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Published by Terrance Heath
The California Supreme Court says same-sex couples have the right to marry.
The California Supreme Court says same-sex couples have the right to marry.

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Published by: Terrance Heath on May 15, 2008
Copyright:Attribution Non-commercial


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Filed 5/15/08
))) S147999)In re MARRIAGE CASES. ) Ct.App. 1/3Nos. A110449,) A110450, A110451, A110463,[Six consolidatedappeals.]
) A110651, A110652)) San Francisco County) JCCP No. 4365 _________________________________ )In
Lockyer v. City and County of SanFrancisco
(2004) 33 Cal.4th 1055(
), this courtconcluded that public officials of the CityandCounty of SanFrancisco acted unlawfullyby issuing marriage licenses to same-sex couples in theabsence of a judicial determination thatthe California statutes limiting marriage toa unionbetween a man and a woman are unconstitutional. Our decision in
emphasized, however, thatthe substantive question of the constitutionalvalidityof the California marriage statutes was not before this court inthat proceeding, and thatour decision was not intended toreflect any view on that
City and County of San Francisco v. State of California
(A110449[Super.Ct. S.F. City & County, No. CGC-04-429539]);
Tyler v. State of California
(A110450[Super. Ct. L.A. County, No. BS-088506]);
Woov. Lockyer 
(A110451[Super. Ct. S.F. City & County, No. CPF-04-504038]);
Clintonv. State oCalifornia
(A110463 [Super. Ct. S.F. City & County, No. CGC-04-429548]);
 Proposition 22Legal Defense and Education Fundv. City andCounty of San Francisco
(A110651[Super. Ct. S.F. City & County, No. CPF-04-503943]);
Campaign for California Families v. Newsom
(A110652 [Super. Ct. S.F. City &County, No. CGC-04-428794]).
2issue. (
atp. 1069; see also
at p. 1125 (conc. opn. of Moreno, J.);
at pp. 1132-1133 (conc. & dis. opn. of Kennard, J.);
at p. 1133(conc. & dis. opn.of Werdegar, J.).) The present proceeding, involving the consolidated appeal of six cases that were litigated in the superior court and the Court of Appeal in thewake of this court’s decision in
, squarely presents the substantiveconstitutionalquestion that was not addressedin
.In consideringthis question, we note at the outset that the constitutionalissue before us differs ina significant respect from the constitutionalissue thathas been addressed by a number of other state supreme courts andintermediateappellate courts thatrecentlyhave hadoccasion, in interpreting the applicable provisions of their respective state constitutions, todetermine the validity of statutory provisions or commonlaw rules limitingmarriage to a union of a mananda woman. (See, e.g.,
Conaway v. Deane
(Md. 2007) 932A.2d571;
Goodridge v. Dept. ofPub. Health
(Mass. 2003) 798 N.E.2d 941;
Lewis v. Harris
(N.J. 2006) 908A.2d 196;
Hernandez v. Robles
(N.Y. 2006) 855 N.E.2d 1;
 Baker v. State
(Vt. 1999) 744 A.2d 864;
 Andersen v. King County
(Wn. 2006) 138P.3d963;
Standhardt v. Superior Court 
(Ariz.Ct.app. 2003) 77 P.3d451;
Morrison v.Sadler 
(Ind.Ct.App. 2005) 821N.E.2d15.) These courts, often by a one-votemargin (see,
, pp. 114-115, fn. 70), have ruledupon the validity of statutoryschemes thatcontrast with that of California, whichin recent years has enactedcomprehensive domestic partnershiplegislation under which a same-sex couplemay enter into a legal relationship that affords the couple virtually all of the samesubstantive legal benefits and privileges, and imposes upon the couple virtuallyallof the same legal obligations and duties, thatCalifornia law affords to and imposesupon a marriedcouple.
Past California cases explain that the constitutional
We note that although much of the academic literature discussing the legalrecognition of same-sex relationships frequently uses the term “domestic
3validityof a challenged statute or statutes must be evaluated by taking intoconsideration all of the relevant statutory provisions that bear upon how the statetreats the affected persons withregard to the subjectat issue. (See, e.g.,
Brown v.Merlo
(1973) 8 Cal.3d 855, 862.) Accordingly, the legalissue we must resolve isnot whether it would be constitutionallypermissible under the CaliforniaConstitution for the state to limit marriage only to opposite-sex couples whiledenying same-sex couples any opportunity toenter into an officialrelationshipwith all or virtuallyall of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutoryscheme in which both opposite-sex and same-sexcouples are granted the right to enter into anofficiallyrecognized family relationshipthat affords allof the significant legalrights andobligations traditionally associated under state law with the institutionof marriage, but under which the union of an opposite-sex couple is officially partnership” to describe a legal status that accords only comparatively few legalrights or obligations to same-sexcouples, the current California statutes grant same-sex couples who choose tobecome domestic partners virtually all of the legal rightsandresponsibilities accorded marriedcouples under California law. (The fewrelatively minor differences that remain are describedbelow (
, pp. 42-44, fn.24).) In light of the comprehensive nature of the rights affordedby California’sdomestic partnershiplegislation, the status of such partnership inCalifornia iscomparable to the status designated as a “civil union” in statutes enactedin recentyears inConnecticut, New Hampshire, New Jersey, and Vermont. (See, e.g., Conn.Gen. Stat. § 46b-38nn (2006); N.H. Rev. Stat. Ann. § 457-A (2007); N.J. Stat. Ann.§ 37:1-29 (2006);15 Vt. Stat. Ann. § 1201 (1999).) We note that recentlyOregonalso enacted domestic partnershiplegislation under which same-sexcouples mayobtain rights comparable tothose conferred uponmarried couples (2007 Or. Lawsch. 99.) The District of Columbia, Hawaii, Maine, and Washington have adopteddomestic partnershipor reciprocal beneficiaries legislation thataffords same-sexcouples the opportunityto obtain some of the benefits available tomarried opposite-sexcouples. (See 2006D.C. Law 16-79 (Act 16-265) [Domestic PartnershipEquality Amendment Act of 2006]; Haw. Rev. Stat. § 572C-2;2004 Me. Legis.Serv. ch. 672(H.P. 1152; L.D. 1579) [financial security of families and children];2001 Me. Legis. Serv. ch. 347 (H.P. 1256; L.D. 1703) [access to health insurance];Wash. Rev. Code ch. 26.60.)

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