Same-sex marriage (SSM) & domestic partnerships in California
California Supreme Court case: 2000-2008
In the year 2000,
61% of Californians passed Proposition 22 which restricted marriage to one
man and one woman, and prevented the state from recognizing same-sex
marriages (SSM) solemnized in other jurisdictions. However, with new laws that gave same-sex
couples the same state rights as married couples, and the legislature
passing two bills legalizing marriage, it is debatable whether such a
proposition would pass today.
California same-sex couples pursued the right to marry in
two ways: through the legislature and through the courts. The legislative route
failed when the Governor vetoed two bills passed by the legislature to bring
marriage equity to California. The court route continued as the best path
The California Supreme Court was asked to
decide whether the deciding factors in granting or denying marriage equality to same-sex
couples will be:
- Clauses in the state constitution that guarantee equal treatment to all citizens and
recognizing marriage as a basic human right, or
- The existing marriage laws and Proposition 22.
In an earlier related case, the California Supreme Court
redefined marriage in a 1948 case titled Perez v. Sharp. That decision
changed the definition of marriage to allow interracial couples to marry.
California thereby became the first state to terminate its miscegenation laws.
Six decades later, in 2008, the same court was given the same opportunity to
change the definition of marriage to include same-sex
On 2008-MAY-14, the court overturned Proposition 22 and
legalized same-sex marriage, effective 2008-JUN-16.
- 2004-FEB: San Francisco mayor Gavin Newsom
(D) decided that the equal protection clause in California's Constitution
made existing restrictions against same-sex marriage (SSM) unconstitutional.
He ordered the city clerk to start issuing
marriage licenses to same-sex couples. During the next month, about four thousand couples
responded. Later, the California Supreme Court forcibly divorced all of the couples
against their wishes, until
challenges to the state law could travel through the courts, and be ruled
upon by that court. 4
- 2005-MAR: The City of San Francisco,
California, and 15 same-sex couples initiated lawsuits challenging the
state's refusal to allow same-sex couples to marry. They won at San
Francisco Superior Court when judge Richard Kramer ruled that laws
preventing same-sex couples from marrying were unconstitutional.
- 2006-OCT: The appellate court
overturned the Superior Court decision. The six cases were consolidated into one lawsuit that was then appealed to the
state Supreme Court.
- 2007-SEP-29: Governor Arnold Schwarzenegger (R) vetoed bill AB-43 which would have allowed all loving committed couples to marry,
whether they are of the opposite-sex or same-sex.
Assemblyman Mark Leno, (D-San Francisco), the author of the bill, said:
"The governor has failed his test of leadership and missed a historic
opportunity to stand up for the basic civil rights of all Californians.
He cannot claim to support fair and equal treatment for same-sex couples
and veto the very bill that would have provided it to them."
- 2008-MAR-04: The state supreme court held hearings on whether the
state constitution guarantees marriage equality -- i.e. equal marriage rights to
both opposite-sex and same-sex couples.
- 2008-MAY-14: The California Supreme Court declared that
Proposition 22 is unconstitutional and that same-sex couples can marry in
- 2008-JUN-16 at 5 PM, PT. The ruling of the court became
final. Same-sex couples were able to legally marry.
Supreme Court hearing on 2007-MAR-04:
Plaintiffs include 15 same-sex couples, the city of San Francisco, the National Center for Lesbian Rights, and
Equality California. In opposition are State Attorney General Jerry Brown, an unknown lawyer representing Gov. Arnold Schwarzenegger, and
social or religious conservative groups such as
Campaign for California Families and Liberty Counsel.
According to a San Diego Union-Tribune report, Supervising
Deputy Attorney General Christopher Krueger, a state lawyer who defended the existing law, said:
"The court is not going to rule on the public-policy issue
of whether same-sex marriage is a good or bad thing for society. The court
is only going to rule on whether the state is compelled by the constitution
to legalize same-sex marriage." 5
Many very conservative religious groups --
The California Catholic Conference, National Association of Evangelicals,
the Union of Orthodox Jewish Congregations of America, and
The Church of
Jesus Christ of Latter-day Saints -- filed a joint friend-of-the-court brief in
opposition to allowing loving, committed same-sex couples to marry.
5 Opposition to equality for gays, lesbians, and bisexuals is one of the rare topics about
which conservatives from many different faith groups can join forces and
strongly support. Author of the brief, Kenneth Star wrote:
"Male-female marriage is the life-blood of community,
society, and the state. We rely on this honored institution for the
procreation and proper formation of the next generation. Social science
demonstrates, and [our] own long experience confirms, that a child fares
best when raised by caring biological parents who have the deepest stake in
his or her well-being and who can provide both male and female role models."
