Same-sex marriage in California

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Same-sex marriage is legal in the U.S. state of California. The state first issued marriage licenses to same-sex couples June 16, 2008 as a result of the Supreme Court of California finding in In re Marriage Cases that barring same-sex couples from marriage violated the state's Constitution. The issuance of such licenses was halted from November 5, 2008 through June 27, 2013 (though existing same-sex marriages continued to be valid) due to the passage of Proposition 8—a state constitutional amendment barring same-sex marriages.[1] The granting of same-sex marriages recommenced following the United States Supreme Court decision in Hollingsworth v. Perry, which restored the effect of a federal district court ruling that overturned Proposition 8 as unconstitutional.

On August 4, 2010, United States District Court Chief Judge Vaughn Walker declared Proposition 8 a violation of the Due Process and Equal Protection clauses of the U.S. Constitution in Perry v. Schwarzenegger, a decision upheld by the Ninth Circuit Court of Appeals on February 7, 2012. The case, known as Perry v. Brown in the Ninth Circuit, was appealed to the U.S. Supreme Court on July 31, 2012.[2] The case was granted review as Hollingsworth v. Perry on December 7, 2012 and a decision was issued on June 26, 2013.[3] The Court decided that the official sponsors of Proposition 8 did not have legal standing to appeal the district court decision when the state's public officials refused to do so.[4] The judgment of the Ninth Circuit was vacated and the case was returned to that Court with instructions to dismiss the Prop 8 sponsors' appeal. On June 28, 2013, a stay of effect was removed from the federal district court decision and same-sex marriages were able to resume. Same-sex couples began marrying later that day.[5]

Before the passage of Proposition 8, California was only the second U.S. state (after Massachusetts) to allow same-sex marriage. Those marriages granted under the laws of other state governments, foreign and domestic, were legally recognized and retained state-level rights since 2008.[6][7]

History[]

See also: History of marriage in California and San Francisco 2004 same-sex weddings

From February 12 to March 11, 2004, under the direction of Mayor Gavin Newsom of San Francisco, officials of the City and County of San Francisco issued marriage licenses to approximately 4,000 same-sex couples despite it being illegal to do so at both the state and federal level. During the month that licenses were issued, couples traveled from all over the United States and from other countries to be married. On August 12, citing the Mayor's lack of authority to bypass state law, the Supreme Court of California ruled that the marriages were void.[8] Consolidated lawsuits against the State Government in favor of same-sex marriage which followed eventually reached the Supreme Court of California. On May 15, 2008, it overturned the state's ban on same-sex marriage with the ruling In re Marriage Cases.[9] The four-to-three decision took effect on June 16, 2008.[10] Two weeks earlier, the initiative to override this result of the court decision qualified for the November election ballot. The Court declined to stay its decision until after the November elections.[11] Some reports suggested that out-of-state same-sex couples would marry in California prior to the 2008 elections because California does not require the marriage to be valid in the couple's home state.

The ballot initiative, Proposition 8, a state constitutional amendment titled Eliminates Right of Same-Sex Couples to Marry Act,[12] appeared on the California general election ballot in November 2008 and passed with a 52% majority.[13][14] Support for Proposition 8 was not uncontroversial, with Mormons and The Church of Jesus Christ of Latter-day Saints donating $20 million to campaign for its passage.[15] As for the opposition, the California Supreme Court heard several challenges to Proposition 8 in March 2009,[16] but ultimately upheld the amendment, though the over 18,000 couples that were married in the time before Proposition 8 was passed remained valid.

In the wake of Proposition 8’s passage, California continued to allow domestic partnership. This granted same-sex couples almost all state-level rights and obligations of marriage[17] but did not apply to "federal-level rights of marriage that cannot be granted by states." Before Proposition 8 passed, UCLA's Williams Institute on Sexual Orientation Law and Public Policy projected in June 2008 that about half of California's more than 100,000 same-sex couples would wed during the next three years and 68,000 out-of-state couples would travel to California to exchange vows.[18]

As of June 2015, same-sex marriages are recognized and performed in California as a result of the Supreme Court’s decision in Obergefell v. Hodges, which overturned all laws prohibiting same-sex marriage on a federal level.[19]

Legislation[]

See also: Same-sex marriage legislation in the United States

AB 607[]

From the enactment of legislation in 1971 to replace gendered pronouns with gender-neutral pronouns, until 1977, California Civil Code § 4100 defined marriage as "a personal relation arising out of a civil contract, to which the consent of the parties capable of making that contract is necessary." This definition was uniformly interpreted as including only opposite-sex partners, but, because of worries that the language was unclear, Assembly Bill No. 607, authored by Assemblyman Bruce Nestande, was proposed and later passed to "prohibit persons of the same sex from entering lawful marriage."

