California upholds gay marriage
The California Supreme Court has held 4-3 that same sex couples in California have a right to marry. For the full judgment, click here.
What was most significant about the majority was that it considered that civil unions, although providing in Californiain substance what marriages provide, may well provide for same sex couples to be treated as second class citizens. The majority also dealt with, and rejected, “all the usual suspects”- why marriage should be limited to heterosexual couples only by virtue of tradition, for procreation, religion, and that to open the floodgates to same sex couples would demean the tradition of marriage and of religion.
The message from the court is clear: to accord equal rights to same sex couples necessitates that they have the right to marry.
The majority comprised George, C. J. and Kennard, Werdegar and Moreno JJ.
Their Honours’ judgment contains insightful comments:
“We conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive
legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.
As past cases establish, the substantive right of two adults who share a loving
relationship to join together to establish an officially recognized family of their
own — and, if the couple chooses, to raise children within that family —
constitutes a vitally important attribute of the fundamental interest in liberty and
personal autonomy that the California Constitution secures to all persons for the
benefit of both the individual and society.
Furthermore, in contrast to earlier times, our state now recognizes that an
individual’s capacity to establish a loving and long-term committed relationship
with another person and responsibly to care for and raise children does not depend
upon the individual’s sexual orientation, and, more generally, that an individual’s
sexual orientation — like a person’s race or gender — does not constitute a
legitimate basis upon which to deny or withhold legal rights. We therefore
conclude that in view of the substance and significance of the fundamental
constitutional right to form a family relationship, the California Constitution
properly must be interpreted to guarantee this basic civil right to all Californians,
whether gay or heterosexual, and to same-sex couples as well as to opposite-sex
(A)ssigning a different designation for the family relationship of same-sex couples
while reserving the historic designation of “marriage” exclusively for opposite-sex
couples poses at least a serious risk of denying the family relationship of same-sex
couples such equal dignity and respect. We therefore conclude that although the
provisions of the current domestic partnership legislation afford same-sex couples
most of the substantive elements embodied in the constitutional right to marry, the
current California statutes nonetheless must be viewed as potentially impinging
upon a same-sex couple’s constitutional right to marry under the California
Furthermore, the circumstance that the current California statutes assign a
different name for the official family relationship of same-sex couples as
contrasted with the name for the official family relationship of opposite-sex
couples raises constitutional concerns not only under the state constitutional right
to marry, but also under the state constitutional equal protection clause.
First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.
Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.
Finally, retaining the designation of marriage exclusively for opposite sex
couples and providing only a separate and distinct designation for same-sex
couples may well have the effect of perpetuating a more general premise — now
emphatically rejected by this state — that gay individuals and same-sex couples
are in some respects “second-class citizens” who may, under the law, be treated
differently from, and less favorably than, heterosexual individuals or opposite-sex
This act is intended to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality contained in…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.
Of course, although the Domestic Partner Act generally affords registered
domestic partners the same substantive benefits and privileges and imposes upon
them the same responsibilities and duties that California law affords to and
imposes upon married spouses, the act does not purport to (and lawfully could not)
modify the applicable provisions of federal law, which currently do not provide
for domestic partnerships and which define marriage, for purposes of federal law,
as the union of a man and a woman.
The flaw in characterizing the constitutional right at issue as the right to
same-sex marriage rather than the right to marry goes beyond mere semantics. It
is important both analytically and from the standpoint of fairness to plaintiffs’
argument that we recognize they are not seeking to create a new constitutional
right — the right to “same-sex marriage” — or to change, modify, or (as some
have suggested) “deinstitutionalize” the existing institution of marriage.
Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits — accompanied by the same mutual responsibilities and obligations — as this constitutional right affords to opposite-sex couples.34 For this reason, in evaluating the constitutional issue before us, we consider it appropriate to direct our focus to the meaning and
substance of the constitutional right to marry, and to avoid the potentially
misleading implications inherent in analyzing the issue in terms of “same-sex
(T)he legal right and opportunity to enter into such an officially
recognized relationship also is of overriding importance to the individual and to
the affected couple. As noted above, past California decisions have described
marriage as “the most socially productive and individually fulfilling relationship
that one can enjoy in the course of a lifetime.” The ability of an individual to
join in a committed, long-term, officially recognized family relationship with the
person of his or her choice is often of crucial significance to the individual’s
happiness and well-being. The legal commitment to long-term mutual emotional
and economic support that is an integral part of an officially recognized marriage
relationship provides an individual with the ability to invest in and rely upon a
loving relationship with another adult in a way that may be crucial to the
individual’s development as a person and achievement of his or her full
Further, entry into a formal, officially recognized family relationship
provides an individual with the opportunity to become a part of one’s partner’s
family, providing a wider and often critical network of economic and emotional
security. …The opportunity of a couple to establish an officially recognized family of their own not only grants access to an extended family but also permits the couple to join the broader family social structure that is a significant feature of community life.39 Moreover, the commitment toward permanence that places it in a different category of relational interests than if it were temporary. A ‘justifiable expectation . . . that [the]relationship will continue indefinitely’ permits parties to invest themselves in the relationship with a reasonable belief that the likelihood of future benefits warrants the attendant risks and inconveniences.
