{"id":52912,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/same-sex-marriage-and-the-california-constitution.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"same-sex-marriage-and-the-california-constitution","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/same-sex-marriage-and-the-california-constitution.html","title":{"rendered":"Same Sex Marriage and the California Constitution"},"content":{"rendered":"\n
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Same Sex Marriage and the California Constitution<\/h1><\/td>\n <\/tr>\n

By VIKRAM DAVID AMAR<\/h2><\/a><\/td>\n <\/tr>\n

Friday, Apr. 02, 2004<\/td>\n\n <\/tr>\n <\/table>\n

\tSomeday in the not-too-distant future, California courts will have to decide whether to strike down California’s current marriage statutes – which prohibit recognition of same-sex marriages — as unconstitutional. <\/p>

\tThe answer the courts give will depend on how the courts read the state’s own constitution. As Joanna Grossman pointed out in a previous column<\/a>, the lawsuit Mayor Newsom and the City of San Francisco have filed, seeking a declaration that current state statutes are void, asserts claims only under the California – not the federal — constitution. (Newsom has said he believes there is a right to same-sex marriage under the U.S. Constitution too, but for tactical or other reasons has brought his claims only under the state constitution.)<\/p>

\tStrategically, the decision to bring only state constitutional claims may prove wise — for the California constitution is generally broader than is the federal Constitution in the recognition and protection of rights. Even when the words of the two documents are the same – say, in the guarantees of “due process” or “equal protection” of law – the California constitution may protect individuals more generously. <\/p>

But are the state constitutional claims by same-sex marriage proponents, in the end, winners?<\/p>

\tTo even begin to answer that question, we need to look at both equal protection and privacy doctrines under the California constitution.<\/p> <\/b>

California Constitutional Equal Protection Doctrine<\/p>

\tConsider, first, the promise of “equal protection of the laws.” <\/p>

To begin, California’s marriage statutes, like those of other states that similarly define marriage as being only between a man and a woman, may be viewed as distinguishing between people based on gender. Put another way, California current marriage law may embody a so-called gender-based classification. <\/p>

After all, the only reason a gay person can’t marry his partner under California law is the gender<\/u> of his partner. If the partner were of the opposite sex, the marriage would legal. Thus, a law prohibiting same-sex marriage may be a gender classification in the same sense that a law prohibiting (or requiring, for that matter) interracial marriage is considered a racial classification.<\/p>

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