Same-Sex Marriage and Unequal Protection in California

In the latest legal development over marriage rights for same sex couples, the California Supreme Court ruling in Strauss v. Horton raises some interesting equal protection issues. The 136-page majority opinion devoted a great deal of discussion to what the Court ruled in the Marriage Cases last May, namely that same-sex couples enjoy the same rights afforded by the state constitutional right to marry as opposite-sex couples.

The Court then shifted its focus to the impact of Proposition 8 passed by California voters last November which added the language to the California Constitution that “Only marriage between a man and a woman is valid or recognized in California.” The 6-1 decision ruled that Proposition 8 was legal. However, the Court ruled that the marriages performed between the court’s previous ruling in May 2008 that same sex marriage was legal and the passage of Proposition 8 in November 2008 were still valid. See pages 128-135 of the Court’s decision for its discussion of retroactivity which let the existing marriages stand. The number of such marriages is estimated to be about 18,000 according a New York Times article.

Ultimately, the Court avoided the issue of separate and not equal regimes for straight and gay couples seeking state recognition of their relationships. Straight people get marriage, gay people get civil unions. Such a dual regime raises serious equal protection issues particularly in light of the Court decision from one year ago in the Marriage Cases which ruled that all Californians are entitled to state recognition of “two adults who share a loving relationship to join together to establish an officially recognized family of their own.” The dissenting opinion of Judge Moreno states the issue clearly when he writes “Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their ‘officially recognized, and protected family relationship’ (maj. opn., ante, at p. 7) a marriage, still denies them equal treatment.”