Fears that the Civil Code would allow marriage between parties of the same sex had arisen due to a couple in Orange County who sought a marriage license post the passage of the Consenting Adult Sex Bill which repealed the criminality of homosexuality in California (effective 1976). While the 1971 legislation which had made nuptial references gender-neutral, the Orange County Clerks Association submitted a call to then-Assemblymember Bruce Nestande to clarify the law as it pertained to same-sex couples. The act amended the Civil Code to define marriage as "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."

Opponents of the bill included Assemblyman Willie Brown (who authored the repeal of California's sodomy law in 1975) and Senator Milton Marks. The bill passed 23-5 in the state Senate and 68-2 in the Assembly. It was signed on August 17, 1977 by Governor Jerry Brown.[20][21][22] Since 1994, this language is found in § 300 of the Family Code, which in 2015 was repealed.

AB 167[]

AB 167, authored by Assemblyman John Burton, would've deleted gender requirements enacted in 1977. It failed to garner enough votes for passages and died in the Assembly.[23]

Proposition 22 (2000)[]

Main article: California Proposition 22 (2000)

Following Senator Knight's failure to pass the California Defense of Marriage Act on two different occasions in the Legislature, Prop 22 was created as an initiative statute to add section 308.5 to the Family Code these two bills being: AB 1982 (1995) and SB 911(1997).[24]

Similar legislation included SB 2075 (Haynes, 1996) and AB 800 (Margett). Both proposals never saw passage.[25]

In the March 7, 2000 primary election, Proposition 22 was adopted by a vote of 61.4% to 38%, thus adding § 308.5 to the Family Code, largely replicating the 1977 enactment. The one-sentence code section explicitly defined the union of a man and a woman as the only valid or recognizable form of marriage in the State of California. Proposition 22 was authored by State Senator William J. Knight, and the measure was dubbed the "Knight initiative" in an attempt to link it to the failed "Briggs Initiative" (Proposition 6 of 1978) that would have banned gays and lesbians from working as teachers in California's public schools. The California Supreme Court invalidated the results of Proposition 22 in 2008.

Proposition 22 was formally cited as The California Defense of Marriage Act.[26]

Legislative action on same-sex marriage[]

When California State Legislature opened the 2005-2006 session, Assembly member Mark Leno introduced Assembly Bill 19 (AB 19), which proposed legalizing same-sex marriage. The bill gained the support of then-Speaker Fabian Núñez among others.[27] Leno had introduced a similar bill in the prior session, but it died in committee.[28] Assembly committees reported out Assembly Bill 19 favorably, but the measure failed on the Assembly floor on June 2, 2005.[27] Later that month, Assembly member Patty Berg amended the text of her fisheries-research measure, Assembly Bill 849 (AB 849), which was already in the Senate, to the text of Leno's failed bill.[29][30]

On September 2, 2005, the California Senate approved the bill 21-15 and on September 6, the California State Assembly followed suit with a vote of 41-35, making California's Legislature the first in the nation to approve a same-sex marriage bill without court pressure. The next day, September 7, Governor Arnold Schwarzenegger indicated he would veto the bill, citing Proposition 22, which had passed with the approval of a majority of voters five years earlier. Like the statutes amended by AB 849, Prop 22 prohibited the state from recognizing same-sex marriages, but as an initiative statute, it was not affected by AB 849. The Legislature avoided physically delivering the bill to the Governor for over two weeks, during which time advocacy groups urged Schwarzenegger to change his mind. Ultimately, the bill was delivered on September 23 and vetoed on September 29, 2005.[31] Schwarzenegger stated he believed that same-sex marriage should be settled by the courts or another vote by the people via a statewide initiative or referendum.[32][33] He argued that the Legislature's bill simply complicated the issue, as the constitutionality of Proposition 22 had not yet been determined, and its ultimate disposition would render AB 849 either unconstitutional (being in conflict with a valid voter initiative) or redundant (being guaranteed by the California Constitution itself, as construed by the courts).[34]

Shortly after the newly elected Assembly was sworn in, Leno resubmitted a similar bill on December 4, 2006.[35] AB 43 was passed by the Legislature in early September 2007, giving the Governor until October 14, 2007, to either sign or veto the bill.[36] Schwarzenegger had stated months before that he would veto AB 43 on the grounds that the issue at hand had already been voted on by California by way of Proposition 22.[37] The Governor followed through on his statement and on October 12, 2007, he vetoed AB 43. Schwarzenegger wrote in his veto statement that to solve the issue of gender-neutral marriage, the California Supreme Court needed to finish its rule on the challenge which had been made to Proposition 22.[38]

Proposition 8 (2008)[]

Main article: California Proposition 8 (2008)

Months before the State Supreme Court's ruling, groups who opposed same-sex marriage began circulating initiative petitions. One petition, #07-0068 (titled the "California Marriage Protection Act" by its proponents and the "Limit on Marriage" amendment by the California Attorney General on the actual ballot) gathered an estimated 764,063 valid signatures and qualified for the November 4, 2008 ballot as Proposition 8.[13] The measure added § 7.5 to Article I of the California Constitution to replace the newly unenforceable Family Code § 308.5. It superseded the part of the Supreme Court's holding that authorized the granting of marriage licenses to same-sex couples. Twelve other proposed amendments since 2004 had failed to qualify to be on the ballot.[39] The ability of the voters to remove a fundamental constitutional right by initiative amendment was challenged.[40] A lawsuit filed on those grounds asking for the removal of Proposition 8 from the ballot was dismissed on July 16, 2008.

