Marriage between spouses of the same sex is legal and authorized in California, based on U.S. Constitutional law, California Constitutional law, and applicable case law. Because of the issue’s procedural history, there are several cases and dates relevant to the validity of a same-sex marriage in California:

In re Marriage Cases, 183 P.3d 384 (Cal. 2008).

The California Supreme Court held that:

Laws denying same-sex couples the opportunity to marry were subject to strict scrutiny for two reasons:

• Equal Protection - classifying or discriminating on the basis of sexual orientation, a characteristic [held to represent] —like gender, race, and religion —a constitutionally suspect basis upon which to impose differential treatment; and
• Fundamental Right - the differential treatment of same-sex couples impinged on their fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.

Statutory “domestic partnerships” providing same-sex couples “virtually all of the same substantive legal benefits and privileges” as a “marriage” under state law nonetheless failed to accord same sex-couples the “same respect and dignity accorded a union traditionally designated as marriage”.

California Ballot Proposition 8 (2008) (“Prop 8”)

In response to In re Marriage Cases, in 2008 California voters passed Proposition 8, amending Article I of the California Constitution to state that “only marriage between a man and a woman is valid or recognized in California."

Strauss v. Horton 46 Cal.4th 364, 93 Cal.Rptr.3d 591

• Held that Prop 8 was valid, but did not invalidate existing same-sex marriages.
• Same-sex marriages granted after the ruling in In re Marriage Cases (June 16, 2008) but before the passage of Proposition 8 (November 5, 2008) are valid.

Hollingsworth v. Perry, 570 U.S. 693 (2013)

Series of Federal and California state court rulings that resulted in the invalidation of Prop 8 and the legalization of same-sex marriage in California.

After the Federal District court invalidated Prop 8 as violative of the U.S. Constitution’s Fourteenth Amendment Due Process and Equal Protection clauses, California officials announced their decision not to appeal.

The California Supreme Court held Prop 8’s proponents had the right to conduct their own appeal, but the U.S. Supreme Court overturned the decision.

Perry v. Schwarzenegger, 704 F.Supp.2d 921 at 940 (N.D. Cal. 2010).

• Federal court challenge to Prop 8 in the Northern District of California by two same-sex couples living in California.
• Held strict scrutiny applied and invalidated Proposition 8 as violative of U.S. Constitution’s 14th Amendment:
  • Federal court challenge to Prop 8 in the Northern District of California by two same-sex couples living in California.
  • Held strict scrutiny applied and invalidated Proposition 8 as violative of U.S. Constitution’s 14th Amendment:
  • Due Process - Same-sex marriage right sought was not a ‘new right’, but rather the fundamental right of marriage involving the rights to “choose a spouse and with mutual consent, join together and form a household.” Gender distinction historically applied to marriage right was a historical artifact no longer relevant. Affirmed finding of In re Marriage Cases that a Domestic Partnership scheme “exist solely to differentiate same-sex unions from marriages” and did not satisfy California’s obligation to allow same-sex couples to marry.
  • Equal Protection - Discrimination against same-sex couples violated Constitutional protections against discrimination on the basis of: (a) Sex - Plaintiff seeking to marry individual of the same sex denied marriage because of her being a woman and not a man; (b) Sexual orientation - Prop 8 targeted homosexuals like Plaintiffs, whose “homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian.”

Perry v. Schwarzenegger, 628 F.3d 1191 (9th Cir. 2011)

After the Federal District Court invalidated Prop 8, California’s Attorney General Jerry Brown announced he would not appeal the decision, extending that pronouncement when he became governor in conjunction with Attorney General Kamala Harris. Prop 8’s official proponents (ProtectMarriage.com, including named-plaintiff Dennis Hollingsworth) appealed.

Cert. quest to California Supreme Court to determine “whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

The Ninth Circuit requested the California Supreme Court determine whether Prop 8’s proponents had the authority to appeal the District Court’s decision.

Perry v. Brown - 52 Cal. 4th 1116, 265 P.3d 1002, 134 Cal Rptr 3D 499

California Supreme Court held Prop 8 proponents had standing to challenge the District Court’s invalidation of Prop 8

“[W]hen the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.”

The U.S. Supreme Court disagreed with the California Supreme Court, stating that the official proponents lacked standing to appeal the District Court’s order, thereby rendering the District Court’s decision valid and thus invalidating Prop 8.

