The California Narrative: Marriage in the Legislature, on the Ballot and in the Courts
From 1850, when California became a state, until 1977, it was considered self-evident that marriage was an institution in which the two people married were a man and a woman.
However, in 1977-to preclude any effort to "redefine" marriage-the California Legislature passed a statute: "Marriage is 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" (Family Code 300).
By the late 1990s, activists throughout the country were pushing for recognition of "domestic partnerships" of two unrelated people of the same sex. In 1999, the California Legislature passed AB 26 which placed in law a definition of "domestic partnership" and assigned specific rights and benefits to domestic partners.
That same year, a group of individuals representing the Catholic Church, the LDS Church and various protestant churches joined Senator Pete Knight in qualifying a ballot initiative, Proposition 22, which was only 14 words: "Only marriage between a man and a woman is valid or recognized in California."
In 2000, the group, calling itself Protect Marriage, ran a successful campaign-and Proposition 22 passed with over 61 percent of the vote. The initiative was a statute-not a constitutional amendment-and would preclude the recognition of out-of-state same-sex marriages-since the Family Code already had a definition of marriage in California.
In 2003, the California Legislature passed and the Governor signed AB 205, an extensive domestic partnership law-which became operative January 1, 2005-granting domestic partners all the rights and responsibilities of married spouses. In June of that year, the U. S. Supreme Court ruled in Lawrence v. Texas that bans on homosexual activity were unconstitutional and in November of the same year the Massachusetts Supreme Judicial Court's decision, Goodridge, conferred the right to marry on same-sex couples.
In February 2004, San Francisco Mayor Gavin Newsom proclaimed that same-sex marriage would be permitted in his city on the grounds that the denial of a marriage license was a constitutional violation of "equal protection" under the law. Between February 10 and March 11, 2004, when the California Supreme Court halted the activity, more than 3,000 same-sex marriages were performed in San Francisco.
Immediately, a number of lawsuits were filed challenging the constitutionality of banning same-sex marriage In August 2004, the California Supreme Court ruled that the San Francisco marriages were invalid, but explicitly deferred the question of constitutionality of California's statutes limiting marriage to opposite sex couples. In September, all the lawsuits were consolidated before San Francisco Superior Court Judge Richard Kramer and in March 2005 he ruled that California's "ban" on same-sex marriage violated the California constitution-saying that "no rational purpose exists for limiting marriage in this stat to opposite-sex partners."
The San Francisco consolidated marriage case decision was appealed-and overturned by the California Court of Appeal in October 2006. In December, the California Supreme Court granted review. It would be nearly 18 months before they rendered their decision-on May 15, 2008-which made same-sex marriage legal in California.
Between September 2005 and September 2007, the California Legislature twice passed-and the Governor twice vetoed-laws changing California's marriage statutes to "gender-neutral."
In the Fall of 2007, in anticipation of a possible negative California Supreme Court ruling, the Protect Marriage group was reconstituted. They launched a signature drive to place a constitutional amendment on the November 2008 ballot with identical language to Proposition 22, "Only marriage between a man and a woman is valid or recognized in California." In April-before the California Supreme Court rendered its decision-they submitted more than a million signatures. That amendment became Proposition 8.
The California Supreme Court declined to stay their May 15, 2008 decision legalizing same-sex marriage-and announced that the marriages could begin June 16. That decision-besides ruling Proposition 22 unconstitutional-declared that homosexuals were a "suspect" class, which thereby entitled them to extra protection of the law.
Protect Marriage employed a top-notch public relations firm, Schubert and Flint, raised and spent nearly $40 million dollars in a hard-fought political campaign against the opponents of Proposition 8 who actually raised more than $40 million. They were successful in getting Proposition 8 passed. The vote, 52.3 to 47.1, was a surprise to the opponents who had assumed Californians supported same-sex marriage.
The reaction by the opponents was immediate and the news coverage extensive. With the suspension of the right to marry, a number of couples filed lawsuits claiming that Proposition 8 was an illegal constitutional revision-not an amendment. Fortunately, the Court allowed the ProtectMarriage.com coalition to act as intervenors, since the state of California declined to defend the voter-approved initiative. Leading their defense was Ken Starr, Dean of Pepperdine Law School. On May 26, 2009, the California Supreme Court upheld Proposition 8-although those same-sex couples married in the five month interim were "grandfathered" in.
Once again, the reaction was immediate-and this time high profile-as two nationally known attorneys, David Boies and Ted Olson, opposing counsel in the 2000 case Bush v. Gore, filed a lawsuit in federal district court claiming Proposition 8 violated the United States Constitution's "equal protection" clause. As in the previous case, the state of California declined to defend Proposition 8-and the ProtectMarriage.com coalition was granted intervenor status. Leading the defense this time is Charles J. Cooper-also a nationally known attorney.