On the day after the election, the results remained uncertified. With 100% of precincts reporting, the vote was 52.47% in favor of Proposition 8 and 47.53% opposed, with a difference of about 504,000 votes;[41] as many as 3 million absentee and provisional ballots remained to be counted.[42] The organizers of the "No on Prop 8" campaign conceded defeat on Thursday, November 6, issuing a statement saying, "Tuesday's vote was deeply disappointing to all who believe in equal treatment under the law."[43]

On Wednesday, November 5, 2008, three lawsuits were filed, challenging the validity of Proposition 8 on the grounds that revoking the right of same-sex couples to marry was a constitutional "revision" rather than an "amendment", and therefore required the prior approval of two-thirds of each house of the California State Legislature. Plaintiffs in the various suits included same-sex couples who had married or planned to marry, the cities of San Francisco and Los Angeles and the county of Santa Clara.[44] The California Supreme Court heard several challenges to Proposition 8 and on May 26, 2009, upheld the proposition but did not overturn previous same-sex marriages which occurred following their ruling in June 2008 and before the day following the November 4 election.

Same-sex marriage supporters considered trying to get another ballot initiative to repeal Proposition 8 on the ballot in the 2012 election, but decided to wait.[45] To this day, Proposition 8 remains part of the California Constitution despite its unconstitutionality.

The Marriage Recognition and Family Protection Act[]

On October 12, 2009, following the passage of Proposition 8, Governor Arnold Schwarzenegger signed into law The Marriage Recognition and Family Protection Act (SB 54), legislation proposed by State Senator Mark Leno.[46][47] The bill established that some of the same-sex marriages performed outside the state are also recognized by the state of California as "marriage", depending on the date of the union.[48]

After the California Supreme Court challenge following the passage of Proposition 8, the California Supreme Court justices affirmed that all same-sex marriages performed in California before the passage of Proposition 8 continued to be valid and recognized as "marriage". The Marriage Recognition and Family Protection Act also established that a same-sex marriage performed outside the state is recognized as "marriage" if it occurred before Proposition 8 took effect. This category also includes same-sex marriages performed before same-sex marriage became legal in California.[6] It also mandates the full legal recognition of same-sex marriages lawfully performed outside of California after the passage of Proposition 8, with the sole exception that the relationship cannot be designated with the word "marriage".[49] The law provides no label to be used in place of "marriage" to describe these relationships; they are not "domestic partnerships".[6] The resumption of same-sex marriage in California on June 28, 2013 effectively supersedes this law with respect to out-of-state same-sex marriages.

SB 1306 (2014)[]

Introduced by Senator Mark Leno on February 21, 2014, SB 1306 repealed Sections 300 (AB 607, 1977), 308 (The Marriage Recognition and Family Protection Act, author by Sen. Leno), 308.5 (Prop 22, California Defense of Marriage Act) of the Family Code, and amended Section 300 to be gender-neutral among other sections as well.[50] The legislation removed the statutory reference to marriage as a union "between a man and a woman" from the states' Family Code and updated the law with gender-neutral terms to apply to same-sex marriages as well as heterosexual ones.[51]

During its passage, some concern was expressed that, by repealing the California Defense of Marriage Act, SB 1306 breached the separation of powers as the Legislature would be repealing an initiative passed by the voters. However, the consensus of the Assembly Judiciary Committee was that the voters are no more able to pass an unconstitutional, and subsequently enjoined, statute anymore than the Legislature can. In light of In Re Marriage Cases and Hollingsworth v. Perry, which collectively forbade the enforcement of any law which would prohibit same-sex couples from marrying, it was determined by the Assembly Judiciary Committee that the Legislature has the capacity to repeal enjoined statutes.

SB 1306 was approved by the Senate Judiciary Committee 5-2 on April 8, 2014. On May 1, 2014, the California State Senate passed the bill on a 25-10 vote.[52] On June 30, SB 1306 passed the Assembly, in a 51-11 vote.[53] It was signed by the Governor on July 7, 2014 and took effect on January 1, 2015.[51][54] The statute definition of marriage in California is now the following:[55]

Marriage is a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary.

