Issue:  Vol. 48 / No. 8 / 22 February 2018

Online extra: Friends of the Court: Lawmakers' goal is equality


Sharon Strickler and Assemblywoman Jackie Goldberg in September 2003 when then-Governor Gray Davis signed AB 205, which expanded rights and responsibilities for state registered domestic partners. Photo: Rick Gerharter
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"I never imagined that domestic partnerships might somehow be used as an excuse not to allow same-sex couples to marry," said former Assemblywoman Jackie Goldberg, the author of AB 205 (California Domestic Partner Rights & Responsibilities Act), in an August 2007 op-ed piece for the Los Angeles Times (Link Here). But in a 2-1 ruling, the Court of Appeal upheld the marriage prohibition for gay and lesbian couples stating, "It is rational for the Legislature to preserve the opposite-sex definition of marriage ... while at the same time providing equal rights and benefits for same-sex partners through a comprehensive domestic partnership system."

Believing the Court of Appeal "selectively interpreted legislative history and ignored recent legislative actions" in coming to its decision, 16 current California legislators joined together to file an amicus brief. This week, Marriage Equality USA explores the California legislators' amicus brief, along with an amicus brief filed by Professor William Eskridge, whose work was referenced in the Court of Appeal decision. This article is part of a daily series in which MEUSA, partnering with the Bay Area Reporter, highlights each of the 30 amicus "friend of the court" briefs submitted by hundreds of supportive organizations, professional associations, and religious institutions and filed with the California Supreme Court in favor of same sex couples' freedom to marry.

"Every legislative action over the last eight years, including the domestic partnership laws, has been one step toward the ultimate goal of marriage equality in California." – California legislators' amicus brief

The California legislators' amicus brief plainly states, "the Legislature has no interest in maintaining two separate institutions for committed relationships." Rather state Senator Carole Migden (D-San Francisco), whose office coordinated efforts for this amicus brief, says, "I believe that attaining the right to marry is the most important civil-rights battle of 21st century America. This amicus brief is important because there is no rational basis for denying same-sex couples the right to marry under California law. My efforts to achieve domestic partnership rights for LGBT couples in California have simply been important, incremental steps toward achieving marriage equality."

To support its assertion that the state's domestic partnership registry and subsequent efforts to expand rights provide to domestic partners have all been steps "toward the ultimate goal of marriage equality in California," the amicus brief includes excerpts from the legislative history of domestic partnership legislation that proves domestic partnerships were never envisioned or considered to be an equal substitute to marriage, including:

The [Domestic Partnership Act] was "intended to help Californians move closer to fulfilling the promises of inalienable rights, liberty and equality contained in ... the California Constitution" (AB 205)

"This bill continues the march toward parity in rights and benefits between registered domestic partners ... and married couples" (Senate Judiciary Committee analysis)

"While the bill results in more equity with respect to how domestic partners are treated under the law, it does not provide full equality between the two groups." (Assembly Judiciary Committee analysis)

"The harms caused by prohibiting same-sex couples from marrying in California cannot be remedied, as required by the California Constitution, by any measure short of permitting same-sex couples to marry in California." – Assembly Bill 43, in California Legislators' amicus brief

The Court of Appeal majority opinion claims that the power to determine whether same-sex couples have the right to marry "rests in the people and their elected representatives." As highlighted in this amicus brief, however, "for the first 127 years of California history, the definition of marriage was gender-neutral;" it wasn't until 1977 that the California Legislature "amended [the Family Code] to limit marriage to a 'civil contract between a man and a woman' [to specifically exclude gays and lesbians from marriage]." In a San Francisco Bay Times article, Assemblyman Mark Leno (D-San Francisco), author of the Religious Freedom and Civil Marriage Protection Act, explained since "the Legislature created the definition of marriage inequality 31 years ago in an act of prejudice and discrimination, the current Legislature can amend it again to eliminate that discrimination."

In fact, the California legislators' amicus brief highlights that on two occasions (September 2005 and September 2007), "the people's representatives in the Legislature approved the Religious Freedom and Civil Marriage Protection Act to include same-sex couples in the definition of marriage and thus end marriage discrimination in California." Nevertheless, on both occasions, Governor Arnold Schwarzenegger vetoed the legislation that could remedy this discrimination, claiming it was the role of the courts to decide.

