| abstract
| - In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], is a California Supreme Court case holding "that the California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying." On May 15, 2008, the court ruled in a 4–3 decision that laws directed at gays and lesbians are subject to strict judicial scrutiny and that marriage is a fundamental right under Article 1, Section 7 of the California Constitution, thereby holding unconstitutional the previously existing statutory ban on same-sex marriage embodied in two statutes, one enacted by the Legislature in 1977, and the other through the initiative process in 2000. The Court's ruling also established that any law discriminating on the basis of sexual orientation is constitutionally suspect, making California the first state in the United States to set such a strict standard. On June 4, 2008 the court denied the request for rehearing by the same 4-3 majority while unanimously denying a petition for a stay, affirming that the decision would take effect as scheduled. The Writ of Mandate directing the State Registrar of Vital Statistics and all County Clerks to comply with the ruling was issued by the Superior Court on June 19, 2008. Proposition 8 is an attempt to overrule the court's decision by amending the state's constitution. The initiative defines marriage as a union between a man and a woman and may appear on the November 4, 2008 General Election ballot. However, it is noteworthy that the Court, at footnote 41, indicated that "the right to marry is not properly viewed simply as a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people." This language echoes that of then-Associate Justice Roger J. Traynor in his landmark ruling in Perez v. Sharp (1948) 32 Cal.2d 711: "The freedom to marry the person of one's choice has not always existed, and evidently does not exist here today. But is not that one of the fundamental rights of a free people? Blackstone said that: 'Liberty consists in being limited only by that Supreme Law which is the expression of abstract right....It is material that the few who do so desire have the right to make that choice. It is only ignorance, prejudice and intolerance which denies it." (ibid. at 32 Cal. 2d at 734-735). In light of this, at least one legal scholar has raised doubts as to whether the initiative process can amend the constitution and whether any change in this fundamental right has to occur through a constitutional revision which is also provided for in the California Constitution. The Supreme Court of California joins the Supreme Judicial Court of Massachusetts as only the second state to have its highest court rule prohibitions on same-sex marriage unconstitutional, although for somewhat different reasons.
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