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Same-sex marriage / domestic partnerships in California

Proposition 22, passed in the year
2000, to ban same-sex marriage (SSM)

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Background of Proposition 22:

Before 1977, marriage was defined in California law by Civil Code, Section 4100, as:

"... a personal relation arising out of a civil context, to which consent of the parties making that contract is necessary."

There was nothing in the law that would have prohibited California same-sex couples from applying for a marriage license, getting married, and having their marriage registered by the state. Loving, committed same-sex partners who had been regarded by the state as mere roommates would then be considered married spouses. They and their children (if any) would gain hundreds of state privileges, rights, protections and obligations that are automatically given to all married couples. These include the right to visit one's spouse in hospital, the right to make medical decisions affecting one's spouse, inheritance rights, health insurance coverage for one's spouse and children, etc.

In 1977, the marriage law was rewritten specifically to exclude same-sex marriage. A new Section 300 defined marriage as:

"... a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. "

A new Section 308 was also created to recognize marriages contracted outside of California. It states:

"A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state."

Section 308 would have required California to recognize same-sex marriages solemnized elsewhere. This was not a possibility in 1977 when it was written because no other jurisdiction in the world permitted same-sex marriages. However, in the 1990s, same-sex marriage almost became available in Hawaii. Some social and religious conservatives were concerned that Section 308 would enable same-sex couples to marry elsewhere, come to California and expect to be given all of the rights and privileges of married couples.

Religious and social conservatives appear to have had two main motivations to keep equal rights and protections out of the reach of same-sex couples and their children:

bullet Many conservative faith groups teach that homosexuality is a choice that the individual can easily changed through prayer and/or reparative therapy. They also teach that homosexual behavior is considered an abomination in the Bible. If the state denies equal rights to same-sex couples, then homosexuality would be a far less attractive choice to young people; fewer adolescents would then decide to be heterosexual. This belief is rejected by essentially all mental health therapists and human sexuality researchers who consider homosexual orientation to be:
bullet Fixed in adulthood,
bullet A part of a person's identity to be discovered, not chosen, and
bullet A normal and natural sexual orientation for a minority of adults.
bullet Many conservative faith groups teach that males and females are to be restricted to very distinct roles in families, in the workforce, and in religious institutions. Most exercise of power is to be reserved for males. Successful same-sex relationships are profoundly threatening to this belief system, because they demonstrate that mentally healthy, well adjusted children can be nurtured in a family headed by two women or two men.

In California, if a sufficient number of concerned voters sign a petition, they can force a type of plebiscite called a "proposition." A petition was successfully organized close the "loophole" in Section 308

Successful passage of Proposition 22:

In the year 2000, voters in California voted on Proposition 22 3 It is also known as Prop 22, the Knight Initiative (after its author, William Knight,) and the California Defense of Marriage Act.

It stated simply:

"Only marriage between a man and a woman is valid or recognized in California."

Prop 22 was passed by a comfortable margin: 4,618,673 (61.4%) for vs. 2,909,370 against.

It is interesting to speculate what public opinion is towards Proposition 22 today. Since the year 2000, same sex-couples in Belgium, Canada, Netherlands, Norway, South Africa, Spain, and the state of Massachusetts have been able to marry. Same-sex couples in California were able register as domestic partners and obtain the state's rights and obligations equivalent to marriage. Since 2008-JUN, they have been able to marry. Youths and young adults are far more accepting of homosexuality than they have been in the past. If the proposition were duplicated today, it might fail.

In California, successful propositions cause "initiative statutes" to be added to state law. This 14-word statement became Section 308.5 -- part of the state marriage act. Such statutes have the force of legislation, just as if they had been passed by the Assembly and Senate and signed into law by the governor. Further, any move by the legislature to modify or repeal a statute such as this one must be approved by the voters before it can take effect.

Controversies and court cases over Prop 22:

Some supporters had assumed that Prop 22 would prevent the California legislature from granting any legal recognition to same-sex couples above that of simple roommates. However the legislature did exactly that in the early 2000's. They passed laws granted some rights and privileges -- previously reserved to married couples -- to same-sex registered domestic partners. Several lawsuits were launched. All failed. The California Courts of Appeal rejected them, noting that domestic partnerships had been created in 1999 as a legal institution separate from marriage. That was one year previous to the passage of Prop 22.

A number of lawsuits have been launched in an attempt to declare Sections 300 and 308 unconstitutional. A trial court in San Francisco ruled that the gender requirements in the marriage act were unconstitutional. An appeal to the First Appellate District, Div. 3 court  overturned that decision. Six cases A110449 (lead), A110450, A110451, A110463, A110651, and A110652 were consolidated into one case  S147999.

According to the Supreme Court:

"This case includes the following issue: Does California's statutory ban on marriage between two persons of the same sex violate the California Constitution by denying equal protection of the laws on the basis of sexual orientation or sex, by infringing on the fundamental right to marry, or by denying the right to privacy and freedom of expression?" 2

The case was heard by the Supreme Court on 2008-MAR-04. 3 On 2008-MAY-14, they ruled that Proposition 22 was unconstitutional.

Opinions differed about the justices' motivation:

bullet According to many conservative Christian websites, the court is has a majority of activist judges who ignored the California Constitution and imposed their own radical ideas on the state. They acted illegally as if they were legislators, not judges. They, in effect, imposed new laws on the citizens of the state against the will of the public.
bullet According to the court ruling itself, Prop. 22 was unconstitutional because it violated two clauses in the California: one defines the right of all citizens to equal protection under law; the other defines the right to marry as a fundamental human right. Since a constitution supersedes legislation and propositions, it must be followed. 4

Same-sex couples began marrying in large numbers in mid June of 2008.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "California Proposition 22 (2000)," Wikipedia, at:
  2. "Case Summary: Supreme Court Case S147999," California Appellate Courts, at:
  3. "Docket of Case Number S147999,"  California Appellate Courts, at:
  4. Text of the Supreme Court's ruling S147999, Supreme Court of California, 2008-JUN-15, at: This is a PDF file.

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Copyright 2007 & 2008 by Ontario Consultants on Religious Tolerance
First posting: 2007-SEP-12
Latest update: 2008-JUN-24
Author: B.A. Robinson

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