Although in most instances the deferential "rational basis" standard of review is applicable in determining whether different treatment accorded by a statutory provision violates the state equal protection clause, a more exacting and rigorous standard of review — "strict scrutiny" — is applied when the distinction drawn by a statute rests upon a so-called "suspect classification" or impinges upon a fundamental right. As we shall explain, although we do not agree with the claim advanced by the parties challenging the validity of the current statutory scheme that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender and should be subjected to strict scrutiny on that ground, we conclude that strict scrutiny nonetheless is applicable here because 1 the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion — a constitutionally suspect basis upon which to impose differential treatment, and 2 the differential treatment at issue impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.
As noted below post , at pp. For convenience and ease of reference, in this opinion we shall refer collectively to the parties who are challenging the constitutionality of the marriage statutes as plaintiffs.
Because the various parties defending the marriage statutes the state, represented by the Attorney General, the Governor, the Fund, and the Campaign have advanced differing legal arguments in support of the statutes, this opinion generally will refer to such parties individually. In those instances in which the opinion refers to the parties defending the marriage statutes collectively, those parties will be referred to as defendants.
Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish 1 that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and 2 that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest.
Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California's current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest. A number of factors lead us to this conclusion.
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First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.
Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.
Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.
Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects "second-class citizens" who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.
Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional. On February 10, , the Mayor of the City and County of San Francisco City sent a letter to the county clerk, directing that official to determine what changes should be made to the forms and documents used to apply for and issue marriage licenses, so that licenses could be provided to couples without regard to their gender or sexual orientation.
In response, the county clerk designed revised forms for the marriage license application and for the license and certificate of marriage, and on February 12, , the City began issuing marriage licenses to same-sex couples. The following day, two separate actions were filed in San Francisco Superior Court seeking an immediate stay as well as writ relief, to prohibit the City's issuance of marriage licenses to same-sex couples.
Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco Super. City County, No. Newsom Super. Newsom , and hereafter referred to as Campaign. As noted, the Proposition 22 Legal Defense Fund and the Campaign actions are two of the six cases whose consolidated appeals are before us in the present proceeding. Ante , at p. After the superior court declined to grant an immediate stay in the Proposition 22 Legal Defense Fund and the Campaign actions and the City continued to issue marriage licenses to, and solemnize and register marriages of, numerous same-sex couples, the California Attorney General and a number of taxpayers filed two separate petitions seeking to have this court issue an original writ of mandate, asserting that the City's actions were unlawful and warranted our immediate intervention.
Lockyer v. Alfaro , S On March 11, , we issued an order to show cause in those original writ proceedings, and, pending our determination of both matters, directed City officials to enforce the existing marriage statutes and to refrain from issuing marriage licenses not authorized by such provisions. In addition, our March 11 order stayed all proceedings in the two cases then pending in San Francisco Superior Court the Proposition 22 Legal Defense Fund and the Campaign actions , but at the same time indicated that the stay did not preclude the filing of a separate action in superior court raising a direct challenge to the constitutionality of California's current marriage statutes.
Lockyer, supra , 33 Cal. Shortly after our March 11, , order was issued, and while the consolidated Lockyer cases still were pending in this court, the City filed a writ petition and complaint for declaratory relief in superior court, seeking a declaration that 1 Family Code section City and County of San Francisco v. State of California Super.
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Thereafter, two similar actions challenging the constitutionality of California's current marriage statutes were filed by a number of same-sex couples who maintain either that they are involved in committed relationships but are not permitted to marry in California, or that their out-of-state marriages are not recognized under California law. Several statewide organizations representing many thousands of same-sex couples joined as plaintiffs in these actions.
Woo v. Lockyer Super. CPF Woo ; Tyler v.
California Marriage Law
County of Los Angeles Super. County, No.
BS Tyler. According to declarations filed in the trial court, the named same-sex couples who are parties to these actions embody a diverse group of individuals who range from 30 years of age to more than 80 years of age, who come from various racial and ethnic backgrounds, and who are employed in or have retired from a wide variety of occupations, including pharmacist, military serviceman, teacher, hospital administrator, and transportation manager.
Many of the couples have been together for well over a decade and one couple, Phyllis Lyon and Del Martin, who are in their 80's, have resided together as a couple for more than 50 years. Many of the couples are raising children together. Code Civ. A sixth action Clinton v. CGC Clinton , filed by a separate group of same-sex couples who similarly challenged the constitutionality of the current marriage statutes, later was added to the Marriage Cases coordination proceeding.
