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Published by G-A-Y

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Published by: G-A-Y on May 26, 2009
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Filed 5/26/09
KAREN L. STRAUSS et al., )Petitioners, )v. )MARK B. HORTON, as State Registrar of Vital Statistics, etc., et al., ) S168047Respondents; )DENNIS HOLLINGSWORTH et al., )Interveners. )———————————————————————————— )ROBIN TYLER et al., )Petitioners, )v. )THE STATE OF CALIFORNIA et al., ) S168066Respondents; )DENNIS HOLLINGSWORTH et al., )Interveners. )———————————————————————————— )CITY AND COUNTY OF SAN FRANCISCO et al., )Petitioners, )v. )MARK B. HORTON, as State Registrar of Vital Statistics, etc., et al., ) S168078Respondents; )DENNIS HOLLINGSWORTH et al., )Interveners. )————————————————————————————For the third time in recent years, this court is called upon to address aquestion under California law relating to marriage and same-sex couples.In
 Lockyer v. City and County of San Francisco
(2004) 33 Cal.4th 1055(
), we were faced with the question whether public officials of the Cityand County of San Francisco acted lawfully by issuing marriage licenses to same-
2sex couples in the absence of a judicial determination that the California statuteslimiting marriage to a union between a man and a woman were unconstitutional.We concluded in
that the public officials had acted unlawfully in issuinglicenses in the absence of such a judicial determination, but emphasized in ouropinion that the substantive question of the constitutional validity of the marriagestatutes was not before our court in that proceeding.In
 In re Marriage Cases
(2008) 43 Cal.4th 757 (hereafter the
), we confronted the substantive constitutional question that had not beenaddressed in
— namely, the constitutional validity, under the then-controlling provisions of the California Constitution, of the California marriagestatutes limiting marriage to a union between a man and a woman. A majority of this court concluded in the
 Marriage Cases
that same-sex couples, as well asopposite-sex couples, enjoy the protection of the constitutional right to marryembodied in the privacy and due process provisions of the California Constitution,and that by granting access to the designation of “marriage” to opposite-sexcouples and denying such access to same-sex couples, the existing Californiamarriage statutes impinged upon the privacy and due process rights of same-sexcouples and violated those couples’ right to the equal protection of the lawsguaranteed by the California Constitution.Proposition 8, an initiative measure approved by a majority of voters at theNovember 4, 2008 election, added a new section — section 7.5 — to article I of the California Constitution, providing: “Only marriage between a man and awoman is valid or recognized in California.” The measure took effect onNovember 5, 2008. In the present case, we address the question whetherProposition 8, under the governing provisions of the California Constitution,constitutes a permissible change to the California Constitution, and — if it does —we are faced with the further question of the effect, if any, of Proposition 8 upon
3the estimated 18,000 marriages of same-sex couples that were performed beforethat initiative measure was adopted.In a sense, this trilogy of cases illustrates the variety of limitations that ourconstitutional system imposes upon each branch of government — the executive,the legislative, and the judicial.In addressing the issues now presented in the third chapter of this narrative,it is important at the outset to emphasize a number of significant points. First, asexplained in the
 Marriage Cases
, 43 Cal.4th at page 780, our task in thepresent proceeding is not to determine whether the provision at issue is wise orsound
as a matter of policy
or whether we, as individuals, believe it
be apart of the California Constitution. Regardless of our views as individuals on thisquestion of policy, we recognize as judges and as a court our responsibility toconfine our consideration to a determination of the constitutional validity and legaleffect of the measure in question. It bears emphasis in this regard that our role islimited to interpreting and applying the principles and rules embodied in theCalifornia Constitution, setting aside our own personal beliefs and values.Second, it also is necessary to understand that the legal issues before us inthis case are entirely distinct from those that were presented in either
 Marriage Cases
. Unlike the issues that were before us in those cases, theissues facing us here do not concern a public official’s authority (or lack of authority) to refuse to comply with his or her ministerial duty to enforce a statuteon the basis of the official’s personal view that the statute is unconstitutional, orthe validity (or invalidity) of a
provision limiting marriage to a unionbetween a man and a woman
under state constitutional provisions that do not expressly permit or prescribe such a limitation
. Instead, the principal issue beforeus concerns the scope of 
the right of the people
under the provisions of theCalifornia Constitution
to change or alter the state Constitution itself 
through the

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