Sexual Orientation and the Law

This guide covers issues including marriage equality, employment and housing discrimination, child custody issues, and military policy.

Relationship Recognition

The State of California once restricted LGBTIQ couples from acquiring equal marriage rights via state statute.  This restriction was found in the California Family Code § 308.5 which reads:

"Only marriage between a man and woman is valid or recognized in the state of California."

This code section restricted the ability of same-sex couples to acquire a marriage license, and also prevented the state from recognizing marriages between same-sex couples performed in other states (or foreign countries).  It resulted from a ballot intiative passed on March 7, 2000 known as the "Knight Initiative".

In 2005 California extended domestic partnership rights and responsibilities to same-sex couples.  This law gives nearly all rights and responsibilities afforded to spouses under state law including complete inheritance rights, community property, joint responsibility for debt, and the right to request support from each other upon dissolution of the relationship.

The domestic partnership provision is found in the California Family Code § 297-297.5 which reads, in part:

"Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses."

On May 15, 2008 the California Supreme Court issued its ruling on In re marriage cases.  The court found that restricting marriage to opposite-sex couples violated the state's equal protection clause and struck down sections 308.5 and 300 in the California Family Code.  It also found that based on the Perez v. Sharp case, marriage does constitute a fundamental right that cannot be denied to same-gender families.  The case dates back to 2004, when San Francisco began issues marrage licenses to same-gender families.

Notable quotes from the majority decision:

[U]nder this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.

[S]trict scrutiny (...) is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion — a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.

[T]he exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples.

On November 4, 2008 a constitutional amendment was passed, by voter initiative, which eliminated marriage equality for LBGT families.  The intiative, called Prop. 8, added the following text into the California Constitution:

Only marriage between a man and a woman is valid or recognized in California.

A number of lawsuits were filed against the state seeking to prevent this amendment from taking effect.  Many of the arguments proposed by these lawsuits were based upon equal protection grounds, the fundamental liberty interest, and that it acts as a revision, rather than amendment, to the constitution.  

A federal challenge to Prop. 8 was successful at the trial level. Perry v. Schwarzenegger was heard by the federal court for the Northern District of California.  Judge Vaughn Walked ruled that Prop. 8 violated federal equal protection and due process requirements.

The Ninth Circuit appellate court later heard the case and also found that is violated the 14th amendment's assurance of equal protection and due process.
The state of California chose not to appeal this case.  The proponents of Prop. 8 intervened and argued that they had standing to bring about an appeal.  The United States Supreme Court ruled that only the state has standing when defending a challenge to a state statute or state constitutional amendment and vacated the ruling of the Ninth Circuit.

Employment Non-Discrimination

The State of California does provide protection against job discrimination based on sexual orientation.  Provisions in the state code include protections based on both sexual orientation and gender identity. 

These provisions are found in the California Government Code § 12920, 12940, and 12949 which reads, in part:

"It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation."

Parenting Information

Under the California Family Code § 8600-8601, any adult may legally adopt.  Statute also permits stepparent adoptions by registered domestic partners.  Further, the law bans the discrimination of LGBTIQ people who are prospective parents in foster care/adoption.

The precedent for this statutory interpretation was established in Sharon S. v. Superior Court, 31 Cal. 4th 417 (2003).

Prop 8 Trial Tracker

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Heafey Law Library Research Team