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. 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 oppositesex
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
1 2
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.
Here is a bit more of it:
...There can be no question but that, in recent decades, there has been a
fundamental and dramatic transformation in this state’s understanding and legal
treatment of gay individuals and gay couples. California has repudiated past
practices and policies that were based on a once common viewpoint that
denigrated the general character and morals of gay individuals, and at one time
even characterized homosexuality as a mental illness rather than as simply one of
the numerous variables of our common and diverse humanity. This state’s current
policies and conduct regarding homosexuality recognize that gay individuals are
entitled to the same legal rights and the same respect and dignity afforded all other
individuals and are protected from discrimination on the basis of their sexual
orientation,46 and, more specifically, recognize that gay individuals are fully
capable of entering into the kind of loving and enduring committed relationships
that may serve as the foundation of a family and of responsibly caring for and
raising children.47
...
Thus, just as this
court recognized in Perez that it was not constitutionally permissible to continue to
treat racial or ethnic minorities as inferior (Perez, supra, 32 Cal.2d at pp. 720-
727), and in Sail’er Inn that it was not constitutionally acceptable to continue to
treat women as less capable than and unequal to men (Sail’er Inn, supra, 5 Cal.3d
at pp. 17-20 & fn. 15), we now similarly recognize that an individual’s
homosexual orientation is not a constitutionally legitimate basis for withholding or
restricting the individual’s legal rights.
In light of this recognition, sections 1 and 7 of article I of the California
Constitution cannot properly be interpreted to withhold from gay individuals the
same basic civil right of personal autonomy and liberty (including the right to
establish, with the person of one’s choice, an officially recognized and sanctioned
family) that the California Constitution affords to heterosexual individuals. The
privacy and due process provisions of our state Constitution — in declaring that
“[a]ll people . . . have [the] inalienable right[] [of] privacy” (art. I, § 1) and that no
person may be deprived of “liberty” without due process of law (art. I, § 7) — do
not purport to reserve to persons of a particular sexual orientation the substantive
protection afforded by those provisions. In light of the evolution of our state’s
understanding concerning the equal dignity and respect to which all persons are
entitled without regard to their sexual orientation, it is not appropriate to interpret
these provisions in a way that, as a practical matter, excludes gay individuals from
the protective reach of such basic civil rights. (Cf. Valerie N., supra, 40 Cal.3d
143, 154, 160-165 [holding that the state constitutional right of personal autonomy
in matters of reproductive choice must be interpreted to afford incompetent
developmentally disabled women the benefits accorded by that constitutional
right].)
... The Proposition 22 Legal Defense Fund and the Campaign agree that the
constitutional right to marry is integrally related to the right of two persons to join
7 3
together to establish an officially recognized family, but they contend that the only
family that possibly can be encompassed by the constitutional right to marry is a
family headed by a man and a woman. Pointing out that past cases often have
linked marriage and procreation, these parties argue that because only a man and a
woman can produce children biologically with one another, the constitutional right
to marry necessarily is limited to opposite-sex couples.
This contention is fundamentally flawed for a number of reasons. To begin
with, although the legal institution of civil marriage may well have originated in
large part to promote a stable relationship for the procreation and raising of
children (see, e.g., Baker v. Baker, supra, 13 Cal. 87, 103 [“the first purpose of
matrimony, by the laws of nature and society, is procreation”]; see generally
Blankenhorn, The Future of Marriage (2007) pp. 23-125), and although the right
to marry and to procreate often are treated as closely related aspects of the privacy
and liberty interests protected by the state and federal Constitutions (see, e.g.,
Valerie N., supra, 40 Cal.3d 143, 161; Skinner v. Oklahoma (1942) 316 U.S. 527,
541), the constitutional right to marry never has been viewed as the sole preserve
of individuals who are physically capable of having children. Men and women
who desire to raise children with a loved one in a recognized family but who are
physically unable to conceive a child with their loved one never have been
excluded from the right to marry. Although the Proposition 22 Legal Defense
Fund and the Campaign assert that the circumstance that marriage has not been
limited to those who can bear children can be explained and justified by reference
to the state’s reluctance to intrude upon the privacy of individuals by inquiring
into their fertility, if that were an accurate and adequate explanation for the
absence of such a limitation it would follow that in instances in which the state is
able to make a determination of an individual’s fertility without such an inquiry, it
would be constitutionally permissible for the state to preclude an individual who is
incapable of bearing children from entering into marriage. There is, however, no
authority whatsoever to support the proposition that an individual who is
physically incapable of bearing children does not possess a fundamental
constitutional right to marry. Such a proposition clearly is untenable. A person
who is physically incapable of bearing children still has the potential to become a
parent and raise a child through adoption or through means of assisted
reproduction, and the constitutional right to marry ensures the individual the
opportunity to raise children in an officially recognized family with the person
with whom the individual has chosen to share his or her life. Thus, although an
important purpose underlying marriage may be to channel procreation into a stable
family relationship, that purpose cannot be viewed as limiting the constitutional
right to marry to couples who are capable of biologically producing a child
together.48
...
