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  • Sasha Issenberg

May 15, 2008: California Supreme Court strikes down marriage ban


The California Supreme Court upheld a lower-court-ruling that found an eight-year-old ban on same-sex marriage to be unconstitutional, permitting same-sex couples in the state begin marrying a month earlier.

Proposition 22 had passed by an overwhelming margin in March 2000, entering a single sentence into the state’s family-law code: “'Only marriage between a man and a woman is valid or recognized in California.” San Francisco Mayor Gavin Newsom’s 2004 decision to defy the law by issuing marriage licenses to same-sex couples set off a flurry of legal challenges that eventually put the constitutionality of Proposition 22 into question. In December 2006, the California Supreme Court announced it would hear arguments in six different lawsuits, consolidated as In re Marriage Cases, which became one of the most thoroughly briefed appeals in the court’s history.

On May 15, 2008, the justices struck down Proposition 22 by a one-vote margin. The majority opinion noted that California’s judges had been placed in a different position than other states’ who had entertained challenges to their marriage laws. Because gay couples were afforded equal rights and protections through domestic partnerships, the decision focused on the symbolic value of the word itself. “Reserving the historic designation of ‘marriage’ exclusively for opposite-sex couples,” wrote Chief Justice Ronald George for the narrow majority, “poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.” The court gave state and local officials a one-month deadline to begin permitting gay and lesbian couples to marry.

Anticipating this outcome, religious-conservative activists had already been collecting signatures to place on that November’s ballot a referendum that would write Proposition 22’s one sentence-text into the state constitution. Proposition 8, as the new measure became known, would put questions about the legality of a marriage ban beyond the reach of state judges but not the U.S. Supreme Court.


The Engagement:
America's Quarter-Century
Struggle Over Same-Sex Marriage

​By Sasha Issenberg

The riveting story of the battles over gay marriage
in the United States – the most important
civil-rights breakthrough of the new millennium.
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