Same-sex marriage in California

Lawsuits launched to legalize same-sex
marriages (SSM) during 2004 and 2005

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The term "SSM" in this section refers to "same-sex marriage"

Background:

Gavin Newsom, the mayor of San Francisco, CA, directed the county clerk issue "gender neutral" marriage licenses to gay, bisexual, and lesbian couples. He took this action on 2004-FEB-10. The timing of the mayor's action may have been influenced by the National Freedom to Marry Day, which has been celebrated annually on FEB-12 throughout the U.S. since at least 1998. Newsom reasoned that this was a legal act because the equal protection clause in the state constitution prohibits sexually-based discrimination on personal matters. More details.

The issuing of same-sex marriage licenses was stopped on 2004-MAR-11. The action was in response to an interim stay by the California Supreme Court which ordered the city to stop performing such marriages. 4,037 marriage licenses had been issued to same-sex couples during the 29 days after the window temporarily opened. _1,2

A lawsuit by the City of San Francisco and 12 same-sex couples:

On 2004-MAR, two lawsuits were launched -- one by the City of San Francisco and the other by twelve couples -- requesting that same-sex couples be allowed to marry. The couples were represented by the National Center for Lesbian Rights, Lambda Legal, and the American Civil Liberties Union. The lawsuits asserted that marriage is an elementary human right. To deny all same-sex couples the opportunity to marry the person to whom they are committed on the basis of the spouses' sexual orientation or gender violates this human right.

Opposing the city and couples were Attorney General's office, the Campaign for California Families and the Proposition 22 Legal Defense and Education Fund. Liberty Counsel represented the Campaign. The groups argued for the status quo. They said that California has a legitimate interest in restricting marriage to opposite-sex couples as a means to encourage procreation. They had an uphill battle arguing this point, because:

• Allowing same-sex couples to marry would encourage more of them to adopt children or have children of their own through artificial insemination.
• Many opposite-sex married couples decide to not procreate.
• Many opposite-sex couples are infertile for medical reasons or age and cannot procreate.
• Many opposite-sex unmarried couples decide to procreate.

A good argument can be made that allowing SSM would increase the number of children born to married couples.

On 2005-MAR-14, Richard Kramer, judge of the San Francisco County Superior Court issued a single ruling covering both cases. He acknowledged that same-sex couples had not been allowed to marry in the past. However, he determined that this was a form of discrimination that the state cannot justify any longer. He wrote: "The state's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional. Simply put, same-sex marriage cannot be prohibited solely because California has always done so before." He has stayed the decision for 60 days to allow for appeals. Everyone appears to be in agreement that appeals are inevitable until the case reaches the California Supreme Court.

Judge Kramer rejected the argument that the state has a legitimate interest in confining marriage to opposite-sex couples. He wrote: "One does not have to be married in order to procreate, nor does one have to procreate in order to be married. Thus, no legitimate state interest to justify the preclusion of same-sex marriage can be found."

Some unidentified supporters of SSM compared this ruling to the 1948 state Supreme Court decision that made California the first state to overturn its ban against interracial marriage.

Dennis Herrera, an attorney for San Francisco said: "Today's ruling is an important step toward a more fair and just California that rejects discrimination and affirms family values for all California families."

Mathew Staver, president of Liberty Counsel, said: "For a single judge to rule there is no conceivable purpose for preserving marriage as one man and one woman is mind-boggling....This decision will be gasoline on the fire of the pro-marriage movement in California as well as the rest of the country." By the term "pro-marriage movement" he is apparently referring to the anti-SSM movement.

Jeanne Rizzo, 58, and Pali Cooper, 49, were one of the couples to be denied the opportunity to marry by the Supreme Court's ruling in 2004. They said that they were "basking" in Monday's decision Rizzo said: "We know we have many steps ahead of us, but we have the opportunity to go from here standing in dignity not defense... It is always better to do that."

Assemblyman Ray Haynes, (R) has sponsored a bill in the California legislature to place a constitutional amendment on the next ballot to prohibit same-sex marriage. If the bill is defeated, opponents to same-sex marriage would probably attempt to launch a petition to amend the constitution. Haynes said: "This ruling demonstrates absolutely what we have to do, which is to amend the Constitution so that we can take the question out of the hands of any judge anywhere at any time." ₃ This bill did not proceed.

On 2005-MAR-14, during an interview on MSNBC's "Hardball," Gov. Arnold Schwarzenegger (R) said that he doesn't "believe in gay marriage. I think that this will be now going eventually to the Supreme Court in California, and we will see what the decision is. And whatever that decision is, we will stay by that, because I believe in abiding by the law and sticking with the law." He added that he would not favor  amending the state constitution in order to overrule the Supreme Court if it approves of SSM. ₄

References (in chronological order):

1. "California court halts same-sex marriages," CNN.com, 2004-MAR-12, at: http://edition.cnn.com/
2. "Court annuls gay unions. California judges rule same-sex marriages void. Decision affects 4,000 couples who wed this year," Reuters, Associated Press, 2004-AUG-12.
3. Lisa Leff, "Judge: Calif. cannot ban gay marriages," Associated Press, 2005-MAR-15. at: http://www.heraldsun.com/
4. "Calif. Ruling Sets Up Gay Marriage Fight," EarthLink, 2005-MAR-13, at: http://start.earthlink.net/

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Copyright © 2005 to 2008 by Ontario Consultants on Religious Tolerance
Originally written: 2005-MAR-15
Latest update: 2008-JUN-26
Author: B.A. Robinson

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