Is same sex marriage legal in California? The answer is yes and here is a history of how it became legal.
California Supreme Court ruled in 2008 in favor of same sex marriage
In May of 2008 the California Supreme Court ruled that California’s Constitution guarantees the right to marry to everyone, regardless of sexual orientation. The California Supreme Court held Family Code 300 and 308.5 unconstitutional to the extent they intended to distinguish marriage for same-sex versus opposite sex couples.
California voters passed Proposition 8 and made it unlawful
In November of 2008 California voters passed what is now the infamous Proposition 8. Proposition 8 declared marriage to be between one man and one woman. As expected, after Proposition 8 passed, legal challenges to its constitutionality ensued. In a significant decision, the same California Supreme Court held Proposition 8 was a proper constitutional amendment. The only victory same-sex couples received was the California Supreme Court also determined Proposition 8 could not be retroactive. This allowed same-sex marriages that occurred before Proposition 8 to remain valid.
The United States District Court in California get involved
Proponents of same-sex marriage did not however give up. The United States District Court (a Federal Court) for the Northern District of California heard a case against Proposition 8’s constitutionality. On a momentous day of August 4, 2010 the United States District Court ruled Proposition 8 was unconstitutional because it violated due process and the 14th amendment’s equal protection clause.
The United States Supreme Court however agreed to hear this case and decide if the Ninth Circuit’s decision was correct. Interestingly, the United States Supreme Court then threw a curveball at everyone and held those who wanted to uphold Proposition 8 lacked “standing” to do so. Therefore, same-sex marriage became legal in California once again.
The same sex marriage issue became a national one
Nationally however, the issue was not closed until the United States Supreme Court heard the landmark case of Obergefell v. Hodges in the year 2015. In the Obergefell v. Hodges case the court held same-sex couples have a constitutional right to marry and no state has the right to refuse to recognize a same-sex marriage performed in another state.
California amended its family code and codified same sex marriage
In California, on January 1, 2015, California amended Family Code 300 and repealed Family Code 308.5 and recognized same sex marriage. The California legislature also created Family Code 308 which recognized same-sex marriages created outside of California so long as it was valid in the state the marriage was created or contracted.
Farzad Family Law handles sex same divorce cases
If you and your same sex partner are married but unfortunately you need representation for a potential or pending divorce, please contact our experienced California family law attorneys. We offer an affordable strategy session and are ready to help.