McGeorge School of Law

Proposition 22

Proposition 22:
Limits on Marriages

By Laura Strand

Copyright © 2000 by University of the McGeorge School of Law

JD, McGeorge School of Law, University of the Pacific
to be conferred 2000
B.A., History, CSU Sacramento, 1995


Table of Contents

Executive Summary


Drafting Issues

Constitutional Issues




Executive Summary

The Limitation on Marriage Proposition ("Proposition 22") would limit legal recognition of valid marriage to persons of the opposite sex by creating a single exception to California’s policy of recognizing marriages validly entered into outside this state. In essence, California would not recognize a same-sex marriage that validly took place in another state.

Proposition 22 is the fourth attempt in the last three years to pass a law to prohibit recognition of a same-sex marriage. This proposition will mark the first time this issue will be brought before California voters.

No state currently recognizes a right of same-sex couples to marry. Some anticipate that either Hawaii’s or Vermont’s Supreme Court could issue a ruling that would permit a same-sex couple to apply for and be issued a marriage license. California is among many states attempting to legislate in advance of the Hawaii or Vermont decision. However, on December 10, 1999, the Hawaii Supreme Court dismissed its suit as moot. That decision relied on the fact that a legislative initiative approved by voters effectively limited the right to apply for a marriage license to opposite-sex couples. Therefore, the relief sought no longer existed.

Because there is no tradition or history of same-sex marriage in this country, very few states have laws that explicitly restrict marriage to persons of the opposite sex. However, many states, including California, have a strong public policy of recognizing out-of-state marriages when the marriage is valid in the place it was entered into. Thus, unless California explicitly restricts recognition of marriages entered into in other states to persons of the opposite gender, it is likely that the state would give legal recognition to a valid same-sex marriage contracted in another state.

Proposition 22, if approved, is likely to be subject to Constitutional challenge under both the California State Constitution and the Federal Constitution. Among the potential constitutional challenges is the claim that the Proposition offends the Full Faith and Credit Clause of the Fifth Amendment. It does so by refusing to recognize a public act, record or judgment of a sister-state. This may be the strongest argument against Proposition 22’s constitutionality.

Another possible challenge will be that Proposition 22 violates the California Constitution’s guarantee of the right to privacy by intruding into marriages. The intrusion consists of determining whether spouses are of the same or different genders. The purpose of this intrusion is to confer or deny the legal recognition of a valid marriage and the attendant benefits the state provides based upon marital status.

Further, some may challenge Proposition 22 claiming that it denies Equal Protection of the law. Their claim would be that it allows discrimination against same-sex married couples by treating them differently than all other validly married couples.

Finally, Proposition 22 may be challenged on a claim that it violates the Due Process Clause of the Fourteenth Amendment. This claim would state that Proposition 22 infringes on the fundamental right to marry.

The likelihood of succeeding on one or more of these challenges depends on a number of factors. One of the most important factors is the standard of review to be applied by the courts if Proposition 22’s constitutionality is challenged. Since such a challenge will raise novel issues, there is substantial uncertainty as to which standard courts will apply. Another important factor is whether the court determines that there exists a fundamental right to a same-sex marriage. Although no court at this time says there is a fundamental right, this may be subject to change if a state allows for a same-sex marriage. Therefore, the outcome of potential legal battles is uncertain.



Traditionally, marriage celebrates the uniting of a man and a woman through a contract and civil or religious solemnization. Many recognize marriage as forming the basic family unit that is a foundation of society. The United States has never provided for the right to legally marry a person of the same sex. However, since the beginning of the struggle for gay rights in the early 1970’s, many have fought for the right to same-sex marriage as part of the ongoing effort to achieve equal rights. Others believe that marriage should remain as it has always been, between persons of the opposite sex. There are various reasons for restricting marriage to persons of the opposite sex, most of which are based on tradition and religion. (Lynn D. Wardle, Legal Claims for Same-Sex Marriage: Efforts to Legitimate a Retreat from Marriage by Redefining Marriage, 39 S. Tex. L. Rev. 735, 738 (1998).)

