43 Cal. 4th 757, 183 P.3d 384 (2008)
In February 2004, the Mayor of the City and County of San Francisco directed the county clerk to revise marriage license forms so that licenses could be issued to couples without regard to gender or sexual orientation.1
The City began issuing such licenses to same-sex couples on February 12, 2004.2
The following day, two actions were filed in San Francisco Superior Court seeking to prohibit the City's issuance of marriage licenses to same-sex couples.3
Shortly thereafter, the California Attorney General and taxpayers filed original writ petitions in the Supreme Court.4
The Supreme Court issued an order to show cause, stayed proceedings in the superior court actions, and directed City officials to enforce the existing marriage statutes.5
While the Lockyer proceeding remained pending, the City filed a writ petition and complaint for declaratory relief in superior court challenging the constitutionality of the marriage statutes.6
Two similar actions were filed by same-sex couples and organizations representing same-sex couples.7
These cases, along with the earlier actions, were coordinated into a single proceeding entitled In re Marriage Cases and assigned to San Francisco Superior Court Judge Richard A. Kramer.8
A sixth action by additional same-sex couples was later added.9
On August 12, 2004, the Supreme Court issued its decision in Lockyer v. City and County of San Francisco.10
The Court concluded that City officials had exceeded their authority.11
The approximately 4,000 same-sex marriages performed were void.12
The Court expressly left the substantive constitutional question unresolved.13
After Lockyer, the coordinated cases proceeded in superior court.14
On April 13, 2005, the superior court ruled that the statutes limiting marriage to opposite-sex couples violated the state equal protection clause under strict scrutiny.15
The superior court entered judgment for plaintiffs.16
The matter proceeded to appeal.17
In a two-to-one decision, the Court of Appeal reversed.18
The Court of Appeal held that the statutes did not impinge on the fundamental right to marry.19
The Court of Appeal held that the statutes did not discriminate on the basis of sex.20
The Court of Appeal held that the statutes did not involve a suspect classification based on sexual orientation.21
The Court of Appeal held that the statutes survived rational basis review.22
The Supreme Court granted review.23
California statutes have limited marriage to opposite-sex couples since statehood.24
Family Code section 300 provides that marriage is a civil contract between a man and a woman.25
Section 308.5, enacted by voter initiative as Proposition 22, provides that only marriage between a man and a woman is valid or recognized in California.26
Beginning in 1999, the Legislature enacted and repeatedly expanded domestic partnership legislation.27
The 2003 Domestic Partner Rights and Responsibilities Act provides that registered domestic partners have the same rights, protections, and benefits and are subject to the same responsibilities, obligations, and duties under law as spouses.28
The named same-sex couple plaintiffs in the coordinated actions included individuals ranging from 30 to more than 80 years of age.29
The plaintiffs came from various racial and ethnic backgrounds and occupations.30
Many of the plaintiffs had been together for well over a decade.31
One couple had resided together for more than 50 years.32
Many of the plaintiffs were raising children together.33
Whether the California Constitution protects a fundamental right to marry that extends to same-sex couples?
The right to marry is a fundamental right under the California Constitution's privacy, due process, and liberty provisions.
Yes. The court in Perez v. Sharp established that the right to marry is the right to join in marriage with the person of one's choice.34 Subsequent decisions link this right to forming an officially recognized family.35 California has long limited marriage to opposite-sex couples under Family Code sections 300 and 308.5.36 The Domestic Partner Rights and Responsibilities Act of 2003 grants same-sex couples virtually all substantive rights of marriage.37
The named plaintiffs, including couples together for decades raising children, sought the designation of marriage itself.38 The Court of Appeal erred by defining the right narrowly as limited to opposite-sex couples.39 The right's substance includes equal dignity and respect for all loving, committed relationships regardless of sexual orientation.40
The California Constitution protects a fundamental right to marry that extends to same-sex couples.
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Justice Kennard concurred.41 She emphasized consistency with Lockyer v. City and County of San Francisco.42 In Lockyer the court left the substantive constitutional question open.43
She noted that the prior marriages performed in 2004 were voided in Lockyer.44 She stressed that the current decision now authorizes same-sex marriage.45 The earlier procedural defects are therefore non-substantive.
Kennard highlighted that the issue of equal treatment for same-sex couples is particularly appropriate for judicial resolution under the equal protection guarantee.46 Courts must enforce constitutional restraints on majoritarian actions even when the political process is still evolving.47 She agreed that the right to marry is a basic civil right that cannot be withheld based on sexual orientation.48
Whether the statutory limitation of marriage to opposite-sex couples violates the state constitutional right to marry?
A statute violates the fundamental right to marry if it denies same-sex couples the opportunity to enter an officially recognized family relationship with the same dignity, respect, and stature as opposite-sex couples.