SB 1005 (2016)[]

In April 2016, the state Senate voted 34-2 to approve SB 1005, a bill introduced by Senator Hannah-Beth Jackson that updated California law similarly to SB 1306.[56] The California lower house approved the bill by a vote of 63-1 with amendments. It thus went back to the state Senate, which approved it by a vote of 34-0. The bill became both engrossed and enrolled meaning it passed both houses in the same form. The bill was signed into law by Governor Jerry Brown, and took effect on January 1, 2017.[57]

Court challenges[]

Trial court decision[]

In February 1993, Benjamin and Marcial Cable-McCarthy submitted an application for a marriage license to the Los Angeles County clerk's office, which was rejected. They had previously changed their names to Cable-McCarthy.[58] Their lawsuit against the clerks office, filed in April 1993, was the first case challenging California's laws on same-sex marriage.[59] However, the case was dismissed in 2nd District State Court of Appeal in Los Angeles on May 22, 1993.[60]

In February 2004, litigants filed five civil lawsuits in San Francisco Superior Court and one case in Los Angeles Superior Court. The parties included individuals and organizations opposed to same-sex marriage who sought to stop San Francisco from issuing marriage licenses to same-sex couples. The City and County of San Francisco and numerous individuals sued the state of California seeking to overturn Proposition 22, the existing state law that limited marriage to opposite-sex couples.

Eventually, all six cases were coordinated (In re Marriage Cases) and assigned to San Francisco Superior Court Judge Richard Kramer. On March 14, 2005, Judge Kramer ruled that California statutes limiting marriage to opposite-sex couples were unconstitutional.[61] The court held there was no rational connection between forbidding same-sex marriage and any legitimate state interest and the opposite-sex requirements impermissibly discriminated based on gender.

Appellate court decision[]

The state and organizations opposed to same-sex marriage appealed. Division Three of the First District Court of Appeal held extended oral argument on the cases on July 10, 2006, before a three-judge panel. In a 2-to-1 decision, the appellate court overturned the lower court.[62] Writing for the majority, Presiding Justice William R. McGuiness found: The marriage statutes do not discriminate based on gender; the state's interests in "preserving the traditional definition of marriage" and "carrying out the expressed wishes of a majority of Californians" were sufficient to preserve the existing law; and challenges from the two groups opposed to same-sex marriage had to be dismissed because they lacked standing in any actual controversy on which the court could rule.

The majority emphasized that it was not the role of the court to determine whether the "traditional definition" of marriage should be maintained. "The time may come when California chooses to expand the definition of marriage to encompass same-sex unions," McGuiness writes. "That change must come from democratic processes, however, not by judicial fiat."

In a sharply worded dissent, Justice J. Anthony Kline (Presiding Justice of Division Two, sitting by designation because two Justices had recused themselves) described the court's reasoning as "circular." He wrote that the majority's indifference to the reasons why marriage is a fundamental right unintentionally "diminish the humanity of the lesbians and gay men whose rights are defeated." Both justices in the majority commented at length on Justice Kline's dissent.

Supreme Court of California review[]

Main article: In re Marriage Cases

In November 2006, several parties petitioned the Supreme Court of California to review the decision.[63] Attorney General Bill Lockyer asked the Supreme Court to take up the case.[64] In December 2006, the Supreme Court voted unanimously to review all six cases and held oral argument on March 4, 2008, consolidating the cases as In re Marriage Cases.[63]

On May 15, 2008, the Supreme Court struck down California's existing statutes limiting marriage to opposite-sex couples in a 4-3 ruling.[65] The judicial ruling overturned the one-man, one-woman marriage law which the California Legislature had passed in 1977 and Proposition 22. After the ruling, Governor Arnold Schwarzenegger issued a statement repeating his pledge to oppose Proposition 8, the ballot initiative that would override the ruling.

The opinion, written by Chief Justice Ronald M. George, cited the Court's 1948 decision in Perez v. Sharp where the state's interracial marriage ban was held unconstitutional. It found that "equal respect and dignity" of marriage is a "basic civil right" that cannot be withheld from same-sex couples, that sexual orientation is a protected class like race and gender, and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of the California State Constitution. Associate Justices Joyce L. Kennard, Kathryn Werdegar, and Carlos R. Moreno concurred.[9] It is the first state high court in the country to do so.[66] The Massachusetts State Supreme Court, by contrast, did not find sexual orientation to be a protected class, and instead voided its same-sex marriage ban on rational basis review.[67]

After the announcement, the Advocates for Faith and Freedom and the Alliance Defense Fund, inter alia, asked for a stay of the ruling. In a one-page order on June 4, 2008, the court denied all petitions for rehearing or to reconsider the May 15 ruling and rejected moves to delay enforcement of the decision until after the November election, when Californians voted on a constitutional amendment to overturn the decision. As a result, same-sex marriages took place starting in mid-June. Chief Justice Ronald George and Justices Joyce Kennard, Kathryn Mickle Werdegar and Carlos Moreno, voted for the resolution, while dissenting or voting to reconsider the judgment, were Justices Marvin Baxter, Ming Chin and Carol Corrigan.[68] The order stated, "The decision filed on May 15, 2008, will become final on June 16, 2008, at 5 p.m."[10] San Francisco Mayor Gavin Newsom announced that marriages would be held "5:01" on June 16.[69][70] The final stage of the case was the issuance of a writ of mandate by the Superior Court to the Registrar of Vital Statistics on June 19, 2008.[71]

