Filed 5/15/08

IN THE SUPREME COURT OF CALIFORNIA

)
)
) S147999
)
In re MARRIAGE CASES. ) Ct.App. 1/3 Nos. A110449,
) A110450, A110451, A110463,
[Six consolidated appeals.] ) A110651, A110652
)
) San Francisco County
) JCCP No. 4365
)

In Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 (Lockyer), this court concluded that public officials of the City and County of San Francisco acted unlawfully by issuing marriage licenses to same-sex couples in the absence of a judicial determination that the California statutes limiting marriage to a union between a man and a woman are unconstitutional. Our decision in Lockyer emphasized, however, that the substantive question of the constitutional validity of the California marriage statutes was not before this court in that proceeding, and that our decision was not intended to reflect any view on that issue. (Id. at p. 1069; see also id. at p. 1125 (conc. opn. of Moreno, J.); id. at pp. 1132-1133 (conc. & dis. opn. of Kennard, J.); id. at p. 1133 (conc. & dis. opn. of Werdegar, J.).) The present proceeding, involving the consolidated appeal of six cases that were litigated in the superior court and the Court of Appeal in the wake of this court's decision in Lockyer, squarely presents the substantive constitutional question that was not addressed in Lockyer.
In considering this question, we note at the outset that the constitutional issue before us differs in a significant respect from the constitutional issue that has been addressed by a number of other state supreme courts and intermediate appellate courts that recently have had occasion, in interpreting the applicable provisions of their respective state constitutions, to determine the validity of statutory provisions or common law rules limiting marriage to a union of a man and a woman. (See, e.g., Conaway v. Deane (Md. 2007) 932 A.2d 571; Goodridge v. Dept. of Pub. Health (Mass. 2003) 798 N.E.2d 941; Lewis v. Harris (N.J. 2006) 908 A.2d 196; Hernandez v. Robles (N.Y. 2006) 855 N.E.2d 1; Baker v. State (Vt. 1999) 744 A.2d 864; Andersen v. King County (Wn. 2006) 138 P.3d 963; Standhardt v. Superior Court (Ariz.Ct.App. 2003) 77 P.3d 451; Morrison v. Sadler (Ind.Ct.App. 2005) 821 N.E.2d 15.) These courts, often by a one-vote margin (see, post, pp. 114-115, fn. 70), have ruled upon the validity of statutory schemes that contrast with that of California, which in recent years has enacted comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple. Past California cases explain that the constitutional validity of a challenged statute or statutes must be evaluated by taking into consideration all of the relevant statutory provisions that bear upon how the state treats the affected persons with regard to the subject at issue. (See, e.g., Brown v. Merlo (1973) 8 Cal.3d 855, 862.) Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a "marriage" whereas the union of a same-sex couple is officially designated a "domestic partnership." The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.
It also is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution. We are aware, of course, that very strongly held differences of opinion exist on the matter of policy, with those persons who support the inclusion of same-sex unions within the definition of marriage maintaining that it is unfair to same-sex couples and potentially detrimental to the fiscal interests of the state and its economic institutions to reserve the designation of marriage solely for opposite-sex couples, and others asserting that it is vitally important to preserve the long-standing and traditional definition of marriage as a union between a man and a woman, even as the state extends comparable rights and responsibilities to committed same-sex couples. Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions.
As explained hereafter, the determination whether the current California statutory scheme relating to marriage and to registered domestic partnership is constitutionally valid implicates a number of distinct and significant issues under the California Constitution.
First, we must determine the nature and scope of the "right to marry" -- a right that past cases establish as one of the fundamental constitutional rights embodied in the California Constitution. Although, as an historical matter, civil marriage and the rights associated with it traditionally have been afforded only to opposite-sex couples, this court's landmark decision 60 years ago in Perez v. Sharp (1948) 32 Cal.2d 711 -- which found that California's statutory provisions prohibiting interracial marriages were inconsistent with the fundamental constitutional right to marry, notwithstanding the circumstance that statutory prohibitions on interracial marriage had existed since the founding of the state -- makes clear that history alone is not invariably an appropriate guide for determining the meaning and scope of this fundamental constitutional guarantee. The decision in Perez, although rendered by a deeply divided court, is a judicial opinion whose legitimacy and constitutional soundness are by now universally recognized.
As discussed below, upon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), we conclude that, under this state's 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 individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage. As past cases establish, the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own -- and, if the couple chooses, to raise children within that family -- constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.
Furthermore, in contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation, and, more generally, that an individual's sexual orientation -- like a person's race or gender -- does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.
In defending the constitutionality of the current statutory scheme, the Attorney General of California maintains that even if the constitutional right to marry under the California Constitution applies to same-sex couples as well as to opposite-sex couples, this right should not be understood as requiring the Legislature to designate a couple's official family relationship by the term "marriage," as opposed to some other nomenclature. The Attorney General, observing that fundamental constitutional rights generally are defined by substance rather than by form, reasons that so long as the state affords a couple all of the constitutionally protected substantive incidents of marriage, the state does not violate the couple's constitutional right to marry simply by assigning their official relationship a name other than marriage. Because the Attorney General maintains that California's current domestic partnership legislation affords same-sex couples all of the core substantive rights that plausibly may be guaranteed to an individual or couple as elements of the fundamental state constitutional right to marry, the Attorney General concludes that the current California statutory scheme relating to marriage and domestic partnership does not violate the fundamental constitutional right to marry embodied in the California Constitution.
We need not decide in this case whether the name "marriage" is invariably a core element of the state constitutional right to marry so that the state would violate a couple's constitutional right even if -- perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage -- the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples. Under the current statutes, the state has not revised the name of the official family relationship for all couples, but rather has drawn a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership). One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple's right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of "marriage" exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple's constitutional right to marry under the California Constitution.
Furthermore, the circumstance that the current California statutes assign a different name for the official family relationship of same-sex couples as contrasted with the name for the official family relationship of opposite-sex couples raises constitutional concerns not only under the state constitutional right to marry, but also under the state constitutional equal protection clause. In analyzing the validity of this differential treatment under the latter clause, we first must determine which standard of review should be applied to the statutory classification here at issue. Although in most instances the deferential "rational basis" standard of review is applicable in determining whether different treatment accorded by a statutory provision violates the state equal protection clause, a more exacting and rigorous standard of review -- "strict scrutiny" -- is applied when the distinction drawn by a statute rests upon a so-called "suspect classification" or impinges upon a fundamental right. As we shall explain, although we do not agree with the claim advanced by the parties challenging the validity of the current statutory scheme that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender and should be subjected to strict scrutiny on that ground, we conclude that strict scrutiny nonetheless 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 couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.
Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest. Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California's current marriage statutes -- the interest in retaining the traditional and well-established definition of marriage -- cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.
A number of factors lead us to this conclusion. First, 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; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise -- now emphatically rejected by this state -- that gay individuals and same-sex couples are in some respects "second-class citizens" who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.
I
On February 10, 2004, the Mayor of the City and County of San Francisco (City) sent a letter to the county clerk, directing that official to determine what changes should be made to the forms and documents used to apply for and issue marriage licenses, so that licenses could be provided to couples without regard to their gender or sexual orientation. In response, the county clerk designed revised forms for the marriage license application and for the license and certificate of marriage, and on February 12, 2004, the City began issuing marriage licenses to same-sex couples.
The following day, two separate actions were filed in San Francisco Superior Court seeking an immediate stay as well as writ relief, to prohibit the City's issuance of marriage licenses to same-sex couples. (Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco (Super. Ct. S.F. City & County, No. CPF-04-503943) (hereafter Proposition 22 Legal Defense Fund); Thomasson v. Newsom (Super. Ct. S.F. City & County, No. CGC-04-428794) (subsequently retitled as Campaign for California Families v. Newsom, and hereafter referred to as Campaign).) As noted, the Proposition 22 Legal Defense Fund and the Campaign actions are two of the six cases whose consolidated appeals are before us in the present proceeding. (Ante, p. 1, fn. 1.)
After the superior court declined to grant an immediate stay in the Proposition 22 Legal Defense Fund and the Campaign actions and the City continued to issue marriage licenses to, and solemnize and register marriages of, numerous same-sex couples, the California Attorney General and a number of taxpayers filed two separate petitions seeking to have this court issue an original writ of mandate, asserting that the City's actions were unlawful and warranted our immediate intervention. (Lockyer v. City and County of San Francisco, S122923; Lewis v. Alfaro, S122865.) On March 11, 2004, we issued an order to show cause in those original writ proceedings, and, pending our determination of both matters, directed City officials to enforce the existing marriage statutes and to refrain from issuing marriage licenses not authorized by such provisions. In addition, our March 11 order stayed all proceedings in the two cases then pending in San Francisco Superior Court (the Proposition 22 Legal Defense Fund and the Campaign actions), but at the same time indicated that the stay did not preclude the filing of a separate action in superior court raising a direct challenge to the constitutionality of California's current marriage statutes. (Lockyer, supra, 33 Cal.4th 1055, 1073-1074.)
Shortly after our March 11, 2004, order was issued, and while the consolidated Lockyer cases still were pending in this court, the City filed a writ petition and complaint for declaratory relief in superior court, seeking a declaration that (1) Family Code section 308.5 -- an initiative statute proposed by Proposition 22 and enacted by the voters -- does not apply to marriages solemnized in the State of California, and that (2) in any event, all California statutory provisions limiting marriage to unions between a man and a woman violate the California Constitution. (City and County of San Francisco v. State of California (Super. Ct. S.F. City & County, No. CGC-04-429539 (CCSF).) Thereafter, two similar actions challenging the constitutionality of California's current marriage statutes were filed by a number of same-sex couples who maintain either that they are involved in committed relationships but are not permitted to marry in California, or that their out-of-state marriages are not recognized under California law. Several statewide organizations representing many thousands of same-sex couples joined as plaintiffs in these actions. (Woo v. Lockyer (Super. Ct. S.F. City & County, No. CPF-04-504038) (Woo); Tyler v. County of Los Angeles (Super. Ct. L.A. County, No. BS-088506) (Tyler).)
