By Erwin Chemerinsky
Dean and Distinguished Professor of Law, University of California, Irvine, School of Law
Within this decade, a major step to equality has occurred in much of the world. Same sex marriage is now allowed in Canada and most nations in Western Europe. In 2008, two state supreme courts, in California and Connecticut, held that gays and lesbians have the right to marry. They joined Massachusetts as the first states in this country to provide for marriage equality. Until California voters amended the California Constitution in November to outlaw same sex marriage, over one in eight people in the United States lived in a state where same sex marriage was allowed.



Why does this matter? Most studies estimate that about one tenth of the population is gay. Laws in every state traditionally have provided enormous benefits to married couples that were unavailable to others. These statutes concern important matters such as child custody, inheritance, insurance coverage, and tax benefits. When I got married, my wife could immediately get coverage under my insurance and could inherit from me if I died. But gays and lesbians are usually permanently denied these benefits that married couples receive automatically.

Beyond the tangible benefits, marriage is the primary way in which people express their love and desire for permanent commitment. Denying marriage equality to gays and lesbians is a powerful statement that society still believes them to be second-class (or worse) citizens.
Social attitudes about homosexuality have changed enormously over recent decades. As recently as 1961, every state and the District of Columbia had laws prohibiting private consensual homosexual activity between adults. By the beginning of this decade, relatively few states still had such laws.

In 2003, the Supreme Court ruled that such laws are unconstitutional. It held that the right to privacy protected under the Constitution includes a right of consenting adults to engage in private homosexual activity. No longer can any state punish such behavior.

Not surprisingly, then, some state supreme courts have begun to recognize a state constitutional right for gays and lesbians to marry. Interestingly, all of the litigation so far has occurred in state courts and has been under state constitutions. Litigating in state courts under state constitutions
has been a deliberate choice by advocates of marriage equality to keep the matter out of the hands of the United States Supreme Court because of the sense that there are not five Justices there who would vote in favor of marriage equality. So long as the advocates of marriage equality do not present any claims under the United States Constitution or under federal law, the United States Supreme Court cannot hear the matter.

State constitutions always can provide more rights than the United States Constitution. Advocates of marriage equality have taken advantage of this by filing suits in a number of states seeking state supreme court recognition of the right to same sex marriage. The Massachusetts Supreme Judicial Court in 2003 was the first in the United States to hold that the denial of same sex marriage violated the state constitution.


The Massachusetts court, and later the California and Connecticut high courts, relied on long established constitutional principles to find a right for gays and lesbians to marry. For decades courts have recognized that there is a fundamental right to marry. Many courts, including California’s Supreme Court, did this in striking down laws that prohibited interracial marriages. Additionally, many courts now recognize that discrimination against gays and lesbians violates principles of equal protection.

Courts have held that the government lacks any persuasive reasons for outlawing same sex marriage. Opponents of marriage equality argue that marriage, by definition, is between a man and a woman. But that is a definition, not an argument. For much of American history, in many states, marriage was defined as having to be between people of the same race.

Opponents of marriage equality, including President George W. Bush, have argued that it is better for children to be raised by a man and a woman. No study, however, ever has indicated that opposite sex parents are better for children than same sex parents. Rather, every study shows that what matters is loving and attentive parents, whatever their gender.

Also, it must be remembered that gays and lesbians will have children whether or not they can marry. Gay men will have children through surrogacy and adoption; lesbians will have children through artificial insemination and adoption. Thus, the issue is not whether gays and lesbians should have children, but whether their children should have the benefits of married parents. If one believes that marriage promotes family stability, then allowing marriage equality benefits children of gays and lesbians.


Supporters of marriage equality suffered an important setback in November when voters in California adopted an initiative to amend the state’s constitution to overturn the California Supreme Court decision recognizing a right to same sex marriage. The initiative Proposition 8 is now being challenged in the California Supreme Court.

The challengers, who support same sex marriage, argue that the initiative did not follow proper procedures under the California constitution. That document draws a distinction between two kinds of changes: amendments and revisions. An amendment is valid if the majority of voters approve it.

A revision, by contrast, requires approval of two-thirds of each house of the California legislature and then approval by the voters. If Proposition 8 is an amendment, it is valid and same sex marriage will no longer be allowed in California. But if Proposition 8 is a revision, then it is invalid and a ban on same sex marriage would need to be approved by the legislature and then the voters.

There is almost no law on the distinction between an amendment and a revision. The California Supreme Court will decide the question in 2009. Since it is purely a question about California law, the California Supreme Court will get the last word; there will not be review of its decision in the United States Supreme Court. If the California Supreme Court upholds Proposition 8 and the ban on same sex marriage, it still must decide whether the marriages, which occurred between June and November are valid.

Even if same sex marriage is not allowed in California, state law provides for civil unions between gays and lesbians. A number of other states provide for this. Depending on the state, civil union provides most or sometimes almost all of the tangible benefits of marriage to gay and lesbian couples.

Another legal issue which courts will need to resolve is whether states must recognize same sex marriages from other states. Traditionally, marriage in one state is recognized in others. My wife and I were married in California, but when we moved to North Carolina our marriage was recognized. Must other states recognize same sex marriages from Massachusetts?

There is no clear answer to this question. About a decade ago, Congress passed the Defense of Marriage Act, which provides that a state does not need to recognize same sex marriages from other states. But the constitutionality of this law is questionable and has not yet been ruled on by the courts.

Every opinion poll shows that views on marriage equality are often a function of age. Whereas voters over 60 tend to oppose same sex marriage, voters under 25 strongly favor allowing it. This dramatic difference in views means that it is only a matter of time before same sex marriage is allowed in most of the United States. Gays and lesbians will be accorded the same ability to experience the joys of marriage — and the same opportunity to experience its frustrations and disappointments — as heterosexuals always have had.