Hastings Constitutional Law Quarterly


Richard Salas


This issue of whether or not to legalize marriage for same-sex couples has been one of the most socially and legally visible issues of the past decade. The controversy surrounding the legalization of gay marriage will continue to be a hot-button political and social issue for at least a considerable length of time into the future. Marriage is mostly an institution governed by state laws, and, as the traditional definitions and limitations on marriage change, it will occur mostly on a state-by-state basis.

California has a history of leading the nation in social progression at the judicial and legislative level. The California Supreme Court recently tackled the issue of samesex marriage under the California Constitution. This Case Comment will provide an indepth view of the analysis employed by the court in In re Marriage Cases. The court held that marriage was a fundamental right under several provisions of the state constitution guaranteed to all its citizens and that several laws limiting the designation of marriage to opposite-sex couples violated the due process, privacy, and equal protection clauses of the California Constitution. This Case Comment also reviews the opinions of the dissenting justices on the court, and why they found that the majority's conclusions were erroneous. This Case Comment will also distinguish aspects of the holdings that have survived the passage of Proposition 8, which, in response to In re Marriage Cases, amended the California State Constitution to prohibit the legal designation of marriage to same-sex couples.