Same-sex marriage in California: A long and winding road

The national landscape

The public debate around same-sex marriage began in earnest in 1993 in Hawaii, when the Hawaii Supreme Court held that laws that prohibited marriage between same-sex couples violated equal rights under the Hawaii Constitution. Later, many other jurisdictions began to allow same-sex marriages. In a number of other states (including, most recently, Utah, Oklahoma, Virginia, Texas, and New Mexico), federal judges have ruled that state constitutional bans against same-sex marriages are unconstitutional.

Statutory and case law in California

On May 15, 2008, the California Supreme Court decided, in In re Marriage Cases, that same-sex couples have the constitutional right to marry. The court stated that language in the Family Code which limited the official designation of marriage to a union "between a man and a woman" was unconstitutional, as violating the Equal Protection Clause of the California Constitution and thus the offensive language had to be stricken from the statute.

The ruling began effective in mid-June of 2008. Same-sex marriages then began to be performed in California, but only for a short amount of time.

A ballot initiative (Proposition 8) challenging the court decision was certified that summer. The initiative proposed to amend the California Constitution to define marriage as being a relationship between a woman and a man. The initiative passed in November, resulting in same-sex marriages again being banned.

The constitutional amendment was challenged in court in 2009, but the law was upheld by the California Supreme Court in Strauss v. Horton. In 2010, a federal district court, in Perry v. Schwarzenegger, ruled that the same-sex marriage ban was a violation of equal protection under the U.S. Constitution. The ruling was appealed to the federal appeals court.

In 2012, in Perry v. Brown, the Ninth Circuit Court of Appeals affirmed the district court decision declaring Proposition 8 invalid. The court stated that the constitutional amendment enacted by Proposition was not rationally related to California's interest in childrearing and responsible procreation, to California's interest in "proceed[ing] with caution" when considering changes to the definition of marriage, to California's interest in protecting religious liberty, and to California's interest in preventing children from being taught about same-sex marriage in schools. The court also stated that tradition alone could not serve as justification for taking away the right of gays and lesbians to use the designation of "marriage."

This decision reinstated the right of same-sex couples to marry in California. The case was then appealed to the Supreme Court of the United States

The U.S. Supreme Court, on June 26, 2013, in Hollingsworth v. Perry, declined to decide whether Proposition 8 was valid, on the technical grounds that jurisdiction to decide the case was lacking. The effect of the decision was a reinstatement of the district court decision which overturned Proposition 8, allowing same sex marriage. Same-sex marriages shortly began to be performed after the decision.


Following this long and convoluted statutory and case law history, one thing remains clear: Same-sex couples have the right to marry in California. What remains unclear are the ramifications of this decision for questions involving divorce, child custody, and property rights. If you are a married gay couple and you find that you have a disagreement with your spouse in any of these areas, you should contact an experienced family law attorney, one who has kept up with legal same-sex rights and duties and who can best advise you as to how to resolve your dispute.