California Courts of Appeal Reports
IN RE MARRIAGE CASES, 143 Cal.App.4th 873 (2006) 49
Cal.Rptr.3d 675 In re MARRIAGE CASES. [Six consolidated
appeals.].[fn*] Nos. A110449, A110450, A110451, A110463,
A110651, A110652 Court of Appeal of California, First
District. October 5, 2006. REVIEW GRANTED December 20,
2006
[EDITORS’ NOTE: REVIEW GRANTED BY THE CALIFORNIA SUPREME
COURT; PURSUANT TO RULES 976, 976.1 and 979 OF THE
CALIFORNIA RULES OF COURT, THIS OPINION IS NOT CERTIFIED
FOR PUBLICATION. THE SHADED TEXT BELOW REPRESENTS THE
ORIGINAL OPINION AND IS PROVIDED FOR REFERENCE PURPOSES
ONLY.]
[fn*] City and County of San Francisco v. State of
California (A110449 [S.F. City & County Super. Ct. No.
CGC-04-429539]); Tyler v. State of California (A110450
[L.A. County Super. Ct. No. BS-088506]); Woo v. Lockyer
(A110451 [S.F. City & County Super. Ct. No.
CGC-04-504038]); Clinton v. State of California (A110463
[S.F. City & County Super. Ct. No. CGC-04-429548]);
Proposition 22 Legal Defense and Education Fund v. City and
County of San Francisco (A110651 [S.F. City & County Super.
Ct. No. CPF-04-503943]); Campaign for California Families
v. Newsom (A110652 [S.F. City & County Super. Ct. No.
CGC-04-428794]).
Appeal from the Superior Court of the City and County of
San Francisco, JCCP No. 4365, Richard A. Kramer, Judge.
Page 874
OPINION
McGUINESS, P.J.
The legal issue presented in these appeals is
straightforward: Did the trial court err when it concluded
Family Code statutes defining civil marriage as the union
between a man and a woman are unconstitutional? (Fam. Code,
§§ 300, 301, 302, 308.5.) Appellants assert
legal error; respondents reiterate their arguments that
excluding same-sex couples from marriage violates due
process and equal protection and is not supported by a
compelling state interest. Our dissenting colleague
advances Page 889 theories and arguments not made by the
parties or relied on by the trial court and concludes a
constitutionally protected privacy interest compels
expanding the definition of marriage to include same-sex
couples.
California has long sought to eliminate discrimination
against gays and lesbians. Our Legislature has passed
landmark legislation providing substantially all the
rights, responsibilities, benefits and protections of
marriage to same-sex couples who register as domestic
partners. (Fam. Code, § 297 et seq.) We must now
decide whether the state’s definition of marriage, which
historically has precluded same-sex partners from marrying,
is constitutional. Obviously, the question is one of great
significance, and it requires us to venture into the storm
of a fierce national debate. Both sides believe passionately
in their positions. One side argues the time has come for
lesbian and gay relationships to enjoy full social
equality, and it is fundamentally unfair for the state to
continue to reserve marriage as an institution for
heterosexual couples only. The other side stresses the need
for judicial restraint and the importance of preserving the
traditional understanding of marriage — which is
very important to many Californians, who fear such a
fundamental change will destroy or seriously weaken the
institution at the heart of family life.
(1) While we have considered all arguments raised on both
sides of the issue, our task as an appellate court is not
to decide who has the most compelling vision of what
marriage is, or what it should be. “[T]he judiciary is not
in the business of preferring, much less anointing, one
value as more valid than another. . . .” (Lewis v. Harris
(2005) 378 N.J. Super. 168, 200 [875 A.2d 259] (conc. opn.
of Parrillo, J.A.D.).) We are called upon to decide only
whether the statutory definition of marriage as the union
of a man and a woman — which has existed, explicitly
or implicitly, since the founding of our state — is
unconstitutional because it does not permit gays and
lesbians to marry persons of their choice.
All can agree that California has not deprived its gay and
lesbian citizens of a right they previously enjoyed;
same-sex couples have never before had the right to enter a
civil marriage. It is also beyond dispute that our society
has historically understood “marriage” to refer to the
union of a man and a woman. These facts do not mean the
opposite-sex nature of marriage can never change, or should
never change, but they do limit our ability as a court to
effect such change. The respondents in these appeals are
asking this court to recognize a new right. Courts simply
do not have the authority to create new rights, especially
when doing so involves changing the definition of so
fundamental an institution as marriage. “The role of the
judiciary is not to rewrite legislation to satisfy the
court’s, rather than the Legislature’s, sense of balance
and order. Judges are not `”knight[s]-errant, roaming at
will in Page 890 pursuit of [their] own ideal of beauty or
of goodness.”‘ [Citation.]” (People v. Carter (1997) 58
Cal.App.4th 128, 134 [67 Cal.Rptr.2d 845].) In other words,
judges are not free to rewrite statutes to say what they
would like, or what they believe to be better social
policy.
