Same Sex Marriage

In San Diego, and throughout California, marriage has been limited to a man and a woman. In San Diego, the Judges follow the Family Law Code. Code Section 300 concerns marriage and its validity. In the Code Section, partial language is as follows "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 predecessor statute to Code Section 300 was amended in 1977 to add the words "between a man and a woman". There are further limitations to this provision including age of consent to marry and marriages to blood relatives as well as others with which our San Diego same-sex marriage lawyers are familiar. In addition, the "Consent must be followed by the issuance of a license and solemnization as authorized..." which means that there must be a marriage license issued in the jurisdiction of the marriage and in accordance with, in our state, the laws of California. In San Diego, many persons marry at the San Diego County Court House in either a public or confidential marriage.

In San Diego {and California}, the Family Law Code was changed with Section 308.5 enacted as part of Proposition 22 [approved on March 7, 2000]. This was part of the Defense Against Marriage Act and states "Only marriage between a man and a woman is valid or recognized in California". The language in this statute adds language which was not in the Section 300 which is more restrictive and added to the previous amended language from 1977 as above.

In 2004, San Francisco's Mayor directed that marriage licenses be issued to people without regard to sexual orientation or gender. Legal actions on file the following day to ask for the Court to enjoin and prohibit the San Francisco County Clerk from issuing the licenses. The Supreme Court of California issued an interim order directing the Clerk to refrain from issuing additional licenses and to enforce the existing marriage family law statutes [as above]. The Supreme Court of California then ruled that all marriages were void issued during this time period to same sex couples and not valid under the law. A same-sex marriage lawyer in San Diego can explain the trajectory of the laws in this area.

In this same case, San Francisco City Attorney filed asking for a decision declaring that all statutory California provisions which were in conformity with Code Section 308.5 which violated the California State Constitution be stricken. This case was consolidated with other cases and tried by a Court in San Francisco where the Judge ruled that the Code Section 308.5 was unconstitutional and applied a strict scrutiny standard. The California Court of Appeal reversed the San Francisco Judge and found that there was no violation of the California Constitutions Equal Protection Clause and that sexual orientation did not constitute the classification under this section to be suspect. The California Supreme Court, in May of 2008, reversed the California Court of Appeal and ruled that Code Section 308.5 was unconstitutional on its face as defining marriage between a man an a woman and ordered that Code Section 308.5 not be enforced. In addition, Code Section 300 was determined to be unconstitutional and the language regarding "man and woman" must be stricken from Code Section 300. The same-sex marriage attorneys at our San Diego firm recall that the California Supreme Court went even further and expressly stated that this is done to allow marriages between same sex and opposite sex couples. The Supreme Court of California then issued a Writ of Mandamus which directs all appropriate California state officials to take all actions necessary to enforce the marriage statutes in a consistent manner with their decision.

On June 16, 2008, marriage ceremonies of same sex couples were performed all over California. In November of 2008, opponents are promising to revisit the Defense of Marriage Act to make these ceremonies void and for future ceremonies to be unconstitutional. The Governor of California has stated he does not support an Amendment to the California State Constitution however this would be up to the voters. If there are enough votes for an Amendment of the California State Constitution, then the United States Supreme Court may become involved. As all recall, it was only sixty years ago in 1948 when inter racial marriage was illegal and it was a California Court of Appeal who ruled that statute was unconstitutional.

This article by our San Diego same-sex marriage attorneys is not [and does not purport to be] all inclusive of this most complex legislative and historical evolution of marriage in California. Significant legislation which is either direct or corollary to this have not been discussed and this includes, in particular, the 2003 Domestic Partnership Act of California and subsequent Family Law Codes and Cases on this subject which are complex in their own right.

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