California Developments: Prior History
Decriminalizing State Sodomy Laws
Efforts to legalize same-sex marriage in California stem directly from earlier efforts to overturn state sodomy laws. A statute was enacted on April 13, 1850 that adopted common law and criminalized the "infamous crime against nature" (1850 California Statutes, Chapter 99, §48), although there is some debate as to whether that law was enforceable, based on the fact that the law was enacted several months before California officially entered the Union. This discrepancy was cleared up in 1872, when the state penal code made the territorial provisions enforceable as state law. The law was expanded in 1903 (Statutes Chapter 201) to include any act that represented an outrage against public decency. The law was further expanded in 1915 (Statutes Chapter 586) and 1921 (Statutes Chapter 848) to include acts of oral copulation. Further statutes mandated sterilization, castration, institutionalization, and/or registration as sex offenders for any violators. For a more detailed history of California sodomy laws, see here.
The principal engine behind efforts to overturn these penal code provisions was then-Assemblyman (and, later, Assembly Speaker and San Francisco Mayor) Willie Brown, who made it one of his top legislative priorities. Brown co-sponsored a bill, AB 489, with then-State Senator George Moscone, which was called informally the "consenting adults bill" because it repealed state laws that criminalized sexual activity between consenting adults. This blog post contains a lengthy excerpt from Brown's memoir in which he details the political maneuvering that he undertook with Moscone to get the bill passed in the Senate, culminating with a dramatic night-session appearance in the legislative chamber by the one person who could break the tie on the bill in the Senate, then-Lieutenant Governor Mervyn Dymally, who cast the decisive vote. Governor Jerry Brown signed the bill into law on May 12, 1975.
Defining Marriage
In 1977 the California legislature explicitly defined marriage as a legal bond between a man and a woman. The pertinent text is: "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." (Family Code Section 300.) This position was strengthened in March 2000 when voters passed Proposition 22, a statute which states: "Only marriage between a man and a woman is valid or recognized in California." (Family Code Sec. 308.5.) The vote for the initiative was 61.4% to 38.6%. Proposition 22 was added to the California Family Code as Section 308.5.
While California law affirms the traditional definition of marriage, it also recognizes domestic partnership. AB 26, passed in 1999, established a domestic partnership registry, granted hospital visitation privileges to registered domestic partners equal to those of spouses and other immediate family members, and gave health benefits to domestic partners of state employees. California's domestic partnership system was considerably strengthened in 2003 with the passage of the Domestic Partners Rights and Responsibilities Act (AB 205), which extended to registered domestic partners virtually all of the rights and responsibilities of marriage. The 1999 and 2003 laws were vigorously opposed. Foes questioned the legality of the laws, which they viewed as overt steps towards the legalization of gay marriage in the state. Numerous ballot measures were circulated after the passage of AB 205 which explicitly sought to outlaw the extension to same-sex or unmarried couples any "incidents or benefits of marriage," including domestic partnership benefits, hospital visitaion rights, and similar benefits.
Many observers took note when, on April 20, 2004, the Assembly Judiciary Committee of the California legislature approved AB 1967, legalizing same-sex marriage. While the bill did not pass the full Assembly, the Judiciary Committee's action marked the first time that a state legislative committee in the United States had voted to approve same-sex marriage. The vote was 8 - 3, with 8 Democrats voting yes and 3 Republicans voting no.
In February and March 2004, rapidly changing developments in San Francisco riveted the public's attention. In an announcement on February 10, San Francisco Mayor Gavin Newsom proclaimed that same-sex marriage would be permitted in San Francisco. He justified the action on the ground that not allowing same-sex couples to marry was a denial of equal protection under the California constitution. At Mayor Newsom's direction, San Francisco officials modified the marriage license forms to make them gender neutral, and within days hundreds of same-sex couples were being married at San Francisco City Hall. Initial attempts to stop the marriages in court failed, but on March 11, 2004, after more than 3000 marriages, the California Supreme Court called a halt and declared its intention to rule on the issue of whether San Francisco acted outside the law in refusing to enforce the marriage provisions of the state Family Code. In a decision on August 12, 2004 on two cases (Lockyer v. City and County of San Francisco and Lewis v. Alfaro), the court ruled that San Francisco had indeed acted outside the law and that the same-sex marriages San Francisco had performed were invalid. However, the court explicitly deferred the question of the constitutionality of California's statutes limiting marriage to a union between a man and a woman.