On August 12, , while the Marriage Cases coordination proceeding was pending in the superior court, our court rendered its decision in Lockyer, supra , 33 Cal. In light of these conclusions, we issued a writ of mandate compelling the City officials to comply with the requirements and limitations of the current marriage statutes in performing their duties under these statutes, and directing the officials to notify all same-sex couples to whom the officials had issued marriage licenses or registered marriage certificates that these same-sex marriages were void from their inception and a legal nullity.
Although we concluded in Lockyer that the City officials had acted unlawfully and that the same-sex marriages they had authorized were void, as already noted our opinion made clear that the substantive question of the constitutionality of California's statutory provisions limiting marriage to a man and a woman was not before us in the Lockyer proceeding and that we were expressing no opinion on this issue. After the issuance of our decision in Lockyer, supra , 33 Cal.
On April 13, , the superior court issued its decision on this substantive constitutional question. Although plaintiffs argued that the statutes limiting marriage to a union of a man and a woman violated a number of provisions of the California Constitution — including the fundamental right to marry protected by the due process and privacy provisions of the California Constitution and the equal protection clause of that Constitution — the superior court confined its decision to the challenge that was based upon the equal protection clause.
In analyzing the equal protection claim, the superior court determined that the statutes limiting marriage in California to opposite-sex couples properly must be evaluated under the strict scrutiny equal protection standard, because those statutory enactments rest upon a suspect classification sex and impinge upon a fundamental constitutional right the right to marry.
The court considered the various state interests and justifications proffered in support of those enactments, ultimately concluding that the statutory limitation of marriage to the union of a man and a woman not only does not satisfy the strict scrutiny standard, but also does not meet the more deferential rational basis test because, in the superior court's view, the differential treatment mandated by the statute does not further any legitimate state interest. In light of this conclusion, the court held that California's current marriage statutes are unconstitutional under the state Constitution insofar as they limit marriage to opposite-sex couples.
The superior court entered judgment in favor of plaintiffs in each of the coordinated cases. On appeal, the Court of Appeal, in a two-to-one decision, reversed the superior court's ruling on the substantive constitutional issue, disagreeing in a number of significant respects with the lower court's analysis of the equal protection issue. First, the majority opinion in the Court of Appeal concluded the superior court erred in finding that the statutory provisions at issue impinge upon the fundamental constitutional right to marry, determining that this right properly should be interpreted to encompass only the right to marry a person of the opposite sex and that the constitutional right that plaintiffs actually sought to enforce is a right to same-sex marriage — a right that the Court of Appeal majority found lacking in any historical or precedential support.
Second, the Court of Appeal majority rejected the superior court's conclusion that the California marriage statutes discriminate on the suspect basis of sex and for this reason are subject to strict scrutiny review, relying upon the circumstance that the statutes do not discriminate against either men or women or treat either of the genders differently from the other, but rather permit members of either gender to marry only a person of the opposite gender. Third, although the Court of Appeal majority found that California's marriage statutes realistically must be viewed as providing differential treatment on the basis of sexual orientation, the majority went on to hold that sexual orientation does not constitute a suspect classification for purposes of the state equal protection clause.
The majority thus concluded that, contrary to the superior court's determination, the marriage statutes are not subject to strict scrutiny review but rather must be evaluated only under the deferential rational basis standard.
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Finally, applying that standard, the majority disagreed with the superior court and found that the marriage statutes' limitation of marriage to opposite-sex couples survives rational basis review, reasoning that the state has a legitimate interest in preserving the traditional definition of marriage and that the statute's classifications are rationally related to that interest. Accordingly, the Court of Appeal majority concluded that the superior court erred in finding the marriage statutes unconstitutional.
One of the appellate justices who joined the majority opinion also wrote a concurring opinion, addressing what her opinion described as "more philosophical questions presented by the challenging legal issues before us. The concurring justice observed that in her view, the domestic partnership legislation "seems to recognize that at this stage, we do not know whether the state must name and privilege same-sex unions in exactly the same way traditional marriages are supported.
The nuance at this moment in history is that the institution marriage and emerging institution same-sex partnerships are distinct and, we hope , equal. We hope they are equal because of the great consequences attached to each. Childrearing and passing on culture and traditions are potential consequences of each.