Yes. Family Code sections 300 and 308.5 limit marriage to a man and a woman. The Domestic Partner Act provides a separate designation. Plaintiffs sought the historic designation of marriage for their committed relationships.49
The differential nomenclature poses a serious risk of denying equal dignity.50 The Attorney General argued that domestic partnership satisfies the right. The court held that reserving the term marriage exclusively for opposite-sex couples impinges on the core element of equal respect. The superior court correctly found a violation.51
The Court of Appeal's reversal was erroneous.52
The statutory limitation of marriage to opposite-sex couples violates the state constitutional right to marry.
Whether the marriage statutes discriminate on the basis of sexual orientation in violation of the state equal protection clause?
Statutes that classify on the basis of sexual orientation by limiting marriage to opposite-sex couples while providing domestic partnership for same-sex couples are subject to strict scrutiny because sexual orientation is a suspect classification.
Yes. The statutes treat same-sex couples differently by denying them the designation of marriage.53 The named plaintiffs, diverse in age, background, and family status, were denied marriage licenses solely because of their sexual orientation.54 Although facially neutral, the limitation realistically operates to discriminate on the basis of sexual orientation.55
The Court of Appeal erred in applying rational basis review.56 Strict scrutiny applies because the classification bears no relation to ability to contribute to society and carries a history of stigma.57
The marriage statutes discriminate on the basis of sexual orientation in violation of the state equal protection clause.
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Joined by Justice Chin
Justice Baxter dissented in part.58 He argued that the majority violated separation of powers by redefining marriage through judicial fiat rather than the democratic process.59 He contended that same-sex and opposite-sex couples are not similarly situated with respect to the traditional definition of marriage preserved by Proposition 22.60
He contended that the Legislature's domestic partnership laws already provide equal substantive rights.61 Baxter warned that the majority's approach improperly constitutionalizes legislative choices.62 He warned that the approach risks extending to other traditional limitations such as incest and polygamy.63
He would have upheld the statutes under rational basis review as reflecting the longstanding community understanding of marriage.64
Whether sexual orientation constitutes a suspect classification under the California Constitution requiring strict scrutiny?
Sexual orientation is a suspect classification because it bears no relation to a person's ability to perform or contribute to society, is associated with a history of stigma and discrimination, and is integral to personal identity such that individuals should not be required to change it to avoid discriminatory treatment.
Yes. The court applied the factors from Sail'er Inn and concluded that sexual orientation meets the criteria for suspect classification.65 The marriage statutes impose differential treatment on gay and lesbian individuals who wish to marry their chosen partners.66 Although the Attorney General argued for a political powerlessness requirement, the court held that current political influence does not remove the need for strict scrutiny given the history of discrimination.67 The Court of Appeal's refusal to recognize suspect status was error.68
Sexual orientation constitutes a suspect classification under the California Constitution requiring strict scrutiny.
Whether the differential treatment of same-sex couples through domestic partnership rather than marriage violates the state Constitution?
Assigning a different designation to same-sex couples' family relationships while reserving marriage for opposite-sex couples violates equal protection and the right to marry by denying equal dignity and respect.
Yes. The Domestic Partner Act provides substantive equality but uses a separate name.69 Plaintiffs, including long-term couples raising children, were relegated to domestic partnership.70 This nomenclature carries a risk of second-class status, especially given historical disparagement of gay individuals.71 The separate designation also impinges on privacy by requiring disclosure of orientation in routine interactions.72 The superior court's finding of unconstitutionality was correct.73
The differential treatment of same-sex couples through domestic partnership rather than marriage violates the state Constitution.
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Justice Corrigan concurred in part and dissented in part.74 She agreed that same-sex couples are entitled to equal substantive rights.75 She dissented from the holding that the Constitution requires the designation of marriage.76
She emphasized that domestic partnership already confers equal legal dignity.77 She emphasized that the voters' recent adoption of Proposition 22 reflects a legitimate community choice to retain the traditional definition of marriage.78 Corrigan argued that the majority improperly substituted its judgment for the democratic process.79
She argued that same-sex and opposite-sex couples are not similarly situated with respect to the historic institution of marriage.80 She would have left the question of nomenclature to the political branches.81
Whether the state has a compelling interest justifying the exclusion of same-sex couples from the designation of marriage?
Under strict scrutiny, the state must show that the differential treatment serves a compelling interest and that the classification is necessary to serve that interest.
No. The state advanced the interest in retaining the traditional definition of marriage.82 The court held this insufficient under strict scrutiny.83 Extending marriage to same-sex couples would not deprive opposite-sex couples of any rights or alter the institution's legal framework.84 The exclusion imposes harm on same-sex couples and their children by suggesting lesser stature.85 No compelling interest justifies the distinction.86 The statutes are therefore unconstitutional.87
The state has no compelling interest justifying the exclusion of same-sex couples from the designation of marriage.