San Francisco's actions drew national and international attention to the city, and several jurisdictions in other states followed San Francisco's example in permitting same-sex marriages. These developments engendered both praise and severe criticism, including an unprecedented public statement by President George W. Bush on February 24, 2004 that he would support a proposed constitutional amendment that would ban same-sex marriage.
2005
Litigation
In September 2004 suits challenging the constitutionality of California's heterosexual marriage laws were consolidated in a proceeding (Marriage Cases, CJC-04-004365) before San Francisco Superior Court Judge Richard Kramer. In a March 14, 2005 decision Judge Kramer ruled that California's same-sex marriage ban violated the California constitution. He found that the ban violated the "basic human right to marry a person of one's choice," and that "No rational purpose exists for limiting marriage in this state to opposite-sex partners."
Gay rights activists along with Attorney General Bill Lockyer asked the state Supreme Court to bypass the appellate court and hear the marriage cases directly, thus speeding up the appellate process. The court denied the request on August 10, 2005, however, and offered no comment. A final decision by the California Supreme Court is expected sometime in 2006.
On April 4, 2005 a state appellate court denied a challenge to the expanded domestic partnership law, ruling that the law does not violate Proposition 22. The case, Knight v. Superior Court, was brought by conservative groups who insist that the law unlawfully allows homosexual partners all of the rights of a legally defined marriage. The court found that the law did not alter the legal doctrine of marriage and that to declare it invalid would violate equal protection rights guaranteed under the state constitution. Opponents of the domestic partners benefits law publicly vowed to appeal the ruling.
Ballot Initiatives
On May 19, 2005, opponents of gay marriage launched the Voters Right to Protect Marriage Initiative, which would prevent legislators and judges from maintaining benefits for domestic partners and from allowing same-sex marriage. The constitutional amendment would strip most of the privileges the state has provided for domestic partnership unions while still allowing same-sex couples to register as domestic partners. Opponents remarked at the severity of the proposition, as it attempts to reduce not only the possibility of gay marriage but partnership rights as well. The plan's supporters claim that judges and lawmakers have no right to change the definition of marriage. They say they hope to get the proposal on the June 2006 ballot, which would require almost 600,000 signatures from voters to qualify the measure.
In July, a measure to ban same-sex marriage met with controversy when state attorney Bill Lockyer released the official title and summary for the initiative. Supporters of Elimination of Domestic Partnership Rights targeted Lockyer's language in the summary, which they claim is inaccurate and prejudicial. Lockyer's summary includes a description of possible legal impacts to gay partners' property rights child custody and adoption rights, inheritance collection and health and death benefits collection. Gay rights groups applauded Lockyer's description and consider it fair. Supporters of the proposition lost a court battle over the language of the measure's title and the summary. Superior Court Judge Raymond Cadei ruled on Aug. 18 that the title accurately captured the chief effect of the measure. Cadei ordered some small changes to the summary but left the core of the summary intact. Supporters aim to have the initiative placed on the June 2006 primary ballot.
Legislative Action
In December 2004 Assemblyman Mark Leno (D-San Francisco) introduced AB 19, which redefined marriage in state law as a civil contract between two persons. Leno said that he viewed the current marriage restrictions as unjust and asserted that Proposition 22 only prohibited California from recognizing same-sex marriages performed outside the state. AB 19 passed two committees in April 2005. However, the Legislature failed to pass AB 19 on June 2, 2005, voting 37-36 for the bill, four votes short of the number needed for approval.
On September 1, 2005, the Senate passed AB 849, also authored by Mark Leno, which would legalize same-sex marriage across the state. AB 849 defined marriage as gender neutral and did not require any religious organization to perform marriage ceremonies for gay couples. The bill passed the Assembly on September 6, 2005, by a vote of 41-35, with all Republicans and several Democrats opposed. In a controversial move, Governor Schwarzenegger announced his intention to veto the bill on the grounds that the issue should be decided in the courts. The bill's supporters stalled in delivering AB 849 to the governor as part of an email and phone campaign to the governor's office on the bill's behalf. Gay rights proponents hoped to convince Schwarzenegger of the rightness of same-sex marriage. Gay marriage opponents promised to challenge the measure in court if the governor signed the bill. Schwarzenegger vetoed the bill on September 29, 2005. He also vetoed a similar measure that was passed by the Legislature on September 7, 2007.