According to declarations filed in the trial court, the named same-sex couples who are parties to these actions embody a diverse group of individuals who range from 30 years of age to more than 80 years of age, who come from various racial and ethnic backgrounds, and who are employed in (or have retired from) a wide variety of occupations, including pharmacist, military serviceman, teacher, hospital administrator, and transportation manager. Many of the couples have been together for well over a decade and one couple, Phyllis Lyon and Del Martin, who are in their eighties, have resided together as a couple for more than 50 years. Many of the couples are raising children together.
Subsequently, the CCSF, Woo, and Tyler actions, along with the previously filed Proposition 22 Legal Defense Fund and Campaign actions, were coordinated, by order of a judge appointed by the Chair of the Judicial Council, into a single proceeding entitled In re Marriage Cases (JCCP No. 4365, hereafter referred to as the Marriage Cases). (Code Civ. Proc., § 404 et seq.) That coordination proceeding was assigned to San Francisco Superior Court Judge Richard A. Kramer. A sixth action (Clinton v. State of California (Super. Ct. S.F. City & County, No. CGC-04-429548) (Clinton)), filed by a separate group of same-sex couples who similarly challenged the constitutionality of the current marriage statutes, later was added to the Marriage Cases coordination proceeding.
On August 12, 2004, while the Marriage Cases coordination proceeding was pending in the superior court, our court rendered its decision in Lockyer, supra, 33 Cal.4th 1055, concluding that the City officials had exceeded their authority in issuing marriage licenses to same-sex couples in the absence of a judicial determination that the statutory provisions limiting marriage to the union of a man and a woman are unconstitutional, and further concluding that the approximately 4,000 same-sex marriages performed in San Francisco prior to our March 11, 2004, order were void and of no legal effect. In light of these conclusions, we issued a writ of mandate compelling the City officials to comply with the requirements and limitations of the current marriage statutes in performing their duties under these statutes, and directing the officials to notify all same-sex couples to whom the officials had issued marriage licenses or registered marriage certificates that these same-sex marriages were void from their inception and a legal nullity. (Lockyer, supra, 33 Cal.4th at p. 1120.) Although we concluded in Lockyer that the City officials had acted unlawfully and that the same-sex marriages they had authorized were void, as already noted our opinion made clear that the substantive question of the constitutionality of California's statutory provisions limiting marriage to a man and a woman was not before us in the Lockyer proceeding and that we were expressing no opinion on this issue. (Id., at p. 1069; see also id. at p. 1125 (conc. opn. of Moreno, J.); id. at pp. 1132-1133 (conc. & dis. opn. of Kennard, J.); id. at p. 1133 (conc. & dis. opn. of Werdegar, J.).)
After the issuance of our decision in Lockyer, supra, 33 Cal.4th 1055, the superior court in the coordination matter proceeded expeditiously to solicit briefing and conduct a hearing on the validity, under the California Constitution, of California's statutes limiting marriage to a man and a woman. On April 13, 2005, the superior court issued its decision on this substantive constitutional question. Although plaintiffs argued that the statutes limiting marriage to a union of a man and a woman violated a number of provisions of the California Constitution -- including the fundamental right to marry protected by the due process and privacy provisions of the California Constitution and the equal protection clause of that Constitution --the superior court confined its decision to the challenge that was based upon the equal protection clause. In analyzing the equal protection claim, the superior court determined that the statutes limiting marriage in California to opposite-sex couples properly must be evaluated under the strict scrutiny equal protection standard, because those statutory enactments rest upon a suspect classification (sex) and impinge upon a fundamental constitutional right (the right to marry). The court considered the various state interests and justifications proffered in support of those enactments, ultimately concluding that the statutory limitation of marriage to the union of a man and a woman not only does not satisfy the strict scrutiny standard, but also does not meet the more deferential rational basis test because, in the superior court's view, the differential treatment mandated by the statute does not further any legitimate state interest. In light of this conclusion, the court held that California's current marriage statutes are unconstitutional under the state Constitution insofar as they limit marriage to opposite-sex couples. The superior court entered judgment in favor of plaintiffs in each of the coordinated cases.
On appeal, the Court of Appeal, in a two-to-one decision, reversed the superior court's ruling on the substantive constitutional issue, disagreeing in a number of significant respects with the lower court's analysis of the equal protection issue. (Maj. opn. of McGuiness, P.J., joined by Parrilli, J.) First, the majority opinion in the Court of Appeal concluded the superior court erred in finding that the statutory provisions at issue impinge upon the fundamental constitutional right to marry, determining that this right properly should be interpreted to encompass only the right to marry a person of the opposite sex and that the constitutional right that plaintiffs actually sought to enforce is a right to same-sex marriage -- a right that the Court of Appeal majority found lacking in any historical or precedential support. Second, the Court of Appeal majority rejected the superior court's conclusion that the California marriage statutes discriminate on the suspect basis of sex and for this reason are subject to strict scrutiny review, relying upon the circumstance that the statutes do not discriminate against either men or women or treat either of the genders differently from the other, but rather permit members of either gender to marry only a person of the opposite gender. Third, although the Court of Appeal majority found that California's marriage statutes realistically must be viewed as providing differential treatment on the basis of sexual orientation, the majority went on to hold that sexual orientation does not constitute a suspect classification for purposes of the state equal protection clause. The majority thus concluded that, contrary to the superior court's determination, the marriage statutes are not subject to strict scrutiny review but rather must be evaluated only under the deferential rational basis standard. Finally, applying that standard, the majority disagreed with the superior court and found that the marriage statutes' limitation of marriage to opposite-sex couples survives rational basis review, reasoning that the state has a legitimate interest in preserving the traditional definition of marriage and that the statute's classifications are rationally related to that interest. Accordingly, the Court of Appeal majority concluded that the superior court erred in finding the marriage statutes unconstitutional.
One of the appellate justices who joined the majority opinion also wrote a concurring opinion, addressing what her opinion described as "more philosophical questions presented by the challenging issues before us." (Conc. opn. of Parrilli, J.) The concurring justice observed that in her view, the domestic partnership legislation "seems to recognize that at this stage, we do not know whether the state must name and privilege same-sex unions in exactly the same way traditional marriages are supported. The nuance at this moment in history is that the institution (marriage) and emerging institution (same-sex partnerships) are distinct and, we hope, equal. We hope they are equal because of the great consequences attached to each. Childrearing and passing on culture and traditions are potential consequences of each. To the degree that any committed relationship provides love and security, encourages fidelity, and creates a supportive environment for children it is entitled to respect. Whether it must be called the same, or supported by the state as equal to the traditional model, only time and patient attention to the models at issue will tell." Agreeing with the majority opinion, the concurring justice concluded that "[i]t is the legitimate business of the Legislature to attempt to close the distance between the parallel institutions (marriage and same-sex committed domestic partnerships) as they develop, and to address such concerns."
The third appellate court justice dissented from the majority's determination that the marriage statutes do not violate the California Constitution. (Conc. & dis. opn. of Kline, J.) The dissenting justice (1) disagreed with the majority's conclusion that the same-sex couples challenging the marriage statutes are seeking recognition of a novel constitutional right to "same-sex marriage" rather than simply the application of an established fundamental constitutional right to marry a person of one's choice, (2) explained why, in his view, sexual orientation should be considered a suspect classification for purposes of equal protection principles, and (3) finally concluded that the challenged statutory restriction limiting marriage to opposite-sex couples "has no rational basis, let alone a compelling justification."
In light of the importance of the substantive constitutional issues presented, we granted review.
II
Before beginning our discussion of the significant constitutional issues presented by this case, we briefly address a much more limited procedural point relating only to the Proposition 22 Legal Defense Fund and the Campaign proceedings -- the two actions that were filed immediately after San Francisco officials began issuing marriage licenses to same-sex couples and that were stayed by our court during the pendency of the Lockyer proceeding. The Court of Appeal concluded that although these two cases presented justiciable actions when they were initially filed, once this court issued its decision in Lockyer, supra, 33 Cal.4th 1055, these actions no longer presented justiciable controversies, because this court's decision in Lockyer effectively granted all of the relief to which the parties in those actions were entitled (including the prohibition of any continued illegal expenditure of public funds). Accordingly, the Court of Appeal determined that the superior court erred in failing, at that juncture, to dismiss these two actions as moot. Although the Fund and the Campaign take issue with the Court of Appeal's conclusion on this point, we agree with that determination.
In challenging this aspect of the Court of Appeal's ruling, the Fund maintains that notwithstanding this court's decision in Lockyer, the superior court properly could find that, because there is a continuing dispute between the Fund and the City over the scope and constitutionality of Family Code section 308.5 (the initiative statute adopted by the voters' approval of Proposition 22 in March 2000), the Proposition 22 Legal Defense Fund action constitutes a permissible vehicle by which under Code of Civil Procedure section 1060 the Fund can seek and obtain a declaratory judgment against the City with regard to that legal question. Past California decisions establish, however, that notwithstanding an advocacy group's strong political or ideological support of a statute or ordinance -- and its disagreement with those who question or challenge the validity of the legislation -- such a disagreement does not in itself afford the group the right to intervene formally in an action challenging the validity of the measure. (See, e.g., Socialist Workers etc. Committee v. Brown (1975) 53 Cal.App.3d 879, 891-892 [holding trial court did not err in rejecting Common Cause's request to intervene in action challenging statutes requiring disclosure of campaign contributions]; People ex rel. Rominger v. County of Trinity (1983) 147 Cal.App.3d 655, 662 [rejecting Sierra Club's claim that its strong interest in the enforcement of county's environmental laws was itself sufficient to afford it standing to intervene in action challenging the validity of an ordinance prohibiting the spraying of a specified chemical].) For similar reasons, we agree with the Court of Appeal that, absent a showing by the Fund that it possesses a direct legal interest that will be injured or adversely affected (which the Fund acknowledges has not been established here), the Fund's strong ideological disagreement with the City's views regarding the scope or constitutionality of Proposition 22 is not sufficient to afford standing to the Fund to maintain a lawsuit to obtain a declaratory judgment regarding these legal issues. (See, e.g., Newland v. Kizer (1989) 209 Cal.App.3d 647, 657; Zetterberg v. State Dept. of Public Health (1974) 43 Cal.App.3d 657, 662-663.) In this respect, the Fund is in a position no different from that of any other member of the public having a strong ideological or philosophical disagreement with a legal position advanced by a public entity that, through judicial compulsion or otherwise, continues to comply with a contested measure.
