The California Constitution and Same-Sex Marriage:
Even if California's Anti-Gay-Marriage Statutes Violate the State Constitution, San Francisco Was Still Wrong Not To Wait for the Courts

By VIKRAM DAVID AMAR

Saturday, Mar. 06, 2004

The topic of gay marriage certainly raises federal constitutional issues. The scope of last summer's Lawrence v. Texas gay-sodomy ruling is uncertain. Questions linger about the extent to which so-called "full faith and credit" principles require a state to recognize same-sex marriages performed in another state. Moreover, a few weeks ago, President Bush endorsed a federal constitutional amendment banning the practice altogether.

Meanwhile, however, here in California, we've got our own, distinctively state, constitutional questions to address in the context of gay marriage - questions that the California Supreme Court may begin to take up as early as this weekend. With the Massachusetts Constitution central to that state's recognition of gays' right to equal access to marriage, the California Constitution, too, may assume a large role as the issue plays out here.

In a series of columns, beginning with today's, I will try to unpack some of these incredibly interesting, but also somewhat complex, matters. In particular, today I will focus on a provision of the California Constitution that suggests that rather than simply begin performing same-sex marriages, San Francisco should have waited for an appeals court decision in its favor. As I will discuss, this provision applies to San Francisco, and San Francisco should have abided by it.

The Factual Background and Procedural Quagmire

As Joanna Grossman described in her column a few weeks ago, about three weeks ago San Francisco Mayor Gavin Newsom directed the Clerk of San Francisco County to make whatever changes were necessary "in order to provide marriage licenses on a non-discriminatory basis, without regard to gender or sexual orientation." This led to the issuance of licenses to same-sex couples, whose weddings have been performed at City Hall by county bureaucrats and elected officials.

As Joanna described, this quickly prompted a couple of lawsuits brought by private groups seeking to enforce California state statutes forbidding same-sex marriage. The California trial courts declined to grant the immediate injunctive relief that the private plaintiffs sought -- largely on the ground that even if Mayor Newsom has been improperly violating state law, there is no large "irreparable injury" being suffered because of it. ("Irreparable injury," as well as likelihood of success on the merits, is a typical prerequisite for an immediate injunction.)

The trial courts have consolidated all the claims into a single case, and will begin to hold more hearings over the next month.

The California Attorney General Weighs In

Meanwhile, last Friday, the California Attorney General filed papers directly in the California Supreme Court -- making three requests relating to the gay marriage issue.

First, he asked that the Court issue an immediate cease-and-desist order directing the City/County of San Francisco to stop issuing new licenses. Second, he asked that the Court declare the marriages that have already been performed invalid because of the allegedly illegal actions of the Mayor. Finally, the Attorney General invited the high Court to resolve the question of whether the California Constitution prohibits discrimination against same-sex couples in the context of marriage, as advocates of same-sex marriage suggest.

On this third and final issue, the Attorney General noted that the Court could, if it chose, grant the cease-and-desist order and invalidate the marriages already performed, but also allow the lower courts to process the merits of the state constitutional equal protection and due process issues before these issues are addressed by the Supreme Court. But the Attorney General indicated his belief that the better course was for the Court to take up the merits itself right away, without waiting for the lower courts to rule, inasmuch as the due process and equal protection questions are adequately framed and presented.

The California Supreme Court responded to the Attorney General's filings by ordering the City/County of San Francisco to respond to both of the Attorney General's motions - the application for a cease and desist order, and the invitation to take up the merits before the lower courts have - by today.

The City/County's response will be filed sometime today, and the Court will then begin to decide what action, if any, it wants to take on both of the Attorney General's requests.

California Statutes Clearly Do Prohibit Same-Sex Marriage

To begin with, it is quite clear that California statutes currently prohibit same-sex marriage. One provision of the Family Law Code says that "marriage" is a "personal relation arising out of a civil contract between a man and a woman."

Another provision states that those capable of providing consent to marriage are an "unmarried male of the age of 18 years or older, and an unmarried female of the age of 18 years or older."

Finally, and perhaps most importantly, section 308.5 of the Family Law Code -- which was enacted by the voters themselves as an initiative (Proposition 22) in the 2000 election -- says that "only marriage between a man and a woman is valid or recognized in California."

The Constitutional Provision that Requires Enforcement Until a Court Says Otherwise

Thus, the only imaginable defense for Mayor Newsom's actions is his belief that these statutes violate the California Constitution. And that, indeed, has been his defense - that the oath he swore to uphold the California Constitution when he took office permits (indeed, perhaps compels) him to disregard state statutes that conflict with the highest of California's laws.

The problem for Mayor Newsom is a specific provision of the California Constitution. Article III, section 3.5 of the California Constitution says that an "administrative agency has no power to refuse to enforce a statute, on the basis of its being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional."

