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Gay Marriage

On May 15, 2008, in a 4-3 decision authored by Chief Justice Ronald George, the California Supreme Court struck down California’s marriage laws that permitted marriage only for couples that consisted of a man and a woman.

By
Michael W. Flynn
6-minute read
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

On May 15, 2008, in a 4-3 decision authored by Chief Justice Ronald George, the California Supreme Court struck down California’s marriage laws that permitted marriage only for couples that consisted of a man and a woman. Several listeners have written in with questions about the opinion, its effect, and its significance. For example:

  1. What exactly did [the Court] decide and why? What is strict scrutiny?

  2. Do other states have to recognize a California gay marriage? 3. Will this case affect other states?

Today I will give a brief history of the litigation and answer these questions.

Procedural History

In February 2004, at the direction of Mayor Gavin Newsom, San Francisco began offering marriage licenses to couples regardless of gender. About 4,000 same-sex couples were married before the California Supreme Court deemed those licenses invalid on the ground that a mayor does not have the authority to change state law, but reserved the issue of whether the marriage laws were generally constitutional. In 2005, Judge Richard Kramer, struck down California’s marriage statute. The Court of Appeal reversed that decision by a 2-1 vote.

Issues:

There were several issues facing the Court. One major issue was the definition of “marriage” for constitutional purposes. In legalese, the issue was whether or not the marriage laws infringed on a “fundamental right” under the California constitution. Generally, a fundamental right is one that is deeply rooted in society’s history and tradition, and implicit in the concept of ordered liberty such that neither liberty nor justice could exist if they were sacrificed. Several past cases have recognized that the right to marry a person of one’s choice is a fundamental right. But, the Court had to decide exactly what the scope of this fundamental right included. That is, does the fundamental right to marry include the right to marry a person of one’s choice of the opposite gender only, or any person of one’s choice regardless of gender?

The Court held that the right extended to marry a person of one’s choice regardless of gender. The Court based this decision on several past decisions that confronted the definition of fundamental rights, and how courts have viewed them. For example, in Lawrence v. Texas, the U.S. Supreme Court struck down a law that prohibited homosexual sodomy. The right to engage in intimate relationships had been recognized as a fundamental right, but the state of Texas argued that this fundamental right did not include the right to engage in homosexual intimate relationships. The U.S. Supreme Court rejected the logic, holding that the fundamental right at issue could not be so narrowly defined as the right to homosexual intimacy, but more broadly to include the right to intimacy with another person.

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