The Campaign argues alternatively that the superior court, in permitting these two actions to go forward notwithstanding this court's opinion in Lockyer, properly could view that decision as providing only interim mandamus relief against the City, leaving the question whether the City should be permanently enjoined from granting marriage licenses to same-sex couples for resolution in the Proposition 22 Legal Defense Fund and the Campaign actions. Our decision in Lockyer, however, does not support such an interpretation. We did not purport to afford only interim relief, but rather granted to the petitioners before us the same full and final mandamus relief to which the Fund and the Campaign would have been entitled in the mandamus actions filed in superior court against City officials by each of those parties. (Lockyer, supra, 33 Cal.4th at p. 1120.) Although our decision recognized that the constitutionality of the marriage statutes remained open for judicial resolution in the future, we clearly indicated that the relief ordered constituted a final resolution of the mandamus action rather than simply an interim order. (Id. at p. 1112.) Thus, the decision of the superior court cannot be supported on the basis of the interim-remedy theory advanced by the Campaign.
Accordingly, on this initial procedural point, we agree with the Court of Appeal's conclusion that once this court's decision in Lockyer granted the mandamus relief sought by the Fund and the Campaign in their previously filed lawsuits against the City and its officials, the superior court should have dismissed those actions as moot.
III
We now turn to the significant substantive constitutional issues before us. We begin by examining the relevant California statutory provisions relating to marriage and domestic partnership that lie at the heart of this controversy.
A
From the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman. Article XI, section 14 of the California Constitution of 1849 -- California's first Constitution -- provided explicit constitutional protection for a "wife's separate property" (italics added), and the marriage statute adopted by the California Legislature during its first session clearly assumed that the marriage relationship necessarily involved persons of the opposite sex. (See Stats. 1850, ch. 140, § 2, p. 424 [listing, as marriages that would be considered "incestuous, and absolutely void," marriages "between brothers and sisters of the one half as well as the whole blood" and "between uncles and nieces, [or] aunts and nephews"; id., § 7, p. 424 ["No Judge . . . , or other person, shall join in marriage any male under the age of twenty-one years, or female under the age of eighteen years, without the consent of the parent or guardian"].)
California's current marriage statutes derive in part from this state's Civil Code, enacted in 1872, which was based in large part upon Field's New York Draft Civil Code. As adopted in 1872, former section 55 of the Civil Code provided that marriage is "a personal relation arising out of a civil contract, to which the consent of the parties capable of making it is necessary," and former section 56 of that code, in turn, provided that "[a]ny unmarried male of the age of eighteen years or upwards, and any unmarried female of the age of fifteen years or upwards, and not otherwise disqualified, are capable of consenting to and consummating marriage." Although these statutory provisions did not expressly state that marriage could be entered into only by a man and a woman, the statutes clearly were intended to have that meaning and were so understood. (See 1 Ann. Civ. Code (1st ed. 1872, Haymond & Burch, commrs. annotators) note foll. § 55, p. 28.) Thus, this court's decisions of that era declared that the marriage relationship "is one 'by which a man and woman reciprocally engage to live with each other during their joint lives, and to discharge toward each other the duties imposed by law on the relation of husband and wife' " (Mott v. Mott (1890) 82 Cal. 413, 416), and that the marriage contract is one " 'by which a man and woman capable of entering into such a contract mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and his wife.' " (Kilburn v. Kilburn (1891) 89 Cal. 46, 50.)
Although the California statutes governing marriage and family relations have undergone very significant changes in a host of areas since the late 19th century, the statutory designation of marriage as a relationship between a man and a woman has remained unchanged.
In 1969, the Legislature adopted the Family Law Act (Stats. 1969, ch. 1608, § 8, pp. 3314-3344) which, among other matters, substantially revised the statutory provisions governing the dissolution of marriage, but retained and recodified former sections 55 and 56 of the Civil Code as Civil Code sections 4100 and 4101.
In 1971, following the adoption of the 26th Amendment to the federal Constitution, which lowered the voting age in federal elections to 18 years of age, our state Legislature passed a bill lowering most statutory minimum ages in California law to that age. (Stats. 1971, ch. 1748, § 1, p. 3736 ["Except for [limited, specified exceptions], whenever, in any provision of law, the term '21 years of age' or any similar phrase regarding such age appears, it shall be deemed to mean '18 years of age' "].) As part of this legislation, the provisions of Civil Code section 4101, subdivision (a), which previously had set the age of consent for marriage for men at 21 years of age and for women at 18 years of age, were modified to provide a uniform age of consent of 18 years of age for both genders. In revising the language of section 4101 to equalize the minimum age for men and women, the 1971 legislation eliminated references to "male" and "female," so that section 4101, subdivision (a), as amended in 1971, stated simply that "[a]ny unmarried person of the age of 18 years or upwards, and not otherwise disqualified, is capable of consenting to and consummating marriage." (Stats. 1971, ch. 1748, § 26, p. 3747.) There is no indication in the legislative history of the 1971 enactment, however, that the change in section 4101 was intended to authorize marriage of two persons of the same sex, and numerous other marriage statutes, reflecting the long-standing understanding that marriage under California law refers to a union between a man and a woman, remained unchanged. (See, e.g., Civ. Code, former § 4213 (now Fam. Code, § 500) [when unmarried persons, not minors, have been living together "as man and wife," they may, without a license, be married by any clergymember]; Civ. Code, former § 4400 (now Fam. Code, § 2200) ["Marriages between . . . brothers and sisters . . . , . . . between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning"]; Civ. Code, former § 4425 (now Fam. Code, § 2210) [a marriage is voidable if "[e]ither party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband and wife"].)
In the mid-1970's, several same-sex couples sought marriage licenses from county clerks in a number of California counties, relying in part upon the 1971 change in the language of Civil Code section 4101, subdivision (a), noted above. All of the county clerks who were approached by these same-sex couples denied the applications, but in order to eliminate any uncertainty as to whether the then existing California statutes authorized marriage between two persons of the same sex, legislation was introduced in 1977 at the request of the County Clerks' Association of California to amend the provisions of sections 4100 and 4101 to clarify that the applicable California statutes authorized marriage only between a man and a woman. (Stats. 1977, ch. 339, § 1, p. 1295, introduced as Assem. Bill No. 607 (1977-1978 Reg. Sess.); see Sen. Com. on Judiciary, Analysis of Assem. Bill No. 607 (1977-1978 Reg. Sess.) as amended May 23, 1977, p. 1; Governor's Legal Affairs Off., Enrolled Bill Rep. on Assem. Bill No. 607 (1977-1978 Reg. Sess.) Aug. 18, 1977, p. 1.)
The 1977 legislation added the phrase "between a man and a woman" to the first sentence of former section 4100, so that the sentence read: "Marriage is 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." The measure also revised the language of former section 4101 to reintroduce the references to gender that had been eliminated in 1971. As we explained in Lockyer, supra, 33 Cal.4th 1055, 1076, footnote 11: "The legislative history of the [1977] measure makes its objective clear. (See Sen. Com. on Judiciary, Analysis of Assem. Bill No. 607 (1977-1978 Reg. Sess.) as amended May 23, 1977, p. 1 ['The purpose of the bill is to prohibit persons of the same sex from entering lawful marriage'].)" In 1992, when the Family Code was enacted, the provisions of former sections 4100 and 4101 of the Civil Code, as amended in 1977, were reenacted without change as Family Code sections 300 and 301, respectively. (Stats. 1992, ch. 162, § 10, p. 474.)
Accordingly, Family Code section 300 currently provides in relevant part: "Marriage is 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." In light of its language and legislative history, all parties before us agree that section 300 limits marriages that lawfully may be performed in California to marriages of opposite-sex couples.
There is no similar agreement between the parties, however, as to the meaning and scope of a second provision of the Family Code -- section 308.5 -- that also contains language limiting marriage to a union between a man and a woman. Section 308.5, an initiative statute submitted to the voters of California as Proposition 22 at the March 7, 2000, primary election and approved by the voters at that election, provides in full: "Only marriage between a man and a woman is valid or recognized in California." Plaintiffs maintain that section 308.5 should not be interpreted to apply to or to limit marriages entered into in California, but instead to apply only to marriages entered into in another jurisdiction; plaintiffs take the position that although this provision prohibits California from recognizing out-of-state marriages of same-sex couples, it should not be interpreted to speak to or control the question of the validity of marriages performed in California. The Proposition 22 Legal Defense Fund and the Campaign contest plaintiffs' proposed interpretation of section 308.5, maintaining that the statute properly must be interpreted to apply to and to limit both out-of-state marriages and marriages performed in California.
As already noted, it is clear that section 300 in itself limits marriages performed in California to opposite-sex couples, but the proper interpretation of section 308.5 nonetheless is quite significant because, unlike section 300, section 308.5 is an initiative statute -- a measure that, under the provisions of article II, section 10, subdivision (c) of the California Constitution, cannot be modified by the Legislature without submitting the proposed modification to a vote of the people. Accordingly, if section 308.5 applies to marriages performed in California as well as to out-of-state marriages, any measure passed by the Legislature that purports to authorize marriages of same-sex couples in California would have to be submitted to and approved by the voters before it could become effective.
Although the Court of Appeal thought it unnecessary to determine the proper scope of section 308.5 in the present proceeding, in our view it is both appropriate and prudent to address the meaning of that statute at this juncture, both to ensure that our resolution of the constitutional issue before us is rendered with a full and accurate understanding of the source of California's current limitation of marriage to a union between a man and a woman, and to eliminate any uncertainty and confusion regarding the Legislature's ability or inability to authorize the marriage of same-sex couples in California without a confirming vote of the electorate, as the Legislature recently has attempted to do.
For the reasons discussed below, we conclude that in light of both the language and the purpose of section 308.5, this provision reasonably must be interpreted to apply both to marriages performed in California and those performed in other jurisdictions.
First, as already noted, section 308.5 provides in full: "Only marriage between a man and a woman is valid or recognized in California." This statutory language does not purport to limit the statute's application to out-of-state marriages or to draw any distinction between in-state and out-of-state marriages. On the contrary, the language of the statute -- at least on its face -- suggests that the statute was intended to apply not only to the recognition of out-of-state marriages, but also to specify more broadly that only marriage between a man and a woman is valid in California.