Legal challenges to Proposition 8[]

See also: Strauss v. Horton and Perry v. Schwarzenegger

On June 20, 2008, gay rights groups filed suit before the California Supreme Court seeking to remove the initiative from the November ballot; their lawsuit was later dismissed on July 16, 2008.[72] They argued that the changes would constitute a revision to the California Constitution, which requires a two-thirds vote of the Legislature before being placed before voters, rather than a mere amendment, which does not require involvement by the Legislature. They further argued that the original petitions, which were circulated before the May 15 court decision, were misleading because the petitions said the initiative would not change the marriage laws and would have no fiscal impact.[73][74]

Prior to the election date, backers of the proposition also filed a lawsuit after state Attorney General Jerry Brown changed the title of the Proposition 8 initiative from "Limit on Marriage" to "Eliminates the Right of Same-Sex Couples to Marry".[75] On August 8, 2008, Superior Court Judge Timothy Frawley ruled that "The Attorney General did not abuse his discretion in concluding that the chief purpose and effect of the initiative is to eliminate the right of same-sex couples to marry", so the new name would appear on the ballots.[76]

On the day of the Strauss v. Horton decision–in which the California State Supreme Court upheld Proposition 8 as a lawful amendment of the state Constitution–the American Foundation for Equal Rights (AFER) filed suit in the U.S. District Court for the Northern District of California to challenge the validity of Proposition 8 under the U.S. Constitution in a case known as Perry v. Schwarzenegger. Judge Vaughn R. Walker ordered a full trial which began in January 2010. It addressed questions as wide-ranging as whether being gay diminishes one's contribution to society, affects one's ability to raise children, impairs judgment, or constitutes a mental disorder.[77] Judge Walker ruled that Proposition 8 was unconstitutional, violating both the Due Process and Equal Protection clauses of the U.S. Constitution, and on August 12, 2010, had scheduled to deny a motion to stay the ruling throughout the appeals process. On August 16, 2010, Ninth Circuit Court of Appeals granted the motion to stay, ordered expedited briefing on the merits of the appeal, and directed the parties to brief the issue of why the appeal should not be dismissed for lack of standing.[78] On August 17, 2010, the same Ninth Circuit panel ordered expedited briefing on the Imperial County appeal.[79] The court also ordered both appeals calendared for oral argument during the week of December 6, 2010, in San Francisco. On June 26, 2013, the U.S. Supreme Court found that the Proposition 8 supporters did not have standing for their appeal, and thus ordered the Ninth Circuit to void their ruling, leaving Walker's decision standing.[80] Kristin Perry and Sandra Stier, two of the plaintiffs in Perry v. Schwarzenegger, were married shortly afterward, making them the first same-sex couple to be married in California since Proposition 8 was overturned.[81]

Further legal challenges to the scope of the injunction barring enforcement of Proposition 8[]

Proposition 8 proponents argued that the district court's injunction is applicable only to the two couples who are the plaintiffs in the case or, at most, applies to the two counties whose clerks were named as defendants. Then-California Attorney General Kamala Harris, however, issued an analysis that the district court's injunction applies statewide and binds upon all 58 of California's counties based on the interpretation of California Supreme Court's decision in Lockyer v. City and County of San Francisco,[82] stating that county clerks are state officials under supervision of Department of Public Health for the limited purpose of issuing marriage licenses and are thus bound by the injunction. Governor Brown then directed all county clerks to comply with district court ruling.[83]

On July 12, 2013, Proposition 8 proponents petitioned California Supreme Court in case Hollingsworth v. O'Connell (CA S.Ct docket: S211990), invoking court's original jurisdiction under Article VI §10 of the California Constitution, asking the CA Supreme Court to issue a writ of mandate and immediate stay or injunction ordering county clerks to enforce Proposition 8. Arguing that the district court lacks authority to grant relief beyond the named plaintiffs or, even if the district court has such authority, its injunction only binds to two county clerks who are named defendants. They also argue that Article III §3.5 of California Constitution prohibits Administrative officials from declaring a law unconstitutional or unenforceable or refuse to enforce the law unless an appellate court has made such determination. Since US Supreme Court's ruling in Hollingsworth v. Perry held that Proposition 8 proponents lack legal standing to appeal district court's decision, the decision of the Court of Appeal for the Ninth Circuit was vacated with no legal effect or precedent.