Because we have a fundamentally different view of the
appellate judicial function, at least in relation to these
cases, we part ways with our dissenting colleague. The
dissent delivers what is essentially an impassioned policy
lecture on why marriage should be extended to same-sex
couples. Lacking controlling precedent, it misconstrues
case law and mischaracterizes the parties’ claims and our
analysis to reach this result. But the court’s role is not
to define social policy; it is only to decide legal issues
based on precedent and the appellate record. The six cases
before us ultimately distill to the question of who gets to
define marriage in our democratic society. We believe this
power rests in the people and their elected
representatives, and courts may not appropriate to
themselves the power to change the definition of such a
basic social institution. Our dissenting colleague’s views,
while well intentioned, disregard this delicate balance.
Moreover, his unfortunate rhetoric suggesting our opinion is
an exercise in discrimination rather than a legitimate
attempt to follow the law (dis. opn., post, at pp. 983-984)
does nothing to advance the serious subject matter of these
appeals.
(2) We conclude California’s historical definition of
marriage does not deprive individuals of a vested
fundamental right or discriminate against a suspect class,
and thus we analyze the marriage statutes to determine
whether the opposite-sex requirement is rationally related
to a legitimate government interest. According the
Legislature the extreme deference that rational basis
review requires, we conclude the marriage statutes are
constitutional. The time may come when California chooses
to expand the definition of marriage to encompass same-sex
unions. That change must come from democratic processes,
however, not by judicial fiat.
BACKGROUND
Litigation in California over the right to same-sex
marriage was sparked by the controversial decision of Gavin
Newsom, Mayor of the City and County of San Francisco
(City), to begin issuing marriage licenses without regard
to the gender or sexual orientation of either prospective
spouse. On February 10, 2004, Newsom sent a letter to
County Clerk Nancy Alfaro asking her to alter the forms
used in order to provide marriage licenses regardless of
gender or sexual orientation. (Lockyer v. City and County
of San Francisco (2004) Page 891 33 Cal.4th 1055,
1069-1070 [17 Cal.Rptr.3d 225, 95 P.3d 459]
(Lockyer).)[fn1] Observing that “`[t]he Supreme Courts in
other states have held that equal protection provisions in
their state constitutions prohibit discrimination against
gay men and lesbians with respect to the rights and
obligations flowing from marriage,'” the mayor stated his
belief that these decisions were persuasive “`and that the
California Constitution similarly prohibits such
discrimination.'” (Id. at p. 1070.) Finally, Mayor Newsom
asserted his request “was made `[p]ursuant to [his] sworn
duty to uphold the California Constitution, including
specifically its equal protection clause. . . .'” (Ibid.,
fn. omitted.)
In accordance with this directive, the City began issuing
marriage licenses to same-sex couples on February 12, 2004.
(Lockyer, supra, 33 Cal.4th at p. 1071.) The following day,
two actions were filed in the San Francisco County Superior
Court seeking an immediate stay and writ relief to halt the
issuance of such licenses. (Thomasson v. Newsom (Super.Ct.
S.F. City & County, No. CGC-04-428794) (Thomasson);[fn2]
Proposition 22 Legal Defense and Education Fund v. City and
County of San Francisco (Super.Ct. S.F. City & County, No.
CPF-04-503943) (Proposition 22).) After the trial court
refused to grant an immediate stay, the Attorney General
filed an original writ petition in the California Supreme
Court, asserting the City’s actions were unlawful and
immediate intervention by the Supreme Court was justified.
(Lockyer, supra, 33 Cal.4th at p. 1072.) On March 11, 2004,
the Supreme Court issued an order to show cause and stayed
all proceedings in the Thomasson and Proposition 22
actions, noting, however, that its order would not preclude
the filing of a separate action raising a direct challenge
to the constitutionality of California’s marriage statutes.
(Lockyer, supra, 33 Cal.4th at pp. 1073-1074.)
Acting on this suggestion, the City filed a complaint for
declaratory relief and a petition for writ of mandate
challenging the validity of Family Code provisions limiting
marriage in California to unions between a man and a woman.
(Fam. Code, §§ 300, 308.5.) (City and County
of San Francisco v. State of California (Super.Ct. S.F.
City & County, No. CGC-04-429539) (CCSF).) Two similar
actions were filed by groups of same-sex couples, who
allege they are involved in committed relationships but are
prevented from marrying in California, or whose
out-of-state marriages are not recognized under California
law. (Tyler v. County of Los Angeles (Super.Ct. L.A. Page
892 County, No. BS-088506) (Tyler); Woo v. Lockyer
(Super.Ct. S.F. City & County, No. CGC-04-504038)
(Woo).)[fn3]
On August 12, 2004, the Supreme Court issued its opinion
in Lockyer. Having concluded local officials in San
Francisco exceeded their authority in issuing marriage
licenses to same-sex couples, the court issued a writ of
mandate directing these officials to enforce the statutes
governing marriage “unless and until they are judicially
determined to be unconstitutional” and compelling them to
take remedial action with respect to marriages that were
previously conducted in violation of applicable laws.
(Lockyer, supra, 33 Cal.4th at pp. 1069, 1120.) A majority
of the court also concluded that the approximately 4,000
same-sex marriages performed in San Francisco were void and
of no legal effect. (Id. at pp. 1069, 1071, 1114.)[fn4] The
high court repeatedly stressed that the constitutional
validity of California’s limitation of marriage to
opposite-sex couples was not before it, and the court
expressed no opinion on the issue. (Id. at p. 1069; see
also id. at p. 1125 (conc. opn. of Moreno, J.); id. at pp.