Star appears to be unaware of the growing numbers of gay,
lesbian and bisexual couples who are either adopting children or conceiving them
under artificial insemination. His comment about biological parents having the
deepest stake in the wellbeing of their children appears to be an insult to
every adopting parent. Past arguments in Massachusetts courts and elsewhere that
opposite-sex parents create a superior environment for the raising of children
have been discredited because they were based on studies comparing families led
by opposite-sex parents with those led by single parents. A more recent
meta-study has shown that children thrive equally well -- and sometimes better
-- whith same-sex parents than with opposite-sex parents.
According to Gay Species, a gay-positive blog by D.
the United Church of Christ, the Union for Reform Judaism, the Soka Gakkai
branch of Buddhism, and
dissident groups of Mormons, Catholics and Muslims have chosen Raoul
Kennedy, a prominent San Francisco attorney, to argue for equality. Over
fifty 'friends of the court' [briefs] have been filed from groups
representing hundreds of organizations and individuals - professional
associations of psychologists and anthropologists, city and county
governments, law professors, businesses, civil rights organizations, one
former state Supreme Court justice, and advocates of 'alternatives to
Glen Lavy, senior counsel for the Alliance Defense Fund -- a
fundamentalist Christian legal defense organization, referred to the denial
of the right of same-sex couples to marry saying "Californians know this is
the foundation for strong families. But certain special-interest groups are
trying to bypass the democratic process by asking the court to redefine
marriage." 6 It is unclear how the launching of a constitutional challenge is
an undemocratic action, particularly after the California legislature passed a
bill twice to legalize SSM.
Assessment of Supreme Court hearing:
Focus on the Family Action, a fundamentalist Christian social action
group commented on the hearing before the court:
"San Francisco Chief Deputy City Attorney Therese Steward argued there is
no justification for excluding homosexuals from marriage."
"Glen Lavy, senior counsel for the Alliance Defense Fund, said the
state has a compelling interest in protecting traditional marriage. 'It does
that primarily because when men and women come together in sexual relations,
so often they have children,' he told the court."
"The court has 90 days to rule. Bob Tyler, general counsel for
Advocates for Faith and Freedom, said he expects the decision will be
close. 'There were a couple justices that appeared to be clearly biased
against our position,' he said, 'and a couple of justices who I felt like
not only respected, but agreed with our position'."
Religious and social conservatives often imply, as did Lavy, that
opposite-sex couples are the only folks who can have children. In fact, female
same-sex couples often bear children after in vitro fertilization or
artificial insemination. Also, male same-sex couples often adopt children
through an in-state adoption, out-of-state adoption, or foreign adoption.
Meanwhile, a significant minority of opposite-sex married couples are infertile
and cannot conceive. So, if
the state has an interest in increasing its population, the logical response
would be to encourage both opposite-sex and same-sex couples to marry and create
Disclosure of bias:
The author of this essay is an adoptive parent and is as mad as hell at
Kenneth Star's remarks. He denigrated the love of adoptive
parents everywhere who are as dedicated to the raising of their children as are
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
Man ordered to pay ex-wife alimony, despite domestic
partnership," Associated Press, 2007-JUL-22, at:
Hilary White, "California Senate Votes to Impose Same-Sex 'Marriage' on
State," Life Site News, 2007-SEP-11.
Lynda Gledhill, "Schwarzenegger vetoes gay marriage bill as promised,"
SFGate.com, 2007-SEP-29, at:
"Court sets hearing date for marriage case. Justices will have 90 days after
hearing arguments to issue ruling," Dallas Voice, 2008-FEB-07, at:
Thaddeus M. Baklinski, "California Supreme Court Will Begin Hearings on
Homosexual Marriage Law," LifeSiteNews.com, 2008-MAR-03, at:
Devon William, "Marriage on trial before the California Supreme Court,"
CitizenLink.com, 2008-MAR-03, at:
Crystal Carreon, "California high court to hear arguments on gay marriage ban,"
McClatchy Tribune Business News, 2008-MAR-04, at:
D. Stephen Heersink, "Same-sex marriage heads to CA Supreme Court," Gay Species,
"California Supreme Court Hears Marriage Arguments," Family News in Focus,
"California lifts gay marriage ban," BBC News, 2008-MAY-14, at:
Copyright © 2008 by Ontario Consultants on Religious
Latest update: 2008-JUN-26
Author: B.A. Robinson