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Only marriage between a man and a woman is valid or recognized in California.

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Presentation on theme: "Only marriage between a man and a woman is valid or recognized in California."— Presentation transcript:

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2 Only marriage between a man and a woman is valid or recognized in California.

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6 California Constitution, Art. 1, Declaration of Rights, Section 7.5

7 Only marriage between a man and a woman is valid or recognized in California. California Family Code Section 308.5

8 Pre-1977 California Civil Code: Marriage is a personal relation arising out of a civil contract, to which consent of the parties making that contract is necessary. (Sec )

9 Pre-1977 California law: Baker v. Nelson 1972 case brought by two Minnesota male students suing the state issuer of marriage licenses. U.S. Supreme Courts one-sentence decision dismissed the Baker case for want of a substantial federal question, which acts as a dismissal on the merits.

10 Post-1977 California Civil Code: Marriage is a personal relation arising out of a civil contract between a man and a woman, to which consent of the parties capable of making that contract is necessary. (Sec )

11 Post-1977 California Civil Code: Marriage is a personal relation arising out of a civil contract between a man and a woman, to which consent of the parties capable of making that contract is necessary. (Sec )

12 1992 California Family Code: Marriage is a personal relation arising out of a civil contract between a man and a woman, to which consent of the parties capable of making that contract is necessary. (Sec. 300.)

13 1992 California Family Code: A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state. (Sec. 308.)

14 Only marriage between a man and a woman is valid or recognized in California. California Family Code Section 308.5, Enacted by California voters in March 2000

15 ChoiceVotesPercentage Yes4,618, % No2,909, %

16 February 2004: Mayor Gavin Newsom orders the County Clerk of the City and County of San Francisco to issue newly revised marriage license application forms

17 Groom First Person Bride Second Person

18 February 12, 2004: The City and County of San Francisco begins issuing marriage licenses to same-sex couples

19 February 14, 2004: Proposition 22 Legal Defense and Education Fund and Campaign for California Families, file actions in San Francisco Superior Court seeking an immediate stay to prohibit the City from issuing marriage licenses to same-sex couples.

20 The court refuses to grant a stay.

21 Immediately thereafter: The California Attorney General and a number of taxpayers file two separate petitions seeking to have the California Supreme Court issue an original writ of mandate, asserting that the Citys actions were unlawful and warranted the courts immediate intervention.

22 March 11, 2004: The California Supreme Court orders officials of San Francisco to enforce the existing marriage statutes and to refrain from issuing marriage licenses not authorized by such provisions.

23 However, the California Supreme Court emphasizes that the substantive question of the constitutional validity of the California marriage statutes was not before the court in that proceeding, and that its decision was not intended to reflect any view on that issue.

24 September 2004: Six suits challenging the marriage statutes are consolidated into one case before San Francisco Superior Court Judge Richard Kramer.

25 March 14, 2005: Judge Richard Kramer finds the statutes violate the basic human right to marry a person of ones choice.

26 October 2006: The First District of the Court of Appeal reverses the superior courts ruling on the substantive constitutional issue.

27 December 2006: The California Supreme Court votes unanimously to review all six cases.

28 March 4, 2008: The California Supreme Court holds oral argument on In re Marriage Cases.

29 May 15, 2008: The California Supreme Court rules that Proposition 22 violates the state Constitution and is therefore invalid.

30 Majority opinion: Under this states Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individuals liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.

31 Majority opinion: Under this states Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individuals liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.

32 Majority opinion: Under this states Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individuals liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.

33 Strict scrutiny [...] is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents like gender, race, and religion a constitutionally suspect basis upon which to impose differential treatment, and

34 Strict scrutiny [...] is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents like gender, race, and religion a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couples fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.

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36 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.

37 Justice Baxter, concurring and dissenting: Nothing in our Constitution, express or implicit, compels the majoritys startling conclusion that the age-old understanding of marriagean understanding recently confirmed by an initiative lawis no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.

38 Justice Baxter, concurring and dissenting: Nothing in our Constitution, express or implicit, compels the majoritys startling conclusion that the age-old understanding of marriagean understanding recently confirmed by an initiative lawis no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority.

39 If such a profound change in this ancient social institution is to occur, the People and their representatives, who represent the public conscience, should have the right, and the responsibility, to control the pace of that change through the democratic process. Family Code sections 300 and serve this salutary purpose. The majoritys decision erroneously usurps it.

40 To qualify for the ballot, Proposition 8 needed 694,354 valid petition signatures, equal to 8% of the total votes cast for governor in the November 2006 General Election.

41 April 24, 2008: The initiative proponents submitted 1,120,801 signatures, and on June 2, 2008, the initiative qualified for the November 4, 2008 election ballot.

42 ChoiceVotesPercentage Yes4,618, % No2,909, %

43 ChoiceVotesPercentage Yes7,001, % No6,401, %

44 State Court Challenge ( Strauss v. Horton ) November 19, 2008: California Supreme Court accepts Strauss v. Horton cases. Question: Was Prop 8 merely an amendment (allowing it to be placed on the ballot by 8% of the voters) or was it a constitutional revision (requiring it to be proposed by two-thirds of the legislature and a majority of voters)?

45 State Court Challenge ( Strauss v. Horton ) November 19, 2008: California Supreme Court accepts Strauss v. Horton cases. Question: Was Prop 8 merely an amendment (allowing it to be placed on the ballot by 8% of the voters) or was it a constitutional revision (requiring it to be proposed by two-thirds of the legislature and a majority of voters)? Question: Can an initiative be used to take away fundamental rights?

