Victory in California Supreme Court

On February 12, 2004, San Francisco's Mayor Gavin Newsom announced that the city would begin issuing marriage licenses to same-sex couples. Literally overnight thousands of same-sex couples converged on city hall for their licenses. Riveting footage of couples waiting in line for hours and having their unions blessed on the steps of city hall brought national and international attention. These marriages, unfortunately, were soon nullified by the California Supreme Court, which did not at that time address the substantive question of the constitutionality of banning same-sex marriage but ruled that Mayor Newsom lacked the authority to issue marriage licenses to same-sex couples.

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In the litigation that followed the San Francisco marriages, advocates for same-sex marriage won an impressive victory at the trial court, which ruled that the ban on same-sex marriage is unconstitutional. This decision, however, was reversed by the California Court of Appeals.

On May 15, 2008, the California Supreme Court, in a 4-3 decision, ruled that the prohibition of same-sex marriage is unconstitutional. The Court struck down two state laws that banned same-sex marriage and declared that the domestic partnership law was not sufficient.

Writing for the majority, Chief Justice Ronald George declared that the right to marriage is a fundamental right that must be accorded to same-sex as well as opposite-sex couples. "The right to marry," he wrote, "represents the right of an individual to establish a legally recognized family with a person of one's choice and, as such, is of fundamental significance both to society and to the individual."

Basing its ruling on the equal protection clause of the state constitution, the Court also adopted a new standard of review in determining claims of discrimination based on sexual orientation. Rather than the "rational basis" test, the Court ruled that claims of discrimination on the basis of sexual orientation require "strict scrutiny."

The ruling by the widely respected California Supreme Court is of enormous significance. Not only is California the largest of the American states, containing more than ten per cent of the nation's population, but its Supreme Court is a trend-setter. The high courts of some other states are likely to follow its lead.

Despite pleas from opponents of same-sex marriage and the attorneys general of eleven states, the Court refused to delay the effect of its decision, so on June 17, 2008, same-sex couples began marrying in California. Since California has no residency requirement, couples from out-of-state were also eligible to marry in the state.

Reversal at the Polls and in Court

At about the same time that glbtq people were celebrating the achievement of marriage equality in California, a coalition of anti-gay activists succeeded in placing on the November 2008 ballot a constitutional amendment that would override the Court's decision and ban same-sex marriage.

Known as Proposition 8, the amendment was supported by an extraordinarily well-financed campaign, the largest donors to which were members of the Church of Jesus Christ of Latter Day Saints (Mormons) and the Roman Catholic Church.

Despite polls indicating that Proposition 8 would be rejected, on November 4, 2008 it passed by a margin of 52% for and 48% against.

A stunned and bitterly disappointed glbtq community took to the streets to protest the injustice of stripping away equality rights. Many of the protests were directed at Mormon, Catholic, and Evangelical Churches.