1132-1133 (conc. & dis. opn. of Kennard, J.).)
Meanwhile, when Lockyer was pending, the Judicial Council
coordinated the three actions challenging the
constitutionality of the marriage laws into a single
proceeding, known as the Marriage Cases (JCCP No. 4365),
and assigned them to San Francisco Superior Court Judge
Richard A. Kramer. A fourth suit filed by a group of
same-sex couples was later added. (Clinton v. State of
California (Super.Ct. S.F. City and County, No.
CGC-04-429-548) (Clinton).) The Thomasson and Proposition
22 cases, which had been stayed while the Supreme Court
considered Lockyer, were also assigned to the coordinated
proceedings before Judge Kramer. The trial court directed
all parties to submit briefs, and, on December 22 and 23,
2004, it held hearings in the coordinated cases to consider
the constitutional validity of California’s marriage
statutes.[fn5]
On April 13, 2005, the trial court issued its final
decision. Although the City and other plaintiffs had also
claimed the marriage laws violated their rights to due
process and privacy, the court addressed only those
challenges Page 893 based on the equal protection clause
of the California Constitution (Cal. Const., art. I,
§ 7, subd. (a)). The court ruled that Family Code
provisions limiting marriage in California to opposite-sex
unions are subject to strict judicial scrutiny because they
rest on a suspect classification (gender) and because they
impinge upon the fundamental right to marry. After
considering interests advanced by the state and other
parties — i.e., CCF and the Proposition 22 Legal
Defense and Education Fund (the Fund) — and
searching for additional interests in relevant legislative
history and ballot materials, the court concluded the
marriage statutes’ opposite-sex requirement does not pass
strict scrutiny, or even the more deferential review
accorded under the rational basis test, because it does not
further any legitimate state interest. Accordingly, the
court declared Family Code sections 300 and 308.5
unconstitutional under the California Constitution and
entered judgment in each of the coordinated cases in favor
of the City and/or the individual plaintiffs and
interveners. Separate appeals from the state, the Fund and
CCF followed, and we consolidated all six appeals for
purposes of decision.[fn6]
DISCUSSION
I. Justiciability Issues
As a preliminary matter, we must address arguments that two
of the cases before us should have been dismissed because
they are not justiciable controversies.
After the Supreme Court issued a remittitur in Lockyer and
dissolved the stay that had applied to the Thomasson and
Proposition 22 actions, CCF and the Fund sought leave to
amend the complaints in these cases. The City and certain
intervener-defendants opposed this request and moved to
dismiss Thomasson and Proposition 22 as moot, arguing the
Supreme Court’s decision in Lockyer had granted all the
relief sought in these cases and plaintiffs lacked standing
to pursue bare claims for declaratory relief. The trial
court denied the plaintiffs’ request for leave to amend but
also denied the defendants’ motion to dismiss. The court
concluded the Thomasson and Proposition 22 complaints
“adequately state[d]” claims for declaratory relief
concerning the constitutionality of the marriage laws.
(3) On appeal, the City and interveners renew their
arguments that claims brought in the Thomasson and
Proposition 22 actions are not justiciable. Such challenges
may be raised without a cross-appeal because they do not
seek Page 894 affirmative relief; rather, they are
alternative legal theories offered to support affirmance of
the judgments in these cases. (Code Civ. Proc., §
906; see Westinghouse Electric Corp. v. County of Los
Angeles (1982) 129 Cal.App.3d 771, 781 [181 Cal.Rptr. 332]
[respondent’s challenge to ruling on standing proper
without cross-appeal].) Assuming the trial court acted
within its discretion when it construed the declaratory
relief claims in Thomasson and Proposition 22 broadly to
encompass issues about the constitutionality of the
marriage statutes (see Application Group, Inc. v. Hunter
Group, Inc. (1998) 61 Cal.App.4th 881, 892-893 [72
Cal.Rptr.2d 73]),[fn7] we conclude the court erred in
denying the motion to dismiss because CCF and the Fund
lacked standing to pursue these pure declaratory relief
claims.
(4) Code of Civil Procedure section 1060 confers standing
upon “[a]ny person interested under a written instrument”
who brings an action for declaratory relief “in cases of
actual controversy relating to the legal rights and duties
of the respective parties.” The validity or construction of
a statute is recognized as a proper subject of declaratory
relief. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79
[124 Cal.Rptr.2d 519, 52 P.3d 695].) However, declaratory
relief is only appropriate where there is an actual
controversy, and not simply an abstract or academic
dispute, between parties who are affected by the
legislation. (See Newland v. Kizer (1989) 209 Cal.App.3d
647, 657 [257 Cal.Rptr. 450].) In general, to have
standing, a plaintiff must have an actual interest in the
subject matter that is subject to injury depending on the
outcome of the suit. “`One who invokes the judicial process
does not have “standing” if he, or those whom he properly
represents, does not have a real interest in the ultimate
adjudication because the actor has neither suffered nor is
about to suffer any injury of sufficient magnitude
reasonably to assure that all of the relevant facts and
issues will be adequately presented.’ [Citations.]