The opportunity to publicly and officially express one’s love for and long-term
commitment to another person by establishing a family together with that person
also is an important element of self-expression that can give special meaning to
one’s life. Finally, of course, the ability to have children and raise them with a
loved one who can share the joys and challenges of that endeavor is without doubt
a most valuable component of one’s liberty and personal autonomy.
Although persons can have children and raise them outside of marriage, the institution of civil marriage affords official governmental sanction and sanctuary to the family unit, granting a parent the ability to afford his or her children the substantial benefits that flow from a stable two-parent family environment, a ready and public means of establishing to others the legal basis of one’s parental relationship the substance which integrates people into the larger social structureto one’s children and the additional security that comes from the
knowledge that his or her parental relationship with a child will be afforded
protection by the government against the adverse actions or claims of others…
There are, of course, many persons and couples who choose not to enter
into such a relationship and who prefer to live their lives without the formal,
officially recognized and sanctioned, long-term legal commitment to another
person signified by marriage or an equivalent relationship. Nonetheless, our cases
recognize that the opportunity to establish an officially recognized family with a
loved one and to obtain the substantial benefits such a relationship may offer is of
the deepest and utmost importance to any individual and couple who wish to make
such a choice.
If civil marriage were an institution whose only role was to serve the
interests of society, it reasonably could be asserted that the state should have full
authority to decide whether to establish or abolish the institution of marriage (and
any similar institution, such as domestic partnership). In recognizing, however,
that the right to marry is a basic, constitutionally protected civil right — “a
fundamental right of free men [and women]” … Because our cases make clear that the right to marry is an integral component of an individual’s interest in personal autonomy …….. and of the liberty interest … it is apparent under the California Constitution that the right to marry — like the right to establish a home and raise children — has independent substantive content, and cannot properly be understood as simply the right to enter into such a relationship if (but only if) the Legislature chooses to establish and retain it.
One very important aspect of the substantive protection afforded by the
California constitutional right to marry is, of course, an individual’s right to be
free from undue governmental intrusion into (or interference with) integral
features of this relationship — that is, the right of marital or familial privacy.
…The substantive protection embodied in the constitutional right to marry, however, goes beyond what is sometimes characterized as simply a “negative” right insulating the couple’s relationship from overreaching governmental intrusion or interference, and includes a “positive” right to have the state take at least some affirmative action to acknowledge and support the family unit.
In light of the fundamental nature of the substantive rights embodied in the
right to marry — and their central importance to an individual’s opportunity to
live a happy, meaningful, and satisfying life as a full member of society — the
California Constitution properly must be interpreted to guarantee this basic civil
right to all individuals and couples, without regard to their sexual orientation…
(A)lthough the legal institution of civil marriage may well have originated in
large part to promote a stable relationship for the procreation and raising of
children … and although the right to marry and to procreate often are treated as closely related aspects of the privacy and liberty interests protected by the state and federal Constitutions … the constitutional right to marry never has been viewed as the sole preserve of individuals who are physically capable of having children. Men and women who desire to raise children with a loved one in a recognized family but who are physically unable to conceive a child with their loved one never have been excluded from the right to marry.
There is, however, no authority whatsoever to support the proposition that an individual who is physically incapable of bearing children does not possess a fundamental constitutional right to marry. Such a proposition clearly is untenable. A person who is physically incapable of bearing children still has the potential to become a parent and raise a child through adoption or through means of assisted
reproduction, and the constitutional right to marry ensures the individual the
opportunity to raise children in an officially recognized family with the person
with whom the individual has chosen to share his or her life. Thus, although an
important purpose underlying marriage may be to channel procreation into a stable
family relationship, that purpose cannot be viewed as limiting the constitutional
right to marry to couples who are capable of biologically producing a child
A variant of the contention that the right to marry is limited to couples who
are capable of procreation is that the purpose of marriage is to promote
“responsible procreation” and that a restriction limiting this right exclusively to
opposite-sex couples follows from this purpose….