Past attempts by same-sex couples to legally marry have all failed. (See, e.g., Jones v. Hallahan, (Ky. 1973) 501 S.W.2d 588; Baker v. Nelson, (Minn. 1971) 191 N.W.2d 185; Singer v. Hara, (Wash. Ct. App. 1974) 522 P.2d 1187.) Additionally, there never has been any law enacted in the United States to extend the right to marry to same-sex couples. A number of jurisdictions have enacted laws expressly limiting marriage to a man and woman, and Congress enacted a similar statute limiting the definition of marriage for purposes of interpreting federal statutes (see 1 U.S.C. § 7 ("In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.")).

There have been previous attempts to pass legislation in California to prohibit recognition of a valid same-sex marriage. To date, all legislative attempts have failed. Proposition 22, sponsored by State Senator William "Pete" Knight (R-Palmdale), is the fourth attempt by Senator Knight to prevent State recognition of same-sex marriage. In 1997, Senator Knight authored SB 911 and in 1996, then Assembly Member Knight introduced AB 1982 and AB 3227. Each of the three bills failed to get the votes necessary to pass out of their respective Committees.

More recently, the Vermont Supreme Court, in a strongly worded opinion, announced that Vermont must grant the same benefits and protections to same-sex couples that are given to married couples. That court recognized this right under the "Common Benefits Clause" of the Vermont State Constitution. (Baker v. State, No. 98-032, 1999 WL 1211709, at **17,18 (Vt. Dec. 20 1999).) The Vermont court has suspended its decision and has retained jurisdiction in order for the Legislature to create a constitutionally mandated plan to extend those benefits to same-sex couples. (Baker, 1999 WL 1211709, at *46.) The Vermont Legislature is likely to create either a same-sex marriage statute or a domestic partnership registry to confer the benefits sought by the plaintiffs and required by the Vermont Supreme Court’s order. It is also possible that the decision in Baker v. State could be overruled by an amendment to the Vermont State Constitution. The Vermont Legislature currently is considering the matter.

The Baker case in Vermont suggests that same-sex marriage may soon be a legal possibility. California is attempting to limit recognition of valid out of state marriages to the traditional opposite-sex model in advance of the Vermont Legislature’s decision. The concern is that if same-sex marriage becomes legal in Vermont, then sister states, including California, would have to extend recognition to include a valid same-sex marriage. It is likely that many same-sex couples would travel to Vermont to marry and then return and demand that their marriage be recognized in their home state.

Additionally, while the Baker case is public knowledge, there has not been a comprehensive public debate on the issue of same-sex marriage and the effect it will have on society. There is little information as to the cost of extending marital benefits to same-sex married couples. It is likely that broadening the definition of marriage to include same-sex marriage will have some societal effect.


California law currently defines marriage as a personal relationship arising out of a civil contract between a man and a woman, each of whom must be capable of consent to the contract. This is followed by issuance of a license and solemnization by religious or civil ceremony. (Cal. Fam. Code § 300 (West 1993).) California has a strong public policy of recognizing marriages that take place out of state. (Cal. Fam. Code § 308 (West 1992).) California recognizes marriage contracted outside the state if the marriage was validly contracted. (Id.)

As a result, California will recognize an out-of-state marriage even if that marriage cannot be validly obtained in California itself. This recognition is based on a long-standing California policy. California law does not allow for common law marriage, nor are persons under the age of consent allowed to marry in California. However, if such a marriage were validly contracted in another state, California would recognize the marriage. (Colbert v. Colbert (1946) 28 Cal. 2d 276, 280; see also MacDonald v. MacDonald, (1936) 6 Cal. 2d 457, 459-460.)

The effect of the policy recognizing a valid out-of-state marriage is substantial. California law does not differentiate between married persons, regardless of whether they participated in a religious or civil ceremony, in or out of state, so long as the parties were legally capable of marrying. (Cal. Fam. Code §§ 300, 301.) Under current law, if a validly married same-sex couple entered California, their marriage would get the same legal recognition that extends to all other valid marriages.


Proposition 22 would add to the current law by carving out an exception to section 308 of the Family Code. Proposition 22 would add Family Code section 308.5 limiting California’s recognition of a valid marriage to that between a man and a woman. This statutory change would deny recognition of a same-sex marriage even if it was validly entered into in another state. The effect would be that a same-sex married couple would be treated as married in the state in which the marriage was contracted, but as single individuals in California. However, Proposition 22 would have no effect on all other valid out-of-state marriages including common law and underage marriages.


