In Re Marriage Cases: The Fundamental Right to Marry and Equal Protection under the California Constitution and the Effects of Proposition 8
![handle is hein.journals/hascq36 and id is 559 raw text is: In Re Marriage Cases: The Fundamental
Right to Marry and Equal Protection
Under the California Constitution and the
Effects of Proposition 8
by RICHARD SALAS*
I. Introduction
On May 15, 2008, the highest state court in the most populous state of
the union-California-struck down the limitation on marriage to a union
between a man and a woman' in the landmark decision In re Marriage
Cases.2 One month later, county clerks in California began issuing
marriage licenses to same-sex couples.3 However, the legal battle had only
* J.D. Candidate 2010, University of California, Hastings College of the Law; B.S. 2004,
Animal Physiology & Neuroscience and Psychology, University of California, San Diego. I
would like to thank the CLQ staff for all their support in helping me write this Case Comment. I
would also like to thank Professor Elizabeth Hillman for her guidance. Most of all I would like to
thank my parents for their endless support and love in all my endeavors and through all the
detours.
1. The limitation on marriage to a union between a man and a woman is found twice in the
California Family Code. It appears first in subdivision (a) of the California Family Code and
provides in pertinent part that [m]arriage 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. CAL. FAM. CODE § 300(a) (West 2008), invalidated in part by In re Marriage
Cases, 43 Cal. 4th 757 (Cal. 2008).
The limitation appears again in § 308.5 of the California Family Code, an initiative
statute submitted to and approved by the California voters as Proposition 22 at the March 7, 2000
election that provides in full that [o]nly marriage between a man and a woman is valid or
recognized in California. CAL. FAM. CODE § 308.5 (West 2008), invalidated by In re Marriage
Cases, 43 Cal. 4th 757.
2. In re Marriage Cases, 43 Cal. 4th 757.
3. It is reported that approximately 15,000 to 20,000 same-sex marriages took place in
California following this decision. Ballotpedia.org, California Proposition 8 (2008),
http://ballotpedia.org/wiki/index.php?title=CalifomiaProposition_8-(2008) (last visited Feb. 5,
2009).
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