California Supreme Court ordered to parties to brief on the merits and whether the stay should be issued[84] and on July 15, it denied the application for stay.[85] On July 19, San Diego County Clerk Ernest J. Dronenburg Jr. filed a petition [Dronenburg v. Brown (CA S.Ct docket: S212172)] asking for the California Supreme Court halt the issuance of marriage license to same-sex couples and application to stay during litigation which the court denied on July 23.[86] He later withdrew his petition on August 2.[87] On August 14, 2013, the Supreme Court denied the petition for a writ of mandate.[88] The last attempt to resume Proposition 8 failed and the case is to be considered closed.[89]

Legality of 2004 San Francisco marriages[]

City officials in San Francisco claimed that although the 2004 marriages were prohibited by state law, the state law was invalidated by the Equal Protection Clause. The Mayor echoed this view, permitting the marriages because he believed the state law was unconstitutional. However, legislators and groups opposing same-sex marriages quickly reacted, filing a suit and requesting a court order to prevent the city from performing the ceremonies. Additionally, the California state agency that records marriages stated that altered forms, including any marriage licenses issued to same-sex couples, would not be registered. The legal validity of the marriages was tested in the courts, and the marriages were ultimately voided by the state Supreme Court.

Officials in Berkeley and Oakland, in nearby Alameda County, expressed interest in joining San Francisco,[90][91] but were unable to do so because marriage licenses are handled at a county, rather than at a city, level. San Francisco was able to issue its own licenses because San Francisco is both a city and a county.

Marriage statistics[]

Example of same-sex marriage license issued in San Francisco.

Marriage licenses were issued to 4,037 same-sex couples in 2004 before the state Supreme Court issued its stay.[92] During the same period, the San Francisco City Hall issued 103 opposite-sex marriage licenses.

Of those same-sex marriage licenses issued, 82 couples either decided not to go through with a marriage or failed to register their marriage with the county before the state Supreme Court stay was issued, meaning 3,955 completed same-sex marriages were registered in the county.[93]

By reviewing first names of applicants, San Francisco officials estimated that 57% of the same-sex married couples were women. Demographic information gleaned from the registered licenses also shows the newlywed same-sex couples were older: More than 74% were over age 35, while 69% had at least one college degree.[92]

According to figures released March 17, 2004 by San Francisco County Assessor Mabel Teng, although 91.4% of the licenses were granted to couples living in California, other couples came from every state in the United States except for Maine, Mississippi, West Virginia and Wyoming.[92]

Of the other states, the top five states represented included 32 couples each from Washington and Oregon, 24 from Nevada, 20 from New York and 16 from Florida. International same-sex couples, 17 in all, came from Canada, Denmark, France, Germany, the Netherlands, Switzerland, Thailand, the United Kingdom and Venezuela.

Public opinion[]

Public opinion for same-sex marriage in California
Poll source Date(s)
administered 		Sample
size 		Margin of
error 		% support % opposition % no opinion
Public Religion Research Institute April 5-December 23, 2017 7,260 ? 66% 23% 11%
