his pledge to oppose the Proposition 8.[15]

In a one-page Resolution, the California Supreme Court on June 4, 2008 denied all petitions for rehearing and to reconsider the May 15 ruling, as it removed the final obstacle to same-sex marriages starting on June 17.[16] It further rejected moves to delay enforcement of the decision until after the November election, when voters will decide whether to reinstate a ban on same-sex nuptials. Chief Justice Ronald George and Justices Joyce Kennard, Kathryn Mickle Werdegar, and Carlos Moreno voted against reconsideration, while voting to reconsider the judgment were Justices Marvin Baxter, Ming Chin, and Carol Corrigan.[17]


In the majority decision:

[U]nder this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.[18]

[S]trict scrutiny (...) is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion — a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.[19]

[T]he exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples.[20]

In the concurrence and dissent of Justice Baxter:

Nothing in our Constitution, express or implicit, compels the majority's startling conclusion that the age-old understanding of marriage—an understanding recently confirmed by an initiative law—is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.[21]

[T]he majority's approach has removed the sensitive issues surrounding same-sex marriage from their proper forum—the arena of legislative resolution—and risks opening the door to similar treatment of other, less deserving, claims of a right to marry. By thus moving the policy debate from the legislative process to the court, the majority engages in faulty constitutional analysis and violates the separation of powers.[22]

If such a profound change in this ancient social institution is to occur, the People and their representatives, who represent the public conscience, should have the right, and the responsibility, to control the pace of that change through the democratic process. Family Code sections 300 and 308.5 serve this salutary purpose. The majority's decision erroneously usurps it.[23]

In the concurrence and dissent by Justice Corrigan:

The process of reform and familiarization should go forward in the legislative sphere and in society at large. We are in the midst of a major social change. Societies seldom make such changes smoothly. For some the process is frustratingly slow. For others it is jarringly fast. In a democracy, the people should be given a fair chance to set the pace of change without judicial interference. That is the way democracies work. Ideas are proposed, debated, tested. Often new ideas are initially resisted, only to be ultimately embraced. But when ideas are imposed, opposition hardens and progress may be hampered.[24]

See also

External links


  1. News Release 26, May 15, 2008, In re Marriage Cases, S147999.
  2. Dolan, Maura. "California Supreme Court overturns gay marriage ban", Los Angeles Times, May 16, 2008. Retrieved on 2008-05-20. 
  3. Egelko, Bob. "State high court won't Stay Same-Sex nuptuals", San Francisco Chronicle, June 5, 2008. Retrieved on 2008-06-05. 
  4. Egelko, Bob (2008-06-20). It's official: No more 'man and woman' in state's marriage law. Retrieved on 2008-06-20.
  5. The Economist, "The guys next door," May 22, 2008
  6. California Courts: Courts: Supreme Court: High Profile Case
  7. See Met-News
  8. In re Marriage Cases, California Supreme Court, S147999, p. 12
  9. Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 [95 P.3d 459, 17 Cal.Rptr.3d 225]
  10. In re Marriage Cases, California Supreme Court, S147999, p. 14
  11. In re Marriage Cases, California Supreme Court, S147999, p. 16
  12. Text of the California Supreme Court ruling In re: Marriage Cases
  13. Liptak, Adam. "California Court Affirms Right to Gay Marriage", New York Times, 2008-05-15. Retrieved on 2008-05-16. 
  14. Bazelon, Emily. "The same-sex marriage argument that Justice Scalia fears", The Boston Globe, May 16, 2004. Retrieved on 2008-05-20. 
  15. Crystal Carreon, Bill Lindelof and Andy Furillo. "Gay marriage legal in California, court declares", Sacramento Bee, May 15, 2008. 
  17. Calif. court refuses to stall gay marriage
  18. In re Marriage Cases, California Supreme Court, S147999, p. 6
  19. In re Marriage Cases, California Supreme Court, S147999, p. 10
  20. In re Marriage Cases, California Supreme Court, S147999, p. 11
  21. Concurring and dissenting opinion of Baxter, J., p. 1
  22. Concurring and dissenting opinion of Baxter, J., p. 18
  23. Concurring and dissenting opinion of Baxter, J., p. 26
  24. Concurring and dissenting opinion of Corrigan, J., p. 26
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