2008: In re: Marriage Cases

California recognizes the right of same-sex couples to marry

In May, California’s Supreme Court issues the landmark ruling In re: Marriage Cases, the consolidation of six cases from the San Francisco weddings of 2004. Those weddings, which began in February 2004, allowed 4,000 same-sex couples from around the world to marry (including your author and his husband). They ran for only a month, however, before the state supreme court shut them off by court injunction.

Six months after they began, the state supreme court forcibly divorced the 4,000 San Francisco couples and ruled that the City And County Of San Francisco didn’t have the authority to grant the marriages. However, because other cases were pending that addressed the constitutional question, the court wrote, “To avoid any misunderstanding, we emphasize that the substantive question of the constitutional validity of California’s statutory provisions limiting marriage to a union between a man and a woman is not before our court in this proceeding, and our decision in this case is not intended, and should not be interpreted, to reflect any view on that issue.”

In re: Marriage Cases now expresses the court’s view on that issue:

[R]etention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples. Accordingly, insofar as [state laws] draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.

Because California already had full domestic partnerships (civil unions), granting registered same-sex couples the complete panoply of rights, obligations, and protections under state law as they would have if they were married, the court has some extra work to do. The court rejects the “separate but equal” argument that marriage and domestic partnership are really equal, even if they are separate. For what cannot be made equal are the dignity and respect accorded the two distinct institutions:

One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.

“With this ring I thee wed.” The author, left, marrying his new husband with our friends and witnesses at San Francisco City Hall.

Further, in a first by any state supreme court, the court ruled that sexual orientation is a suspect class, requiring strict scrutiny be applied in equal protection analysis of any laws that treat gay people differently. The court relied on previous rulings to discern that sexual orientation bears “no relation to [a person’s] ability to perform or contribute to society” and is “associated with a stigma of inferiority and second class citizenship, manifested by the group’s history of legal and social disabilities.”

Like the Massachusetts court in 2003’s Goodridge, California’s court issues a stay of its ruling. However, unlike Massachusetts’ six-month stay, California’s is for only 30 days during which it puts down challenges and sought-for delays to the ruling. And unlike Massachusetts, there is no discriminatory law prohibiting out-of-state same-sex couples from being legally married in California.

Consequently, your author and his now-husband travel once again to San Francisco and marry, on July 7, 2008.

But we’re not out of the woods yet. An initiative has been filed to put our marriages to a vote of The People and enshrine discrimination in California’s constitution. That initiative will be voted on in November and, if approved, its aftermath is uncertain. Will we be allowed to keep our marriage?

And Massachusetts allows out-of-state gay couples to marry

Two months after the California decision, and a month after couples began streaming to California to marry, the Massachusetts legislature votes to forever put to rest its discriminatory law from 1913 that kept out-of-state gay couples from marrying. Thus, same-sex couples can now marry in either of two states.

But if they don’t live in those states, the question looms: will their marriages be recognized by their home states when they need them to be?

Timeline key: progress (green), no progress (red), pending court cases (purple),
events that are neutral, not directly related, or with both positive and negative effects (black)