Public Religion Research Institute May 18, 2016-January 10, 2017 9,640 ? 66% 24% 10%
Public Religion Research Institute April 29, 2015-January 7, 2016 7,671 ? 60% 30% 9%
Edison Research November 4, 2014 ? ? 61% 35% 4%
Public Policy Institute of California October 12–19, 2014 1,704 adult residents ± 3.5% 56% 36% 8%
New York Times/CBS News/YouGov September 20 – October 1, 2014 7,943 likely voters ± 1.6% 58% 32% 12%
Public Religion Research Institute April 2, 2014-January 4, 2015 4,506 ? 61% 31% 8%
Public Religion Research Institute November 12 – December 18, 2013 408 ± 5.6% 59% 37% 5%
Public Policy Institute of California September 10–17, 2013 1,703 adult residents ± 3.7% 61% 34% 5%
1,102 likely voters ± 4.5% 64% 32% 4%
Public Policy Institute of California May 14–20, 2013 1,704 adult residents ± 3.8% 56% 38% 6%
1,129 likely voters ± 4.6% 59% 36% 5%
Field Poll February 5–17, 2013 834 adults ± 4.2% 61% 32% 7%
Public Policy Institute of California January 15–22, 2013 1,704 adult residents ± 3.5% 53% 41% 6%
1,116 likely voters ± 4.2% 54% 40% 5%
Public Policy Institute of California May 14–20, 2012 894 likely voters ± 3.5% 56% 37% 7%
Public Policy Institute of California February 21–28, 2012 2,001 adult residents ± 3.4% 52% 41% 6%
859 likely voters ± 4.2% 56% 38% 6%
Field Poll February 2–18, 2012 1,003 adults ± 4.5% 59% 34% 7%
Public Policy Polling November 10–13, 2011 500 voters ± 4.4% 48% 43% 9%
Public Policy Institute of California September 6–13, 2011 2,002 adult residents ± 3.6% 53% 42% 5%
958 likely voters ± 4.2% 53% 42% 4%
Public Policy Polling January 28–30, 2011 892 voters ± 3.3% 51% 40% 10%
Public Policy Polling September 14–16, 2010 630 likely voters ± 3.9% 46% 44% 10%
Field Poll June 22 – July 5, 2010 1,390 adults ± 2.8% 51% 42% 7%
Public Policy Institute of California March 9–16, 2010 2,002 adult residents ± 2% 50% 45% 5%
1,102 likely voters ± 3% 49% 45% 6%
Public Policy Institute of California March 10–17, 2009 2,004 adult residents ± 2% 44% 49% 7%
987 likely voters ± 3% 45% 49% 6%
Field Poll February 20 – March 1, 2009 761 adults ± 3.6% 49% 44% 7%
Public Policy Institute of California November 5–16, 2008 2,003 adult residents ± 2% 47% 48% 5%
Public Policy Institute of California October 12–19, 2008 2,004 adult residents ± 2% 44% 50% 6%
Public Policy Institute of California August 12–19, 2008 2,001 adult residents ± 2% 45% 48% 7%
1,047 likely voters ± 3% 47% 47% 6%
Field Poll May 17–26, 2008 1,052 adults ± 3.2% 51% 42% 7%
Public Policy Institute of California June 12–19, 2007 2,003 adult residents ± 2% 45% 49% 6%
983 likely voters ± 3% 46% 48% 6%
Public Policy Institute of California September 13–20, 2006 2,003 adult residents ± 2% 44% 48% 8%
1091 likely voters ± 3% 47% 46% 7%
Field Poll February 12–26, 2006 1,000 adults ± 3.2% 43% 51% 6%
Field Poll 2006 ? ? 44% 50% 6%
Public Policy Institute of California August 8 – 15, 2005 2,004 adult residents ± 2% 44% 48% 8%
988 likely voters ± 3% 46% 46% 8%
Field Poll May 18–24, 2004 745 adults ± 5.2% 43% 53% 4%
Field Poll February 18–22, 2004 958 adults ± 3.3% 44% 50% 6%
Public Policy Institute of California February 8–16, 2004 2,004 adult residents ± 2% 44% 50% 6%
1,013 likely voters ± 3% 43% 51% 6%
Field Poll August 10–13, 2003 1,036 adults ± 5.8% 42% 50% 8%
Public Policy Institute of California January 2–10, 2000 1,031 likely voters ± 3.5% 38% 55% 7%
Field Poll February 11–17, 1997 1,045 adults ± 3.3% 38% 56% 6%
Field Poll 1997 ? ? 39% 55% 6%
Field Poll 1985 ? ? 30% 62% 8%
Field Poll 1977 ? ? 28% 59% 13%

