Lockyer vs. City And County of San Francisco

1

Filed 5/15/08

IN THE SUPREME COURT OF CALIFORNIA

))) S147999)In re MARRIAGE CASES. ) Ct.App. 1/3 Nos. A110449,) A110450, A110451, A110463,[Six consolidated appeals.]

1

) A110651, A110652)) San Francisco County) JCCP No. 4365___________________________________)In

Lockyer v. City and County of San Francisco

(2004) 33 Cal.4th 1055(

Lockyer

), this court concluded that public officials of the City and County of SanFrancisco acted unlawfully by issuing marriage licenses to same-sex couples in theabsence of a judicial determination that the California statutes limiting marriage toa union between a man and a woman are unconstitutional. Our decision in

Lockyer

emphasized, however, that the substantive question of the constitutional

1

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]);

Woo v. Lockyer

(A110451[Super. Ct. S.F. City & County, No. CPF-04-504038]);

Clinton v. State of California

(A110463 [Super. Ct. S.F. City & County, No. CGC-04-429548]);

Proposition 22 Legal Defense and Education Fund v. City and County of SanFrancisco

(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]).

2validity of the California marriage statutes was not before this court in thatproceeding, and that our decision was not intended to reflect any view on thatissue. (

Id.

at p. 1069; see also

id.

at p. 1125 (conc. opn. of Moreno, J.);

id.

atpp. 1132-1133 (conc. & dis. opn. of Kennard, J.);

id.

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

Lockyer

, squarely presents the substantiveconstitutional question that was not addressed in

Lockyer

.In considering this question, we note at the outset that the constitutionalissue before us differs in a significant respect from the constitutional issue that hasbeen addressed by a number of other state supreme courts and intermediateappellate courts that recently have had occasion, in interpreting the applicableprovisions of their respective state constitutions, to determine the validity of statutory provisions or common law rules limiting marriage to a union of a manand a woman. (See, e.g.,

Conaway v. Deane

(Md. 2007) 932 A.2d 571;

Goodridge v. Dept. of Pub. Health

(Mass. 2003) 798 N.E.2d 941;

Lewis v. Harris

(N.J. 2006) 908 A.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) 138 P.3d963;

Standhardt v. Superior Court

(Ariz.Ct.App. 2003) 77 P.3d 451;

Morrison v.Sadler

(Ind.Ct.App. 2005) 821 N.E.2d 15.) These courts, often by a one-votemargin (see,

post

, pp. 114-115, fn. 70), have ruled upon the validity of statutoryschemes that contrast with that of California, which in recent years has enactedcomprehensive domestic partnership legislation 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 virtually all

3of the same legal obligations and duties, that California law affords to and imposesupon a married couple.

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Past California cases explain that the constitutionalvalidity of 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 with regard to the subject at issue. (See, e.g.,

Brown v. Merlo

(1973) 8 Cal.3d 855, 862.) Accordingly, the legal issue we must resolve isnot whether it would be constitutionally permissible under the CaliforniaConstitution for the state to limit marriage only to opposite-sex couples whiledenying same-sex couples any opportunity to enter into an official relationshipwith all or virtually all of the same substantive attributes, but rather whether our

2

We note that although much of the academic literature discussing the legalrecognition of same-sex relationships frequently uses the term “domesticpartnership” to describe a legal status that accords only comparatively few legalrights or obligations to same-sex couples, the current California statutes grant same-sex couples who choose to become domestic partners virtually all of the legal rightsand responsibilities accorded married couples under California law. (The fewrelatively minor differences that remain are described below (

post

, pp. 42-44, fn.24).) In light of the comprehensive nature of the rights afforded by California’sdomestic partnership legislation, the status of such partnership in California iscomparable to the status designated as a “civil union” in statutes enacted in recentyears in Connecticut, 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 recently Oregonalso enacted domestic partnership legislation under which same-sex couples mayobtain rights comparable to those conferred upon married couples (2007 Or. Lawsch. 99.) The District of Columbia, Hawaii, Maine, and Washington have adopteddomestic partnership or reciprocal beneficiaries legislation that affords same-sexcouples the opportunity to obtain some of the benefits available to marriedopposite-sex couples. (See 2006 D.C. Law 16-79 (Act 16-265) [DomesticPartnership Equality Amendment Act of 2006]; Haw. Rev. Stat. § 572C-2; 2004Me. Legis. Serv. ch. 672 (H.P. 1152; L.D. 1579) [financial security of families andchildren]; 2001 Me. Legis. Serv. ch. 347 (H.P. 1256; L.D. 1703) [access to healthinsurance]; Wash. Rev. Code ch. 26.60.)