The California legislators' amicus brief contends "the governor deferred to the Court of Appeal, while the Court of Appeal deferred to the political process of which the governor is a part, leaving the Legislature caught in the middle."

"California's judiciary has traditionally played a key role, reversing the burden of inertia when the political process is unable ... to deliver full equality to a traditionally disadvantaged minority that has earned its rightful place in civil society." – Professor William Eskridge's amicus brief

In his amicus brief, Eskridge sets forth an extensive legal history that illustrates how the California Supreme Court has "played an active and critical role, repeatedly ameliorating or trumping anti-gay legislation supported by popular prejudice and stereotyping and pressing state policy toward more equal treatment." Eskridge states the court is in a position to end this stalemate between the Legislature and the governor.

As examples, Eskridge highlights how the courts in Massachusetts and Canada reversed the burden of inertia by granting same-sex couples the freedom to marry. In doing so, they provided both legislators and the voters an opportunity to come to a place of acceptance. Eskridge states, "The Massachusetts Supreme Judicial Court reversed the burden of inertia in Goodridge ... and gave the Legislature a six-month period to respond to the advent of same-sex marriage and advised the Legislature that civil unions would not satisfy the court's mandate." With this decision and the ability to see gay and lesbian couples marrying, public opinion in favor of marriage for same-sex couples grew. According to Eskridge, "The key reason (for improved public opinion) is that the court's reversal of the burden of inertia created a situation where LGBT people could actually disprove wild predictions about the social effects of same-sex marriage." Eskridge's amicus brief concludes, "At some point, equality practice matures into equality. For California, that point is now."

"Recent legislation attempting to end discrimination against lesbian and gay men and to provide equality for all Californians – and the public response to this legislation – demonstrates that there is no constitutional justification for denying marriage rights to same-sex couples." – California Legislators' amicus brief

Finally, the California legislators' amicus briefs addresses concerns expressed by the attorney general and Court of Appeal that "change will cause social upheaval and, perhaps, undermine the institution of civil marriage." Referencing more than 38,000 same-sex couples who have registered as domestic partners in California and the nearly 10,000 same-sex couples married in Massachusetts, this amicus brief states none of the "dire consequences imagined by the attorney general and the Court of Appeal" have resulted. Therefore, this amicus brief contends, "Those concerns are not valid and, more importantly, should not inform the legal analysis in this case."

Citing the historical significance of the California Supreme Court being the first court in the nation to end the ban on interracial marriage, Goldberg concludes in her op-ed piece by stating "This time, when the court rules, it will be too late to be the first – but not too late to be just."

In addition to Migden and Leno, the other California legislators who signed onto the amicus brief include Senators Elaine Alquist (D-San Jose), Ellen Corbett (D-San Leandro), Christine Kehoe (D-San Diego), Sheila Kuehl (D-Santa Monica), and Darrell Steinberg (D-Sacramento) and Assemblymembers Noreen Evans (D-Santa Rosa), Loni Hancock (D-Berkeley), Jared W. Huffman (D-San Rafael), Dave Jones (D-Sacramento), John Laird (D-Santa Cruz), Sally Lieber (D-Mountain View), Fiona Ma (D-San Francisco), Anthony J. Portantino (D-Pasadena) and Lori Saldana (D-San Diego). The complete California legislators' amicus brief can be found online here: Download PDF file

A complete copy of Professor William Eskridge's amicus brief can be found online here: Download PDF file

Professor William N. Eskridge, Jr. is the John A. Garver Professor of Jurisprudence at Yale Law School. During 1990-95, Eskridge represented a gay couple suing for recognition of their same-sex marriage. Since then, he has published a field-establishing casebook, three monographs, and dozens of law review articles articulating a legal and political framework for proper state treatment of sexual and gender minorities. The historical materials in the book on Gaylaw formed the basis for much of the U.S. Supreme Court's (and the dissenting opinions) analysis in Lawrence v. Texas (2003). His most recent book is Gay Marriage: For Better or For Worse? For more information on Eskridge, go to

Marriage Equality USA (MEUSA) is a national, nonprofit organization created to secure legally recognized civil marriage equality without regard to gender identity or sexual orientation at the federal and state level. For more information, go to

Previous articles:

Online series looks at legal arguments in marriage case

Friends of the Court: Briefs by black groups cite equality

Friends of the Court: Cities, counties push for change

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