Drafting Issues

Although Proposition 22 refers to "sex," rather than "sexual orientation," one may assume that a same-sex marriage would likely be entered into by homosexuals. There is no prohibition preventing homosexuals from marrying. A homosexual man is free to marry a homosexual or heterosexual woman and vice versa. However, California does not legally recognize marriages of both homosexual and heterosexual people to persons of the same sex.

The text of Proposition 22 does not appear to be ambiguous or subject to varying interpretations. The language clearly states what the law intends to do; the intent is to restrict legal recognition to marriages between opposite-sex couples. It is unlikely that Proposition 22 will be challenged on grounds that the text is unclear or ambiguous. Therefore, any legal challenge is likely to be based on the application of Proposition 22, rather than its interpretation.

Constitutional Issues


Proposition 22 raises constitutional issues under both the California State Constitution and the United States Constitution. There are four readily foreseeable areas in which challenges are likely to arise. These four areas include: Full Faith and Credit, Right to Privacy, Equal Protection, and Due Process.

Proposition 22 will quite possibly be challenged for violating the Full Faith and Credit Clause of the United States Constitution. (U.S. Const. art. IV, § 1.) This clause requires states to recognize judicial determinations, public acts, and records from sister states. Refusal to recognize an out-of-state same-sex marriage may violate the Full Faith and Credit Clause because it arguably fails to recognize public records from sister states.

Additionally, Proposition 22 may violate the California State Constitution by intruding on the right to privacy. California’s Constitution, unlike its federal counterpart, contains an explicit right to privacy. (Cal. Const. art. I, § 1.) California courts interpret the right to privacy broadly, and usually strike down state laws that intrude on that right if the intrusion is serious and the privacy interest is of fundamental importance.

Further, both the California State Constitution and the United States Constitution guarantee equal protection of the laws. Equal protection requires that persons under like circumstances be treated similarly, or that different treatment based on classifications be properly justified by a sufficiently important state interest (where the degree of importance of the interest and the closeness of fit between the classification and the interest depend upon the nature of the classification and the importance of the rights burdened by the classification).

Finally, Proposition 22 also may be challenged as a violation of Due Process. The first inquiry is whether the law infringes upon a fundamental right. If it does infringe upon a fundamental right, the State must show that the law is narrowly tailored and that there are no less intrusive means available to further the governmental interest. However, if the court finds no fundamental right the burden is on the challenger to prove that an improper or illegitimate purpose is involved.


Proposition 22 may be unconstitutional under the Full Faith and Credit Clause of the United States Constitution. This clause states that "Full Faith and Credit shall be given in each state to the public Acts, Records, and Judicial Proceedings of every other state." (U.S. Const. art. IV, § 1.) Congress has effectuated this clause by providing that "Such Acts, Records, and Judicial Proceedings . . . shall have the same full faith and credit in every court within the United States from which they are taken." (28 U.S.C. § 1738 (1988).) The rationale behind the clause is that if a state is allowed to arbitrarily enforce or ignore another state’s judicial decree or public record, it would undermine the federal government’s goal of fostering a sense of unity and nationhood.

There is uncertainty as to whether marriage is within the purview of the Full Faith and Credit Clause because the United States Supreme Court has not yet ruled on this issue. However, state and lower federal courts have applied the Full Faith and Credit Clause to find a valid marriage, where the marriage was legally entered into in the state in which it took place. (See, e.g., People v. Godines (2nd Dist. 1936) 17 Cal. App. 2d 721). In Godines, a California court recognized an interracial marriage, validly entered in another state, even though California prohibited interracial marriage.

Part of the uncertainty stems from the question of whether the approval by a state of a marriage within the state constitutes or involves a public act, record or judicial proceeding for purposes of the Full Faith and Credit Clause. A marriage ceremony is usually not conducted as a court proceeding, and there is no "legal judgment" that a couple is lawfully married. Arguably, however, the marriage certificate itself may be sufficient to qualify as a public record entitled to full faith and credit by another state. (Habib Balian, Till Death Do Us Part: Granting Full Faith and Credit to Marital Status, 68 S. Cal. L. Rev. 397, 403.) States have denied recognizing a valid out-of-state marriage by declaring, either through statute or judicial decree, that a particular type of marriage is against the strong public policy of the state. Arguably, states have the discretion to choose whether or not to recognize a valid out-of-state marriage where that marriage violates the strong public policy of the state. (Restatement (Second) of Conflict of Laws § 283 (2) (1971).)

