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Same-sex marriage (SSM) & domestic partnerships in California

California Supreme Court case: 2000-2008

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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 forward.

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 couples.

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, Equality 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." 3

  • 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 California.

  • 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. Stephen Heersink:

Unitarian... [Universalists], 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 homosexuality'." 8

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'." 9

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 families together.

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 biological parents.

References used:

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

  1. Man ordered to pay ex-wife alimony, despite domestic partnership," Associated Press, 2007-JUL-22, at:

  2. Hilary White, "California Senate Votes to Impose Same-Sex 'Marriage' on State," Life Site News, 2007-SEP-11.
  3. Lynda Gledhill, "Schwarzenegger vetoes gay marriage bill as promised,", 2007-SEP-29, at:
  4. "Court sets hearing date for marriage case. Justices will have 90 days after hearing arguments to issue ruling," Dallas Voice, 2008-FEB-07, at:
  5. Thaddeus M. Baklinski, "California Supreme Court Will Begin Hearings on Homosexual Marriage Law,", 2008-MAR-03, at:
  6. Devon William, "Marriage on trial before the California Supreme Court,", 2008-MAR-03, at:
  7. Crystal Carreon, "California high court to hear arguments on gay marriage ban," McClatchy Tribune Business News, 2008-MAR-04, at:
  8. D. Stephen Heersink, "Same-sex marriage heads to CA Supreme Court," Gay Species, 2008-FEB-18, at:
  9. "California Supreme Court Hears Marriage Arguments," Family News in Focus, 2008-MAR-05, at:
  10. "California lifts gay marriage ban," BBC News, 2008-MAY-14, at:

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Copyright © 2008 by Ontario Consultants on Religious Tolerance
Latest update: 2008-JUN-26
Author: B.A. Robinson

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