California Proposition 22 (2000)

For eight years, California’s 2000 ballot initiative Proposition 22 (or Prop 22) prevented California from recognizing same-sex marriages. Voters adopted the measure on March 7, 2000 with 61.4% in favor. On May 15, 2008, the California Supreme Court struck down this initiative and related California law in a 4-3 decision, giving same-sex couples the right to marry. 

This measure is also known as the Knight Initiative, after its author, the late state senator William "Pete" Knight. It may also be cited as the California Defense of Marriage Act.

Despite the act's brevity — just 14 words — its effect provoked debate long after its passage. Proposition 8, an amendment to the state constitution with identical wording is on the ballot for voters to consider in the November 4, 2008 general election.

Statutory framework
Prior to 1977, California Civil Code section 4100 (predecessor to what is now codified at California Family Code section 300) defined marriage as: "a personal relation arising out of a civil context, to which consent of the parties making that contract is necessary."

While related sections made references to gender, a state assembly committee that was debating adding gender-specific terms to this section in 1977 noted: "Under existing law it is not clear whether partners of the same sex can get married." That year, the legislature amended the definition of marriage to remove any ambiguity.

When Prop 22 came before voters, section 300 defined marriage as:


 * a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.

Even though the definition governing who may marry explicitly precluded contracting a same-sex marriage in California, a separate provision, section 308, governed recognition of marriages contracted elsewhere:


 * A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state.

Advocates of Prop 22 described section 308 as a "loophole," apparently forcing California to recognize a same-sex marriage validly contracted in some other state. After passage, Prop 22 added a new section, codified at section 308.5, that reads:


 * Only marriage between a man and a woman is valid or recognized in California.

Disputes over its effect
Central to many subsequent disputes over Prop 22's effect is a distinction between statutes enacted by the legislature and initiative statutes enacted directly by the electorate. The legislature is free to amend or rescind its own enactments, but voters must approve any attempt by the legislature to amend or repeal an initiative statute.

Controversy over domestic partnerships
In 1999, California enacted the first in a series of domestic partnership provisions. California courts have entertained several challenges to legislative expansions of the domestic partnership scheme enacted after Prop 22. Generally, these challenges alleged that the legislature inappropriately amended Prop 22 by making California's domestic partnership scheme too similar to marriage or more broadly that Prop 22 made 'any' subsequent recognition of same-sex partnerships beyond the legislature's inherent power. California Courts of Appeal rejected those claims, noting that domestic partnerships already existed as a legal institution separate from marriage at the time Prop 22 was enacted.


 * Domestic partnerships in California

Controversy over marriage licensing within California
In September 2005, the California legislature passed a bill, A.B. 849, eliminating the gender requirements for marriage now found in Family Code section 300. Governor Arnold Schwarzenegger vetoed the bill. In his veto message, Schwarzenegger argued that passing a law that would implicitly repeal Section 308.5 required the assent of the electorate (and separately made note of pending court challenges).

In ruling on the disputes between Prop 22 and the domestic partnership enactments, California Courts of Appeal have reached differing conclusions as to Prop 22's scope within the marriage statutes.

In Armijo v. Miles, the Second Appellate District distinguished Prop 22 from the case at bar by noting, in part, that the initiative prevented the recognition of same-sex marriages conducted outside of California:

"The legislative analysis and the ballot arguments readily demonstrate that Proposition 22 was crafted with a prophylactic purpose in mind. It was designed to prevent same-sex couples who could marry validly in other countries or who in the future could marry validly in other states from coming to California and claiming, in reliance on Family Code section 308, that their marriages must be recognized as valid marriages. With the passage of Proposition 22, then, only opposite-sex marriages validly contracted outside this state will be recognized as valid in California."

The Armijo court may not have ruled that the historical purpose of Prop 22 limited its scope to out of state marriages. The court appears to have ultimately presumed that Proposition 22 did indeed apply to in-state arrangements deemed to be "marriages," but held that the challenged wrongful death statute did not violate that prohibition:

"The question remaining is whether the portion of AB 2580 that amends the wrongful death statute subverts Proposition 22. Defendants' position that it does is based on the faulty premise that the right to sue for wrongful death is an exclusive benefit of marriage. It is not."

Less than a week later, the Third Appellate District ruled more explicitly, in Knight v. Superior Court, that Prop 22 also included within the initiative's ambit marriages licensed within the state:

"The plain language of Proposition 22 and its initiative statute, section 308.5, reaffirms the definition of marriage in section 300, by stating that only marriage between a man and a woman shall be valid and recognized in California. This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state."

As with Armijo, the Knight court upheld the challenged statute on the grounds that it did not constitute a "marriage" for purposes of Prop 22 or Section 300. The cases differed, however, in that Armijo appeared to rely on a narrow observation that a particular benefit was not exclusive to marriage, while Knight upheld a broad domestic partnership statute against challenges it left almost no substantive difference between the two institutions. Parties in subsequent cases, including the same-sex marriage cases, have noted the apparent split between the appellate courts with respect to its scope.

As the ultimate rulings in these cases arguably did not require a finding that Prop 22 applies to in-state marriages (i.e., both were upheld against a challenge that they constituted marriage under Prop 22, the same result that would have obtained if they had ruled Prop 22 did not apply to in-state marriages), some argue that these findings are dicta. On the flip side, an argument can be made that these holdings are not dicta, as both courts ruled on the merits of whether or not a challenged in-state arrangement constituted a "marriage" for purposes of Prop 22, an allegation that would be moot if either court believed Prop 22 permitted in-state marriages.

In 2008, the California Supreme Court resolved the controversy in ruling on the constitutionality of statutes limiting marriage to a man and a woman: "this provision reasonably must be interpreted to apply both to marriages performed in California and those performed in other jurisdictions."

Invalidation
Separately, numerous challenges to the constitutionality of the opposite-sex requirements found in California's marriage statutes, including Prop 22, came before the courts. A San Francisco trial court threw out all of the gender requirements on state constitutional grounds. On appeal, an intermediate court reversed that decision. In December 2006, the California Supreme Court voted unanimously to review all six cases and held oral argument on March 4, 2008, consolidating the cases as In Re Marriage Cases. The Court ruled on May 15, 2008, that Proposition 22 violated the state Constitution and was therefore invalid. Governor Arnold Schwarzenegger immediately issued a statement pledging to uphold the ruling, and repeated his pledge to oppose Proposition 8, a proposed constitutional amendment initiative that would override the Court's ruling and again ban same sex marriages by placing the text of Proposition 22 in the State Constitution.