Although plaintiffs acknowledge the wording of section 308.5 could be interpreted to apply to both in-state and out-of-state marriages, they maintain this language is ambiguous when one takes into account the location of the provision in the Family Code -- its sequence in immediately following section 308, which relates specifically to out-of-state marriages. Plaintiffs point out that section 308 employs the term "valid" with specific reference to out-of-state marriages, and they maintain that, as a consequence, the use of the word "valid" (along with the word "recognized") in section 308.5 is not inconsistent with an interpretation of the statute that limits its application to out-of-state marriages.
In view of the asserted ambiguity of the statute, plaintiffs urge this court to consider the measure's purpose as reflected in the initiative's "legislative history." In this regard, plaintiffs maintain that the arguments relating to Proposition 22 set forth in the voter information guide indicate that this initiative measure was prompted by the proponents' concern that other states and nations might authorize marriages of same-sex couples, and by the proponents' desire to ensure that California would not recognize such marriages. (See Voter Information Guide, Primary Elec. (Mar. 7, 2000) arguments in favor of and against Prop. 22, pp. 52-53; see also Armijo v. Miles (2005) 127 Cal.App.4th 1405, 1422-1424.) Plaintiffs assert that in light of this objective, and the circumstance that when Proposition 22 was submitted to the electorate the provisions of section 308.5 were not needed to establish a limitation on marriages performed in California because section 300 already specified that marriage in California is limited to opposite-sex couples, section 308.5 should be interpreted to apply only to out-of-state marriages and not to marriages solemnized in California.
Although we agree with plaintiffs that the principal motivating factor underlying Proposition 22 appears to have been to ensure that California would not recognize marriages of same-sex couples that might be validly entered into in another jurisdiction, we conclude the statutory provision proposed by this initiative measure and adopted by the voters -- which, we note again, provides in full that "[o]nly marriage between a man and a woman is valid or recognized in California" -- cannot properly be interpreted to apply only to marriages performed outside of California. Unlike section 308, section 308.5 itself contains no language indicating that the statute is directed at and applies only to marriages performed outside of California. Further, because section 308.5 states both that only a marriage between a man and a woman is "recognized" in California and also that only a marriage between a man and a woman is "valid" in California, the average voter is likely to have understood the proposed statute to apply to marriages performed in California as well as to out-of-state marriages.
Nothing in the ballot materials or other background of the initiative indicates that its proponents intended to limit its scope to out-of-state marriages of same-sex couples and leave the California Legislature free to adopt a different rule validating the marriages of same-sex couples in California. Indeed, in view of the thrust of the measure as explained in the ballot arguments supporting the proposed initiative and rebutting the argument against it, it would be unreasonable to conclude that the measure was intended (and should be interpreted) to leave the Legislature free to revise California law to authorize the marriage of same-sex couples. (See Voter Information Guide, Primary Elec. (Mar. 7, 2000) argument in favor of Prop. 22, p. 52 ["Proposition 22 is exactly 14 words long: 'Only marriage between a man and a woman is valid or recognized in California.' [¶] That's it! No legal doubletalk, no hidden agenda. Just common sense. Marriage should be between a man and a woman. [¶] . . . [¶] It's tough enough for families to stay together these days. Why make it harder by telling children that marriage is just a word anyone can re-define again and again until it no longer has any meaning?" (original italics)]; id., rebuttal to argument against Prop. 22, p. 53 [" Opponents say anybody supporting traditional marriage is guilty of extremism, bigotry, hatred and discrimination towards gays, lesbians and their families. [¶] That's unfair and divisive nonsense. [¶] THE TRUTH IS, we respect EVERYONE'S freedom to make lifestyle choices, but draw the line at re-defining marriage for the rest of society. [¶] . . . [¶] . . . 'YES' on 22 sends a clear, positive message to children that marriage between a man and a woman is a valuable and respected institution, now and forever" (capitalization in original)].) Accordingly, we agree with the conclusion of the Court of Appeal in Knight v. Superior Court, supra, 128 Cal.App.4th 14, 23-24, that section 308.5 was intended to ensure "that California will not legitimize or recognize same-sex marriages from other jurisdictions . . . and that California will not permit same-sex partners to validly marry within the state." (Italics added.)
Second, not only does this appear to be the most reasonable interpretation of section 308.5 in light of the statute's language and purpose, but serious constitutional problems under the privileges and immunities clause and the full faith and credit clause of the federal Constitution would be presented were section 308.5 to be interpreted as creating a distinct rule for out-of-state marriages as contrasted with in-state marriages. Under plaintiffs' proposed interpretation, section 308.5 would prohibit the state from recognizing the marriages of same-sex couples lawfully solemnized in other states without resubmitting the question to the voters and obtaining a confirming vote of the electorate, but would permit the state to recognize the validity of marriages of same-sex couples performed in California by legislative action alone without a vote of the electorate, raising the very real possibility that the state could approve the validity of marriages of same-sex couples that are performed in California while continuing to deny recognition to marriages of same-sex couples that are lawfully performed in another state. (See, ante, at pp. 29-30, fn. 17.) Imposing such discriminatory treatment against out-of-state marriages of same-sex couples, as contrasted with marriages of same-sex couples performed within the state, would be difficult to square with governing federal constitutional precedents. (See, e.g., Hicklin v. Orbeck (1978) 437 U.S. 518, 523-526; Toomer v. Witsell (1948) 334 U.S. 385, 398-399.) Accordingly, it is appropriate to interpret the limitations imposed by section 308.5 as applicable to marriages performed in California as well as to out-of-state marriages, in order to avoid the serious federal constitutional questions that would be posed by a contrary interpretation. (Accord, NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1216.)
In sum, we conclude that California's current statutory restriction of marriage to a couple consisting of a man and a woman rests upon the provisions of both section 300 and section 308.5. Plaintiffs' constitutional challenge thus must be viewed as relating to the limitation embodied in each of these statutory provisions.
B
Although California statutes always have limited and continue to limit marriage to opposite-sex couples, as noted at the outset of this opinion California recently has enacted comprehensive domestic partnership legislation that affords same-sex couples the opportunity, by entering into a domestic partnership, to obtain virtually all of the legal benefits, privileges, responsibilities, and duties that California law affords to and imposes upon married couples. The recent comprehensive domestic partnership legislation constitutes the culmination of a gradual expansion of rights that have been made available in this state to same-sex couples who choose to register as domestic partners. We briefly review the history of domestic partnership legislation in California.
In 1999, the Legislature enacted the initial legislation creating a statewide domestic partnership registry. (Stats. 1999, ch. 588, § 2 [adding Fam. Code, §§ 297-299.6].) In adopting this legislation, "California became one of the first states to allow cohabitating adults of the same sex to establish a 'domestic partnership' in lieu of the right to marry." (Holguin v. Flores (2004) 122 Cal.App.4th 428, 433.) The 1999 legislation defined "domestic partners" as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." (§ 297, subd. (a).) In addition to other requirements for registration as domestic partners, the legislation provided that a couple must share a common residence and agree to be jointly responsible for each other's basic living expenses incurred during the domestic partnership, be at least 18 years of age and unrelated by blood in a way that would prevent them from being married to each other, not be married or a member of another domestic partnership, and either be persons of the same sex or at least one of the persons must be more than 62 years of age. (§ 297, subd. (b).) The 1999 legislation, however, afforded those couples who register as domestic partners only limited substantive benefits, granting domestic partners specified hospital visitation privileges (Stats. 1999, ch. 588, § 4 [adding Health & Saf. Code, § 1261]), and authorizing the state to provide health benefits to the domestic partners of some state employees (Stats. 1999, ch. 588, § 3 [adding Gov. Code, §§ 22867-22877]). The following year, the Legislature included domestic partners within the category of persons granted access to specially designed housing reserved for senior citizens. (Stats. 2000, ch. 1004, §§ 3, 3.5 [amending Civ. Code, § 51.3].)
In 2001, the Legislature expanded the scope of the benefits afforded to couples who register as domestic partners, providing a number of additional significant rights, including the right to sue for wrongful death, to use employee sick leave to care for an ill partner or an ill child of one's partner, to make medical decisions on behalf of an incapacitated partner, to receive unemployment benefits if forced to relocate because of a partner's job, and to employ stepparent adoption procedures to adopt a partner's child. (Stats. 2001, ch. 893, §§ 1-60.) In 2002, the Legislature equalized the treatment of registered domestic partners and married spouses in a few additional areas. (See Stats. 2002, ch. 447, §§ 1-3 [amending Prob. Code, § 6401 to provide automatic inheritance of a portion of a deceased partner's separate property]; id., ch. 412, § 1 [amending Prob. Code, § 21351 to add domestic partners to the list of relationships exempted from the prohibition against being a beneficiary of a will that the beneficiary helped draft]; id., ch. 901, §§ 1-6 [amending various provisions of the Unemp. Ins. Code to provide employees six weeks of paid family leave to care for a sick spouse or domestic partner].)
Thereafter, in 2003, the Legislature dramatically expanded the scope of the rights of domestic partners in California by enacting comprehensive domestic partnership legislation: the California Domestic Partner Rights and Responsibilities Act of 2003 (hereafter Domestic Partner Act). (Stats. 2003, ch. 421, introduced as Assem. Bill No. 205 (2003-2004 Reg. Sess.).) The Legislature set forth the purpose of this act in section 1 (an uncodified provision) of the legislation, declaring: "This act is intended to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality contained in Sections 1 and 7 of Article 1 of the California Constitution by providing all caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties and to further the state's interests in promoting stable and lasting family relationships, and protecting Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises." (Stats. 2003, ch. 421, § 1, subd. (a).) Finding that "many lesbian, gay, and bisexual Californians have formed lasting, committed, and caring relationships with persons of the same sex," the Legislature concluded that "[e]xpanding the rights and creating responsibilities of registered domestic partners would further California's interests in promoting family relationships and protecting family members during life crises, and would reduce discrimination on the bases of sex and sexual orientation in a manner consistent with the requirements of the California Constitution." (Stats. 2003, ch. 421, § 1, subd. (b).) The Legislature further specified that the provisions of the Domestic Partner Act "shall be construed liberally in order to secure to eligible couples who register as domestic partners the full range of legal rights, protections and benefits, as well as all of the responsibilities, obligations, and duties to each other, to their children, to third parties and to the state, as the laws of California extend to and impose upon spouses." (Italics added.) (Stats. 2003, ch. 421, § 15.)