[¶] `[T]he mere surmise that some right or claim may
be asserted does not confer jurisdiction. . . . [¶]
The plaintiff must establish facts which give rise as a
matter of law to an existing or imminent invasion of his
rights by the defendant which would result in injury to
him.’ [Citations.]” (Zetterberg v. State Dept. of Public
Health (1974) 43 Cal.App.3d 657, 662-663 [118 Cal.Rptr.
100].)
(5) For reasons we discussed in a prior opinion concerning
the Fund’s attempt to intervene in the CCSF and Woo cases,
neither the Fund nor CCF satisfies these requirements for
injury-based standing. In determining that the Page 895
Fund lacked a sufficiently direct and immediate interest to
support intervention, we observed there was no indication
that a judgment in the action would in any way benefit or
harm the Fund’s members. (City and County of San Francisco
v. State of California (2005) 128 Cal.App.4th 1030, 1038
[27 Cal.Rptr.3d 722].) “Specifically, the Fund [did] not
claim a ruling about the constitutionality of denying
marriage licenses to same-sex couples [would] impair or
invalidate the existing marriages of its members, or affect
the rights of its members to marry persons of their choice
in the future. Nor ha[d] the Fund identified any diminution
in legal rights, property rights or freedoms that an
unfavorable judgment might impose on” its members, or on
other Californians who oppose same-sex marriage. (Id. at
pp. 1038-1039, fn. omitted.)[fn8] The same is true for
CCF. Although these associations, and their members, may
have a strong philosophical or political interest in
defending the validity of California’s marriage laws, they
have not alleged or demonstrated any possibility that they
will suffer injury from an adverse judgment in these
actions. While the Fund urges us to relax the standing
rules due to the great public interest in the issues at
stake, “[t]he fact that an issue raised in an action for
declaratory relief is of broad general interest is not
grounds for the courts to grant such relief in the absence
of a true justiciable controversy. [Citations.]”
(Zetterberg v. State Dept. of Public Health, supra, 43
Cal.App.3d at p. 662; see also id. at p. 663 [“A difference
of opinion as to the interpretation of a statute as between
a citizen and a governmental agency does not give rise to a
justiciable controversy”].)
(6) However, unlike in federal courts, two related rules
permit standing in California in the absence of such
potential injury. “Code of Civil Procedure section 526a
permits a taxpayer to bring an action to restrain or
prevent an illegal expenditure of public money. No showing
of special damage to a particular taxpayer is required as a
requisite for bringing a taxpayer suit. [Citation.] Rather,
taxpayer suits provide a general citizen remedy for
controlling illegal governmental activity. [Citation.]”
(Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16,
29 [112 Cal.Rptr.2d 5].) The purpose of the taxpayer
standing statute “is to permit a large body of persons to
challenge wasteful government action that otherwise would
go unchallenged because of the standing requirement.
[Citation.]” (Waste Management of Alameda County, Inc. v.
County of Alameda (2000) 79 Cal.App.4th 1223, 1240 [94
Cal.Rptr.2d 740].) Although members of CCF and the Fund may
be taxpayers, these organizations do not have standing
under Code of Civil Procedure section 526a to seek
declaratory relief because their claims do not identify or
challenge any allegedly illegal expenditure of public
funds. In accordance with the Supreme Court’s directive in
Lockyer, the City has stopped issuing marriage licenses to
same-sex couples, and neither the Fund nor CCF has Page
896 identified any continuing public expenditure it
challenges. (7) Regardless of the liberal construction
granted claims under Code of Civil Procedure section 526a,
“the essence of a taxpayer action remains an illegal or
wasteful expenditure of public funds or damage to public
property. [Citation.] The taxpayer action must involve an
actual or threatened expenditure of public funds.
[Citation.]” (Waste Management of Alameda County v. County
of Alameda, supra, 79 Cal.App.4th at p. 1240.)
(8) In addition to taxpayer actions, standing requirements
are also relaxed in the area of so-called citizen suits. In
such actions, citizens who are not personally affected may
nevertheless sue to compel performance of a public duty.
(Connerly v. State Personnel Bd., supra, 92 Cal.App.4th at
p. 29.) This exception to standing requirements applies,
typically in the context of a mandamus proceeding, “where
the question is one of public right and the object of the
action is to enforce a public duty — in which case
it is sufficient that the plaintiff be interested as a
citizen in having the laws executed and the public duty
enforced. [Citations.]” (Waste Management of Alameda County
v. County of Alameda, supra, 79 Cal.App.4th at pp.
1236-1237; see Green v. Obledo (1981) 29 Cal.3d 126, 144
[172 Cal.Rptr. 206, 624 P.2d 256].) This exception gave CCF
and the Fund standing to pursue their original actions for
mandamus, because these claims sought to compel City
officials to enforce the marriage laws. However, mandamus
having been granted by the Supreme Court, the “citizen
suit” exception does not give these organizations standing
to pursue pure declaratory relief claims in which neither
they nor their members have a personal beneficial interest.
