California's Journey Towards Marriage Equality

JURIST Guest Columnist Angela Perone, Staff Attorney for the National Center for Lesbian Rights, argues that there has been a drastic change in public opinion in favor of same-sex marriage and that courts are more willing to recognize marriage equality for all couples...
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In just a few short years, the landscape for marriage equality has dramatically changed. From California's first ballot initiative to prohibit marriage equality in March 2000 to the Ninth Circuit's decision to restore marriage equality in 2012, rights for same-sex couples have traveled a great distance. Through this tumultuous journey for equality, same-sex couples have shaped the hearts and minds of California voters and judges and proved that they deserve the same fundamental right to marry as opposite-sex couples. While the journey may continue to the US Supreme Court, same-sex couples remain determined to continue the fight until they are granted full equality.

In March 2000, California voters approved Proposition 22 by a vote of approximately 62 percent to 38 percent to define marriage between a man and a woman in California's Family Code. Four years later, San Francisco Mayor Gavin Newsom challenged this statute by directing San Francisco officials to issue marriage licenses to same-sex couples beginning on February 12, 2004.

Opponents of marriage equality immediately challenged his actions and on August 12, 2004, the California Supreme Court held that the marriage licenses were invalid and ordered San Francisco to enforce its existing marriage statute in Lockyer v. City & County of San Francisco. By that time, however, several same-sex couples and the San Francisco City Attorney had already brought actions challenging the constitutionality of California's ban on marriage for same-sex couples. On May 15, 2008, the California Supreme Court ruled [PDF] that such discriminatory laws violated the California Constitution and permitted same-sex couples to marry again beginning on June 17, 2008.

This important victory for marriage equality encountered a heartbreaking defeat when California voters passed Proposition 8 [PDF] on November 4, 2008, amending the California Constitution to state that only marriage between a man and a woman is valid in California. Proposition 8 passed by a narrow margin of approximately 52 percent to 48 percent. While same-sex couples lamented the constitutional deprivations enshrined in the passage of Proposition 8, its narrow victory signaled a change in public opinion about marriage equality. The gap of approximately 24 points had dwindled to a mere four points in under a decade. While this stark contrast can be attributed to several factors, it is undeniable that public opinion was undergoing a significant change.

Still, the small margin of defeat presented little consolation for the thousands of same-sex couples denied marriage equality. Several couples filed actions arguing that Proposition 8 violated the California Constitution because it was a constitutional revision that fundamentally altered California's constitutional scheme and could only be proposed by a constitutional convention, not by a ballot initiative. The California Supreme Court rejected this argument in Strauss v. Horton, but affirmed the validity of the marriages performed between June 16, 2008 and November 4, 2008.

A few days before the California Supreme Court issued their decision in Strauss, several same-sex couples filed a federal action in the US District Court for the Northern District of California challenging the constitutionality of Proposition 8 under the US Constitution in Perry v. Schwarzenegger. The district court ruled Proposition 8 unconstitutional after a lengthy trial addressing a variety of issues including whether homosexuality diminishes one's contribution to society, affects one's ability to raise children, impairs judgment, or constitutes a mental disorder. The trial also exposed the deceptive tactics used in the campaign to pass Proposition 8, including advertisements that played on long-standing false stereotypes of gay and lesbian people as a threat to children.

On February 7, 2012, a three-judge panel for the US Court of Appeals for the Ninth Circuit affirmed the decision of the district court in a 2-1 decision written by Judge Stephen Reinhardt and joined by Judge Michael Daly Hawkins. The decision invalidated Proposition 8 on narrow grounds that centered around the unique circumstances surrounding Proposition 8. The court stated that: "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."

On June 5, 2012, the Ninth Circuit ruled that it would not reconsider the three-judge panel's decision striking down Proposition 8. Supporters of Proposition 8 will likely seek review of the case from the US Supreme Court. Review is not automatic, and it is unlikely that the Supreme Court would decide whether to take the case until October 2012 at the earliest. If the Court refuses to hear the case, the Ninth Circuit's decision will become final. However, if the Court decides to hear the case, it would likely issue a decision by the end of June 2013. Until the Supreme Court either rejects the opportunity to review the case or issues its decision in 2013, same-sex couples must continue to wait to get married in California.

While the debate around Proposition 8 continues, the Supreme Court is unlikely to review the decision in Perry v. Brown if it applies the factors it traditionally uses when deciding to hear a case. No other federal court has considered a marriage case that involves the unique circumstances that prompted the passage of Proposition 8, so the Ninth Circuit's decision is not in conflict with other federal appeals court decisions. Moreover, the ruling does not affect states other than California, so the Supreme Court does not need to step-in to preserve a uniform national rule.

Nevertheless, if the Supreme Court decides to hear the Perry case, same-sex couples have many supporters, including labor unions like AFL-CIO, Service Employees International Union (SEIU) and the National Education Association (NEA). Organizations like the Mexican American Legal Defense and Education Fund (MALDEF), the National Association for the Advancement of Colored People (NAACP), the National Council of La Raza (NCLR), the Southern Poverty Law Center (SPLC), and the Interfaith Alliance have all issued statements supporting marriage equality.

On May 9, 2012, President Barack Obama became the first sitting president to express support for marriage equality, despite expressing a contrary position during his campaign. Obama's support reflects a changing view in the national psyche about marriage equality as reflected by recent public opinion polls showing growing support for marriage equality. NBC News and the Wall Street Journal conducted a public opinion poll from February 29 to March 3 demonstrating that 49 percent of adults support marriage equality whereas 40 percent oppose it. A June 6, 2012 public opinion poll by CNN showed that approximately 54 percent of Americans support marriage equality versus 42 percent who disapprove of legalizing marriage for same-sex couples. A 2012 Field Poll confirmed that in California public opinion was changing too, as 59 percent of the state's voters support marriage equality versus 34 percent who oppose it.

As the journey towards marriage equality continues, its long road highlights the significant gains for same-sex couples. Currently, Connecticut, Iowa, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington, the District of Columbia and two tribal nations (the Coquille Indian Tribe and the Suquamish Tribe) recognize marriage between same-sex couples. Public opinion polls suggest that the momentum for equality is only getting stronger. While the path to marriage equality may necessarily differ for each state, California's decade-long journey illustrates just how quickly the hearts and minds of voters and judges can change to recognize marriage equality for all couples regardless of sexual orientation.


Angela Perone is a Staff Attorney at the National Center for Lesbian Rights. She earned her B.A. from the University of Illinois with concentrations in Woman's Studies, Afro-American Studies and Political Science. Ms. Perone earned her J.D. from the UC Hastings College of Law and has served as an advocate and litigator on issues of sex discrimination in education and employment. She currently serves on the San Francisco Human Rights Commission's on LGBT Advisory Committee.

Suggested citation: Angela Perone, California's Journey Towards Marriage Equality, JURIST - Hotline, July 26, 2012, http://jurist.org/hotline/2012/07/angela-perone-california-marriage.php.


This article was prepared for publication by Jordan Barry, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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