May 2008 Supreme Court Decision and Proposition 8
On May 15, 2008, the California Supreme Court ruled that the same-sex marriage ban enacted by Proposition 22 in 2000 was unconstitutional. The decision, formally called In re Marriage Cases, consolidated six separate suits involving Family Code §300 and §308.5. The decision was 4-3 in favor of overturning the same-sex marriage ban. Chief Justice Ronald George summarized the lengthy majority opinion by writing: "In light of the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual's opportunity to live a happy, meaningful, and satisfying life as a full member of society — the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation." In one of two dissenting opinions, Justice Carol Corrigan wrote, "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."
Votes of California Supreme Court justices on In re Marriage Cases, May 2008 (and names of governors who appointed each justice):
| In favor | Dissenting |
| Ronald George [Wilson] | Marvin Baxter [Deukmejian] |
| Joyce Kennard [Deukmejian] | Ming Chin [Wilson] |
| Carlos Moreno [Davis] | Carol Corrigan [Schwarzenegger] |
| Kathryn Mickle Werdegar[Wilson] |
Yes on 8's campaign literature suggests that Proposition 8 "is necessary to overturn [the] outrageous California Supreme Court decision that overturned Proposition 22," but the drive to put Proposition 8 on the ballot began on October 1, 2007, five months before oral arguments were heard in the Supreme Court. Supporters of the measure submitted 1.1 million signatures to the Secretary of State's office on April 24, 2008. The measure needed 694,000 signatures to qualify for the ballot. The measure qualified on June 2, 2008.
The state attorney general (former governor Jerry Brown, who signed the 1977 "consenting adults bill" into law) has clashed more than once with supporters of Proposition 8. On July 22, the Attorney General's Office issued the proposed November ballot pamphlet. The pamphlet title and summary for Proposition 8 was reworded to reflect that Proposition 8 would "eliminate the right of same-sex couples to marry" instead of placing a "limit on marriage." A spokewsoman for Yes on 8 stated that Brown had failed "to provide ballot titles and summaries that are fair, accurate and not prejudicial." Supporters of Proposition 8 took the Attorney General to court to get the wording changed, but a Sacramento Superior Court judge dismissed the suit in August. Also in August, Jerry Brown was quoted by the San Francisco Chronicle as saying that he did not believe that Proposition 8, if it passed, would apply retroactively to same-sex marriages ceremonialized after the May 15 Supreme Court ruling.
The Money Picture
As of October 8, 2008, supporters of proposition 8 had raised about $27 million and opponents had raised about $19 million, according to campaign reports filed with the Secretary of State.
The 10 largest contributions to the Yes on 8 campaign as of October 8, 2008:
| National Organization for Marriage, California | $1,268,000 |
| Fieldstead and Company | $1,200,000 |
| Knights of Columbus Headquarters | $1,000,000 |
| Elsa Prince | $650,000 |
| Focus on the Family | $524,000 | American Family Association | $500,000 |
| John Templeton | $450,000 |
| Concerned Women for America | $409,000 |
| Dorothy Nielson | $300,000 |
| Robert Hurtt | $275,000 |
The 12 largest contributions to the No on 8 campaign as of October 8, 2008:
| No on 8 Equality California | $8,186,000 |
| Human Rights Campaign California Marriage PAC | $5,380,000 |
| No on 8 Campaign for Marriage Equality (A Project of the ACLU of Northern California) | $1,350,000 |
| Equality California Marriage PAC | $1,242,000 |
| California Teachers Association Issues PAC | $1,000,000 |
| David Maltz | $1,000,000 |
| Gill Action Fund | $500,000 |
| Center Advocacy Project Issues PAC | $390,000 |
| Esmond Harmsworth | $350,000 |
| Gay and Lesbian Alliance against Defamation | $250,000 |
| Fred Eychaner | $250,000 |
| Robert Haas | $200,000 |