The California Supreme Court Rules in Favor of Marriage for Same-Sex Couples: Why Domestic Partnerships Are Not Enough:
Part One in a Two-Part Series of Columns

By JOANNA GROSSMAN AND LINDA MCCLAIN


Tuesday, May. 27, 2008

In its recent 4-3 decision, In re Marriage Cases, the California Supreme Court invalidated two state laws that had limited marriage to opposite-sex couples. To exclude same-sex couples from the right to marry, the court held, infringes both the due process and equal protection guarantees in the California constitution. Unless the decision is stayed, gay and lesbian couples can begin applying for California marriage licenses in thirty days.

In this column, Part One in a two-part series, we will discuss how the California decision affected the national legal landscape in this area; explain the evolution of California's marriage and domestic partnership laws; and consider the significance of whether same-sex unions are dubbed "marriages" or go by an alternate name such as "domestic partnerships" or "civil unions."

The National Landscape for Same-Sex Marriage – and How the California Decision Fits In

With this ruling, California becomes only the second American state to authorize same-sex couples to marry on exactly the same terms as opposite-sex couples. (Same-sex marriage is also legal in several foreign countries, including Spain, Belgium, Canada, the Netherlands, and South Africa.)

In 2004, Massachusetts became the first American state to legalize same-sex marriage. As with California, Massachusetts' legalization of gay marriage resulted from a ruling from its highest court. The Massachusetts decision, Goodridge v. Department of Public Health, held that same-sex couples must be permitted to marry under the state's constitutional guarantee of due process

Four American states authorize "civil unions" for same-sex couples, a legal status that is identical to marriage in all but name. A few states have domestic partnerships with some or most of the legal incidents of marriage. However, almost every state (including some with civil union or domestic partnerships laws) expressly bans celebration or recognition of same-sex marriage by statute or constitutional amendment.

California's Marriage Laws, From the Beginning to the Present

As in most states, California's first marriage law made no mention of same-sex marriage or of any requirement that couples be comprised of one man and one woman. That only opposite-sex couples would marry was simply assumed, in California and across the country.

That assumption held until the 1970s – when, in a rash of cases, same-sex couples sought marriage licenses in a variety of jurisdictions, including California – pointing out to the county clerks who issued licenses that the particular state's marriage laws did not say only opposite-sex couples could marry. The clerks uniformly refused to issue such licenses, and some of the couples sued to challenge the refusals on constitutional grounds.

In one such case, Baker v. Nelson, the U.S. Supreme Court dismissed the challenger's appeal "for want of a substantial federal question." In other words, the Court did not see any constitutional issue implicated by the clerks' refusal to give effect to the apparently gender-neutral laws.

In California, not only did clerks refuse to grant licenses to same sex couples, but the County Clerks' Association urged the state legislature to amend the marriage laws to make clear that same-sex couples were not eligible to marry. Thus, in 1977, the California legislature added the phrase "between a man and a woman" to its definition of marriage, which had previously only defined marriage as a "personal relation arising out of a civil contract."

Thus, California Family Code § 300 currently provides that only opposite-sex couples may celebrate lawful marriages in California. The California legislature passed bills in 2005 and 2007 to grant same-sex couples the right to marry, but both were vetoed by Governor Arnold Schwarzenegger.

Even if the California legislature had successfully amended Section 300, it would have had to contend with another provision of California law that regulates the validity of same-sex marriage. By referendum in a 2000 election, voters adopted Proposition 22 (codified as California Family Code § 308.5), which provides that "Only marriage between a man and a woman is valid or recognized in California." Section 308.5 creates an additional obstacle for advocates of same-sex marriage: Because it was adopted by referendum, the legislature cannot repeal it without voter approval.