Judicial recognition of citizen standing is not a
repudiation of the usual requirement of a plaintiff’s
beneficial interest in litigation. (Waste Management of
Alameda County v. County of Alameda, supra, 79 Cal.App.4th
at p. 1237.) Because the remaining claims in Thomasson and
Proposition 22 seek only declaratory relief about the
constitutionality of the marriage laws, and do not seek to
enforce a public duty (such as the execution of these
laws), the citizen suit exception no longer applies.
(9) Although we have determined CCF and the Fund lack
standing to pursue their declaratory relief claims, this
conclusion has had little to no significance, as a
practical matter, in our review of the substantive issues
in these appeals. We have reviewed all appellate briefs
submitted by the Fund and CCF, and amicus curiae briefs
submitted on their behalf, and have considered all the
arguments contained therein. For reasons discussed later in
this opinion, we have concluded California’s marriage laws
are subject to review under the rational basis test.
Because rational basis review requires a court to consider
all reasonably conceivable state interests that may be
furthered by a challenged statute (Warden v. State Bar
(1999) 21 Cal.4th 628, 644, 650 [88 Cal.Rptr.2d 283, 982
P.2d 154]), we would have been obliged to consider the
merit of state interests proposed by CCF and the Fund
regardless Page 897 of how they were presented (i.e., in
appellate or amicus curiae briefs). As a legal matter,
however, our conclusion that CCF and the Fund lack standing
means that the judgments against them in Thomasson and
Proposition 22 must be affirmed on the ground that the
cases were not justiciable controversies.
II. Relevant Statutory Provisions
A. The Marriage Statutes
(10) Civil marriage in this state is entirely a creature
of statutory law. (Lockyer, supra, 33 Cal.4th at p. 1074;
Estate of DePasse (2002) 97 Cal.App.4th 92, 99 [118
Cal.Rptr.2d 143].) While many legislative enactments govern
the creation and dissolution of marriages, and the legal
consequences of marriage, these cases require us to address
only the statutes that limit the availability of marriage
to unions in California between a man and a woman.[fn9] Of
these, the most significant is probably Family Code section
300, which defines what a marriage is. Family Code section
300 states, in relevant part: “Marriage is a personal
relation arising out of a civil contract between a man and
a woman, to which the consent of the parties capable of
making that contract is necessary.” Gender-specific language
also appears in sections 301 and 302 of the Family Code,
which set the age of consent for marriage between “[a]n
unmarried male” and “an unmarried female” at 18 years or
older, absent parental consent and court approval.
The gender specifications were added to the Family Code’s
definition of marriage in 1977. (Stats. 1977, ch. 339,
§ 1, p. 1295.) Previous versions of the statute
stated only that marriage “is a personal relation arising
out of a civil contract, to which the consent of the
parties capable of making that contract is necessary.”
(Former Civ. Code, § 4100, added by Stats. 1969, ch.
1608, § 8, p. 3314 and repealed by Stats. 1992, ch.
162, § 10, pp. 464, 474 [moving the provision,
without substantive change, to Fam. Code, § 300];
see also former Civ. Code, § 55, enacted 1872
[stating “Marriage is a personal relation arising out of a
civil contract, to which the consent of parties capable of
making it is necessary”].) In 1977, the County Clerks
Association of California sponsored Assembly Bill No. 607,
which sought to specify that marriage is a relationship
“between a man and a woman.” (Assem. Bill No. 607
(1977-1978 Reg. Sess.).) Although county clerks throughout
the state had interpreted existing law as permitting only
opposite-sex marriages, Page 898 and consequently had
“uniformly denied marriage licenses to same sex couples”
(Legis. Counsel, Rep. on Assem. Bill No. 607 (1977-1978
Reg. Sess.) p. 1), they believed former Civil Code, section
4100 was unclear and could be interpreted to encompass
same-sex unions. (Sen. Republican Caucus, analysis of Assem.
Bill No. 607 (1977-1978 Reg. Sess.) p. 1.) Assembly Bill
No. 607 was therefore introduced, and passed, for the
express purpose of amending the statute “to prohibit
persons of the same sex from entering lawful marriage.”
(Sen. Com. on Judiciary, Analysis of Assem. Bill No. 607
(1977-1978 Reg. Sess.) as amended May 23, 1977, p. 1; see
Lockyer, supra, 33 Cal.4th at p. 1076, fn. 11 [stating the
bill’s objective of prohibiting same-sex marriage is clear
from its legislative history].) Former Civil Code section
4100 was later recodified, without substantial change, as
Family Code section 300. (Stats. 1992, ch. 162, §
10, pp. 464, 474.)
A second statute limiting marriage in California to
opposite-sex unions was passed by voter initiative in 2000.
