Is Gay Marriage Legal in California?

December 29, 2016

In California, Gay and Lesbian couples may legally marry. There are a few exceptions that we will discuss below, but in general, same-sex couples receive the same Federal and State rights as heterosexual couples.

California has been a key player in progressing LGBT rights, but it has not always been a linear journey. Let’s take a closer look at the history of gay marriage laws in California, and at where we stand today.

A brief history of California gay marriage laws

2000: the introduction of Proposition 22. Passed with 61% of the vote, this proposition deemed valid only marriages between a woman and a man. Though same-sex marriage was not yet legal, this put in place a barrier to prevent future laws. It passed just months after domestic partnerships, which had existed since the 1980s, received more rights and benefits.
2004: San Francisco takes a bold step. In February, San Francisco Mayor Gavin Newsom allows gay marriage to be officiated within the city. Nearly 4,000 gay couples are married before the California Supreme court intervenes the next month, when they are invalidated.
2005: Freedom to Marry bill introduced. A bill legalizing same-sex marriage makes it through the California legislature to the desk of Governor Arnold Schwarzenegger, who vetoes it, citing a violation of Proposition 22.
2007: Freedom to Marry bill tries again. Like in 2005, Governor Schwarzenegger vetoes the new bill, stating that the courts or the people must decide how to proceed.
May 2008: Marriage becomes legal, for a short time. A case regarding the constitutionality of Proposition 22 reaches the California Supreme Court, which rules that bans on gay marriage are indeed unconstitutional. 18,000 same-sex couples get married over the next few months.
November 2008: Same-sex marriage banned again. Proposition 8, the “Marriage Protection Act” reaches the ballot and passes with 52% of the vote, making same-sex marriages illegal in California once again.
2013: Gay marriage permanently legalized in California. Marriage equality advocates bring a lawsuit against Proposition 8, which is first tried at the District Court, followed by the U.S. Ninth Circuit Court of Appeals, and finally the U.S. Supreme Court in 2013 in Hollingsworth v. Perry. The proposition is ruled unconstitutional, as it discriminates against gay and lesbian couples. Finally, marriage equality advocated can celebrate without fear of losing their hard-won rights.
2015: Same-sex marriage legalized nationwide. In Obergefell v. Hodges, the U.S. Supreme Court rules that same-sex marriage is legal in every state. Same-sex spouses may also now receive federal benefits such as visa accessibility and military benefits.

Where we stand today

Legally, same-sex couples have every local, state, and federal right that comes with marriage. In reality, however, we still have some work to do. For example, the language we use in our legislation and the application of the laws are still being perfected. In California, SB 1306 was passed in 2014, and it updated the definition of marriage and other language. Now, marriage is defined as “a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary.” This year, SB 1005 further updates the language in our legislation, such as using gender-neutral terms such as “spouse” instead of “husband” or “wife.” It will come into effect on January 1, 2017.

There are several other legal complications demonstrating that there is still work to be done. What follows are several examples. This is not an exhaustive list and is not meant to provide legal guidance. Contact us for legal advice.

Religious institutions are not required to perform same-sex marriages, though many are welcoming to gay and lesbian couples. Civil servants who officiate marriages, however, are legally prevented from discriminating.
Certain private clubs and other membership-based organizations still retain the legal right to turn away who they like. This may affect wedding venue choice, for example, for clubs that do not serve the general public. Businesses that do regularly conduct business with the public, such as florists and bakeries, cannot discriminate.
Religious corporations may in some narrow instances deny benefits to same sex spouses or refuse to hire LGBT individuals. However, this is rare. Most employers are banned from discrimination in hiring practices, benefits, and other interactions with employees.
Some international adoption agencies do now allow same-sex couples to adopt. All adoption agencies within California may not discriminate against same-sex couples. Contact us for more details if you are considering adoption.
American Indian tribes were not affected by Obergefell vs Hodges, as courts do not have legal authority over tribes. But since 2013, beginning with the Iapay Nation of San Ysabel, near San Deigo, several have legalized gay marriage.

In closing, we have made immense progress over the past two decades in the rights of gay and lesbian couples, both on a state and a national level. Our attorneys have expertise in all aspects of same-sex marriage and family law, including pre- and post-nuptial agreements, wills, trust, estate planning, divorce, adoption, and more. We are here to help in all phases of your family’s legal needs.

Further reading
• “Marriage for Same-Sex Couples in California” by Lamba Legal.
• “Winning the Freedom to Marry Nationwide” by Freedom to Marry
• “Tribal Laws and Same-Sex Marriage: Theory, Process, and Content” by Ann E. Tweedy, Tribal Attorney, Muckleshoot Indian Tribe. Associate Professor, Hamline University School of Law.
• “Paradigms Lost: How Domestic Partnership Went from Innovation to Injury” by Melissa Murray, Berkeley Law

Photo by Mick De Paola on Unsplash