Lockyer v. San Francisco

Statutory Scheme Prohibiting Same-Sex Marriage Violates California Constitution

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Lockyer v. San Francisco (2004) 33 C.4th 1055, 95 P.3d 459, 17 C.R.3d 225, 7 Summary (10th), Constitutional Law, §142, held that approximately 4,000 same-sex marriages performed in San Francisco were void because public officials acted unlawfully in issuing marriage licenses to same-sex couples in the absence of a judicial determination that California statutes limiting marriage to the union between a man and a woman were unconstitutional. The decision did not determine whether a statutory scheme that gives same-sex domestic partners virtually all the “substantive benefits and privileges” of married persons, but limits marriage to opposite-sex couples, violates the state’s Constitution. While Lockyer was still pending, a number of same-sex couples and the City and County of San Francisco filed a lawsuit alleging that Family C. 308.5, limiting marriage to opposite-sex couples, applied only to marriages solemnized outside of California and that, in any event, California statutes limiting marriage to unions between a man and a woman were unconstitutional. These cases were coordinated, together with two cases seeking an immediate stay to stop the issuance of marriage licenses to same-sex couples in San Francisco, into a single proceeding. The trial court determined that denying same-sex couples the right to marry violates the Equal Protection Clause of the California Constitution. The Court of Appeal reversed the trial court. In re Marriage Cases (2008) C.4th 757, 76 C.R.3d 683, 183 P.3d 384, reversing the Court of Appeal, holds that, in limiting marriage to opposite-sex couples, the California statutory scheme violates both the fundamental right to marry protected by the due process (Cal. Const., Art. I, §7(a)) and privacy (Cal. Const., Art. I, §1) provisions of the California Constitution and the Equal Protection Clause (Cal. Const., Art. I, §7(a)).

(a) California statutes governing marriage. “From the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.” (43 C.4th 792.) Family C. 308.5, an initiative statute approved by the voters in 2000, provides that “[o]nly marriage between a man and a woman is valid or recognized in California.” (See 11 Summary (10th), Husband and Wife, §44.) There has been disagreement whether the statute applies only to out-of-state marriages or whether it also applies to marriages performed in California. Although the immediately preceding statute, Family C. 308 (see 11 Summary (10th), Husband and Wife, §44), relates specifically to out-of-state marriages, Family C. 308.5 contains no language indicating that it is so limited. Because Family C. 308.5 applies both to marriages that are “recognized” and “valid” in California, the average voter is likely to have understood the statute to apply to both in-state and out-of-state marriages. (43 C.4th 798.) Moreover, nothing in the background of the initiative indicates that it was intended to leave the Legislature free to authorize the marriage of same-sex couples (43 C.4th 799.). Discrimination in the treatment of in-state and out-of-state marriage “would be difficult to square with governing federal constitutional precedents.” (43 C.4th 800.) Hence, the statute cannot properly be interpreted to apply only to marriages performed outside of California. (43 C.4th 797.)

(b) California domestic partnership legislation. With a few exceptions (43 C.4th 805, footnote 24) under the California Domestic Partner Rights and Responsibilities Act of 2003 (see 11 Summary (10th), Husband and Wife, §25 et seq.), the rights and responsibilities of domestic partners are virtually the same as those of spouses. (43 C.4th 802.) The Act does not purport to, and could not, modify the applicable provisions of federal law, which defines marriage, for purposes of federal law, as the union of a man and a woman. This would not change if California designated the official union of these couples a marriage rather than a domestic partnership. (43 C.4th 806.)

(1) Fundamental nature of right to marry. Under California case law, the right to marry is “beyond question” a fundamental right protected by the California Constitution. (43 C.4th 809.) Meyer v. Nebraska (1923) 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, 8 Summary (10th), Constitutional Law, §1071, discussed the right to marry as an aspect of the fundamental substantive “liberty” protected by the Due Process Clause of the United States Constitution. In Griswold v.Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, 7 Summary (10th), Constitutional Law, §558, that right was identified as a component of the “right to privacy” protected by the United States Constitution. Since the 1972 addition of privacy to the inalienable rights protected by Cal. Const. Art. I, §1 (7 Summary (10th), Constitutional Law, §178), the state constitutional right to marry is both a liberty interest protected by the Due Process Clause and an interest in personal autonomy protected by the Privacy Clause of the state constitution. (43 C.4th 810.)

(2) Nature of right at issue. The California Supreme Court in Perez v. Sharp (1948) 32 C.2d 711, 198 P.2d 17, 8 Summary (10th), Constitutional Law, §747, characterized the constitutional right the plaintiffs in that case sought as the right to marry “the person of one’s choice,” rather than the “right to interracial marriage.” And in Lawrence v. Texas (2003) 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508, 7 Summary (10th), Constitutional Law, §573, the United States Supreme Court concluded that, in its prior decision in Bowers v. Hardwick (1986) 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140, 7 Summary (10th), Constitutional Law, §573, it had erred in characterizing the right sought by plaintiffs as the right to engage in intimate homosexual conduct. (43 C.4th 811.) The constitutional right at issue “should be understood in a broader and more neutral fashion so as to focus upon the substance of the interests that the constitution right is intended to protect.” Here, plaintiffs are not seeking to create a new constitutional right to same-sex marriage, but rather to come under the umbrella of the existing constitutional right to marry. (43 C.4th 812.)