In contrast to the uncertainty about recognition of marriage under the Full Faith and Credit Clause, it appears settled that a divorce decree issued in one state must be given full faith and credit in other states. (Williams v. North Carolina, (1942) 317 U.S. 287, 302.) The difference between a marriage certificate and a divorce decree is the judicial proceeding. A legal judgment is necessary to get a divorce, but not to get married. The Full Faith and Credit Clause compels one state to recognize a divorce granted in a sister state even when the sister state has a strong public policy that would have prevented a grant of divorce in that state. (Williams v. North Carolina, (1942) 317 U.S. 287, 303.) One may argue that because marriage and divorce are two sides of the same coin, and because a divorce decree gets full faith and credit protection, it would be reasonable to expect that such protection would also apply to a certificate of marriage.

In enacting the Defense of Marriage Act in 1996, Congress has declared that no state is required to recognize under the Full Faith and Credit Clause a valid out-of-state same-sex marriage. Section 1738C of Title 28 of the United States Code provides that "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respective a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship." 28 U.S.C. § 1738C. Scholars disagree about whether Congress, by statute, can alter the constitutional requirements of the Full Faith and Credit Clause, although the weight of scholarship suggests that Section 1738C is unconstitutional. See, e.g., Jeffrey L. Rensberger, Same-Sex Marriages and the Defense of Marriage Act: A Deviant View of an Experiment in Full Faith and Credit, 32 Creighton L. Rev. 409 (1998) (arguing that Section 1738C is constitutional while acknowledging the weight of contrary scholarship); Heather Hamilton, The Defense of Marriage Act: A Critical Analysis of Its Constitutionality Under the Full Faith and Credit Clause, 47 DePaul L. Rev. 943 (1998) (arguing that Section 1738C is unconstitutional).

Notwithstanding Section 1738C, in light of the long-standing public policy to recognize a valid out-of-state marriage, a same-sex married couple’s challenge to Proposition 22 based on the Full Faith and Credit Clause may succeed. However, this is only if a court views a marriage certificate to be a public record that falls within the ambit of the clause.



In 1972, California voters approved an amendment to the State Constitution to add "privacy" to the list of "inalienable rights" possessed by all people. (American Academy of Pediatrics v. Lungren (1997) 16 Cal. 4th 307, 326.) Section 1 of Article 1 of the California Constitution provides as follows:

"All people are by nature free and independent and have inalienable rights. Among these rights are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." (Cal. Const. art. I, § 1.)

The concept of privacy "embodies the moral fact that a person belongs to himself and not others nor to society as a whole." (Thornburg v. American College of Obstetricians & Gynecologists, (1986) 476 U.S. 747, 777.)

California’s explicit provision guaranteeing the right to privacy affords more protection than the United States Constitution. (Cal. Const. art. I, § 1.) California case law establishes that the scope and application of the right to privacy is broader and more protective than United States constitutional protections. In California, people have the right to be free from governmental interference in areas of life that are considered private. "The right to privacy is the right to be left alone. It is of fundamental and compelling interest. It protects our homes, our families, our thoughts and emotions, our freedom to associate with the people we choose." (Proposition 11, California Voter Pamphlet, p. 27 (1972).)

However, the right to privacy is not absolute. Many laws intrude on individual rights in some way. Society expects, even demands, that the legislature enact laws that are considered beneficial and in furtherance of legitimate governmental objectives. As a consequence, citizens tolerate the intrusive nature of laws as the cost of an orderly society. This is generally true so long as the intrusions are limited to areas in which there is little reasonable expectation of privacy or there are countervailing interests.

California courts acknowledge rights to privacy and liberty in matters related to marriage, family and sex. (People v. Belous, (1969) 71 Cal. 2d 954, 963.) When a law infringes on the right to privacy in these fundamental areas the courts will look very carefully at the law to ensure that no constitutional violation is present.

It is important to note that California law does not provide for the right to a same-sex marriage, but instead allows for marriage only between a man and a woman. (Cal. Fam. Code § 308.) Proponents intend Proposition 22 to apply to all same-sex married couples who married in a state that does provide the right to same-sex marriage. Currently, no state provides such a right.