To effectuate this legislative purpose, the 2003 Domestic Partner Act amended the existing statutory provisions relating to domestic partnership by adding several entirely new provisions to the Family Code, most significantly section 297.5, which the legislation provided would become operative on January 1, 2005. (Stats. 2003, ch. 421, § 14.) Section 297.5, subdivision (a), provides in broad and sweeping terms: "Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses." (Italics added.)
Further, as we noted in Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 838-839 (Koebke), other subdivisions of section 297.5 similarly effectuate the Legislature's intent "by using the broadest terms possible to grant to, and impose upon, registered domestic partners the same rights and responsibilities as spouses in specified areas of laws whether they are current, former or surviving domestic partners. For example, pursuant to section 297.5, subdivision (c), a 'surviving registered domestic partner, [upon] the death of the other partner,' is granted all the same rights and is subject to all the same responsibilities, from whatever source in the law, as those 'granted to and imposed upon a widow or a widower.' Similarly, section 297.5, subdivision (d) states: 'The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses. The rights and obligations of former or surviving registered domestic partners with respect to a child of either of them shall be the same as those of former or surviving spouses.' Subdivision (e) requires that, '[t]o the extent that provisions of California law adopt, refer to, or rely upon . . . federal law' and that this reliance on federal law would require domestic partners to be treated differently than spouses, 'registered domestic partners shall be treated by California law as if federal law recognized a domestic partnership in the same manner as California law.' (§ 297.5, subd. (e).)"
We concluded in Koebke, supra, 36 Cal.4th 824, 839, that "[i]t is clear from both the language of section 297.5 and the Legislature's explicit statements of intent that a chief goal of the Domestic Partner Act is to equalize the status of registered domestic partners and married couples."
Although the Domestic Partner Act generally equalized the treatment under California law of registered domestic partners and married couples, there was one significant area -- state income taxes -- in which the 2003 enactment did not provide for equal treatment. Section 297.5, former subdivision (g) -- a part of the 2003 act -- provided in this regard: "Notwithstanding this section, in filing their state income tax returns, domestic partners shall use the same filing status as is used on their federal income tax returns, or that would have been used had they filed federal income tax returns. Earned income may not be treated as community property for state income tax purposes."
In 2006, the Legislature eliminated this disparity in the treatment of registered domestic partners and married couples with regard to state income taxes by amending section 297.5 to delete the provisions of former subdivision (g) of section 297.5 (and to renumber the subsequent subdivisions of section 297.5). (Stats. 2006, ch. 802, § 2.) The 2006 legislation specifically declared that "[i]t is the intent of the Legislature in enacting this bill that the inconsistency between registered domestic partners and spouses with respect to state income taxation be removed, registered domestic partners be permitted to file their income tax returns jointly or separately on terms similar to those governing spouses, and the earned income of registered domestic partners be recognized appropriately as community property. As a result of this bill, registered domestic partners who file separate income tax returns each shall report one-half of the combined income earned by both domestic partners, as spouses do, rather than their respective individual incomes for the taxable year." (Stats. 2006, ch. 802, § 1, subd. (d).)
Most recently, the Legislature passed and the Governor signed into law a bill requiring the Declaration of Domestic Partnership form to contain a section affording either party or both parties the option of a change of name as part of the registration process. (Stats. 2007, ch. 567, introduced as Assem. Bill No. 102 (Reg. Sess. 2007-2008) signed Oct. 12, 2007.)
Although the preamble to the 2003 Domestic Partner Act suggests that the proponents of this legislation did not view the enactment as the final or ultimate legislative step with regard to the official status available to same-sex couples (see Stats. 2003, ch. 421, § 1, subd. (a) ["This act is intended to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality contained in Sections 1 and 7 of Article 1 of the California Constitution . . ." (italics added)]), nonetheless (by virtue of the explicit provisions of the Domestic Partner Act) under the current governing California statute, registered domestic partners generally "have the same rights, protections, and benefits, and [are] subject to the same responsibilities, obligations, and duties under law . . . as are granted to and imposed upon spouses." (§ 297.5, subd. (a).)
Of course, although the Domestic Partner Act generally affords registered domestic partners the same substantive benefits and privileges and imposes upon them the same responsibilities and duties that California law affords to and imposes upon married spouses, the act does not purport to (and lawfully could not) modify the applicable provisions of federal law, which currently do not provide for domestic partnerships and which define marriage, for purposes of federal law, as the union of a man and a woman. (See 1 U.S.C. § 7.) In light of the current provisions of federal law, the many federal benefits (and the amount of those benefits) granted to a married person or to a married couple on the basis of their married status are not available to registered domestic partners. Included within this category are significant benefits such as those relating to Social Security, Medicare, federal housing, food stamps, federal military and veterans' programs, federal employment programs, and filing status for federal income tax purposes. All of these important federal benefits, however, also would be denied to same-sex couples even if California designated the official union of such couples a marriage rather than a domestic partnership, because, as noted, federal law defines marriage for purposes of federal law as "only a legal union between one man and one woman." (1 U.S.C. § 7.)
Thus, in sum, the current California statutory provisions generally afford same-sex couples the opportunity to enter into a domestic partnership and thereby obtain virtually all of the benefits and responsibilities afforded by California law to married opposite-sex couples.
While acknowledging that the Domestic Partner Act affords substantial benefits to same-sex couples, plaintiffs repeatedly characterize that legislation as granting same-sex couples only the "material" or "tangible" benefits of marriage. At least in some respects, this characterization inaccurately minimizes the scope and nature of the benefits and responsibilities afforded by California's domestic partnership law. The broad reach of this legislation extends to the extremely wide network of statutory provisions, common law rules, and administrative practices that give substance to the legal institution of civil marriage, including, among many others, various rules and policies concerning parental rights and responsibilities affecting the raising of children, mutual duties of respect, fidelity and support, the fiduciary relationship between partners, the privileged nature of confidential communications between partners, and a partner's authority to make health care decisions when his or her partner is unable to act for himself or herself. These legal rights and responsibilities embody more than merely the "material" or "tangible" financial benefits that are extended by government to married couples. As we explained in Koebke, supra, 36 Cal.4th 824, 843: "[T]he decision . . . to enter into a domestic partnership is more than a change in the legal status of individuals . . . . [T]he consequence[] of the decision is the creation of a new family unit with all of its implications in terms of personal commitment as well as legal rights and obligations."
The nature and breadth of the rights afforded same-sex couples under the Domestic Partner Act is significant, because under California law the scope of that enactment is directly relevant to the question of the constitutional validity of the provisions in California's marriage statutes limiting marriage to opposite-sex couples. As this court explained in Brown v. Merlo, supra, 8 Cal.3d 855, 862: "In determining the scope of the class singled out for special burdens or benefits, a court cannot confine its view to the terms of the specific statute under attack, but must judge the enactment's operation against the background of other legislative, administrative and judicial directives which govern the legal rights of similarly situated persons. As the United States Supreme Court recognized long ago: 'The question of constitutional validity is not to be determined by artificial standards [confining review "within the four corners" of a statute]. What is required is that state action, whether through one agency or another, or through one enactment or more than one, shall be consistent with the restrictions of the Federal Constitution.' [Citations.]"
Accordingly, the provisions of both the current marriage statutes and the current domestic partnership statutes must be considered in determining whether the challenged provisions of the marriage statutes violate the constitutional rights of same-sex couples guaranteed by the California Constitution.
IV
Plaintiffs contend that by limiting marriage to opposite-sex couples, California's marriage statutes violate a number of provisions of the California Constitution. In particular, plaintiffs contend that the challenged statutes violate a same-sex couple's fundamental "right to marry" as guaranteed by the privacy, free speech, and due process clauses of the California Constitution (Cal. Const., art. I, §§ 1, 2, 7), and additionally violate the equal protection clause of the California Constitution (Cal. Const., art. I, § 7). Because the question whether the challenged aspect of the marriage statutes violates or impinges upon the fundamental right to marry may be determinative in deciding the appropriate standard of review to be applied in evaluating plaintiffs' equal protection challenge, we first address the question whether the challenged statutes independently infringe a fundamental constitutional right guaranteed by the California Constitution.
A
Although our state Constitution does not contain any explicit reference to a "right to marry," past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution. (See, e.g., Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 161 (Valerie N.) ["The right to marriage and procreation are now recognized as fundamental, constitutionally protected interests. [Citations.] . . . These rights are aspects of the right of privacy which . . . is express in section 1 of article I of the California Constitution which includes among the inalienable rights possessed by all persons in this state, that of 'privacy' "]; Williams v. Garcetti (1993) 5 Cal.4th 561, 577 ["we have . . . recognized that '[t]he concept of personal liberties and fundamental human rights entitled to protection against overbroad intrusion or regulation by government . . . extends to . . . such basic civil liberties and rights not explicitly listed in the Constitution [as] the right "to marry, establish a home and bring up children" ' "]; Ortiz v. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, 1303 ["under the state Constitution, the right to marry and the right of intimate association are virtually synonymous. . . . [W]e will refer to the privacy right in this case as the right to marry"]; In re Carrafa (1978) 77 Cal.App.3d 788, 791 ["[t]he right to marry is a fundamental constitutional right"].) The United States Supreme Court initially discussed the constitutional right to marry as an aspect of the fundamental substantive "liberty" protected by the due process clause of the federal Constitution (see Meyer v. Nebraska (1923) 262 U.S. 390, 399), but thereafter in Griswold v. Connecticut (1965) 381 U.S. 479 (Griswold), the federal high court additionally identified the right to marry as a component of a "right of privacy" protected by the federal Constitution. (Griswold, at p. 486.) With California's adoption in 1972 of a constitutional amendment explicitly adding "privacy" to the "inalienable rights" of all Californians protected by article I, section 1 of the California Constitution -- an amendment whose history demonstrates that it was intended, among other purposes, to encompass the federal constitutional right of privacy, "particularly as it developed beginning with Griswold v. Connecticut[, supra,] 381 U.S. 479" (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 28) -- the state constitutional right to marry, while presumably still embodied as a component of the liberty protected by the state due process clause, now also clearly falls within the reach of the constitutional protection afforded to an individual's interest in personal autonomy by California's explicit state constitutional privacy clause. (See, e.g., Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 34 [the interest in personal autonomy protected by the state constitutional privacy clause includes "the freedom to pursue consensual familial relationships"]; Valerie N., supra, 40 Cal.3d 143, 161.)