(3) Importance of marriage to society and individual. Meyer v. Nebraska, supra, includes the rights to marry, establish a home, and bring up a family, as within the scope of the liberty interest of the Due Process Clause. Perez v. Sharp, supra, describes marriage as “fundamental to the right of free men.” This and other California cases have recognized marriage as the means available to the individual to establish a family, which is the basic unit and core of our society. (43 C.4th 813.) The right to establish a legally recognized family with the person of one’s choice is of fundamental significance to both society and the individual. (43 C.4th 814.) Because the right to marry does only not serve the interests of society, but implicates the due process and equal protection rights of the individual, the right is not one that exists only if the Legislature chooses to establish and retain it. (43 C.4th 818.)

(4) Private and public nature of right. While the right to marry includes the “negative” right to be free of governmental intrusion into marriage, i.e., the right of marital or familial privacy, it also includes a “positive” right to have the state take affirmative action to acknowledge and support the family unit. It obligates the state to grant public recognition to the couple’s familial relationship. (43 C.4th 819, citing Perez) “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.” (43 C.4th 820.)

(5) Relationship of tradition and fundamental rights. While traditionally in this state marriage has been limited to a union between a man and a woman, tradition alone has not been viewed as sufficient justification for perpetuating, with examination, the denial of fundamental constitutional rights. (43 C.4th 820, citing Perez and Sail’er Inn v. Kirby (1971) 5 C.3d 1, 95 C.R. 329, 485 P.2d 529, 8 Summary (10th), Constitutional Law, §765.) Once a fundamental right has been recognized, it cannot be denied to a group on the ground that the group has historically been denied that right. (43 C.4th 824.) California recognizes that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are entitled to protection from discrimination on the basis of their sexual orientation. (43 C.4th 823.)

(6) Effect of decision on opposite-sex couples. Unlike some other decision where the grant of a party’s right would necessarily reduce or diminish the rights of others (43 C.4th 824, citing Johnson v. Calvert (1993) 5 C.4th 84, 19 C.R.2d 494, 851 P.2d 776, 10 Summary (10th), Parent and Child, §22, and Dawn D. v. Superior Court (1998) 17 C.4th 932, 72 C.R.2d 871, 952 P.2d 1139, 10 Summary (10th), Parent and Child, §35), the grant of the right to marry to same-sex couples will not impair the constitutional rights that opposite-sex couples have traditionally possessed. (43 C.4th 825.)

(7) Effect of ability to procreate. That only a man and a woman can produce children biologically does not require that the constitutional right to marry be limited to opposite-sex couples. The constitutional right to marry has never been limited to those who are physically capable of producing children. (43 C.4th 825.) And while marriage may afford protection for the children of opposite-sex couples who are produced by those couples accidentally, no case discussing the right to marry has suggested that the constitutional right to marry is possessed only by individuals who are at risk of unintended pregnancy. (43 C.4th 826.) Moreover, past cases make clear that the right to marry is not confined to or restrictively defined by that purpose alone. (43 C.4th 827, citing, among other cases, Griswold v. Connecticut, supra, which upheld a married couple’s right to use contraception to prevent procreation.)

(8) Impact on biological parenthood. Allowing same-sex couples to marry does not “sever the link that marriage provides between procreation and child rearing.” It simply confirms that a stable two-parent family, supported by state recognition and protection, is as important for children being raised by same-sex couples as for those being raised by opposite-sex couples, whether they are biological or adoptive parents. (43 C.4th 828.)

(9) Effect of reserving different names for same rights. Assigning the new and unfamiliar term “domestic partnership” to same sex couples while reserving the historic and highly respected designation “marriage” to opposite-sex couples risks "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.” (43 C.4th 831.)

(d) Effect of equal protection on statutory scheme.

(1) Standard of review. Under the conventional standard for reviewing economic and social welfare legislation in which classes are treated differently, the distinctions drawn must bear some rational relationship to a conceivable legitimate state purpose. The statute is presumed constitutional and the burden of demonstrating the invalidity of the classification rests on the party challenging it. In cases involving suspect classifications or bearing on fundamental interests, on the other hand, the classification is subject to a higher standard of strict scrutiny, and the state bears the burden of demonstrating that it has a compelling interest that justifies the law and that the distinctions drawn by the law are necessary to further than purpose. (43 C.4th 832.)

(2) No sex discrimination. While California cases have long established that statutes discriminating on the basis of sex or gender are subject to strict scrutiny, the statutory scheme under consideration here does not so discriminate. Persons of either gender are permitted to marry only persons of the opposite gender and are thus treated equally. (43 C.4th 833.)