Proposition 22 may face a challenge based on the California State Constitution’s right to privacy. Because there is no right to same-sex marriage, the assumption in California law has been that all spouses are of the opposite sex. Therefore there has generally been no need to inquire as to the sex of marital partners. Proposition 22, however, would require such an inquiry which could be seen as an intrusion on privacy. The questions raised by a right to privacy challenge include: whether there is a legally protected privacy interest for persons in a same-sex marriage; whether that interest is of fundamental importance or merely of personal interest which is outweighed by countervailing governmental interests; what legal standard of review the court will apply. The court will seek to identify the nature and seriousness of the invasion as well as any countervailing privacy and non-privacy interests. (American Academy of Pediatrics v. Lungren, (1997) 16 Cal. 4th 307, 330 n.15.)

Marriage is an institution regulated by state law. (Cal. Fam. Code § 300.) California, like all states, has an interest in regulating marriage. (Sherrer v. Sherrer, (1948) 334 U.S. 343, 354). According to one author, the state’s interest in marriage falls into three categories. First, to control the population through encouragement of procreation and child rearing. Second, recognizing marriage as the foundation of family life and as a vehicle for establishing the societal values of the citizenry. Third, the state has a monetary interest by providing benefits based upon marital status. (Habib Balian, Till Death Do Us Part: Granting Full Faith and Credit to Marital Status, 68 S. Cal. L. Rev. 397, 420, 422.)

There is no right to sue for every invasion of the right to privacy. A claim is actionable only when the privacy interest is important and the intrusion is a serious invasion of the right. In order to meet the legal requirements to bring a claim a challenging party has the initial burden of proving three threshold elements. A party claiming a Constitutional violation must show a legally protected privacy interest, circumstances in which there is a reasonable expectation of privacy, and conduct by the state which constitutes a serious invasion of privacy. (American Academy of Pediatrics v. Lungren, (1997) 16 Cal. 4th 307, 330.) Requiring a party to establish the necessary elements screens out claims that are without merit, claims involving only a slight invasion of privacy, and claims that do not involve a "significant" privacy interest.

2. Standard of Review

There are two standards of review the court can apply when reviewing a legislative act under the privacy clause. The two standards are a general balancing test, which has both a low level of scrutiny that applies generally, and a compelling interest test employed when there is a serious invasion of an important privacy interest. Under either of the two standards of review, the role of the court is to compare, weigh, and balance the diverse interests involved. The comparison and balancing of diverse interests is central to the analysis because if the invasion of privacy is justified by substantively furthering a legitimate compelling interest then the intrusion is not considered to be a constitutional violation. (American Academy of Pediatrics v. Lungren, (1997) 16 Cal. 4th 307, 368.)

Once the party bringing the claim has established a violation of the right to privacy, the burden shifts to the State. The State must then either negate one of the three elements or justify the intrusion into the right to privacy by proving that the intrusion substantively furthers a compelling interest. The party can counter the state’s justification by showing that the compelling interest may be served by less intrusive means. (See Hill v. Nat’l Collegiate Athletic Ass’n., (1994) 7 Cal. 4th 1, 39, 40.)

A court must first identify the specific privacy interest involved, the nature and seriousness of the invasion of privacy and any countervailing privacy and non-privacy interests. What the court is looking for is an egregious breach of the social norms that underlie the privacy right. (See American Academy of Pediatrics v. Lungren, (1997) 16 Cal. 4th 307, 389.) If the case involves an obvious invasion of an interest fundamental to personal autonomy, for example freedom to pursue consensual familial relationships, a compelling interest must be present to overcome the privacy interest. Application of a heightened standard of review means that the ordinary deference a court owes to a legislative enactment diminishes when a constitutionally protected right, such as the right to privacy, is called into question. (Spiritual Psychic Science Church v. City of Azusa, (1985) 39 Cal. 3d 501, 514.)

Not all legislative acts intrude upon a fundamental privacy interest. A court will apply a general balancing test if the privacy interest is less central or is in actual dispute and the intrusion is insignificant. (American Academy of Pediatrics v. Lungren, (1997) 16 Cal. 4th 307, 329.)