To the degree that any committed relationship provides love and security, encourages fidelity, and creates a supportive environment for children it is entitled to respect. Whether it must be called the same, or supported by the state as equal to the traditional model, only time and patient attention to the models at issue will tell.
The third appellate court justice dissented from the majority's determination that the marriage statutes do not violate the California Constitution. The dissenting justice 1 disagreed with the majority's conclusion that the same-sex couples challenging the marriage statutes are seeking recognition of a novel constitutional right to "same-sex marriage" rather than simply the application of an established fundamental constitutional right to marry a person of one's choice, 2 explained why, in his view, sexual orientation should be considered a suspect classification for purposes of equal protection principles, and 3 finally concluded that the challenged statutory restriction limiting marriage to opposite-sex couples "has no rational basis, let alone a compelling justification.
In light of the importance of the substantive constitutional issues presented, we granted review. Before beginning our discussion of the significant constitutional issues presented by this case, we briefly address a much more limited procedural point relating only to the Proposition 22 Legal Defense Fund and the Campaign proceedings — the two actions that were filed immediately after San Francisco officials began issuing marriage licenses to same-sex couples and that were stayed by our court during the pendency of the Lockyer proceeding.
The Court of Appeal concluded that although these two cases presented justiciable actions when they were initially filed, once this court issued its decision in Lockyer, supra , 33 Cal. Accordingly, the Court of Appeal determined that the superior court erred in failing, at that juncture, to dismiss these two actions as moot. Although the Fund and the Campaign take issue with the Court of Appeal's conclusion on this point, we agree with that determination. In challenging this aspect of the Court of Appeal's ruling, the Fund maintains that notwithstanding this court's decision in Lockyer , the superior court properly could find that, because there is a continuing dispute between the Fund and the City over the scope and constitutionality of Family Code section Past California decisions establish, however, that notwithstanding an advocacy group's strong political or ideological support of a statute or ordinance — and its disagreement with those who question or challenge the validity of the legislation — such a disagreement does not in itself afford the group the right to intervene formally in an action challenging the validity of the measure.
Committee v. Brown 53 Cal. Rominger v. County of Trinity Cal.
For similar reasons, we agree with the Court of Appeal that, absent a showing by the Fund that it possesses a direct legal interest that will be injured or adversely affected which the Fund acknowledges has not been established here , the Fund's strong ideological disagreement with the City's views regarding the scope or constitutionality of Proposition 22 is not sufficient to afford standing to the Fund to maintain a lawsuit to obtain a declaratory judgment regarding these legal issues. Kizer Cal. State Dept. In this respect, the Fund is in a position no different from that of any other member of the public having a strong ideological or philosophical disagreement with a legal position advanced by a public entity that, through judicial compulsion or otherwise, continues to comply with a contested measure.
Code of Civil Procedure section provides in relevant part that "[a]ny person. At an earlier stage of the action filed by the City the CCSF action — before the coordination proceeding was established — the Fund filed a motion seeking to intervene formally in the CCSF action, but the trial court denied the motion.
The Fund appealed from that ruling, but the Court of Appeal affirmed the trial court, holding that the Fund and its members "do not. State of California Cal. The amicus curiae brief filed in this court by the Pacific Justice Institute questions the right of the City to maintain a declaratory judgment action challenging the validity of the state's marriage statutes. That issue, however, was not raised in either the trial court or the Court of Appeal, and its resolution would not affect the validity of this proceeding or the substantive issue before us, because the numerous same-sex couples who have been parties to this coordination action from its inception unquestionably are authorized to bring and maintain the present challenge to the marriage statutes.
We therefore do not consider it necessary or advisable for us to address, at the present juncture, this issue raised by amicus curiae for the first time in these proceedings. The Campaign argues alternatively that the superior court, in permitting these two actions to go forward notwithstanding this court's opinion in Lockyer , properly could view that decision as providing only interim mandamus relief against the City, leaving the question whether the City should be permanently enjoined from granting marriage licenses to same-sex couples for resolution in the Proposition 22 Legal Defense Fund and the Campaign actions.
Our decision in Lockyer , however, does not support such an interpretation.
We did not purport to afford only interim relief, but rather granted to the petitioners before us the same full and final mandamus relief to which the Fund and the Campaign would have been entitled in the mandamus actions filed in superior court against City officials by each of those parties.