Proposition 22 added Family Code section 308.5, which
states: “Only marriage between a man and a woman is valid
or recognized in California.” The scope of section 308.5
remains a matter of some dispute. Last year, Division One
of the Second District Court of Appeal held that Family
Code section 308.5 addresses only the extent to which
out-of-state marriages will be recognized as valid in
California. (Armijo v. Miles (2005) 127 Cal.App.4th 1405,
1422-1424 [26 Cal.Rptr.3d 623].) After reviewing the
Legislative Analyst’s ballot summary of Proposition 22 and
arguments in favor of the initiative — which
acknowledged that same-sex marriage was currently
prohibited in California but suggested the state might be
required to recognize same-sex marriages entered in other
states[fn10] — the Armijo court concluded
Proposition 22 “was designed to prevent same-sex couples
who could marry validly in other countries or who in the
future could marry validly in other states from coming to
California and claiming, in reliance on Family Code section
308, that their marriages must be recognized as valid
marriages. With the passage of Proposition 22, then, only
opposite-sex marriages validly contracted outside this
state will be recognized as valid in California.” (Armijo
v. Miles, supra, 127 Cal.App.4th at p. 1424.)
The Third District Court of Appeal has reached a somewhat
broader interpretation of the reach of Proposition 22. In
rejecting a claim that the state’s domestic partnership
laws (Fam. Code, § 297 et seq.) constitute an
inappropriate amendment to Proposition 22, because they
grant marriage-like Page 899 rights to same-sex unions,
the Third District concluded the initiative was intended
“to prevent the recognition in California of homosexual
marriages that have been, or may in the future be,
legitimized by laws of other jurisdictions,” and “to limit
the status of marriage to heterosexual couples.” (Knight v.
Superior Court (2005) 128 Cal.App.4th 14, 18 [26
Cal.Rptr.3d 687].) The Knight court observed the plain
language of Proposition 22, and the resulting statute (Fam.
Code, § 308.5), “reaffirms the [existing] definition
of marriage in section 300, by stating that only marriage
between a man and a woman shall be valid and recognized in
California. This limitation ensures that California will
not legitimize or recognize same-sex marriages from other
jurisdictions, as it otherwise would be required to do
pursuant to section 308, and that California will not
permit same-sex partners to validly marry within the
state.” (Knight v. Superior Court, supra, 128 Cal.App.4th
at pp. 23-24, italics added.) In other words, according to
the Knight decision, Proposition 22 was designed to reserve
marriage in California as an institution exclusively for
opposite-sex couples. (See Knight v. Superior Court, supra,
at p. 26.) Furthermore, in light of this broad
interpretation of the initiative, Knight observed that,
“[w]ithout submitting the matter to the voters, the
Legislature cannot change this absolute refusal to
recognize marriages between persons of the same sex. (Cal.
Const., art. II, § 10, subd. (c).)” (Knight v.
Superior Court, supra, 128 Cal.App.4th at p. 24; see also
Proposition 103 Enforcement Project v. Quackenbush (1998)
64 Cal.App.4th 1473, 1483-1484, 1487 [76 Cal.Rptr.2d 342]
[Legislature may not directly or indirectly amend a law
passed by initiative without obtaining voters’ consent].)
We need not resolve this controversy because issues about
the precise scope of Proposition 22, and whether it
inhibits the Legislature from passing laws to permit
same-sex marriage between Californians, are not directly
presented in these appeals. Taken together, Family Code
sections 300 and 308.5 clearly and consistently limit the
institution of marriage in California to opposite-sex
unions. We must decide only whether the limitation is
constitutional. Before turning to this question, however,
we discuss the rights and benefits California law currently
provides to same-sex relationships, most notably through
the domestic partnership statutes.
B. The Domestic Partner Act
California has passed many laws to reduce discrimination
against gays and lesbians. For example, the Unruh Civil
Rights Act (Civ. Code, § 51) prohibits business
establishments that offer services to the public from
discriminating on the basis of sexual orientation. (Curran
v. Mount Diablo Council of the Boy Scouts (1983) 147
Cal.App.3d 712, 733-734 [195 Cal.Rptr. 325]; see also
Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th
824, 850 [31 Cal.Rptr.3d 565, 115 P.3d 1212] [concluding
Unruh Civil Rights Act prohibits Page 900 discrimination
against registered domestic partners in favor of married
couples].) Similarly, California’s Fair Employment and
Housing Act expressly identifies sexual orientation
discrimination as an unlawful employment practice. (Gov.
Code, § 12940, subd. (a).) Gays and lesbians are
equally entitled to become foster parents or adoptive
parents (Welf. & Inst. Code, § 16013, subd. (a)
[“all persons engaged in providing care and services to
foster children, including, but not limited to, foster
parents, adoptive parents, relative caregivers, and other
caregivers . . . shall not be subjected to discrimination
or harassment on the basis of . . . sexual orientation”]),
and the Supreme Court has upheld the use of “second parent”
adoption as a means for a nonbiological parent to establish
legal family ties with the child of his or her same-sex
partner. (Sharon S. v. Superior Court (2003) 31 Cal.4th 417
[2 Cal.Rptr.3d 699, 73 P.3d 554]; see Fam. Code, §
9000, subds. (b) & (g) [providing for adoption by
registered domestic partner]; see also Elisa B. v. Superior
Court (2005) 37 Cal.4th 108, 113, 119-120 [33 Cal.Rptr.3d
46, 117 P.3d 660] [same-sex partner not biologically
related to child may be considered a “parent” for purposes
of Uniform Parentage Act].)
In 1999, the Legislature passed a bill creating a
statewide domestic partnership registry. (Stats. 1999, ch.
