In Re Marriage Cases

In re Marriage Cases (2008) 43 Cal.4th 757, was a California Supreme Court case with the dual holding that "statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny" and the existing "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." Currently, the California Family Code states: “Marriage is a personal relation arising out of a civil contract between a man and a woman.”

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 (Proposition 22). 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.

On November 4, 2008, California voters approved Proposition 8, which limited marriage under the California Constitution to opposite-sex couples. This decision did not disturb that part of the court's holding that gay men and lesbians constitute a suspect class for purposes of equal protection under Art. I § 7.

The Supreme Court of California joined the Supreme Judicial Court of Massachusetts as the second state to have its highest court rule prohibitions on same-sex marriage unconstitutional, although for somewhat different reasons. Later in 2008, the Connecticut Supreme Court handed down a similar decision, as did the Iowa Supreme Court in April 2009 (see Varnum v. Brien). Critics contend that court rulings such as these that grant same-sex couples the right to marry overstep the constitutional authority of the judicial branch.

The judgment In re Marriage Cases was in part mooted by Strauss v. Horton, 46 Cal.4th 364 (2009).