The Proposition 22 Legal Defense Fund and the Campaign also rely upon
several academic commentators who maintain that the constitutional right to marry
should be viewed as inapplicable to same-sex couples because a contrary
interpretation assertedly would sever the link that marriage provides between
procreation and child rearing and would “send a message” to the public that it is
immaterial to the state whether children are raised by their biological mother and
father. (See, e.g., Blankenhorn, The Future of Marriage, supra, at pp. 201-212;
Wardle, “Multiply and Replenish”: Considering Same-Sex Marriage in Light of
State Interests in Marital Procreation (2001) 24 Harv. J.L. & Pub. Pol’y 771, 797-
799; Gallaher, What Is Marriage For? The Public Purposes of Marriage Law
(2002) 62 La. L.Rev. 773, 779-780, 790-791.) Although we appreciate the
genuine concern for the well-being of children underlying that position, we
conclude this claim lacks merit. Our recognition that the core substantive rights
encompassed by the constitutional right to marry apply to same-sex as well as
opposite-sex couples does not imply in any way that it is unimportant or
immaterial to the state whether a child is raised by his or her biological mother and
father. By recognizing this circumstance we do not alter or diminish either the
legal responsibilities that biological parents owe to their children or the substantial
incentives that the state provides to a child’s biological parents to enter into and
raise their child in a stable, long-term committed relationship.49 Instead, such an
interpretation of the constitutional right to marry simply confirms that a stable
two-parent family relationship, supported by the state’s official recognition and
protection, is equally as important for the numerous children in California who are
being raised by same-sex couples as for those children being raised by oppositesex
couples (whether they are biological parents or adoptive parents).50 This
interpretation also guarantees individuals who are in a same-sex relationship, and
who are raising children, the opportunity to obtain from the state the official
recognition and support accorded a family by agreeing to take on the substantial
and long-term mutual obligations and responsibilities that are an essential and
inseparable part of a family relationship.51
Accordingly, we conclude that the right to marry, as embodied in article I,
sections 1 and 7 of the California Constitution, guarantees same-sex couples the
same substantive constitutional rights as opposite-sex couples to choose one’s life
partner and enter with that person into a committed, officially recognized, and
protected family relationship that enjoys all of the constitutionally based incidents
of marriage.52
...
In light of all of these circumstances, we conclude that retention of the
traditional definition of marriage does not constitute a state interest sufficiently
compelling, under the strict scrutiny equal protection standard, to justify
withholding that status from same-sex couples. Accordingly, insofar as the
provisions of sections 300 and 308.5 draw a distinction between opposite-sex
couples and same-sex couples and exclude the latter from access to the designation
of marriage, we conclude these statutes are unconstitutional.73
...
Accordingly, in light of the conclusions we reach concerning the
constitutional questions brought to us for resolution, we determine that the
language of section 300 limiting the designation of marriage to a union “between a
man and a woman” is unconstitutional and must be stricken from the statute, and
that the remaining statutory language must be understood as making the
designation of marriage available both to opposite-sex and same-sex couples. In
addition, because the limitation of marriage to opposite-sex couples imposed by
section 308.5 can have no constitutionally permissible effect in light of the
constitutional conclusions set forth in this opinion, that provision cannot stand.
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