It is not clear how the intrusion into the right to privacy would occur. However, there are several likely scenarios in which an inquiry as to a spouse’s gender may arise and an invasion of privacy claim might be possible. For example, suppose a same-sex married couple files a joint tax return. The California State Franchise Tax Board may reject such a joint filing based upon the gender of the married couple. Another possible scenario could occur if a partner to a same-sex marriage were to be injured and unable to give consent to medical care. In certain circumstances, married persons may be given the right to make decisions regarding medical care for a spouse who is incapacitated and unable to make such decisions for themselves. Probate Code §§ 3203(b); 1812. However, in light of Proposition 22, a care provider might not have to follow a same-sex spouse’s decisions regarding care (although in must be noted that California law permits a "friend of the patient or other interested person" to file a petition for authorization to make medical decisions for an incapacitated adult under Probate Code § 3203(c), and this provision may adequately cover the situation). A third possible scenario is in a wrongful death suit. Currently, the spouse of a deceased person has the legal right to sue for the wrongful death of their spouse. Under Proposition 22 a same-sex spouse bringing a wrongful death suit would see its suit dismissed because the law would not recognize the marriage, therefore the surviving spouse would not be capable of bringing the suit.

3. Conclusion

Because Proposition 22 raises novel issues regarding marriage that have not yet been raised in California courts, there is no way to determine at this time which standard of review the court will apply. Additionally, we do not know the state’s interest in regulating out-of-state valid marriages and how regulation of a valid out-of-state same-sex marriage would substantively further a legitimate state interest.

As a result, it is not possible to determine how a court will decide whether or not Proposition 22 is a permissible intrusion into a fundamentally important area of privacy. If the court determines that the privacy interest is protected and of fundamental importance and the legislation does not substantially further an compelling countervailing interest then Proposition 22 will not survive a challenge under the right to privacy. On the other hand, if the court determines that the privacy interest is less central and is outweighed by countervailing governmental interests and that Proposition 22 substantively furthers that countervailing interest then a challenge under the right to privacy will fail.


1.United States Constitution

The Fourteenth Amendment of the United States Constitution provides that no person shall be denied equal protection of the laws by the States. Equal protection of the laws must co-exist with the practical necessity that most legislation groups people together for one purpose or another, resulting in disadvantages for various groups or persons and advantages to others. (Romer v. Evans, (1996) 517 U.S. 620, 631.) The Equal Protection Clause does not guarantee identical treatment; rather, it guarantees only that similarly situated people will be treated similarly.

As a general matter, if the law does not burden a fundamental right or target a suspect class, a legislative classification will be upheld so long as it bears a rational relation to some legitimate end. (Heller v. Doe, (1993) 509 U.S. 321, 319-20.) This level of judicial review is known as "rational basis scrutiny." Rational basis scrutiny means that the reviewing court will uphold the law so long as the court can conceive of a rational relationship between the law and any legitimate governmental purpose. Rational basis standard of review sets a very low threshold for upholding a law and extends broad deference to the legislature.

Most laws can successfully withstand a challenge if rational basis is the applicable standard of review. Although almost all statutes reviewed under rational basis scrutiny are upheld, an example of a case in which a law was challenged on equal protection grounds and struck down despite application of rational basis standard of review is Romer v. Evans. (Romer, 517 U.S. at 620.) At issue in Romer was a state constitutional amendment that prevented a person from seeking any legal recourse if that person was claiming discrimination based upon sexual orientation. (Romer, 517 U.S. at 624.) Unable to find any legitimate purpose for the amendment, the Supreme Court concluded that the law classified homosexuals "not to further a proper legislative end but to make them unequal to everyone else." (Romer, 517 U.S. at 635.) Romer may be distinguishable since, unlike the situation present in Romer, a state may have a legitimate interest in defining marriage as only between a man and a woman.

Proposition 22 might be reviewed under a stricter standard than rational basis scrutiny known as "mid-level scrutiny." Mid-level scrutiny involves a more probing judicial inquiry into state interests and the means to achieve those interests than is required by rational basis review. The test under mid-level scrutiny is whether the law serves an important governmental objective and is substantially related to achievement of the objective. Under current law, the court applies mid-level scrutiny when the law involves a classification based upon gender, illegitimacy, or access to the judicial process. It is much more difficult to withstand an equal protection challenge when the court applies a mid-level standard of review. This is because the state must show not only a connection between the law and the objective, but that the objective is important and the law substantially furthers that objective.

An example of an application of mid-level review is found in another Supreme Court case, U.S. v. Virginia. (United States v. Virginia, (1996) 518 U.S. 515.) At issue in this case was the Virginia Military Academy’s ("VMI’s") policy of excluding women from admission despite physical and academic fitness. The United States Supreme Court opinion found that the state’s justification for exclusion based upon gender fell "far short of establishing the ‘exceedingly persuasive justification’ that must be the solid base for any gender-defined classification." (Virginia, 518 U.S. at 545.)