“The Court does not question California's sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts. But standing in federal court is a question of federal law, not state law. No matter its reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override this Court's settled law to the contrary. Article IIIs requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in the federal system of separated powers. States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.” Hollingsworth v. Perry, 570 U.S. 693, 695-96 (2013).

Obergefell v. Hodges, 135 S. Ct. 1732 (2015)

• General Ruling - “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.” Obergefell v. Hodges, 135 S. Ct. 1732 (2015).
• Due Process - “The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.” Obergefell v. Hodges, 135 S. Ct. 1732 (2015)
• Equal Protection - “The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet each may be instructive as to the meaning and reach of the other.”

California State Case Law Referencing Same-Sex Marriage

The decision in Reynolds v. City of Los Angeles (1986) 176 Cal.App.3d 1044 “is also outdated. Recent authority holds that same-sex couples who agree to have children by way of surrogacy and/or in vitro fertilization are "parents" within the meaning of the Uniform Parentage Act, without any requirement of a formal adoption. (See Elise B. v. Sup. Ct. (2005) 37 Cal.4th 108, 113 [which held that a woman who agreed to raise children with her lesbian partner, although neither the birth mother nor a genetic contributor to the child, was legally the child's parent]; and see K.M. v. E.G. (2005) 37 Cal.4th 130, 134. ) Plaintiffs' allegations of parentage in ¶2 of their Complaint are therefore sufficient.” Michelle L Kriethe Vs. Los Robles Hospital And Medical Center, 56-2009-00347041-CU-MM-SIM (https://trellis.law/ruling/56-2009-00347041-CU-MM-SIM/michelle-l-kriethe-vs-los-robles-hospital-and-medical-center/20091002a5d0c8).

“[Therapist Defendant argues that Defendant did not violate California Civil Code §43.93(c) because] though not legally married, they lived as though they were and there is a statutory exception for spouses within a marriage. (Under §43.93(c), there is an exception for sexual contact between spouses. Specifically, the statute says that "No cause of action shall exist between spouses within a marriage." D is essentially asking the court to treat P and D as spouses even though they were not legally married at the time. Since same sex marriage was not legal until June 2013, D argues, there was no possibility for them to be married for most of their relationship. D does not cite any authority by which a court has determined that same sex partners should be considered "spouses" under the statute. While the spirit of the law might have been intended to protect the type of situation we have here – long term committed relationships involving same-sex couples – the statute seems clear that it is to protect spouses only. The Legislature could have included "long term same sex couples" in (c). Such language would have been amorphous and perhaps not very workable, but still the Legislature did not see fit to carve out from the statute relationships other than 'spousal' relationships.) Lisa Turner Vs. Kellee Clougherty, 56-2014-00452255-CU-BC-VTA (https://trellis.law/ruling/56-2014-00452255-CU-BC-VTA/lisa-turner-vs-kellee-clougherty/201612088aeaa7).

California Code of Civil Procedure §706.051 -- governing liability of the family of a judgment debtor -- “does not provide a meaningful definition of the term “family.” Instead, it merely provides that “family … includes the spouse or former spouse of the judgment debtor.” CCP §706.051. It does not limit the definition to spouses, and in fact does not require co-habitation. Whether or not “family” was intended to cover same-sex partners, the evidence submitted by debtor indicates that he and Mr. Casson have been in a committed relationship for over 10 years, and apparently hold themselves out as partners. Whether or not they have filed any domestic partner forms, or participated in a commitment ceremony (or actual marriage ceremony), this court concludes that the “family” under CCP §706.051 includes a dependent same-sex partner when the indicia of a marriage exist.” Anderson Vs. Catlett, (12/11/2013) (republication of court decision) (https://trellis.law/view/WFOcp9Nsy5eoEjrn1MA9rCFggfzGaM2RwqX-Xx-hQP0)

“Family Code § 2320 has no application to this matter and does not establish a lack of subject matter jurisdiction. The statute states as follows: ‘(a) Except as provided in subdivision (b) [referring to same sex marriages, not relevant here], a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.’” Sharon Louise MacDonell V. Shipping Solutions, LP, Et Al., 18CV338328 (https://trellis.law/ruling/18CV338328/sharon-louise-macdonell-v-shipping-solutions-lp-et-al/20190822579234).