The California Supreme Court’s 2008 ruling on same-sex marriage

The highest court in the U.S. state of California ruled on May 15, 2008 that laws restricting marriage to opposite-sex couples were impermissible, clearing the way for the first valid same-sex marriages in that state to be performed the following month.

The new rules did not last long. In November of the same year, a statewide voter referendum known as “Proposition 8” resulted in an amendment to the state constitution that banned same-sex marriage. This effectively shot down the court’s decision. Same-sex marriages ceased to be performed in California for several years. They resumed on June 28, 2013, as a result of rulings by federal judges that found no basis for discrimination against same-sex couples.

The 2008 California Supreme Court ruling

The opinion acknowledged that same-sex couples had sought marriage licenses in California beginning as early as the 1970s and that they had been answered with a 1977 law (Sections 4100 and 4101, later re-enacted as Sections 300 and 301) defining marriage as an opposite-sex relationship. In 2000, 61 percent of California voters asked to uphold this definition under the ballot initiative called Proposition 22 (which became Section 308.5). The plaintiffs claimed these statutes violated a “right to marry” that should be guaranteed by four clauses in the California Constitution – privacy, free speech, due process, and equal protection – and the court indeed found the restrictive marriage statutes to be unconstitutional.

[Below, text inside quotation marks is generally quoted from the Supreme Court’s published opinion.]

Prior cases had established the right of “two adults who share a loving relationship,” regardless of their sexual orientation, to have an “officially recognized family” and to raise children together. The California Legislature created “domestic partnerships” in 1999, becoming one of the first states to do so, and the rights of domestic partners gradually increased until they nearly matched that of married couples (except with regards to state income taxes). Domestic partners are required to be over the age of 18, unrelated, share a home and expenses, and otherwise be unmarried or unpartnered. They are also required to be of the same sex, unless at least one partner is elderly. The court quoted its own ruling in a prior case (Koebke v. Bernardo Heights Country Club, 2005): “[i]t is clear…that a chief goal of the [2003] Domestic Partner Act is to equalize the status of registered domestic partners and married couples.”

The word “marriage” and its inherent intangible benefit of “dignity and respect” was determined to be an essential component of the right to establish a recognized family unit. Failing to make the label “marriage” available to gay couples “poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect” and “is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature”. Therefore, despite the assumption that domestic partnerships would have “all or virtually all of the same substantive attributes” as marriages, failing to make the name “marriage” available runs afoul of California’s Constitution.

In pointing out that California has rejected old laws based on the interpretation of homosexuality as a mental illness, the court implied that the preference for a partner of the same sex is now to be understood as “simply one of the numerous variables of our common and diverse humanity.” The court cautioned that, although it references particular statutes, these references should not be taken to imply “that an individual’s entitlement to equal treatment under the law…is grounded upon…the Domestic Partner Act or any other legislative measure.” In other words, the constitutional entitlement to equal treatment transcends any past, present, or future marriage statute.

Key arguments

Much of the 121-page majority opinion turned on prior cases about interracial marriage. The court’s own 1948 decision that legitimized interracial marriages, Perez v. Sharp, had been issued “notwithstanding the circumstance that statutory prohibitions on interracial marriage had existed since the founding of the state…” Therefore, the court concluded, historical tradition cannot be solely relied upon for “determining the meaning and scope of this fundamental constitutional guarantee” – that is, the right to marry – because some historical family law has been regrettably unconstitutional.

Although Perez did not find a specific “right to interracial marriage” in the state Constitution, it was able to derive a right to interracial marriage from other civil rights. Likewise, there is no specific “right to same-sex marriage” in the Constitution but this does not mean that same-sex marriages cannot take place. There is, after all, a right “to join in marriage with the person of one’s choice”. For same-sex couples, that necessitates a right to same-sex marriages.

Answering a popular argument of opponents of same-sex marriage, the court insisted that the marriage relationship need not mirror the procreative relationship. Infertile men and women “never have been excluded from the right to marry.” This is not just a privacy issue: even if someone voluntarily disclosed his or her infertility status, the state would still have “no authority whatsoever” to prevent him or her from marrying. Marriage has purposes other than the rearing of children. Referencing the landmark federal case that established married couples’ right to use contraception (Griswold v. Connecticut), the California court declared that “the right to marry never has been limited to those who plan or desire to have children.” (The court did clarify that this “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.”)

