In November 2003, the Massachusetts Supreme Judicial Court issued its much-anticipated ruling in Goodridge v. Department of Public Health, (1) making Massachusetts the first state in the nation to legalize same-sex marriages. For four years, Massachusetts stood alone. Then, last May, in In re Marriage Cases (Marriage Cases III), (2) the California Supreme Court followed Massachusetts's lead, becoming the second state in the nation to legalize same-sex marriages. Marriage Cases was, in many respects, a landmark and groundbreaking decision. It invalidated California's ban on same-sex marriage (3) as a violation of the state's equal protection doctrine and declared sexual orientation to be a suspect class alongside race and gender. Within months, the Connecticut Supreme Court followed suit, citing heavily to Marriage Cases in striking down Connecticut's own marriage restrictions. (4) With Iowa waiting in the wings and New York and New Jersey not far behind, Marriage Cases seemed to mark the beginning of a sea change in the legalization of same-sex marriage. (5) Such sentiments, however, quickly fizzled. The decision in Marriage Cases was met with millions of dollars of contributions to the campaign for Proposition 8, (6) a California ballot initiative specifically designed to overturn the decision in Marriage Cases and reinstate statutory bans on same-sex marriage. (7) With the passage of Proposition 8, the substantive holding of Marriage Cases, namely the constitutionality of same-sex marriages in California, is no longer good law. Nonetheless, the court's decision to grant suspect class protections sets an important precedent for future sexual orientation claims and highlights the court's changing understandings of immutability and suspect classifications.
In February 2004, the mayor of San Francisco directed city clerks to begin issuing marriage licenses to same-sex couples, in direct defiance of state statutes prohibiting same-sex marriages. (8) Not surprisingly, the California Supreme Court ruled in Lockyer v. City and County of San Francisco (9) that such orders were unlawful, rendering the 4000 same-sex marriages performed null and void. (10) However, the court left the question of the marriage statutes' constitutionality undecided, signaling that the issue was far from settled. (11)
Indeed, several petitions were soon filed in California Superior Courts, challenging the constitutionality of California's marriage statutes (12) and asking for an affirmative declaration that all California statutory provisions limiting marriage to unions between a man and a woman violate the equal protection and privacy provisions of the California Constitution. (13) Judge Kramer of the Superior Court for San Francisco agreed with the plaintiffs, holding that differential treatment of same-sex couples was a violation of the state's equal protection clause (14) under both the rational basis and strict scrutiny tests. (15)
The State of California appealed and in a divided opinion the California Court of Appeal reversed. (16) Judge McGuiness wrote the majority opinion, defining the right to marriage in traditional opposite-sex terms and concluding that the court had no authority to alter such a definition. (17) He also found that sex-based marriage restrictions did not violate fundamental due process, (18) that classifications based on sexual orientation did not merit strict scrutiny review, (19) and that the state had a valid and legitimate interest in preserving the traditional meaning of marriage, thus satisfying rational basis review. (20) In addition, the opinion cautioned against judicial activism, noting that "[t]he time may come when California chooses to expand the definition of marriage to encompass same-sex unions. That change must come from democratic processes, however, not by judicial fiat." (21)
The California Supreme Court, in a 4-3 decision, reversed and remanded. (22) Chief Justice George, writing for the majority, ruled that the California marriage statutes were unconstitutional on three separate and individually dispositive grounds: the fundamental right to marriage, the equal protection clause, and the due process right to privacy. …