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On June 17, 2008, California began issuing marriage licenses to couples without regard to sexual orientation following the California Supreme Court ruling that laws limiting marriage exclusively to opposite-sex couples are unconstitutional.
Coming just over four years after the City and the County of San Francisco began issuing marriage licenses to same-sex couples, the ruling is one of the boldest decisions favoring gay rights. Not only did the Court overturn the ban on same-sex marriage, it went further by instituting the strongest protections for gay rights under California’s equal protection laws to date.
Since California’s statehood in 1850, marriage had been universally understood to involve a man and a woman, even though marriage in California was defined simply as a personal relation arising out of a civil contract.
On March 7, 2000, Proposition 22 was approved by a majority of California voters, which added section 308.5 to the Family Code, and provided that “Only marriage between a man and a woman is valid or recognized in California.”
Despite the passage of Prop 22, under the 2003 Domestic Partnership Act, domestic partners were given the “same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law” as married spouses. The 2003 Act’s purpose was to equalize the rights of domestic partners and married couples, with relatively few exceptions.
The recent constitutional issue before the California Supreme Court, simply put, was whether it is legal to allow opposite-sex couples the exclusive right to enter into a legally recognized family relationship known as “marriage,” while only allowing same-sex couples the right to a “domestic partnership,” with substantially similar legal rights and responsibilities.
In opposition to same-sex marriage, the Attorney General argued that if marriage is open to all persons, regardless of sexual orientation, there has been no constitutional equal protection violation because domestic partners enjoy virtually all the rights and responsibilities that opposite-sex couples have under “marriage.”
The court determined that domestic partners are not accorded the same dignity, respect, and stature enjoyed by officially recognized families under “marriage,” thus violating the equal protection clause of the California’s Constitution.
Ultimately, while the rights and responsibilities of marriage and domestic partnerships are essentially the same, the court found the fact that there is a distinction is of “undeniable symbolic importance.”
What was of great concern to the court was the effect of the distinction.
The California Supreme Court ultimately declared that to continue with the distinction between marriage and domestic partnerships will not only contribute to the promotion of unfair social characterizations, but will have a more severe discriminatory impact upon an historically oppressed and vulnerable group.
The issue of gay marriage, however, is far from final resolution because an initiative to ban gay marriage in California has qualified for the November 2008 ballot.
How is it that voters can ban gay marriage when the California Supreme Court has just ruled that such a ban is unconstitutional?
California’s Initiative Process, instituted in 1911, allows citizens to enact legislation directly. To get an initiative on the ballot, a required number of valid, supporting signatures must be submitted to and verified by the Secretary of State.
On the November ballot is an initiative that would amend California’s Constitution to define marriage as a union “between a man and a woman.” If successful, it would effectively overturn the recent California Supreme Court’s ruling allowing marriage for all persons, regardless of sexual orientation.
Should the proposed amendment pass by a majority of voters, serious questions have been raised regarding same-sex marriages legally obtained between June 17, 2008, and November 4, 2008. For example, will all same-sex marriages be nullified or will all marriages obtained prior to November 4, 2008 remain valid?
The proposed amendment itself does not specifically provide for nullification of legal marriages. Therefore, California will have a number of state sanctioned relationships and families with all those inherent legal rights and responsibilities that will have to be recognized. If the state of California refuses to recognize legal same-sex marriages, these couples will likely take their cases to the courts once again, which could take years.
Also, as with any marriage, issues of divorce, child custody, support, and the division of property will have to be legally adjudicated if a same-sex couple wishes to dissolve their marriage. Will a court have the power to grant a divorce or enforce a support order for a marriage that is subsequently invalidated or nullified? Courts likely will have to recognize a legal marriage in order to enforce child support orders, for example.
What is certain is that the issue of marriage equality is far from being resolved from a legal standpoint.
Marriage is one of the most important commitments a person can make in their lifetime; where one’s intention to share their life with the person of their choice takes on significant legal implications along with personal duties and responsibilities.
It simply would be discriminatory for California’s Constitution to unequivocally give all persons equal protection under the law, and at the same time, explicitly deny legal rights to persons simply because they fall into a certain class or group. The question is whether the people of California will approve of or put an end to state sanctioned discrimination of socially unpopular groups this November.
The United States Supreme Court decision in Lawrence V. Texas serves as a reminder to all of us that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”
Regardless of the uncertainty ahead, California’s bold marriage decision will not only influence courts around the country, but will be known as setting forth the strongest protections for gay rights to date. These things voters will never be able to undo.
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