In 2008, by a 4-3 vote, the Supreme Court of California held that its state constitutional right to equal protection of the laws grants same-sex couples the same right to marry as is enjoyed by opposite-sex couples, using strict scrutiny to come to this conclusion. In re Marriage Cases, 183 P.2d 384 (Cal. 2008). The court held that the right to marry is a basic civil right whose denial impinges upon same-sex couples’ fundamental privacy interests in having official family relationships accorded equal respect and dignity and that no compelling state interest justified the differential treatment of same-sex and opposite-sex couples. It also ruled that existing statutory provisions recognizing civil union or domestic partnership arrangements for same-sex couples were not equivalent to laws recognizing opposite-sex civil marriages.
The California decision was overturned on November 4, 2008, when California voters approved Proposition 8 amending the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. art. I, §7.5 (added Nov. 4, 2008), held unconstitutional by Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010, aff’d, Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), appeal dismissed by Hollingsworth v. Perry, 133 S.Ct. 786 (U.S. 2012). Subsequently, the California Supreme Court ruled that the constitutional amendment did not retroactively invalidate the 18,000 same-sex marriages that took place in California between the time when the marriage right was extended to same-sex couples and the date when the marriage right was revoked. Strauss v. Horton, 207 P.3d 48 (Cal. 2009). Proposition 8 was struck down in federal district court as a unconstitutional denial of equal protection of the laws and the court ordered the state of California not to enforce Proposition 8. Perry v. Schwarzenegger, 704 F.Supp. 2d 921 (N.D. Cal. 2010). When the state refused to appeal that adverse ruling, proponents of Proposition 8 stepped in to do so; the California Supreme Court answered a certified question by determining that they were entitled to do so and the trial court’s ruling was upheld on appeal to the Ninth Circuit. That ruling was overturned by the Supreme Court in Hollingsworth v. Perry, — U.S. —, 2013 WL 3196927 (2013), on the ground that the petitioners had no standing to intervene in the case to appeal the trial court’s ruling. That left the trial court’s ruling standing, opening the way to resume same-sex marriages in California.