(3) Sexual orientation is suspect classification. The statutory provisions restricting marriage to the union between a man and a woman do not merely have a disparate impact on gay persons. They classify and prescribe distinct treatment on the basis of sexual orientation, even though they do not explicitly ban marriage to a person of the same sex. (43 C.4th 833.) “By limiting marriage to opposite-sex couples, the marriages statute, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation.” (43 C.4th 839.) “[T]he most important factors in deciding whether a characteristic should be considered a constitutionally suspect basis for classification are whether the class of persons who exhibit a that characteristic historically has been subjected to invidious and prejudicial treatment, and whether society now recognizes that the characteristic in question generally bears no relationship to the individual’s ability to perform or contribute to society. Thus, ‘courts must look closely at classifications based on that characteristic lest outdated social stereotypes result in invidious laws or practices.’ ” (43 C.4th 843, quoting Sail’er Inn.) Sexual orientation clearly comes within this rationale. (43 C.4th 843.)

(4) Intermediate scrutiny rejected. Although an intermediate scrutiny has been suggested, California cases, unlike federal cases, have continued to review those statutes that impose differential treatment on the basis of race or gender under strict scrutiny. There is no reason to apply a less rigorous standard to cases involving sexual orientation. (43 C.4th 843, 844.)

(5) Violation of privacy. Strict scrutiny also applies because the classification drawn by the statutes impinges on the constitutionally protected privacy interest of same-sex couples. Denying these couples access to the established institution of marriage impinges on their right to have their family relationship accorded the respect and dignity equal to that accorded to the relationship of opposite-sex couples. (43 C.4th 845.) In light of the historical discrimination against gay people, there is a significant risk that the institution of domestic partnership will be viewed as a mark of second-class citizenship. And while marriage is well understood by the public generally, domestic partnership is not, which will result in difficulties for same-sex couples and their children not experienced by opposite-sex families. (43 C.4th 846.) In the numerous settings in which people are asked whether they are single or married, domestic partners will be forced to disclose their sexual orientation, even though that information is irrelevant in the setting in question. (43 C.4th 847.)

(6) The state's interest. The state does not have a compelling interest in reserving the designation of marriage to opposite-sex couples, nor is the statutory restriction necessary to serve a compelling state interest. Extending the designation to same-sex couples will not deprive opposite-sex couples or their children of the rights and benefits conferred by the marriage statutes. Nor will permitting same-sex couples to marry alter the nature of the institution or impinge on religious freedoms, as no religious officiant will be required to solemnize such a marriage. (43 C.4th 854.)

(7) Role of court. While the separation-of-powers doctrine prohibits a court from “redefining” marriage based on the court’s view that public policy or the public interest would be better served by the revision, the long-standing definition of marriage is not exempt from constraints imposed by the California Constitution, nor is the court precluded from determining that constitutional question. (43 C.4th 849.) There are many examples of legal doctrines that were once viewed as central to marriage that have been subjected to judicial scrutiny, and occasionally modified or invalidated, when their fairness or continuing validity was challenged. (43 C.4th 850.)

(8) Effective of initiative. That Family C. 308.5 was enacted as an initiative measure does not shield it from constitutional scrutiny or justify a more deferential standard of review. Past cases have uniformly applied the same constitutional limitations applicable to statutes adopted by the Legislature to measures enacted through the initiative process when they violated guarantees provided by the United States or California Constitutions. (43 C.4th 852.)

(e) The remedy. In view of the societal importance given to the designation of marriage, extending the designation of marriage to same-sex couples, rather than denying it to all couples, is the remedy most consistent with the state’s general legislative policy. (43 C.4th 856.) The language in Family C. 300 limiting marriage to a union “between a man and a woman” must be stricken from the statute, making marriage available to both same-sex and opposite-sex couples. Family C. 308.5, not being capable of any constitutional interpretation, cannot stand. (43 C.4th 857.)

One justice, concurring, wrote to explain how, although calling for opposite courses of action, this case and Lockyer are consistent and to emphasize the obligation of the courts to determine the issue presented. (43 C.4th 857)

Two justices, concurring and dissenting, conclude that the majority opinion violates the separation of powers doctrine and disagree with the majority’s equal protection analysis, opining that the rational basis test should have been applied and finding ample grounds to justify the current statutory scheme. (43 C.4th 860.)

Another justice, concurring and dissenting, argues that while the California Constitution requires, as a matter of equal protection, that domestic partners be given the legal benefits and privileges available to opposite-sex partners through marriage, it does not require that they be allowed to enter into the institution denominated “marriage,” which is a question that should be decided by the electorate. (43 C.4th 878.)

Witkin References

On same-sex marriage, see 10 Summary (10th), Husband and Wife, §44.

On the right of privacy under the California Constitution, see 7 Summary (10th), Constitutional Law, §575 et seq.

On due process of law, see 7 Summary (10th), Constitutional Law, §615 et seq.

On equal protection of the laws, see 8 Summary (10th), Constitutional Law, §694 et seq.

On anti-miscegenation laws, see 8 Summary (10th), Constitutional Law, §747.

On the sexual orientation classification and equal protection, see 8 Summary (10th), Constitutional Law, §798.