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Perry v. Schwarzenegger Resurrects Right of Marriage for Same-Sex Couples

Diana Richmond   By Diana Richmond, Partner, Sideman & Bancroft, L.L.P.

“In December 2010, the 9th Circuit Court of Appeals will decide whether same-sex couples can marry in California,” writes Diana Richmond. “The U.S. District Court ruled it unconstitutional to deny same-sex couples the same right to marry as opposite-sex couples. The 9th circuit has specifically asked that the issue of standing of the proponents of the initiative be addressed. Meanwhile a stay prevents marriage in California for same-sex couples.”

“Recent efforts for same-sex couples to gain the right to marry began in February 2004, when San Francisco Mayor Gavin Newsom instructed county officials to issue marriage license to same-sex couples,” explains the author as she details the history of same-sex marriage in California. “A month later, the California Supreme Court nullified those licenses and ruled that county officials lacked the authority to change state law. Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 95 P3d 459. There followed several lawsuits challenging the constitutionality of the California Family Code provisions limiting marriage to opposite-sex couples, which lawsuits were coordinated, tried and appealed to the state Supreme Court, resulting in the ruling that the state statute violated the equal protection provisions of the California Constitution. In re Marriage Cases (2008) 43 Cal.4th 757, 189 P3d 384. The voter initiative known as Proposition 8 sought to change the state constitution to limit marriage to opposite-sex couples. It passed in November 2008 with 52% of the popular vote. Between June 17, 2008 and the enactment of Proposition 8 in early November 2008, some 18,000 marriage licenses were issued to same-sex couples. Thereafter, opponents of Proposition 8 challenged its constitutionality under the state constitution; the California Supreme Court ruled that Proposition 8 was constitutionally valid but upheld the validity of the 18,000 marriages performed prior to its enactment.

“Unlike all of the prior litigation, the Perry case was premised on a challenge under the U.S. Constitution, both as a violation of the fundamental right of marriage under the Due Process Clause of the Fourteenth Amendment and as a violation of equal protection under the Fourteenth Amendment. Plaintiffs' counsel were David Boies and Theodore Olson (former U.S. Solicitor General), U.S. Supreme Court veterans who had famously squared off against each other in Bush v. Gore (2000) 531 U.S. 98,” Richmond points out. “The trial court found that Plaintiffs had demonstrated by ‘overwhelming evidence’ that Proposition 8 violated their constitutional rights, perpetuating a stigma against gays and lesbians. Evidence at trial of the Proposition campaign television and print ads was used successfully to demonstrate that the Proponents sought to perpetuate stereotypes that same-sex relationships are inferior to opposite-sex relationships.” subscribers can access the complete commentary, Perry v. Schwarzenneger Resurrects Right of Marriage for Same-Sex Couples. Additional fees may be incurred. (approx. 5 pages)

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Diana Richmond is a family law and mediation practitioner with the firm of Sideman & Bancroft, L.L.P. in San Francisco, California. She is a Certified Family Law Specialist who has been among those selected in each edition of Best Lawyers in America from 1983 forward. Diana Richmond is an Editorial Consultant to and author of Chapter 3, California Domestic Partner Rights and Responsibilities Act, in California Family Law Practice and Procedure, Second Edition, and an Editorial Consultant to Matthew Bender's California Family Law Monthly.