Although all parties in this proceeding agree that the right to marry constitutes a fundamental right protected by the state Constitution, there is considerable disagreement as to the scope and content of this fundamental state constitutional right. The Court of Appeal concluded that because marriage in California (and elsewhere) historically has been limited to opposite-sex couples, the constitutional right to marry under the California Constitution properly should be interpreted to afford only a right to marry a person of the opposite sex, and that the constitutional right that plaintiffs actually are asking the court to recognize is a constitutional "right to same-sex marriage." In the absence of any historical or precedential support for such a right in this state, the Court of Appeal determined that plaintiffs' claim of the denial of a fundamental right under the California Constitution must be rejected.
Plaintiffs challenge the Court of Appeal's characterization of the constitutional right they seek to invoke as the right to same-sex marriage, and on this point we agree with plaintiffs' position. In Perez v. Sharp, supra, 32 Cal.2d 711 -- this court's 1948 decision holding that the California statutory provisions prohibiting interracial marriage were unconstitutional -- the court did not characterize the constitutional right that the plaintiffs in that case sought to obtain as "a right to interracial marriage" and did not dismiss the plaintiffs' constitutional challenge on the ground that such marriages never had been permitted in California. Instead, the Perez decision focused on the substance of the constitutional right at issue -- that is, the importance to an individual of the freedom "to join in marriage with the person of one's choice" -- in determining whether the statute impinged upon the plaintiffs' fundamental constitutional right. (32 Cal.2d at pp. 715, 717, italics added.) Similarly, in Valerie N., supra, 40 Cal.3d 143 -- which involved a challenge to a statute limiting the reproductive freedom of a developmentally disabled woman -- our court did not analyze the scope of the constitutional right at issue by examining whether developmentally disabled women historically had enjoyed a constitutional right of reproductive freedom, but rather considered the substance of that constitutional right in determining whether the right was one that properly should be interpreted as extending to a developmentally disabled woman. (40 Cal.3d at pp. 160-164.) And, in addressing a somewhat analogous point, the United States Supreme Court in Lawrence v. Texas (2003) 539 U.S. 558 concluded that its prior decision in Bowers v. Hardwick (1986) 478 U.S. 186 had erred in narrowly characterizing the constitutional right sought to be invoked in that case as the right to engage in intimate homosexual conduct, determining instead that the constitutional right there at issue properly should be understood in a broader and more neutral fashion so as to focus upon the substance of the interests that the constitutional right is intended to protect. (539 U.S. at pp. 565-577.)
The flaw in characterizing the constitutional right at issue as the right to same-sex marriage rather than the right to marry goes beyond mere semantics. It is important both analytically and from the standpoint of fairness to plaintiffs' argument that we recognize they are not seeking to create a new constitutional right -- the right to "same-sex marriage" -- or to change, modify, or (as some have suggested) "deinstitutionalize" the existing institution of marriage. Instead, plaintiffs contend that, properly interpreted, the state constitutional right to marry affords same-sex couples the same rights and benefits -- accompanied by the same mutual responsibilities and obligations -- as this constitutional right affords to opposite-sex couples. For this reason, in evaluating the constitutional issue before us, we consider it appropriate to direct our focus to the meaning and substance of the constitutional right to marry, and to avoid the potentially misleading implications inherent in analyzing the issue in terms of "same-sex marriage."
Accordingly, in deciding whether the constitutional right to marry protected by the California Constitution applies to same-sex couples as well as to opposite-sex couples and, further, whether the current California marriage and domestic partnership statutes deny same-sex couples this fundamental constitutional right, we shall examine the nature and substance of the interests protected by the constitutional right to marry. In undertaking this inquiry, we put to the side for the moment the question whether the substantive rights embodied within the constitutional right to marry include the right to have the couple's official relationship designated by the name "marriage" rather than by some other term, such as "domestic partnership." The latter issue is addressed below. (See, post, pp. 80-82.)
In discussing the constitutional right to marry in Perez v. Sharp, supra, 32 Cal.2d 711 (Perez), then Justice Traynor in the lead opinion quoted the seminal passage from the United States Supreme Court's decision in Meyer v. Nebraska, supra, 262 U.S. 390. There the high court, in describing the scope of the "liberty" protected by the due process clause of the federal Constitution, stated that " '[w]ithout doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of one's own conscience, and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.' " (Perez, supra, 32 Cal.2d at p. 714, italics added ["to marry" italicized by Perez], quoting Meyer, supra, 262 U.S. 390, 399.) The Perez decision continued: "Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men." (Perez, supra, 32 Cal.2d at p. 714, italics added.)
Like Perez, subsequent California decisions discussing the nature of marriage and the right to marry have recognized repeatedly the linkage between marriage, establishing a home, and raising children in identifying civil marriage as the means available to an individual to establish, with a loved one of his or her choice, an officially recognized family relationship. In DeBurgh v. DeBurgh (1952) 39 Cal.2d 858, for example, in explaining "the public interest in the institution of marriage" (id. at p. 863), this court stated: "The family is the basic unit of our society, the center of the personal affections that ennoble and enrich human life. It channels biological drives that might otherwise become socially destructive; it ensures the care and education of children in a stable environment; it establishes continuity from one generation to another; it nurtures and develops the individual initiative that distinguishes a free people. Since the family is the core of our society, the law seeks to foster and preserve marriage." (Id. at pp. 863-864.)
In Elden v. Sheldon, supra, 46 Cal.3d 267, in rejecting the claim that persons in an unmarried cohabitant relationship that allegedly was akin to a marital relationship should be treated similarly to married persons for purposes of bringing an action for negligent infliction of emotional distress, this court explained that " '[m]arriage is accorded [a special] degree of dignity in recognition that "[t]he joining of the man and woman in marriage is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime." ' " (46 Cal.3d at pp. 274-275, italics added, quoting Nieto v. City of Los Angeles (1982) 138 Cal.App.3d 464, quoting Marvin v. Marvin (1976) 18 Cal.3d 660, 684.) The court in Elden v. Sheldon further explained: "Our emphasis on the state's interest in promoting the marriage relationship is not based on anachronistic notions of morality. The policy favoring marriage is 'rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities in organized society.' [Citation.] Formally married couples are granted significant rights and bear important responsibilities toward one another which are not shared by those who cohabit without marriage. . . . Plaintiff does not suggest a convincing reason why cohabiting unmarried couples, who do not bear such legal obligations toward one another, should be permitted to recover for injuries to their partners to the same extent as those who undertake these responsibilities." (46 Cal.3d at p. 275, italics added.)
In Williams v. Garcetti, supra, 5 Cal.4th 561, a case in which a criminal statute that prohibited contributing to the delinquency of a minor was challenged on the ground the statute was unconstitutionally vague, this court stated: "Plaintiffs emphasize the fundamental nature of the rights at stake in matters of child rearing. We need no convincing of their significance; we have already recognized that '[t]he concept of personal liberties and fundamental human rights entitled to protection against overbroad intrusion or regulation by government . . . extends to . . . such basic civil liberties and rights not listed in the Constitution [as] the right "to marry, establish a home and bring up children" . . . ; the right to educate one's children as one chooses . . . ; . . . and the right to privacy and to be let alone by the government in "the private realm of family life." ' " (5 Cal.3d at p. 577.)
And in Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, in discussing the types of relationship that fall within the scope of the constitutionally protected right of intimate association (one component of our state constitutional right of privacy (id. at pp. 629-630)), we explained that "the highly personal relationships that are sheltered by this constitutional guaranty are exemplified by 'those that attend the creation and sustenance of a family -- marriage . . . , childbirth . . . , the raising and education of children . . . and cohabitation with one's relatives . . . .' . . . 'Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctly personal aspects of one's life.' " (10 Cal.4th at p. 624, italics added, quoting Roberts v. United States Jaycees (1984) 468 U.S. 609, 619-620.) The constitutional right to marry thus may be understood as constituting a subset of the right of intimate association -- a subset possessing its own substantive content and affording a distinct set of constitutional protections and guarantees.
As these and many other California decisions make clear, the right to marry represents the right of an individual to establish a legally recognized family with the person of one's choice, and, as such, is of fundamental significance both to society and to the individual.
Society is served by the institution of civil marriage in many ways. Society, of course, has an overriding interest in the welfare of children, and the role marriage plays in facilitating a stable family setting in which children may be raised by two loving parents unquestionably furthers the welfare of children and society. In addition, the role of the family in educating and socializing children serves society's interest by perpetuating the social and political culture and providing continuing support for society over generations. It is these features that the California authorities have in mind in describing marriage as the "basic unit" or "building block" of society. (See, e.g., DeBurgh v. DeBurgh, supra, 39 Cal.2d 858, 863 ["[t]he family is the basic unit of our society"]; Baker v. Baker (1859) 13 Cal. 87, 94 ["[t]he public is interested in the marriage relation and the maintenance of its integrity, as it is the foundation of the social system"]; Elden v. Sheldon, supra, 46 Cal.3d 267, 281, fn. 1 (dis. opn. of Broussard, J.) [referring to "the well-accepted maxim that marriage serves as the building block of society"]; Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 968 (dis. opn. of Chin, J.) [" 'the family provides the foundation upon which our society is built and through which its most cherished values are best transmitted' "].) Furthermore, the legal obligations of support that are an integral part of marital and family relationships relieve society of the obligation of caring for individuals who may become incapacitated or who are otherwise unable to support themselves. (See, e.g., Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 123.) In view of the public's significant interest in marriage, California decisions have recognized that the Legislature has broad authority in seeking to protect and regulate this relationship by creating incentives to marry and adopting measures to protect the marital relationship. (See, e.g., McClure v. Donovan (1949) 33 Cal.2d 717, 728 ["the Legislature has full control of the subject of marriage and may fix the conditions under which the marital state may be created or terminated"].)