Timeline[]

Same-sex couples gather at San Francisco City Hall during Valentine's Day weekend 2004 to apply for marriage licenses.
The line of same-sex couples applying for marriage licenses stretched for blocks around San Francisco's City Hall in February 2004.
A same-sex marriage solemnized in San Francisco City Hall on June 28, 2013, just hours after the Ninth Circuit stay was lifted.
  • February 12, 2004: Recently elected Mayor Gavin Newsom and other city officials began issuing marriage licenses in San Francisco, California. Lesbians Del Martin and Phyllis Lyon were the first same-sex couple to be married. The event was intended to undercut a legal challenge planned by Campaign for California Families (CCF).
  • March 9, 2004: The San Jose City Council, by a vote of 8–1, agreed to recognize same-sex marriages performed in other jurisdictions for city employees.[94]
  • March 11, 2004: The Supreme Court of California, headquartered in San Francisco, issued a stay ordering the County of San Francisco to stop performing same-sex marriages pending court review on the legality of the matter. Mayor Newsom agreed to abide by the order. The ruling did not alter a scheduled March 29 San Francisco Superior Court hearing before Judge Ronald Quidachay in which the Campaign for California Families and the Alliance Defense Fund claimed that San Francisco's granting of same-sex marriage licenses was illegal. Quidachay later delayed the hearing pending state Supreme Court action.[95]
  • May 25, 2004: The state Supreme Court held hearings on the legality of the marriages. San Francisco had wanted its case heard first by lower courts, before juries, rather than by the state Supreme Court. However, the court suggested that San Francisco could file its own suit against the state, and the city launched such a suit that afternoon.[96]
  • August 12, 2004: The state Supreme Court released its decision, exactly six months after the first same-sex marriages were performed in San Francisco. The court ruled unanimously that the City and County of San Francisco exceeded its authority and violated state law by issuing the marriage licenses. In a 5–2 decision, the court also declared all same-sex marriages performed in San Francisco to be void, while expressing no opinion on the constitutionality of marriage restrictions.[97]
  • March 14, 2005: In the case of In re Marriage Cases, trial judge Richard Kramer of San Francisco County Superior Court rules that California's ban on same-sex marriage is unconstitutional.[98]
  • May 15, 2008: The state Supreme Court released its decision in In re Marriage Cases, applying strict scrutiny to the state's discrimination between heterosexual and other citizens, marriage was found to be a fundamental right that may not be denied based on sexual orientation, and the relevant laws were struck down.[99]
  • June 16, 2008: After state offices close for the day at 5:01 p.m., same-sex marriage is legal in California.[100] Counties start issuing marriage licenses to same-sex couples during regular hours on June 17.[101]
  • November 4, 2008: Prop 8 passes.[102] Same-sex marriages stop as of November 5.
  • May 23, 2009: Perry v. Schwarzenegger filed in the U.S. District Court for the Northern District of California to challenge the validity of Proposition 8 on behalf of two same-sex couples.[103]
  • May 26, 2009: The state Supreme Court upheld Proposition 8, but did not overturn previous same-sex marriages.[104]
  • August 4, 2010: U.S. District Judge Vaughn R. Walker declared the ban unconstitutional but stayed his ruling pending appeal.[105]
  • August 5, 2010: Both sides submitted legal briefs to Judge Walker arguing for or against a long-term stay of the ruling.[106]
  • August 7, 2010: California Governor Arnold Schwarzenegger, who had vetoed same-sex marriage legislation on two earlier occasions, and Attorney General Jerry Brown both filed motions with Judge Walker, urging him not to stay his ruling any longer. Lawyers representing Gov. Schwarzenegger wrote, "The Administration believes the public interest is best served by permitting the court's judgment to go into effect, thereby restoring the right of same-sex couples to marry in California".[107]
  • August 12, 2010: Judge Walker scheduled to lift his stay on this date for marriages to resume during the appeals process, instead issues a stay until August 18 to allow opponents to file an appeal with the U.S. Court of Appeals for the Ninth Circuit.[108]
  • November 17, 2011: The California Supreme Court rules, in Perry v. Brown, that sponsors of Proposition 8 have the right to defend the initiative in court, allowing the case to be heard in the Ninth Circuit.[109]
  • February 7, 2012: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit rules, 2–1, that the ban on same-sex marriage in California is unconstitutional.[110] While being carefully stated as pertaining to California only, none-the-less the principle of stare decisis will be cited in attempts in other states to overturn any existing bans. A stay pending an expected appeal accompanied the ruling.[111]
  • June 5, 2012: A request for an en banc rehearing of the February 7 decision is denied.[112]
  • July 31, 2012: Proponents of Proposition 8 file a petition for a writ of certiorari in the U.S. Supreme Court, seeking review of the Ninth Circuit's decision.[2][113][114][115]
  • November 30, 2012: Prop 8, along with seven DOMA & related same-sex marriage cases and petitions, is scheduled for conference by the Supreme Court.
  • December 7, 2012: U.S. Supreme Court agreed to hear challenges to the Ninth Circuit's finding that California's Proposition 8 ban on same-sex marriage is unconstitutional.
  • March 26, 2013: Supreme Court hearing.
  • June 26, 2013: Appeal dismissed by Supreme Court, the appellants being found to lack legal standing under federal law. Ruling of the Ninth Circuit vacated and case remanded to that court with instruction to deny the appeal, leaving the 2010 Walker finding of unconstitutionality the binding decision in the case. The same day the Supreme Court overturned the federal DOMA statute.
  • June 28, 2013: The Ninth Circuit lifts its stay, allowing same-sex marriages to proceed in California.[116] Governor Jerry Brown instructs all California county clerks to immediately begin issuing same-sex marriage licences, and the first same-sex marriages since 2008 are performed.[117]
  • June 29, 2013: Opponents of same-sex marriage file an emergency petition asking the Supreme Court to overturn the lifting of the stay issued by the 9th Circuit Court.[118]
  • June 30, 2013: Supreme Court Justice Anthony Kennedy denies the petition.[119]
  • July 12, 2013: The backers of Proposition 8 petition the California Supreme Court to order its enforcement in the majority of the state's counties, arguing that Judge Walker had no jurisdiction to bar statewide enforcement, that his decision only was binding with respect to either the specific couples involved, or just the two counties in which those couples resided. They argue that California law requires continued enforcement until a ruling of an appeals court, and that of the 9th Circuit Court was vacated by the U.S. Supreme Court.[120][121]
  • July 15, 2013: The California Supreme Court declined to immediately halt same-sex marriages in response to the July 12 petition but announced it would hear briefs on the merits of the argument.[122]
  • July 19, 2013: San Diego County Clerk Ernest J. Dronenburg Jr. petitioned the California Supreme Count to immediately halt same-sex marriages based on arguments similar to those of the July 12 petition.[123]
  • July 23, 2013: The California Supreme Court declined to immediately halt same-sex marriages in response to the July 19 petition.[124]
  • August 2, 2013: Petition in Dronenburg v. Brown to halt the same-sex marriage filed by San Diego County Clerk on July 19 was withdrawn.[87]
  • August 14, 2013: In a one-page order, the California Supreme Court denies a writ of mandate on the July 12 petition without comment, rejecting the last legal challenge to same-sex marriage.[125][126]

See also[]

Footnotes[]

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