Because Proposition 22 is not gender based, as it does not say that men can’t marry or women can’t marry, a reviewing court will probably not apply mid-level scrutiny, and will instead evaluate Proposition 22 under rational basis scrutiny. It is likely that a court would strike down Proposition 22 on equal protection grounds only if the court decides, contrary to the weight of current caselaw, that classifications based on sexual preference must be reviewed pursuant to mid-level scrutiny.

2. California Constitution

Article I, section 24 of the California Constitution explicitly declares that "[r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." Article I, section 7, subdivision (a) of the California Constitution provides that a "person may not be . . . denied equal protection of the laws."

Generally, California courts looks to the federal courts for guidance in interpreting provisions in the California Constitution that are similar or identical to provisions in the United States Constitution. See, e.g., Warden v. State Bar of California (1999) 21 Cal.4th 628 (relying upon both state and federal court opinions in interpreting California’s equal protection clause). To the extent that California’s equal protection clause is given the same interpretation as the federal equal protection clause, the analysis will be the same as indicated above.

Arguably, however, California caselaw supports a different standard with respect to discrimination based on sexual preference. In a 1979 California Supreme Court case, the court held that it was arbitrary under the State’s equal protection clause to discriminate in public employment based on the sexual preference of an applicant unless it could be shown that the applicant’s sexual preference made him or her unfit for the job. (Gay Law Students Ass’n v. Pac. Tel. & Tel., (1979) 24 Cal. 3d 458, 467.) The court explained that because sexual orientation is unrelated to a person’s job performance the use of sexual orientation as a classification was impermissible in determining eligibility to work or to apply for employment. However, it is unclear whether the reasoning employed in Gay Law Students, which involved employment discrimination, would apply to Proposition 22, which involves the definition of, and state policy regarding recognition of, same-gender marriages.


The Fourteenth Amendment of the Federal Constitution provides that "no state shall deprive any person of life, liberty, or property without due process of law." The California Constitution also contains due process guarantees. (Cal. Const. art. I, §§ 7, 15.) Both the California and Federal Due Process Clauses seek to identify liberties that are considered fundamental to democracy. The purpose of identifying a fundamental liberty is to put a limit on governmental intrusion into areas of private life such as sex, marriage, and procreation. Any governmental intrusion into a protected area of privacy must be for a very important or compelling reason and must be by the least intrusive means possible.

The applicable standard of review depends upon the presence of a fundamental liberty. A fundamental liberty is one which is "deeply rooted in this nation’s history and tradition." (Moore v. City of E. Cleveland, (1977) 431 U.S. 494, 503.) The literal text of the United States Constitution does not expressly list all the rights and liberties considered fundamental. However, the courts have tried to identify the nature of rights that qualify for heightened judicial protection. These include fundamental liberties that are implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if these were sacrificed. (Palko v. Connecticut, (1937) 302 U.S. 319, 325, 326.) Among the fundamental liberties recognized by the United States Supreme Court are the rights to privacy in matters relating to marriage, family, and sex. (Griswold v. Connecticut, (1965) 381 U.S. 479.)

When a law is challenged under the Due Process Clause and it does not involve a fundamental liberty, a reviewing court gives great deference to the Legislature by reviewing the law under the rational basis level of scrutiny. Under rational basis scrutiny, a court does not make a searching inquiry as to the legislative purpose of, or the means used to further the governmental interest. Instead, the court begins with a presumption of constitutionality and upholds the law so long as it can be seen as a rational attempt to further some legitimate governmental goal.

However, if a law intrudes upon a fundamental liberty the reviewing court will apply strict scrutiny to ensure that the government has not abridged constitutional protections. Under the strict scrutiny standard, a law will be struck down unless it is narrowly tailored to further a compelling governmental interest. Applying strict scrutiny will all but guarantee that the law will be overturned. The very few laws that have survived a strict scrutiny review were those upheld to protect national security. (Korematsu v. United States, (1944) 323 U.S. 214.)

