International Municipal Lawyers Association - Local Government Blog

The Curious Case of California Same-Sex Marriage (Part II) | February 12, 2009

Posted By: Larry Hoyt, County Attorney, Boulder, Colorado

Curious – Part Two, where we consider the question, ♫“What’s love got to do with it?”♫; oh, wait, that’s a different blog….The question here is “What’s equal protection got to do with marriage?” …in which equal protection comes to the fore:  Who is entitled to equal protection; what is equal (ah, yes, the “good ole days of ‘separate but equal’”), and in what manner protection?

You’ll recall, in the last episode, we discussed the action of the Mayor of San Francisco, Gavin Newsom, and his decision to “order” the County Clerk to start issuing same-sex marriage licenses back in 2004.  Now, why would a mayor of any city do such a thing, when the state’s marriage laws clearly stated that marriage in California was solely between a man and his wife, oops…I mean, a man and a woman (old habits die hard!) [Note: the California marriage statute prior to 1977 did not specify that the relationship being licensed was between two persons of the opposite sex; however, when several same-gender couples applied for licenses, the legislature in that session enacted a change to the statute to state that a marriage license was to be issued to a couple composed of one man and one woman.  California voters went a step further in 2000, approving an initiated statute (Proposition 22) that stated that no marriage other than that of one man and one woman would be valid or recognized in California.]

According to Mayor Newsom, he did it because he determined that the limitation of the California marriage statutes solely to opposite-gender couples was unconstitutional discrimination against same-gender couples.  He also noted that he took an oath of office to uphold the constitution of the state of California, and his action was compelled by his finding that the marriage statutes were unconstitutional under the state constitution’s equal protection clause (based upon prior case law outlawing discrimination based upon gender as well as sexual orientation.)

As noted in Part One, the Mayor succeeded, for about a week; then the California Supreme Court issued an order that no further marriage licenses were to be issued to same-gender couples until final action in a mandamus case brought against the Mayor by the state Attorney-General, Bill Lockyer.  Ultimately, the Court held:

1)      although there are a few narrow exceptions to the rule, generally, an executive official cannot “determine” a statute’s constitutionality (based upon the separation of powers doctrine, that is the function of the courts;)

2)      moreover, a statute that prescribes a ministerial duty upon a local government official cannot be ignored based upon that official’s determination that the statute is unconstitutional, since the only duty of such an official is to follow the dictates of the statute and presume its constitionality;

3)      oh, and by the way, Mr. Mayor, the officer whose ministerial duty it is to issue marriage licenses in California is the county clerk, not the mayor, and the county clerk’s duty is to follow the statutes, not direction from a mayor.

As a result, the injunction against same-sex marriage licenses was made permanent, and the County Clerk was ordered to revise the official records to delete all the same-sex marriage licenses that had previously been issued and to notify all of those couples (4,000) that they were not in fact married under California law.

The Court in Lockyer did NOT reach the issue on the merits, i.e. whether the prohibition on issuance of licenses to or recognition of same-sex couples as “married” created an unconstitutional classification.  The Court did note that several marriage lawsuits were then-pending in state trial courts.  The Lockyer decision was played out against a backdrop that also included the adoption in 2003, effective January 1, 2005, of a statewide domestic partnership law, that would give to registered domestic partners almost all of the same rights as those accorded under state law to married couples.

It was this law that set up the equal protection, “separate but equal” v. “separate and inherently unequal” case that was decided in In re Marriage Cases (183 P.3d 384 Cal. 2008.)

Curiousity No. 2:  What’s in a Name

“…What’s in a name? that which we call a rose
By any other name would smell as sweet;…”

Juliet in William Shakespeare’s Romeo and Juliet, Act II, Scene 2.

In In re Marriage Cases, the Court found that the legislature and voters in that state had set up a system whereby both opposite-gender couples and same-gender couples had their relationships officially recognized, the first as marriage, the latter as “domestic partnership”, and “virtually” all the same state rights and responsibilities flowed to each couple under state law.  The Court found that this situation was exactly as intended by the California legislature, in its 2003 act, which started with the following legislative declaration:

The Legislature set forth the purpose of this act in section 1 (an uncodified provision) of the legislation, declaring: “This act is intended to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality contained in Sections 1 and 7 of Article 1 of the California Constitution by providing all caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties and to further the state’s interests in promoting stable and lasting family relationships, and protecting Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises.”  (Stats. 2003, ch. 421, § 1, subd. (a).)  183 P.3d at 414.

After much analysis (as you might expect), the Court holds:

1)      The right to marry the person of their choice is a fundamental right of every person, deriving from the state constitution’s due process clause concepts of liberty and the dignity of every individual as well as the rights to marital and family privacy;

2)      Marriage does not require the ability to procreate as a necessary characteristic;

3)      The creation of stable families and households is just as important for same-gender couples as for opposite-gender ones, including the needs that arise from responsible child-rearing;

4)      A relationship known and solemnized as “marriage” accords a certain dignity, respect, and stature that is not accorded by society to the recently-invented “domestic partnership;”

5)      Sexual orientation is not a subset of “sex or gender”, and therefore the marriage statute does not violate equal protection based upon a sex or gender classification;

6)      Sexual orientation is itself a suspect classification for California equal protection purposes (due to the historic powerlessness of the minority defined by such classification), and therefore statutory classifications on that basis must survive strict scrutiny;

7)      While there are legitimate bases for certain marriage limitations (proscription based upon certain degree of consanguinity, e.g.), this is not the case for the preclusion of marriage for same-gender couples, which is not necessary to effectuate any compelling state interest.

So gay men and lesbians are entitled as such to equal protection, and “separate but equal” is not good enough.  On that basis, the Court ordered the limiting language excised from the statute and held that Proposition 22 (2000) was unconstitutional.  The courts on remand then ruled that county clerks would have 30 days in which to implement the decision of the Supreme Court, so on June 16, 2008, marriage licenses would once again be issued to same-gender couples.


Next time: Proposition 8: The Voters Overrule the California Supreme Court(????) and Curiousity No. 3: State Equal Protection as a Fungible Commodity.

1 Comment »

  1. […] turkey, ready to be carved up, leaving only the carcass. If you missed out on Parts One and Two, make sure you check them […]

    Pingback by The Curious Case of California Same-Sex Marriage « International Municipal Lawyers Association - Local Government Blog — March 12, 2009 @ 9:43 am

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.







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