588, § 2 [adding Fam. Code, §§
297-299.6]; see Armijo v. Miles, supra, 127 Cal.App.4th at
p. 1411.) In so doing, “California became one of the first
states to allow cohabiting adults of the same sex to
establish a `domestic partnership’ in lieu of the right to
marry.” (Holguin v. Flores (2004) 122 Cal.App.4th 428, 433
[18 Cal.Rptr.3d 749].) Newly enacted Family Code, section
297 defined “domestic partners” as “two adults who have
chosen to share one another’s lives in an intimate and
committed relationship of mutual caring.” (Fam. Code,
§ 297, subd. (a); see Holguin v. Flores, supra, 122
Cal.App.4th at p. 433.) Among other requirements for
registration, domestic partners must share a common
residence, be at least 18 years old and unrelated by blood,
and be either members of the same sex or over the age of
62. (Fam. Code, § 297, subd. (b).)[fn11] Page 901
Soon after their creation, these domestic partnership laws
were expanded by amendments that granted registered
partners new legal rights. (Stats. 2001, ch. 893; Holguin
v. Flores, supra, 122 Cal.App.4th at p. 434.) Then in 2003,
with the passage of Assembly Bill No. 205 (2003-2004 Reg.
Sess.), the Legislature significantly broadened domestic
partnership rights by enacting comprehensive legislation:
the California Domestic Partner Rights and Responsibilities
Act of 2003 (Domestic Partner Act). (Stats. 2003, ch. 421.)
(11) Family Code section 297.5, subdivision (a) was added
by the Domestic Partner Act and became operative on January
1, 2005. (Stats. 2003, ch. 421, § 4; Armijo v.
Miles, supra, 127 Cal.App.4th at p. 1413.) This statute
declares: “Registered domestic partners shall have the same
rights, protections, and benefits, and shall be subject to
the same responsibilities, obligations, and duties under
law . . . as are granted to and imposed upon spouses.”
(Fam. Code, § 297.5, subd. (a).) Specifically,
registered domestic partners have the same rights and
obligations as married spouses regarding financial support,
property ownership, child custody and support. (Fam. Code,
§ 297.5, subds. (a)-(d).)
(12) There are some exceptions, however. First, the
Domestic Partner Act confers only rights and
responsibilities available under California law; it does
not (because it cannot) extend to domestic partners the
numerous benefits married couples enjoy under federal law.
(Fam. Code, § 297.5, subd. (k); Knight v. Superior
Court, supra, 128 Cal.App.4th at p. 30.)[fn12] Registered
domestic partners may not file joint income tax returns,
nor is their earned income treated as community property
for state or federal tax purposes. (Fam. Code, §
297.5, subd. (g).)[fn13] Second, the Domestic Partner Act
does not (because it cannot) impact rights and
responsibilities that are expressly reserved for married
couples under the California Constitution or statutes
adopted by initiative. (Fam. Code, § 297.5, subd.
(j).) So, for example, the property tax reassessment
benefit granted to surviving spouses under Proposition 13 is
not available to a surviving domestic partner. (See Assem.
Com. on Judiciary, Analysis of Assem. Bill No. 205
(2003-2004 Reg. Sess.) as amended Mar. 25, 2003, p. 4.)
Third, given the federal Defense of Marriage Act (28 U.S.C.
§ 1738c) and similar state enactments, registered
domestic partners do not have the assurance that their
partnerships will be legally recognized in other states, as
marriages are. (Knight v. Superior Court, supra, Page 902
128 Cal.App.4th at p. 31; see also Assem. Com. on
Judiciary, Analysis of Assem. Bill No. 205 (2003-2004 Reg.
Sess.) as amended Mar. 25, 2003, pp. 4, 7.) As a result,
domestic partners who travel or move out of California may
lose many or all of the rights conveyed by the Domestic
Partner Act. (Knight v. Superior Court, supra, 128
Cal.App.4th at p. 31.)
(13) Moreover, the prerequisites for forming a domestic
partnership, and the mechanisms for terminating such a
partnership, differ in significant ways from marriage. (See
Knight v. Superior Court, supra, 128 Cal.App.4th at pp.
30-31.) A same-sex couple may form a domestic partnership
simply by filing a “Declaration of Domestic Partnership”
form with the Secretary of State (Fam. Code, §
298.5), and under certain circumstances they may terminate
the partnership simply by filing a corresponding “Notice of
Termination of Domestic Partnership” form. (Fam. Code,
§ 299.) In contrast, marriages must be licensed and
solemnized in some form of ceremony (Fam. Code,
§§ 300, 420), and even the most summary
dissolution of a marriage requires judicial proceedings.
(Fam. Code, §§ 2400-2403.)
(14) Consideration of these differences led the Third
District Court of Appeal to observe that “marriage is
considered a more substantial relationship and is accorded
a greater stature than a domestic partnership.” (Knight v.