Although past California cases emphasize that marriage is an institution in which society as a whole has a vital interest, our decisions at the same time recognize that the legal right and opportunity to enter into such an officially recognized relationship also is of overriding importance to the individual and to the affected couple. As noted above, past California decisions have described marriage as "the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime." (Marvin v. Marvin, supra, 18 Cal.3d 660, 684; accord, Maynard v. Hill, supra, 125 U.S. 190, 205 [describing marriage as "the most important relation in life"].) The ability of an individual to join in a committed, long-term, officially recognized family relationship with the person of his or her choice is often of crucial significance to the individual's happiness and well-being. The legal commitment to long term mutual emotional and economic support that is an integral part of an officially recognized marriage relationship provides an individual with the ability to invest in and rely upon a loving relationship with another adult in a way that may be crucial to the individual's development as a person and achievement of his or her full potential.
Further, entry into a formal, officially recognized family relationship provides an individual with the opportunity to become a part of one's partner's family, providing a wider and often critical network of economic and emotional security. (Accord, e.g., Moore v. City of East Cleveland (1977) 431 U.S. 494, 504-505 ["Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. . . . Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home. . . . Especially in times of adversity . . . the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life"].) The opportunity of a couple to establish an officially recognized family of their own not only grants access to an extended family but also permits the couple to join the broader family social structure that is a significant feature of community life. Moreover, the opportunity to publicly and officially express one's love for and long-term commitment to another person by establishing a family together with that person also is an important element of self-expression that can give special meaning to one's life. Finally, of course, the ability to have children and raise them with a loved one who can share the joys and challenges of that endeavor is without doubt a most valuable component of one's liberty and personal autonomy. Although persons can have children and raise them outside of marriage, the institution of civil marriage affords official governmental sanction and sanctuary to the family unit, granting a parent the ability to afford his or her children the substantial benefits that flow from a stable two-parent family environment, a ready and public means of establishing to others the legal basis of one's parental relationship to one's children (cf. Koebke, supra, 36 Cal.4th 824, 844-845; Elden v. Sheldon, supra, 46 Cal.3d 267, 275), and the additional security that comes from the knowledge that his or her parental relationship with a child will be afforded protection by the government against the adverse actions or claims of others. (Cf., e.g., Dawn D. v. Superior Court, supra, 17 Cal.4th 932 [when biological mother was married at the time of a child's conception and birth, husband is the presumed father of the child, and another man who claims to be the child's biological father has no constitutional right to bring an action to establish a legal relationship with the child].)
There are, of course, many persons and couples who choose not to enter into such a relationship and who prefer to live their lives without the formal, officially recognized and sanctioned, long-term legal commitment to another person signified by marriage or an equivalent relationship. Nonetheless, our cases recognize that the opportunity to establish an officially recognized family with a loved one and to obtain the substantial benefits such a relationship may offer is of the deepest and utmost importance to any individual and couple who wish to make such a choice.
If civil marriage were an institution whose only role was to serve the interests of society, it reasonably could be asserted that the state should have full authority to decide whether to establish or abolish the institution of marriage (and any similar institution, such as domestic partnership). In recognizing, however, that the right to marry is a basic, constitutionally protected civil right -- "a fundamental right of free men [and women]" (Perez, supra, 32 Cal.2d 711, 714) --the governing California cases establish that this right embodies fundamental interests of an individual that are protected from abrogation or elimination by the state. Because our cases make clear that the right to marry is an integral component of an individual's interest in personal autonomy protected by the privacy provision of article I, section 1, and of the liberty interest protected by the due process clause of article I, section 7, it is apparent under the California Constitution that the right to marry -- like the right to establish a home and raise children -- has independent substantive content, and cannot properly be understood as simply the right to enter into such a relationship if (but only if) the Legislature chooses to establish and retain it. (Accord, Poe v. Ullman (1961) 367 U.S. 497, 553 (dis. opn. of Harlan, J.) ["the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected" (italics added)].)
One very important aspect of the substantive protection afforded by the California constitutional right to marry is, of course, 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. (See, e.g., In re Marriage of Wellman (1980) 104 Cal.App.3d 992, 996 [manner of raising one's child]; accord, e.g., Griswold, supra, 381 U.S. 479 [use of contraception]; Moore v. City of East Cleveland, supra, 431 U.S. 494 [cohabitation with extended family].) The substantive protection embodied in the constitutional right to marry, however, goes beyond what is sometimes characterized as simply a "negative" right insulating the couple's relationship from overreaching governmental intrusion or interference, and includes a "positive" right to have the state take at least some affirmative action to acknowledge and support the family unit.
Although the constitutional right to marry clearly does not obligate the state to afford specific tax or other governmental benefits on the basis of a couple's family relationship, the right to marry does obligate the state to take affirmative action to grant official, public recognition to the couple's relationship as a family (Perez, supra, 32 Cal.2d 711; In re Carrafa, supra, 77 Cal.App.3d 788, 791), as well as to protect the core elements of the family relationship from at least some types of improper interference by others. (Cf. Sesler v. Montgomery (1889) 78 Cal. 486, 488-489 [in holding that a confidential conversation between husband and wife, allegedly overheard by an eavesdropper, "does not constitute a publication within the meaning of the law of slander," the court explained that "every sound consideration of public policy, every just regard for the integrity and inviolability of the marriage relation[] -- the most confidential relation known to the law" -- dictated that conclusion].) This constitutional right also has the additional affirmative substantive effect of providing assurance to each member of the relationship that the government will enforce the mutual obligations between the partners (and to their children) that are an important aspect of the commitments upon which the relationship rests. (Cf. In re Marriage of Bonds (2000) 24 Cal.4th 1, 27-29 [contrasting fiduciary relationship during marriage with relationship prior to marriage].)
In light of the fundamental nature of the substantive rights embodied in the right to marry -- and their central importance to an individual's opportunity to live a happy, meaningful, and satisfying life as a full member of society -- the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.
It is true, of course, that as an historical matter in this state marriage always has been limited to a union between a man and a woman. Tradition alone, however, generally has not been viewed as a sufficient justification for perpetuating, without examination, the restriction or denial of a fundamental constitutional right. (Cf. Perez, supra, 32 Cal.2d 711, 727; Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17-19 (Sail'er Inn).) As this court observed in People v. Belous, supra, 71 Cal.2d 954, 967, "[c]onstitutional concepts are not static. . . . 'In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights.' " (See, e.g., In re Antazo (1970) 3 Cal.3d 100, 109 ["the long-standing recognition of this practice does not foreclose its reassessment in the light of the continued evolution of fundamental precepts of our constitutional system"].)
There can be no question but that, in recent decades, there has been a fundamental and dramatic transformation in this state's understanding and legal treatment of gay individuals and gay couples. California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized homosexuality as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity. This state's current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation, and, more specifically, recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children.
Contrary to the assertions in Justice Baxter's concurring and dissenting opinion (see post, at pp. 1-2, 6-7, 11-14), our reference to numerous statutes demonstrating California's current recognition that gay individuals are entitled to equal and nondiscriminatory legal treatment (ante, fns. 46, 47) does not suggest that an individual's entitlement to equal treatment under the law -- regardless of his or her sexual orientation -- is grounded upon the Legislature's recent enactment of the Domestic Partner Act or any other legislative measure. The capability of gay individuals to enter into loving and enduring relationships comparable to those entered into by heterosexuals is in no way dependent upon the enactment of the Domestic Partner Act; the adoption of that legislation simply constitutes an explicit official recognition of that capacity. Similarly, the numerous recent legislative enactments prohibiting discrimination on the basis of sexual orientation were not required in order to confer upon gay individuals a legal status equal to that enjoyed by heterosexuals; these measures simply provide explicit official recognition of, and affirmative support for, that equal legal status. Indeed, the change in this state's past treatment of gay individuals and homosexual conduct is reflected in scores of legislative, administrative, and judicial actions that have occurred over the past 30 or more years. (See, e.g., Stats. 1975, ch. 71, §§ 7, 10, pp. 133, 134 [revising statutes criminalizing consensual sodomy and oral copulation]; Governor's Exec. Order No. B-54-79 (Apr. 4, 1979) [barring sexual-orientation discrimination against state employees]; Morrison v. State Board of Education (1969) 1 Cal.3d 214 [homosexual conduct does not in itself necessarily constitute immoral conduct or demonstrate unfitness to teach].) Thus, just as this court recognized in Perez that it was not constitutionally permissible to continue to treat racial or ethnic minorities as inferior (Perez, supra, 32 Cal.2d at pp. 720-727), and in Sail'er Inn that it was not constitutionally acceptable to continue to treat women as less capable than and unequal to men (Sail'er Inn, supra, 5 Cal.3d at pp. 17-20 & fn. 15), we now similarly recognize that an individual's homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual's legal rights.
In light of this recognition, sections 1 and 7 of article I of the California Constitution cannot properly be interpreted to withhold from gay individuals the same basic civil right of personal autonomy and liberty (including the right to establish, with the person of one's choice, an officially recognized and sanctioned family) that the California Constitution affords to heterosexual individuals. The privacy and due process provisions of our state Constitution -- in declaring that "[a]ll people . . . have [the] inalienable right[] [of] privacy" (art. I, § 1) and that no person may be deprived of "liberty" without due process of law (art. I, § 7) -- do not purport to reserve to persons of a particular sexual orientation the substantive protection afforded by those provisions. In light of the evolution of our state's

understanding concerning the equal dignity and respect to which all persons are entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights. (Cf. Valerie N., supra, 40 Cal.3d 143, 154, 160-165 [holding that the state constitutional right of personal autonomy in matters of reproductive choice must be interpreted to afford incompetent developmentally disabled women the benefits accorded by that constitutional right].)