Previously, California's Domestic Partnership Laws Did Offer Same-Sex Couples Legal Protection – with Some Exceptions

Despite this history, however, California had also become one of the most hospitable environments for same-sex couples. Since the enactment of a law in 1999, same-sex partners have been permitted to register with the Secretary of State as domestic partners. The preamble to California's domestic partner law states its goals: promoting equality for "caring and committed couples", "promoting family relationships and protecting family members during life crises," and reducing "discrimination on the bases of sex and sexual orientation." The legislature has steadily expanded the domestic partnership law, culminating in the dramatic expansion of the Domestic Partner Rights and Responsibilities of 2003 (the "Domestic Partner Act").

Since this law took effect in 2005, registered domestic partners assume all the state-law rights and responsibilities of legal spouses -- with just a few exceptions. (For instance, minors cannot enter into domestic partnerships, and a couple must share a common residence in order to register as domestic partners.) The law directs courts to construe the law liberally to secure "the full range of legal rights, protections, and benefits" to registered partners, and, in fact, courts have ruled, as described in a prior column, that domestic partners are indeed entitled to be treated in most instances as a spouse.

The California Constitution versus The California Code: The Key Clash that the California Supreme Court's Recent Decision Addressed

Since 2005, in sum, domestic partnership has functioned in California as a near-equivalent to marriage. In re Marriage Cases thus takes up the question of whether the state must go further, and provide same-sex couples with access to civil marriage.

The recent ruling consolidates appeals from several different appeals, all presenting the argument (in one form or another) that the state's statutory ban on same-sex marriages violates the state's own constitution. (The same argument was made successfully in Massachusetts, but unsuccessfully in states like New York and Maryland.) One spur to these lawsuits was the issuance of marriage licenses to same-sex couples in San Francisco, after an order to county clerks to do so by the Mayor of the City.

In a 121-page opinion, authored by Justice Ronald George, the majority reached two basic conclusions: (1) that the fundamental right to marry protected by the state constitution's due process clause includes the right to marry a person of the same sex; and (2) that reserving the status of marriage for heterosexuals, while limiting gays and lesbians to the second-class domestic partnership status, constitutes unconstitutional discrimination on the basis of sexual orientation. (An important step to the second holding was the court's conclusion that classifications on the basis of sexual orientation are "suspect" and therefore deserving of the highest form of judicial scrutiny.)

Marriage versus Civil Union or Domestic Partnership: What's in a Name?

Within the small number of states that are willing to grant some kind of formal recognition to same-sex couples, there is a divide between those who grant full access to marriage and those who rely on an alternative legal status to provide comparable benefits.

The nation's first civil union law was adopted by the Vermont legislature after the state's highest court ruled in Baker v. State that same-sex couples could not constitutionally be deprived of the common benefits of marriage. The court made clear in Baker that the constitutional violation arose from withholding the tangible benefits of marriage, not its name. The legislature thus invented an alternative legal status that is identical to civil marriage in all respects other than name.

A similar story unfolded in New Jersey several years later. The state's highest court held in Lewis v. Harris that the state constitution did not permit the legislature to deprive same-sex couples of the rights and obligations of marriage ("the rights of marriage"), but that it need not provide access to the "right to marriage," and could create an alternative, rather than an identical status. In December 2006, the legislature adopted a civil union law.

Massachusetts took a different path. The state's highest court also ruled, in Goodridge v. Department of Public Health, that same-sex couples had a constitutional right to marry. But its holding did not distinguish the form of marriage from its substance, emphasizing both the tangible and intangible benefits of marriage. Indeed, the Senate was later rebuffed when it tried to adopt a civil union law, by an opinion in which the majority observed that the "dissimilitude between the terms 'civil marriage' and 'civil union' are not innocuous," but rather assign "same-sex, largely homosexual, couples to second-class status." (The Goodridge decision is discussed in detail in a previous column.)

The highly respected Supreme Court of California has now joined Massachusetts in believing that the name – or at least the withholding of the name – means something. According to the majority opinion, the right to marry as protected by the state constitution is a "couple's right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families." That equal dignity and respect is undermined by making the name turn on the identity of the parties. Perhaps the state could, the majority suggests, strip all unions of the name "marriage" and call them something else, but as a matter of both due process and equal protection, it cannot maintain one status for heterosexual couples and another for homosexual ones.