That case, Perry v. Schwarzenegger, will be in the courts for years-probably ending up in the U. S. Supreme Court.
California Historical Timeline of Marriage
1850-1977: From the date California became a state until 1977, the fact that marriage was an institution in which the two people married were a man and a woman was considered self-evident.
1977: The California Legislature explicitly defined marriage: "Marriage is 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." (Family Code 300)
1999: AB 26 defining domestic partnerships and assigning specific rights and benefits to the registered partners, was passed by the Legislature and signed by the Governor.
2000: California voters passed Proposition 22, 61.2 to 38.8 percent: "Only marriage between a man and a woman is valid or recognized in California."
2003: AB 205 extending to registered domestic partners virtually all the rights and responsibilities of marriage, was passed by the Legislature and signed by the Governor.
February 2004: San Francisco Mayor Newsom proclaimed that same-sex marriage would be permitted in San Francisco on the ground that the denial of a marriage license was a constitutional violation of equal protection under the law. Between February 10 and March 11, 2004, more than 3,000 marriages were performed in San Francisco.
March 2004: California Supreme Court halted the marriages and agreed to rule on the issues-eventually.
April 2004: AB 1967, Gender neutral marriage, was approved by the Assembly Judiciary Committee-although not passed by the full Assembly. (First time a state Legislative committee in the U.S. had voted to approve same-sex marriage.)
August 2004: California Supreme Court ruled that the San Francisco marriages were invalid, but explicitly deferred the question of constitutionality of California's statues limiting marriage.
September 2004: Lawsuits challenging the constitutionality of California's marriage laws were consolidated (Marriage Cases, CJC-04-2005) before San Francisco Superior Court Judge Richard Kramer.
March 2005: Judge Kramer ruled that California's "ban" on same-sex marriage violated the California constitution, saying that "no rational purpose exists for limiting marriage in this state to opposite-sex partners." His ruling was "tentative" and needed to be affirmed in the appellate process.
September 2005: California Legislature passed AB 849, Gender neutral marriage, which was vetoed by the Governor who noted that the Legislature did not have the power to reverse Proposition 22, and that the case was in the courts.
October 2006: California Court of Appeal ruled 2-1 to uphold Proposition 22, finding "Everyone has a fundamental right to ‘marriage,' but, because of how this institution has been defined; this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner."
December 2006: The California Supreme Court granted review in the case. The Court solicited amici (friend of the Court) briefs-and 45 were filed, including one (see attached) in which the CCC joined the Church of Jesus Christ of Latter-Day Saints (Mormons) , the National Association of Evangelicals and the Union of Orthodox Jewish Congregations of America.
September 2007: California Legislature passed AB 43 Gender neutral marriage, which was vetoed by the Governor for the same reasons he vetoed AB 849.
March 4, 2008: California Supreme Court heard oral arguments in the case.
April, 2008: ProtectMarriage.com coalition (reconstituted group that was successful in getting Proposition 22 passed) submitted more than a million signatures to put a constitutional amendment with the same language as Proposition 22 on the November 2008 ballot.
May 15, 2008: California Supreme Court rules in re: Marriage cases, by a vote of 4-3 that Proposition 22 is unconstitutional-opening the door to same-sex marriage.
June 16, 2008: Same-sex couples began to marry.
November 4, 2008: Proposition 8 passed 52.3 to 47.7 percent by the voters of California:
November 5, 2008: Same-sex couples can no longer marry; lawsuit, Strauss v. Horton, filed claiming Proposition 8 invalid because it was a constitutional revision not an amendment. ProtectMarriage.com was granted intervenor status-as the state of California declined to defend the initiative. They retained Dean Ken Starr from Pepperdine University to argue their case.
May 26, 2009: California Supreme Court ruled in Strauss v. Horton (see pdf attached) that Proposition 8 was a valid amendment to the state's constitution but that the approximately 18,000 same-sex marriages solemnized in the five month interim in 2008 would remain valid.
May 27, 2009: American Foundation for Equal Rights retained two high profiles attorneys, David Boies and Ted Olson (they opposed each other in the 2000 U.S. Supreme Court case Bush v. Gore) and filed a challenge to Proposition 8, Perry v. Schwarzenegger, (see attached) in federal district court.
July 1, 2009: ProtectMarriage.com, represented by Charles J. Cooper, was granted intervenor status in Perry v. Schwarzenegger, as once again the state of California declined to defend the voter-approved initiative.
August 19, 2009: Judge Vaughn Walker, U.S. District Court, Northern District of California, set the January 11, 2010 as the trial date for Perry v. Schwarzenegger.