46 State Court Challenge ( Strauss v. Horton ) May 26, 2009: California Supreme Court decides Strauss v. Horton, rejecting claims that Prop 8 was not validly adopted, but affirming the validity of 18,000 same-sex marriages that had been entered into in California during the five and one-half month period of time between the May 15, 2008 California Supreme Court opinion striking down Proposition 22 and the November 4, 2008 passage of Proposition 8.

47 Federal Court Challenge ( Perry v. Schwarzenegger ) May 23, 2009: Two same-sex couples file suit challenging the constitutionality of Prop 8, arguing it violates both Substantive Due Process and the Equal Protection Guarantee of the 14th Amendment to the U.S. Constitution.

48 Federal Court Challenge ( Perry v. Schwarzenegger ) June 12, 2009: Attorney General Jerry Brown files brief refusing to defend Prop 8. September 9, 2009: Prop 8 supporters file a motion for summary judgment. October 13, 2009: Judge Walker denies the motion. January 11, 2010: Prop 8 trial begins. January 27, 2010: Prop 8 testimony ends. June 16, 2010: Prop 8 trial closing arguments.

49 Federal Court Challenge ( Perry v. Schwarzenegger ) August 4, 2010: U.S. District Chief Judge Vaughn R. Walker overturns Proposition 8, stating (1) it is...unconstitutional under the Due Process Clause because no compelling state interest justifies denying same-sex couples the fundamental right to marry and (2) it violates the Equal Protection Clause because there is no rational basis for limiting the designation of marriage to opposite-sex couples.

50 Federal Court Challenge ( Perry v. Schwarzenegger ) Judge Walker stays his ruling; the voter initiative is to remain in effect pending appeal. Then, on August 12, Walker announces his decision to lift the stay as of August 18, 2010 (which would allow same- sex marriages to be performed thereafter).

51 Federal Court Challenge ( Perry v. Schwarzenegger ) However, on August 16, 2010, the United States Court of Appeals for the Ninth Circuit indefinitely extends the District Courts stay, stopping new same-sex marriages in the state of California pending appeal. It also schedules an accelerated time table for hearing an appeal of Walkers ruling.

52 Federal Court Challenge ( Perry v. Schwarzenegger ) Following briefing of the case, oral arguments are heard on December 6, 2010 by three judges of the United States Court of Appeals for the Ninth Circuit, Stephen Reinhardt, Michael Hawkins, and N. Randy Smith.

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54 Federal Court Challenge ( Perry v. Brown ) One month later, January 4, 2011: The Ninth Circuit certifies a question to the California Supreme Court. Because California officials had declined to defend the law, the federal court has asked the state court to decide whether the backers of the challenged initiative have standing ( i.e., do they have a particularized interest in the initiatives validity or the authority to assert the States interest in the initiatives validity that would permit them to defend the law when state officials refuse to do so?)

55 Federal Court Challenge ( Perry v. Brown ) U.S. District Chief Judge Vaughn R. Walker:

56 Federal Court Challenge ( Perry v. Brown ) September 6, 2011: The California Supreme Court hears oral arguments on the Ninth Circuit Court of Appeals certified question regarding standing.

57 Federal Court Challenge ( Perry v. Brown ) November 11, 2011: The California Supreme Court rules that the non-governmental proponents of Prop 8 do have standing to defend it.

58 Federal Court Challenge ( Perry v. Brown ) February 7, 2012: The three-judge panel of the Ninth Circuit Court of Appeals issues a 2-1 ruling declaring Prop 8 unconstitutional.

59 Federal Court Challenge ( Perry v. Brown ) The three-judge panel unanimously agree that Judge Walker did not need to recuse himself from trying the case.

60 Federal Court Challenge ( Perry v. Brown ) Judge Reinhardt: Although Judge Walker had held that Prop 8 is unconstitutional because it deprives same-sex couples of the fundamental right to marry and violates the Equal Protection Clause by excluding same- sex couples to the honored status otherwise permitted to different-sex couples, the federal appellate court states it will reach its decision on the narrowest ground.

61 Federal Court Challenge ( Perry v. Brown ) Judge Reinhardt: Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, a distinct constitutional violation in that it subjects a minority group to the deprivation of an existing right without a legitimate reason.

62 Federal Court Challenge ( Perry v. Brown ) The People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.

63 Federal Court Challenge ( Perry v. Brown ) Dissenting Judge Smith: The majority dispenses with Baker in a footnote.... [however, even though] the precedential effect of Baker v. Nelson is not challenged by this decision, such precedent is distinguishable from the decision of the district court here.

64 Federal Court Challenge ( Perry v. Brown ) Proposition 8 is subject to rational basis review rather than to any heightened scrutiny.... Our task is to determine whether Proposition 8 rationally relates to any independent legitimate governmental interest....

65 Federal Court Challenge ( Perry v. Brown ) The California Supreme Court [has] indicated that the responsible procreation theory [justifying the inducement of marital recognition only for opposite-sex couples, because it steers procreation into marriage because opposite-sex couples are the only couples who can procreate children accidentally or irresponsibly] is a legitimate governmental interest.

66 Federal Court Challenge ( Perry v. Brown ) The optimal parenting theory [justifying the inducement of marital recognition only for opposite-sex couples, because the family structure of two committed biological parents--one man and one woman--is the optimal partnership for raising children] could conceivably be a legitimate governmental interest.

67 Federal Court Challenge ( Perry v. Brown ) I cannot conclude that Proposition 8 is wholly irrelevant to any legitimate governmental interests.

68 Federal Court Challenge ( Perry v. Brown ) On February 21, 2012, Proposition 8 supporters requested an en banc review by 11 of the Ninth Circuits judges. If the Ninth Circuit refuses, they have the option of asking the U.S. Supreme Court to review the decision. If the Ninth Circuit grants en banc review, its decision could be appealed to the U.S. Supreme Court by an aggrieved party.


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