The distinctiveness of the California court's approach is manifest from a comparison with that of New Jersey. There, the state's highest court said the naming question does not implicate constitutional questions, but is, instead, best resolved in "crucible of the democratic process." The majority concluded that constitutionally requiring access to "marriage" would force "social acceptance" upon the citizens of New Jersey, who may not be ready for it. Any change in the longstanding definition of marriage, the majority believed, ought to come from the legislature, through "civil dialogue and reasoned discourse."

The California court wisely rejected this approach, which seems to stem more from considerations of policy, than legal reasoning. Californians may well find same-sex marriage more palatable if it comes from the legislature. But the court's role isn't to maximize social acceptance; it is to interpret the guarantee of equal protection of the law.

There were no doubt naysayers when the U.S. Supreme Court denounced bans on interracial marriage in Loving v. Virginia in 1967, but that did not factor into the Court's view of whether the Lovings had suffered a constitutional injury. The California court itself makes this point emphatically with its frequent statements that its role is not to make decisions based on public policy or what is popular, but to interpret the constitution. It cites to its own precedent, Perez v. Sharp, which struck down California's ban on interracial marriage in 1948, noting that although it was "rendered by a deeply divided court," it is "a judicial opinion whose legitimacy and constitutional soundness are by now universally recognized."

One might view the intermediate approach taken in Vermont and New Jersey as a pragmatic step toward marriage equality – one that secures tangible benefits for same-sex couples despite the present political climate. (In many states, there is majority support for civil unions, but not for same-sex marriage.) Some may even find that alternative legal statuses like domestic partnership and civil unions are desirable because they are unburdened by historical associations with gender inequality and religious doctrine, and detached from the prior climate of intolerance and discrimination.

Despite the practical benefits of domestic partnership, however, marriage idealists argue that same-sex couples should have access to the symbolic meaning of marriage – which has always meant far more than a set of legal benefits and obligations. Precisely because of its long history as a fundamental social institution, they argue, marriage carries powerful connotations of commitment and intimacy that a civil union or domestic partnership simply does not replicate. The California Court concurred with this evaluation, repeatedly emphasizing the dignity and respect marriage commands.

In addition to marriage's symbolic importance, the court also noted other reasons that a two-tier system denies same-sex couples such respect. To begin, the entrenched bias against gays and lesbians raises special concerns about a separate-but-equal approach. (As the court observes, if interracial marriages had been allowed only if called "transracial union," this would still have been unconstitutional.) The court also notes the practical problem, evident from Vermont's and New Jersey's experiences with civil unions, that the public understands marriage, but does not understand domestic partnerships. Finally, the court notes the risk that having separate tracks for opposite-sex and same-sex relationships may send a more general message that government regards gay men and lesbians and their families as less worthy of respect.

Many same-sex couples understandably aspire to speak the "common language" of marriage. Marriage signifies a well-defined and well-understood social relationship, one that does not individual explanation or justification. Whether or not it should, "marriage" commands a unique public respect and esteem -- and many would argue that equalizing access to that status is a necessary component of equality. Consigning certain couples to a different status based solely on their identity is tantamount to extending to them only second-class citizenship. The importance of the name is illustrated most effectively by the desire to withhold it from same-sex couples.

Whether or not it would be salutary for governments to develop a menu of legally-recognized and -supported relationships other than marriage – with different levels of rights and obligations -- was not the issue before the court. Rather, the court considered the constitutionality of a legislative scheme that intended to provide same-sex couples all the benefits and obligations of marriage, but withheld the name of marriage. Equality does not permit such a result.

In Part Two of this column, we will examine how the California Supreme Court both embraced tradition about why marriage matters and, at the same time, rejected the traditional definition of marriage.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

Linda McClain, who has been a prior guest columnist for FindLaw, is a professor of law and Paul M. Siskind Research Scholar at Boston University. She discusses same-sex marriage and other family law issues in The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press, 2006).



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