In other words, the California Constitution itself says that when an agency thinks that a statute violates the Constitution, the agency should continue to obey the statute until appellate courts have resolved the matter. Section 3.5 thus sets up an orderly process to prevent each agency from going its own way and disregarding the will of the legislature in the name of constitutional conscience.

Section 3.5 is the provision the Attorney General relied on heavily in making his request for an immediate cease-and-desist order, and to my mind, his argument is quite forceful. While I will of course be interested in seeing what Mayor Newsom's legal team says in the response it files today, my sense is that under Section 3.5, even if the Mayor is right in thinking that state statutes violate the Constitution, he was acting illegally in disregarding state statutes until the invalidity of those statutes had been made clear by the appellate courts.

Is San Francisco an "Administrative Agency" Within the Provision's Meaning?

The only real question concerning the applicability of section 3.5 is whether San Francisco is an "administrative agency" within its meaning. I think it has to be, for a few reasons.

First, the City/County of San Francisco is, in the marriage license-granting context, acting as a County, not as a local City. It is the County clerk who issues the licenses, and the state Constitution elsewhere defines Counties as "legal subdivisions of the state." As one prominent treatise on the California Constitution notes, counties "serve as regional agencies and instrumentalities of some state-level functions and are thus treated as legal and operational subdivisions of the state government itself."

(The fact that San Francisco is both a City and a County should not confuse us here - where, as here, San Francisco acts as a County, it is acting on behalf of the State, and is a state "administrative agency" for these purposes.)

Taking a step back, it only makes sense to view marriage-license-granting as a state function. The licenses each county grants are valid not just in that county, but rather throughout the state (and perhaps in other states as well -- depending on how the Constitution's "full faith and credit" clause is interpreted, and how other states' courts choose to rule on public policy exemptions to recognition of out-of-state marriages).

It is true that cities in California enjoy some protection under the California Constitution to decide for themselves, free from state control, some matters. But the California Constitution limits these local autonomy realms explicitly to "municipal affairs." Municipal affairs may include such things as setting salaries for city employees, contracting for city construction projects, taxing local residents, and the like. But they certainly don't include administering a statewide scheme for marriage licenses.

We can see that clearly if we ask the following question: what if Mayor Newsom's objections to state statutes concerning marriage were based not on a perceived conflict with the California Constitution, but rather only on policy differences? That is, what if Mayor Newsom thought, for example, that persons who are 16 years old should be allowed to marry (in violation of state law), but didn't ground his argument in a reading of state constitutional principles?

We would never think that the City of San Francisco can define marriage differently from the State under its local home rule powers, in the way it can decide how to tax its municipal residents or pay its local employees. Marriage is a statewide concern, and its administration should be subject to an orderly, statewide process.

Nor does anything change if Mayor Newsom says, as his lawyers have begun to, that he thinks state statutes prohibiting same-sex marriage might violate the federal, as well as the state, constitution. In essence, Newsom's lawyers argue that section 3.5 would violate the notion of federal constitutional supremacy if it were invoked to force a state official to do something he believed violated federal law.

I think not. There might be a problem if a state constitution directed a state official to do something that any reasonable person would know violates federal law. But I see no problem with a provision, like section 3.5, which merely says that where reasonable minds can differ about the validity of state statutes, such statutes should be administered until appellate courts make their invalidity reasonably clear.

For these reasons, San Francisco should have waited for an appeals court decision in its favor, before beginning to perform same-sex marriages.

Does the California Constitution Prohibit Discrimination Against Same-Sex Couples Who Want to Marry?

So let us assume that Mayor Newsom went about things the wrong way. What about his belief that California statutes conflict with the California Constitution? I shall take up that question in some depth next column. For now, let me just say that things are complicated in both directions.

On the one hand, the California equal protection and due process clauses (and perhaps other provisions as well) may prohibit discrimination more broadly than does the federal constitution. On the other hand, the fact that one of the challenged statutes - Proposition 22 - took the form of a recent voter initiative favored by 61 percent of the electorate may make it analytically difficult to say that this measure violates the California Constitution.

The California Constitution, after all, is no more, and no less, than what a majority of the voters of California want it to be. And the fact that Prop. 22 took the form of a statutory initiative rather than a state constitutional amendment initiative may not be as important as might first appear. The direct democracy process for enacting statutes and amending the constitution are virtually identical in California, and both initiative statutes and initiative constitutional amendments cannot be touched by the legislature. As a result, while there is clearly some significance that can be attached to the form that an initiative takes, it is not entirely clear that there is a compelling reason to strongly differentiate between the two kinds of measures.

But much more on these provocative ideas next time.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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