3choice. To decide otherwise would require us to apply one set of constitutionalprinciples to gay persons and another to all others. The guarantee of equalprotection under the law, and our obligation to uphold that command, forbids usfrom doing so. In accordance with these state constitutional requirements, samesex couples cannot be denied the freedom to marry.Thus, the Connecticut and California civil union laws
literally ushered in judicially-enacted same-
sex ―marriage‖ in th
ose states. A similar result could occur if you sign civil unionsinto law in Delaware.
Lawsuit Under Federal Constitution
By enacting civil unions, same-
sex ―marriage‖ proponents may
also pursue a federalchallenge under the United States Constitution. This is the very scenario which gave rise to theexisting federal challenge in California.
As you are aware, California law reserves marriage to opposite-sex couples,
whilesimultaneously providing domestic partnerships for same-sex couples.
The legal benefitsextended to same-
sex couples under California‘s domestic partnership scheme are identical to
those which purport to be extended under the proposed civil union legislation. Accordingly, thecurrent federal lawsuit in California is exceptionally noteworthy in your deliberations.The primary thrust of the current federal lawsuit (
Perry v. Brown
) is that current California law (marriage for opposite sex couples; domesticpartnerships for everyone else) is unconstitutional and violates equal protection. In part, thelawsuit contends:California law treats similarly-situated people differently by providing civilmarriage to heterosexual couples, but not to gay and lesbian couples. Instead,California law affords them and their families only the separate-but-unequal statusof domestic partnership. Even if domestic partnership provided all of the tangiblebenefits and privileges of marriage, it still would be unequal because of theintangible, symbolic difference be
tween the designation ―marriage,‖ which enjoys
a long history and uniform recognition, and the different and unequal institution
of ―domestic partnership,‖ which is a recent and manifestly unequal creation.
In California, the civil union law is termed a ―domestic partnership,‖ but is
substantively indistinguishable from Connecticut or Delaware
‘s civil union law.
Perry v. Schwarzenegger
, 704 F. Supp. 2d 921 (N.D. Cal. 2010),
Kristin Perry, et al v. Edmund G. Brown, Jr., et al
, No. 10-16696 (9th Cir. August 4, 2010).
Cal. Const. art. I, § 7.5 provides that "only marriage between a man and a woman isvalid or recognized in California."
Assembly Bill No. 205, Sept. 19, 2003, at http://www.leginfo.ca.gov/pub/03-04/bill/asm/ab_0201-0250/ab_205_bill_20030922_chaptered.pdf.