Superior Court, supra, 128 Cal.App.4th at p. 31.) While
this may be true, the Legislature declared that the 2003
Domestic Partner Act was intended to serve a broad remedial
goal of “help[ing] California move closer to fulfilling the
promises of inalienable rights, liberty, and equality
contained in Sections 1 and 7 of Article 1 of the
California Constitution by providing all caring and
committed couples, regardless of their gender or sexual
orientation, the opportunity to obtain essential rights,
protections, and benefits and to assume corresponding
responsibilities, obligations, and duties and to further
the state’s interests in promoting stable and lasting
family relationships, and protecting Californians from the
economic and social consequences of abandonment,
separation, the death of loved ones, and other life
crises.” (Stats. 2003, ch. 421, § 1, subd. (a); see
Koebke v. Bernardo Heights Country Club, supra, 36 Cal.4th
at p. 838; Bouley v. Long Beach Memorial Medical Center
(2005) 127 Cal.App.4th 601, 612 [25 Cal.Rptr.3d 813].)
Having found that “despite longstanding social and economic
discrimination, many lesbian, gay, and bisexual Californians
have formed lasting, committed, and caring relationships
with persons of the same sex,” the Legislature determined
that expanding the rights and responsibilities of
registered domestic partners “would further California’s
interests in promoting family relationships and protecting
family members during life crises, and would reduce
discrimination on the bases of sex and sexual orientation
in a manner consistent with the requirements of the
California Constitution.” (Stats. 2003, ch. 421, § 1,
subd. (b).) Contrary to Knight’s observation about the
greater stature of marriage, these legislative declarations
and the statutory language of Family Page 903 Code,
section 297.5 recently led the Supreme Court to conclude
that “a chief goal of the Domestic Partner Act is to
equalize the status of registered domestic partners and
married couples.” (Koebke v. Bernardo Heights Country Club,
supra, 36 Cal.4th at p. 839.)
Our review of domestic partnership laws would not be
complete without a discussion of the Legislature’s recent
attempt to extend marriage rights to same-sex couples. In
2005, Assemblyman Mark Leno introduced a bill to enact the
Religious Freedom and Civil Marriage Protection Act.
(Legis. Counsel’s Dig., Assem. Bill No. 849 (2005-2006 Reg.
Sess.) p. 1.) Assembly Bill No. 849 recited legislative
findings that (1) gender-specific language added by the
1977 amendments to the marriage laws (Fam. Code, §
300 et seq.) discriminates against same-sex couples; (2)
the exclusion of same-sex couples from marriage violates
the rights of gays and lesbians under the California
Constitution; (3) California’s same-sex couples are harmed
in various ways by their exclusion from marriage; and (4)
“[t]he Legislature has an interest in encouraging stable
relationships regardless of the gender or sexual
orientation of the partners. The benefits that accrue to
the general community when couples undertake the mutual
obligations of marriage accrue regardless of the gender or
sexual orientation of the partners.” (Assem. Bill No. 849
(2005-2006 Reg. Sess.) as amended June 28, 2005, §
3, subds. (d), (f), (g) & (j).) With a declared intent to
“correct the constitutional infirmities” of the marriage
laws (id., § 8), the bill would have amended Family
Code sections 300 through 302 to remove all gender-specific
terms. (Assem. Bill No. 849 (2005-2006 Reg. Sess.) as
amended June 28, 2005, §§ 4-6.) Recognizing
its inability to correct any such problems in Family Code
section 308.5, due to its enactment by initiative, the
Legislature declared Assembly Bill No. 849 was not intended
to alter or amend the prohibition in section 308.5 against
recognizing same-sex marriages entered outside California.
(Assem. Bill No. 849 (2005-2006 Reg. Sess.) as amended June
28, 2005, §§ 3, subd. (k), 8.) Finally, the
bill provided that no clergy or religious official would be
required to solemnize a marriage in violation of his or her
constitutional right to free exercise of religion. (Id.,
§ 7.)
Although Assembly Bill No. 849 (2005-2006 Reg. Sess.)
passed both houses of the Legislature in September 2005, it
was vetoed by the Governor. In his veto message, Governor
Schwarzenegger explained that while he supported domestic
partnerships for gay and lesbian couples, he did not
believe the Legislature could amend Family Code section
308.5 without submitting the provision for voter approval.
(Governor’s veto message to Assem. on Assem. Bill No. 849
(Sept. 29, 2005) Recess J. No. 4 (2005-2006 Reg. Sess.) pp.
3737-3738.) Moreover, because the constitutionality of the
marriage laws was pending before this appellate court at
the time, the Governor believed Assembly Bill No. 849 would
add “confusion” to the constitutional issues under review.
(Ibid.) He remarked, “If the ban of Page 904 same-sex
marriage is unconstitutional, this bill is not necessary.
If the ban is constitutional, this bill is ineffective.”
(Ibid.)
III. Respondents’ Constitutional Claims
Respondents claim Family Code provisions limiting marriage
to unions between a man and a woman violate their
fundamental right to marry, under the due process and equal
protection clauses of the California Constitution, and
discriminate against them on the basis of gender and sexual
orientation, in violation of the equal protection clause.
(Cal. Const., art. I, § 7, subd. (a) [“A person may
not be deprived of life, liberty, or property without due
process of law or denied equal protection of the laws . .
.”].) Respondents also argue the marriage laws violate
their constitutional rights to privacy and freedom of
expression and association. (Cal. Const., art. I,
§§ 1, 2.)
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