Same-sex marriage in California

California has been one of the most active battlegrounds in the same-sex marriage debate. The fight began in earnest in 2000 when the state's voters passed Proposition 22, which defined marriage as the union between a man and a woman.

Four years later, the supreme court of the state of Massachusetts reached a conclusion that defining marriage as “between a man and a woman” and excluding same-sex couples is a violation of constitutional rights of privacy and equal protection under a proposed (but not enacted) Massachusetts law. The issue is also currently pending before the Connecticut Supreme Court.

In September 2005, the California Assembly became the first state legislature in the nation to proactively approve same-sex marriages. Governor Arnold Schwarzenegger ultimately vetoed the bill on the basis of Proposition 22. Then the California Supreme Court began to consider whether Proposition 22 violates the state constitution's guarantee of equal protection under the law.

On May 15, 2008, the ban on same-sex marriage was overturned, making California the second state, behind Massachusetts, to allow full marriage rights for same-sex partners. Marriage licenses will be issued to same-sex couples starting on June 14, 2008.

For several years, California had already been providing legal protections, similar to those for which married couples are eligible, to same-sex domestic partnerships, granting "same-sex couples all state-level rights and obligations of marriage — in areas such as inheritance, income tax, insurance and hospital visitation"

In the most recent review, California laws limiting marriage to opposite-sex couples were deemed to violate same-sex couples' rights under the California Constitution. The Court explained that, "in view of the substance and significance of the fundamental 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."

Because the Court found the exclusion is not justified, the decision will enable same-sex couples to be married in the eyes of the State of California. However, the Court's decision does not alter federal law or the marriage laws of other states.

The Court also evaluated the challenged marriage statutes under the Equal Protection clause of the California Constitution, concluding that the laws excluding same-sex couples from the definition of marriage do not discriminate on the basis of sex but discriminate on the basis of sexual orientation.

California businesses and employers must be alert. As same-sex couples begin to exercise their new right to marry under California law, discrimination against these individuals may subject employers and businesses to legal liability. Complaints of discrimination based on the exercise of the right to marriage by same-sex couples also should be taken seriously.

In addition, before this decision was issued, employment discrimination on the basis of marital status and registered domestic partner status were both already prohibited to the same extent in California, and the protections available to same-sex couples under these laws will remain the same. What is new is that same-sex couples can now claim the same protection via marriage as opposite-sex couples.

Finally, same-sex couples who were married in other jurisdictions that recognize same-sex marriage before this decision and then relocated to California will not presently be considered "married" and are not currently entitled to the protections or benefits available to married persons.