In reaching the contrary conclusion that the right to marry guaranteed by the California Constitution should be understood as protecting only an individual's right to enter into an officially recognized family relationship with a person of the opposite sex, the Court of Appeal relied upon a number of decisions that have cautioned against defining at too high a level of generality those constitutional rights that are protected as part of the substantive due process doctrine. (See, e.g., Washington v. Glucksberg (1997) 521 U.S. 702, 723 [holding, in case challenging constitutional validity of statute forbidding assisted suicide, that liberty interest at issue should not be defined as an interest in choosing "how to die" or "the time and manner of one's death"; instead the issue was whether the liberty interest protected by the due process clause "includes a right to commit suicide which itself includes a right to assistance in doing so"]; Reno v. Flores (1993) 507 U.S. 292, 302 [holding, in case challenging federal policy of placing deportable juveniles in custodial child care rather than releasing them to unrelated adults, that the right at issue should not be viewed as "freedom from physical restraint" but rather "the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution"]; Dawn D. v. Superior Court, supra, 17 Cal.4th 932, 941 [holding, in case in which an alleged biological father sought an opportunity to establish a relationship with a child whose biological mother was married to another man at the time of the child's conception and birth, that the appropriate question was not whether a biological father generally has a liberty interest in establishing a relationship with his biological child but rather whether the federal Constitution protects a biological father's "interest in establishing a relationship with his child born to a woman married to another man at the time of the child's conception and birth"].)
None of the foregoing decisions -- in emphasizing the importance of undertaking a " 'careful description' of the asserted fundamental liberty interest" (Washington v. Glucksberg, supra, 521 U.S. 702, 721) -- suggests, however, that it is appropriate to define a fundamental constitutional right or interest in so narrow a fashion that the basic protections afforded by the right are withheld from a class of persons -- composed of individuals sharing a personal characteristic such as a particular sexual orientation -- who historically have been denied the benefit of such rights. As noted above, our decision in Perez, supra, 32 Cal.2d 711, declining to define narrowly the right to marry, did not consider the fact that discrimination against interracial marriage was "sanctioned by the state for many years" a reason to reject the plaintiffs' claim in that case. (Id., at p. 727.) Instead the court looked to the essence and substance of the right to marry, a right itself deeply rooted in the history and tradition of our state and nation, to determine whether the challenged statute impinged upon the plaintiffs' constitutional right. For similar reasons, it is apparent that history alone does not provide a justification for interpreting the constitutional right to marry as protecting only one's ability to enter into an officially recognized family relationship with a person of the opposite sex. In this regard, we agree with the view expressed by Chief Judge Kaye of the New York Court of Appeals in her dissenting opinion in Hernandez v. Robles, supra, 855 N.E.2d 1, 23: "[F]undamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights." (Cf. Taylor v. Louisiana (1975) 419 U.S. 522, 537 ["it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male. . . . If it was ever the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed"].)
Furthermore, unlike the situation presented in several prior decisions of this court in which recognition of a party's claim of a constitutional right necessarily and invariably would have had the effect of reducing or diminishing the rights of other persons (see, e.g., Johnson v. Calvert (1993) 5 Cal.4th 84, 92, fn. 8, 100 [noting, in rejecting surrogate mother's claim of a liberty interest in the companionship of a child, that recognition of such an interest would impinge upon the liberty interests of the child's legal parents]; Dawn D. v. Superior Court, supra, 17 Cal.4th 932 [rejecting asserted biological father's claim of a liberty interest in establishing relationship with a child whose biological mother was married to another man when the child was conceived and born]), in the present context our recognition that the constitutional right to marry applies to same-sex couples as well as to opposite-sex couples does not diminish any other person's constitutional rights. Opposite-sex couples will continue to enjoy precisely the same constitutional rights they traditionally have possessed, unimpaired by our recognition that this basic civil right is applicable, as well, to gay individuals and same-sex couples.
The Proposition 22 Legal Defense Fund and the Campaign agree that the constitutional right to marry is integrally related to the right of two persons to join

together to establish an officially recognized family, but they contend that the only family that possibly can be encompassed by the constitutional right to marry is a family headed by a man and a woman. Pointing out that past cases often have linked marriage and procreation, these parties argue that because only a man and a woman can produce children biologically with one another, the constitutional right to marry necessarily is limited to opposite-sex couples.
This contention is fundamentally flawed for a number of reasons. To begin with, although the legal institution of civil marriage may well have originated in large part to promote a stable relationship for the procreation and raising of children (see, e.g., Baker v. Baker, supra, 13 Cal. 87, 103 ["the first purpose of matrimony, by the laws of nature and society, is procreation"]; see generally Blankenhorn, The Future of Marriage (2007) pp. 23-125), and although the right to marry and to procreate often are treated as closely related aspects of the privacy and liberty interests protected by the state and federal Constitutions (see, e.g., Valerie N., supra, 40 Cal.3d 143, 161; Skinner v. Oklahoma (1942) 316 U.S. 527, 541), the constitutional right to marry never has been viewed as the sole preserve of individuals who are physically capable of having children. Men and women who desire to raise children with a loved one in a recognized family but who are physically unable to conceive a child with their loved one never have been excluded from the right to marry. Although the Proposition 22 Legal Defense Fund and the Campaign assert that the circumstance that marriage has not been limited to those who can bear children can be explained and justified by reference to the state's reluctance to intrude upon the privacy of individuals by inquiring into their fertility, if that were an accurate and adequate explanation for the absence of such a limitation it would follow that in instances in which the state is able to make a determination of an individual's fertility without such an inquiry, it would be constitutionally permissible for the state to preclude an individual who is incapable of bearing children from entering into marriage. There is, however, no authority whatsoever to support the proposition that an individual who is physically incapable of bearing children does not possess a fundamental constitutional right to marry. Such a proposition clearly is untenable. A person who is physically incapable of bearing children still has the potential to become a parent and raise a child through adoption or through means of assisted reproduction, and the constitutional right to marry ensures the individual the opportunity to raise children in an officially recognized family with the person with whom the individual has chosen to share his or her life. Thus, although an important purpose underlying marriage may be to channel procreation into a stable family relationship, that purpose cannot be viewed as limiting the constitutional right to marry to couples who are capable of biologically producing a child together.
A variant of the contention that the right to marry is limited to couples who are capable of procreation is that the purpose of marriage is to promote "responsible procreation" and that a restriction limiting this right exclusively to opposite-sex couples follows from this purpose. A number of recent state court decisions, applying the rational basis equal protection standard, have relied upon this purpose as a reasonably conceivable justification for a statutory limitation of marriage to opposite-sex couples. These decisions have explained that although same-sex couples can have or obtain children through assisted reproduction or adoption, resort to such methods demonstrates, in the case of a same-sex couple, that parenthood necessarily is an intended consequence because each of these two methods requires considerable planning and expense, whereas in the case of an opposite-sex couple a child often is the unintended consequence of the couple's sexual intercourse. These courts reason that a state plausibly could conclude that although affording the benefits of marriage to opposite-sex couples is an incentive needed to ensure that accidental procreation is channeled into a stable family relationship, a similar incentive is not required for same-sex couples because they cannot produce children accidentally. (See, e.g., Morrison v. Sadler, supra, 821 N.E.2d 15, 23-29; Hernandez v. Robles, supra, 855 N.E.2d 1, 7.)
Whether or not the state's interest in encouraging responsible procreation properly can be viewed as a reasonably conceivable justification for the statutory limitation of marriage to a man and a woman for purposes of the rational basis equal protection standard, this interest clearly does not provide an appropriate basis for defining or limiting the scope of the constitutional right to marry. None of the past cases discussing the right to marry -- and identifying this right as one of the fundamental elements of personal autonomy and liberty protected by our Constitution -- contains any suggestion that the constitutional right to marry is possessed only by individuals who are at risk of producing children accidentally, or implies that this constitutional right is not equally important for and guaranteed to responsible individuals who can be counted upon to take appropriate precautions in planning for parenthood. Thus, although the state undeniably has a legitimate interest in promoting "responsible procreation," that interest cannot be viewed as a valid basis for defining or limiting the class of persons who may claim the protection of the fundamental constitutional right to marry.
Furthermore, although promoting and facilitating a stable environment for the procreation and raising of children is unquestionably one of the vitally important purposes underlying the institution of marriage and the constitutional right to marry, past cases make clear that this right is not confined to, or restrictively defined by, that purpose alone. (See, e.g., Baker v. Baker, supra, 13 Cal. 87, 103 ["[t]he second purpose of matrimony is the promotion of the happiness of the parties by the society of each other"].) As noted above, our past cases have recognized that the right to marry is the right to enter into a relationship that is "the center of the personal affections that ennoble and enrich human life" (DeBurgh v. DeBurgh, supra, 39 Cal.2d 858, 863-864) -- a relationship that is "at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime." (Marvin v. Marvin, supra, 18 Cal.3d 660, 684; see also Elden v. Sheldon, supra, 46 Cal.3d 267, 274.) The personal enrichment afforded by the right to marry may be obtained by a couple whether or not they choose to have children, and the right to marry never has been limited to those who plan or desire to have children. Indeed, in Griswold v. Connecticut, supra, 381 U.S. 479 -- one of the seminal federal cases striking down a state law as violative of the federal constitutional right of privacy -- the high court upheld a married couple's right to use contraception to prevent procreation, demonstrating quite clearly that the promotion of procreation is not the sole or defining purpose of marriage. Similarly, in Turner v. Safley, supra, 482 U.S. 78, the court held that the constitutional right to marry extends to an individual confined in state prison -- even a prisoner who has no right to conjugal visits with his would-be spouse -- emphasizing that "[m]any important attributes of marriage remain . . . after taking into account the limitations imposed by prison life . . . [including the] expressions of emotional support and public commitment [that] are an important and significant aspect of the marital relationship." (482 U.S. at pp. 95 96.) Although Griswold and Turner relate to the right to marry under the federal Constitution, they accurately reflect the scope of the state constitutional right to marry as well. Accordingly, this right cannot properly be defined by or limited to the state's interest in fostering a favorable environment for the procreation and raising of children.
The Proposition 22 Legal Defense Fund and the Campaign also rely upon several academic commentators who maintain that the constitutional right to marry should be viewed as inapplicable to same-sex couples because a contrary interpretation assertedly would sever the link that marriage provides between procreation and child rearing and would "send a message" to the public that it is immaterial to the state whether children are raised by their biological mother and father. (See, e.g., Blankenho