In Re Marriage Cases

In Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 [ 17 Cal.Rptr.3d 225 , 95 P.3d 459 ] (Lockyer), this court concluded that public officials of the City and County of San Francisco acted unlawfully by issuing marriage licenses to same-sex couples in the absence of a judicial determination that the California statutes limiting marriage to a union between a man and a woman are unconstitutional. Our decision in Lockyer emphasized, however, that the substantive question of the constitutional validity of the California marriage statutes was not before this court in that proceeding, and that our decision was not intended to reflect any view on that 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.); 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 the wake of this court’s decision in Lockyer , squarely presents the' substantive constitutional question that was not addressed in Lockyer .

In considering this question, we note at the…

I write separately to explain how the court’s decision here is consistent with Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 [ 17 Cal.Rptr.3d 225 , 95 P.3d 459 ] (Lockyer), to note Lockyer's effect on marriages of same-sex couples previously performed in this state, and to emphasize my agreement with the Chief Justice that the constitutionality of the marriage laws’ exclusion of same-sex couples is an issue particularly appropriate for decision by this court.

As the opening words of the Chief Justice’s majority opinion indicate, this case is a continuation of Lockyer . There, this court held that local officials had acted unlawfully by issuing gender-neutral marriage licenses to same-sex couples after the officials made a legal determination that depriving same-sex couples of the right to marry was unconstitutional. ( Lockyer, supra, 33 Cal.4th at pp. 1069, 1104-1105.) Here, this court holds that under the state Constitution’s equal protection guarantee, same-sex couples have a right to marry, and that state officials should take all necessary and appropriate steps so that local officials may begin issuing marriage licenses to same-sex couples. (Maj. opn.,…

The majority opinion reflects considerable research, thought, and effort on a significant and sensitive case, and I actually agree with several of the majority’s conclusions. However, I cannot join the majority’s holding that the California Constitution gives *861 same-sex couples a right to marry. In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error.

Only one other American state recognizes the right the majority announces today. So far, Congress, and virtually every court to consider the issue, has rejected it. Nothing in our Constitution, express or implicit, compels the majority’s startling conclusion that the age-old understanding of marriage—an understanding recently confirmed by an initiative law—is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.

The majority’s…

In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent.

It is important to be clear. Under California law, domestic partners have “virtually all of the benefits and responsibilities” available to traditional spouses. (Maj. opn., ante, at p. 807.) I believe the Constitution requires this as a matter of equal protection. However, the single question in this case is whether domestic partners have a constitutional right to the name of “marriage.”

*879 Proposition 22 was enacted only eight years ago. By a substantial majority the people voted to recognize, as “marriage,” only those unions between a man and a woman. (Fam. Code, § 308.5.) The majority concludes that the voters’ decision to retain the traditional definition of marriage is unconstitutional. I disagree.

The majority correctly notes that it is not for this court to set social policy based on…

The Western Center for Law & Policy, Dean R. Broyles and James M. Griffiths for California Ethnic Religious Organizations for Marriage, National Hispanic Christian Leadership Conference, African-American High Impact Leadership Coalition, Korean Church Coalition for North Korea Freedom, Council of Korean Churches in Southern California, Traditional Family Coalition, Chinese Family Alliance, America Chinese Evangelical Seminary, The Lord's Grace Christian Church of Mountain View, Grace Gospel Christian Church at San Mateo, Mandarin Baptist Church, Home of Christ Church at Saratoga, Fremont Chinese Evangelical Free Church, West Valley Christian Alliance Church, Evangelical Free Church of San Francisco, San Francisco Agape Christian Church, HIS Foundation and Chinese Christians for Justice as Amici Curiae on behalf of Defendant and Appellant State of California.

Jeffrey N. Daly for Professors of Law John Coverdale, Scott Fitzgibbon, Martin R. Gardner, Kris W. Kobach, Earl M. Maltz, Laurence C. Nolan and John Randall Trahan as Amici Curiae on behalf of Defendant and Appellant State of California.

Wild, Carter & Tipton, Patrick J. Gorman; Thomas More Society, Thomas Brejcha and Paul…