(S)ame-sex couples can have or obtain children through assisted reproduction or
adoption, resort to such methods demonstrates, in the case of a same-sex couple,
that parenthood necessarily is an intended consequence because each of these two
methods requires considerable planning and expense, whereas in the case of an
opposite-sex couple a child often is the unintended consequence of the couple’s
sexual intercourse. These courts reason that a state plausibly could conclude that
although affording the benefits of marriage to opposite-sex couples is an incentive
needed to ensure that accidental procreation is channeled into a stable family
relationship, a similar incentive is not required for same-sex couples because they
cannot produce children accidentally. …
Whether or not the state’s interest in encouraging responsible procreation
properly can be viewed as a reasonably conceivable justification for the statutory
limitation of marriage to a man and a woman for purposes of the rational basis
equal protection standard, this interest clearly does not provide an appropriate
basis for defining or limiting the scope of the constitutional right to marry.
The current statutes — by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same sex couples only the new and unfamiliar designation of domestic partnership — pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry.
(A)ffording access to this designation [of marriage] exclusively to opposite-sex couples, while providing same-sex couples access to only a novel alternative designation,realistically must be viewed as constituting significantly unequal treatment to same-sex couples.
(I)n light of the historic disparagement of and discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships whereby the term “marriage” is denied only to same-sex couples inevitably will cause the new parallel institution that has been made available to those couples to be viewed as of a lesser stature than marriage and, in effect, as a mark of second class citizenship.
(I)t is difficult to deny that the unfamiliarity of the term “domestic partnership” is likely, for a considerable period of time, to pose significant difficulties and
complications for same-sex couples, and perhaps most poignantly for their
children, that would not be presented if, like opposite-sex couples, same-sex
couples were permitted access to the established and well-understood family relationship of marriage.
(T)he distinction drawn by the current California statutes between the designation of the family relationship available to opposite-sex couples and the designation available to same-sex couples impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples.
Many examples exist of legal doctrines that once were viewed as central components of the civil institution of marriage —such as the doctrine of coverture under which the wife’s legal identity was treated as merged into that of her husband, whose property she became, or the doctrine of recrimination which significantly limited the circumstances under which a marriage could be legally terminated, or the numerous legal rules based upon the differing roles historically occupied by a man and by a woman in the marriage relationship and in family life generally. Courts have not hesitated to subject such legal doctrines to judicial scrutiny when the fairness or continuing validity of the doctrine or rule was challenged, on occasion ultimately modifying or invalidating it as a result of such judicial scrutiny.
(U)ntil recently, there has been widespread societal disapproval and disparagement of homosexuality in many cultures, it is hardly surprising that the institution of civil marriage generally has been limited to opposite-sex couples and that many persons have considered the designation of marriage to be appropriately applied only to a relationship of an opposite-sex couple.
Although the understanding of marriage as limited to a union of a man and
a woman is undeniably the predominant one, if we have learned anything from the
significant evolution in the prevailing societal views and official policies toward
members of minority races and toward women over the past half-century, it is that
even the most familiar and generally accepted of social practices and traditions
often mask an unfairness and inequality that frequently is not recognized or
appreciated by those not directly harmed by those practices or traditions. It is
instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past (1) barred interracial marriage(2) upheld the routine exclusion of women from many occupations and official
duties, and (3) considered the relegation of racial minorities to separate and
assertedly equivalent public facilities and institutions as constitutionally equal
(A)ffording same-sex couples the opportunity to obtain the
designation of marriage will not impinge upon the religious freedom of any
religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no
religious officiant will be required to solemnize a marriage in contravention of his
or her religious beliefs.
While retention of the limitation of marriage to opposite-sex couples is not
needed to preserve the rights and benefits of opposite-sex couples, the exclusion of
same-sex couples from the designation of marriage works a real and appreciable
harm upon same-sex couples and their children.
(T)he statutory provisions that continue to limit access
to this designation [marriage] exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of
comparable stature or equal dignity to the family relationship of opposite-sex
couples. Furthermore, because of the historic disparagement of gay persons, the
retention of a distinction in nomenclature by which the term “marriage” is
withheld only from the family relationship of same-sex couples is all the more
likely to cause the new parallel institution that has been established for same-sex
couples to be considered a mark of second-class citizenship. Finally, in addition
to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic
partnerships, there exists a substantial risk that a judicial decision upholding the
differential treatment of opposite-sex and same-sex couples would be understood
as validating a more general proposition that our state by now has repudiated: that
it is permissible, under the law, for society to treat gay individuals and same-sex
couples differently from, and less favorably than, heterosexual individuals and