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United States: Same-Sex Marriage Ban Held Unconstitutional in California

(May 2, 2008) On May 15, 2008 the California Supreme Court ruled that provisions in the state’s marriage statutes disallowing same-sex marriages violate the California Constitution.

The opinion arose from six consolidated proceedings involving the City of San Francisco’s issuance of marriage licenses to gay couples during a period in 2004. The issuance of such licenses was enjoined in an earlier court decision in which the constitutional question was not raised. Various parties then brought actions raising the issue of the constitutionality of the California provisions barring same-sex marriage.

In its ruling, the court noted that, in contrast to other states which have considered the issue of same-sex marriage, California has enacted “comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple.” The question before the court was thus whether the failure to designate the official relationship of a same-sex couple as “marriage” violates the California Constitution.

The court found that the California Constitution guarantees a “right to marry” as an inherent part of the right to privacy, and that the provisions at issue impinge upon one of the core elements of this right: that each family be accorded the same dignity, stature and respect accorded other officially recognized families. The court also determined that sexual orientation was a “suspect classification” for discrimination under the state’s constitutional equal protection clause. Applying a “strict scrutiny” test, the court found the statutes violate the right to equal protection, since the state has no compelling interest in reserving the designation of marriage only for opposite-sex couples.

The court ruled that the statutory language “limiting the designation of marriage to a union ‘between a man and a woman’ is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.” (In re Marriage Cases, No. S147999 (Cal. May 15, 2008), available at