The right to marry is considered a fundamental liberty. (Zablocki v. Redhail, (1978) 434 U.S. 374, 384.) In Zablocki, a Wisconsin criminal statute was struck down because it "directly and substantially interfered with the fundamental right to marry." It required a divorced, non-custodial parent, to prove both payment of all court ordered child support and demonstrate that the child was not likely to need public welfare. (Zablocki, 434 U.S. at 387.) The Due Process Clause also protects the freedom to establish a home and raise children. (Meyer v. Nebraska, (1923) 262 U.S. 390, 399.)

Marriage has been a cornerstone of American society. However, there is no such deeply rooted tradition of same-sex marriage. Additionally, the Supreme Court, in upholding a Georgia statute prohibiting sodomy, has stated that the right of privacy does not include the right for homosexuals to engage in consensual sodomy. (Bowers v. Hardwick, (1986) 478 U.S. 186, 191.) The Court in Bowers declined to recognize a fundamental right to engage in consensual sodomy because of a long history outlawing such behavior. (Bowers, 478 U.S. at 194, 195.) Although, a same-sex married couple could be expected to engage in similar acts, that behavior is not considered a fundamental right, and is in fact considered illegal activity in some states such as Georgia that still have statutory prohibitions on sodomy.

A challenge to Proposition 22 based on a violation of due process is unlikely to succeed because it lacks the foundation of a deeply rooted history or a tradition of same-sex marriage. If faced with a due process challenge a court most likely will apply rational basis scrutiny and balance the state’s interest in regulating or prohibiting an activity and an individual’s desire to engage in that activity. In this instance the activity is making a central life choice, the decision to marry a person of the same sex. The state’s interest in regulating that activity is the interest in promoting the tradition of marriage and procreation. The likely outcome will be that a court will find that the State’s interest in regulating marriage outweighs an individual’s right to marry a person of the same sex.

Because there is no fundamental right to a same-sex marriage it is reasonable to expect that a reviewing court will apply the rational basis standard of review to Proposition 22. If Proposition 22 is reviewed under rational basis scrutiny it will likely survive a due process challenge.

If a reviewing court applies a heightened standard of review the court would have to justify its expansive interpretation of the due process protections to include same-sex marriage. Again, because this issue has not been raised previously it is not entirely certain how the court will decide it.



Proposition 22 will not have any effect on valid marriages currently contracted in California. However, Proposition 22 will add section 308.5 to the Family Code to carve out a single exception to the state’s public policy of recognizing all valid out-of-state marriages. Proposition 22 will enable California to not recognize same-sex marriages validly contracted in other states. Although no state legally recognizes same-sex marriages, it is possible that such recognition may exist in the future. Therefore, unless California limits marriage to persons of the opposite sex, either through the Legislature or by voter approval, the State would be required to legally recognize future same-sex marriages validly contracted in other states and provide all the benefits that accompany marital status. Proposition 22 for the first time brings this issue before voters and asks them to decide whether or not to limit marriages validly recognized in California to those between persons of the opposite sex.

Proposition 22 will likely face legal challenges under both the California and Federal Constitutions. The Full Faith and Credit Clause of the Fifth Amendment of the United States Constitution requires California to recognize public acts, records and judgments of other states. Because Proposition 22 requires California to refuse recognition of same-sex marriages validly contracted in other states, it will likely be challenged for violating the Full Faith and Credit Clause. Although the United States Supreme Court has held that the Full Faith and Credit Clause applies to judgments of divorce, divorce may be distinguishable from marriage for purposes of the Clause, and the United States Supreme Court has not yet addressed the issue of whether marriages must be recognized under the Clause.

It could be found that Proposition 22 violates the California Constitution’s protection of the right to privacy. The protected right of privacy may be violated because the State arguably must intrude into an area of protected privacy to ascertain the gender of marital partners for determining whether or not legal recognition and benefits can be conferred or denied.

Finally, Proposition 22 may also face claims that it violates the Equal Protection Clause of the California and United States Constitutions and the Due Process Clause of the United States Constitution. An equal protection challenge, although possible, is not likely to succeed because it would require proving that Proposition 22 singles out same-sex marriages from all other valid marriages and treats them differently without having a legitimate governmental purpose for the different treatment. Further, a due process challenge would require the court to decide whether Proposition 22 infringes on the fundamental right to marry. Because there is no history or tradition of recognizing same-sex marriages in this country and the Supreme Court has been unwilling to create additional fundamental rights, it is unlikely that a due process challenge will succeed.