The principle of limited government, a central tenet of American political conservatism, made its way into the argument when the court identified “an individual’s right to be free from undue governmental intrusion into (or interference with) integral features of this relationship – that is, the right of marital or familial privacy.” If civil marriage served merely social functions, the courts might have the power to modify or abolish the institution entirely. However, as decided in Perez, marriage is also “a fundamental right of free men [and women]”. Therefore, in questioning the constitutionality of modern marriage law today, the Supreme Court recognized that the government has limited authority to interfere with civil rights.

The court also emphasized that religious institutions would not be forced to modify their positions on gay marriage nor to perform such marriages.

Two criticisms

While the California Supreme Court paved the way for same-sex marriage, it rejected the claim of sex discrimination. This may be seen as a logical error.

A previous decision by the Superior Court had held that the existing marriage law constituted sex discrimination. The Court of Appeal later disagreed, claiming that men and women were treated equally. The Supreme Court agreed with the Court of Appeal in this regard, affirming that “the challenged marriage statutes do not treat men and women differently. Persons of either gender are treated equally and are permitted to marry only a person of the opposite gender.”

But by this logic, old laws against interracial marriage did not discriminate on the basis of race, either. The court addresses this complaint. Past decisions overturning bans on interracial marriage “are clearly distinguishable from this case, because the antimiscegenation statutes at issue in those cases plainly treated members of minority races differently from White persons, prohibiting only intermarriage that involved White persons…”

Essentially, the court is saying that laws against interracial marriage were racist only insofar as they were more restrictive for whites (permitting whites to marry only other whites) and more permissive for people of other races (permitting people of color to marry anyone except whites); secondarily, they were racist because they were derived from a white supremacist agenda.

But if we take the court’s assertion at face value, what is entailed? A law that required everyone to marry within his or her race would not be considered racially discriminatory because people of all races would allegedly be treated “equally” under the law. It might violate some other right, such as the right to marry “the person of one’s choice,” but it could not be “racist”. That seems incorrect. Certainly it would still be racist.

Therefore, the court got that part wrong. Such a law, despite its separate-but-equal pretense, would indeed be a racist law, and in the same vein, a law prohibiting men and women from marrying members of the same sex in a separate-but-equal fashion is a sexist law. That the existing marriage statute “does not treat an individual man or an individual woman differently because of his or her gender,” as the court points out, should not be relevant.

The statute restricts everyone’s behavior on the basis of their genders, and is sexist for that very reason, even though the restriction applies equally to all individuals. Usual understandings of the words “racist” and “sexist” can apply to the separatist treatment of whole groups of people or even of social structures and conventions, not only to the treatment of individuals.

Race is here compared with sex (gender), rather than with sexual orientation, as the court ultimately did when it identified discrimination on the basis of sexual orientation. A second criticism may be made of the court’s comment that the existing marriage statutes “operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation,” the court said, particularly because marrying a member of the opposite sex “would require the negation of the person’s sexual orientation”.

The legal meaning of the “negation” of sexual orientation is unclear. A gay person might well be unhappy, unproductive, even psychologically injured in a heterosexual marriage, but which of these situations is implied by the concept of sexual orientation negation? Was the court trying to open the door for challenges of the restriction of marriage to only two people, on the grounds that monogamous marriages negate polygamous sexual orientations?


Despite these minor logical shortcomings, the court’s opinion is thoroughly researched, predicated on existing cases and clearly written. More importantly, the ruling created equal opportunities for same-sex couples and forbade discrimination against officially recognized families based on the genders of the adult partners. Although the ruling was effectively dormant for nearly five years as a result of the Proposition 8 referendum, it laid the groundwork for the eventual legalization of same-sex marriage in 2013.

The case is titled “In re Marriage Cases,” a consolidation of six appeals. The majority opinion was written by Chief Justice George, with Justices Kennard, Werdegar and Moreno concurring. Justices Baxter, Chin and Corrigan dissented.