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Constitution Check: Where does marriage law stand today in California?

July 16, 2013 by Lyle Denniston


Photo by Flickr user Fibonacci Blue
Photo by Flickr user Fibonacci Blue

Lyle Denniston updates the state of same-sex marriages in California after the Supreme Court’s June decision about Proposition 8.


“Everyone on all sides of the marriage debate should agree that the legal process must be followed.  Although we would have preferred for the California Supreme Court to issue a stay so that the state’s marriage amendment would be respected sooner rather than later, the proponents of Proposition 8 will continue to urge the court to uphold the rule of law.  We remain hopeful that the court will recognize that Proposition 8 remains the law of the land in California and that county clerks must continue to enforce it.”

 – Austin R. Nimocks, senior counsel of the legal advocacy group Alliance Defending Freedom, in a statement to the media on July 15 after the California Supreme Court refused to order county clerks across the state to stop issuing marriage licenses to gay and lesbian couples.


Unless something else unexpected happens over the next few weeks, the Constitution will mean that same-sex couples can continue to get married in California.  That is a constitutional fact because three appeals courts – the U.S. Supreme Court, the Ninth U.S. Circuit Court of Appeals, and the California Supreme Court – have refused to step in to disturb the existing legal situation for marital rights in the state.

And that means that a nearly three-year-old order by a federal trial court in San Francisco – in the wording it used and in the way state officials have interpreted it – now controls the issuance of marriage licenses, and gays and lesbians are eligible to get them, statewide.

Hundreds of marriage licenses have been issued by county clerks in the 19 days since the Supreme Court issued a procedural ruling that led quickly to the first gay marriages in the state in five years.   Among those now wed are the two couples who successfully challenged the constitutionality of the voter-approved “Proposition 8,” which banned same-sex marriages everywhere in the state.

Soon after the Supreme Court had ruled, the Ninth Circuit Court took a step that put into formal effect the August 2010 decision by the San Francisco judge (since-retired Judge Vaughn R. Walker) declaring that “Proposition 8” violates the federal Constitution and could no longer be enforced.

Although Judge Walker’s order seemed clear enough while challenges to it went up through the federal courts, what it actually means – that is, how far it reaches across California and who can take advantage of it – has been a source of a lively and spreading debate among dueling legal factions in the state.

On one side are the opponents of same-sex marriage, the sponsors of “Proposition 8” who got it onto the ballot and got it approved in November 2008, and who now insist that it is still in force in most if not all of the state.   On the other side are state officials, who have believed almost from the start that “Proposition 8” was unconstitutional, and who now insist that Judge Walker’s ban on its enforcement reaches every one of California’s 58 counties (the level of government that issues marriage licenses).

Although the Walker order was issued by a federal court, the “Proposition 8” sponsors – who have had better legal luck in state than federal courts – decided last week to try to get the state Supreme Court to curtail the sweep of that mandate.   They argued to the state tribunal that Walker only had authority to rule in favor of the two same-sex couples who sued in his court, and that his order against enforcement really only applies – at the very most -- to the two counties whose clerks had been sued by those couples (Alameda and Los Angeles counties).

In a rapidly unfolding legal case before the state Supreme Court, both sides sought to persuade the seven-member tribunal to rule their way: state officials wanted no restriction on the Walker order, the “Proposition 8” backers wanted that order limited to Alameda and Los Angele counties and, hopefully, not even in effect there, either.

On Monday, in keeping with the speed of that case’s movement, the state Supreme Court acted.  It refused to send any order to county clerks to stop them from issuing marriage licenses to gays and lesbians.  As a result, Walker’s order is still in full force, and county clerks have been told by state officials to keep obeying it by issuing marriage licenses to same-sex couples.

But, so far, that does not appear to be the end of the matter.   The “Proposition 8” sponsors have a more sweeping legal challenge to the issuance of such licenses, and the state Supreme Court did not act on that on Monday.   Instead, it apparently has chosen to let that case keep moving through a round of written legal briefs, to be completed by August 1.

This broader proceeding involves the claim that “Proposition 8” has survived the limited reach of the Walker order, and thus county clerks have no option but to obey its ban on same-sex marriages.   In the meantime, of course, county clerks are under state orders to go on granting the licenses without regard to the sex of the couples seeking them, and are simultaneously under at least a mild threat by state officials to take action against them if they refuse to do so.

The situation is constitutionally a bit untidy but, for the time being, marriage equality has come to the nation’s largest state – about three weeks later than many had assumed after the Supreme Court had ruled.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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