# Perry v. Schwarzenegger/9:Findings of Fact--Whether Any Evidence Supports California's Refusal to Recognize Marriage Between Two People Because of Their Sex

FINDINGS OF FACT--WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA'S REFUSAL TO RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX
* Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.
* A person may not marry unless he or she has the legal capacity to consent to marriage.
* California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.
* When California became a state in 1850, marriage was understood to require a husband and a wife. See Cal Const, Art XI § 14 (1849); In re Marriage Cases, 183 P3d at 407.
* The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained. Tr 202:2-203:12 (Cott).
* Many states, including California, had laws restricting the race of marital partners so that whites and non-whites could not marry each other.
* Racial restrictions on an individual's choice of marriage partner were deemed unconstitutional under the California Constitution in 1948 and under the United States Constitution in 1967. An individual's exercise of his or her right to marry no longer depends on his or her race nor on the race of his or her chosen partner.
* Under coverture, a woman's legal and economic identity was subsumed by her husband's upon marriage. The husband was the legal head of household. Coverture is no longer part of the marital bargain. [p. 63]
* Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family. [p. 64]
* The development of no-fault divorce laws made it simpler for spouses to end marriages and allowed spouses to define their own roles within a marriage.
* In 1971, California amended Cal Civ Code § 4101, which had previously set the age of consent to marriage at twenty-one years for males and eighteen years for females, to read "[a]ny unmarried person of the age of 18 years or upwards, and not otherwise disqualified, is capable of consenting to and consummating marriage." Cal Civ Code § 4101 (1971); In re Marriage Cases, 183 P3d at 408.
* In the 1970s, several same-sex couples sought marriage licenses in California, relying on the amended language in Cal Civ Code § 4101. In re Marriage Cases, 183 P3d at 409. In response, the legislature in 1977 amended the marriage statute, former Cal Civ Code § 4100, to read "[m]arriage is a personal relation arising out of a civil contract between a man and a woman...." Id. That provision became Cal Fam Code § 300. The legislative history of the enactment supports a conclusion that unique roles of a man and a woman in marriage motivated legislators to enact the amendment. See In re Marriage Cases, 183 P3d at 409. [p. 66]
* In 2008, the California Supreme Court held that certain provisions of the Family Code violated the California Constitution to the extent the statutes reserve the designation of marriage to opposite-sex couples. In re Marriage Cases, 183 P3d at 452. The language "between a man and a woman" was stricken from section 300, and section 308.5 (Proposition 22) was stricken in its entirety. Id at 453.
* California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependants. As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman.
* Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.
* Marriage is the state recognition and approval of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents. Tr 187:11-16; 188:16-189:2; 201:9-14 (Cott).
* The state has many purposes in licensing and fostering marriage. Some of the state's purposes benefit the persons married while some benefit the state:
* States and the federal government channel benefits, rights and responsibilities through marital status. Marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs.
* Marriage creates economic support obligations between consenting adults and for their dependents.
* Marriage benefits both spouses by promoting physical and psychological health. Married individuals are less likely to engage in behaviors detrimental to health, like smoking or drinking heavily. Married individuals live longer on average than unmarried individuals.
* Material benefits, legal protections and social support resulting from marriage can increase wealth and improve psychological well-being for married spouses.
* The long-term nature of marriage allows spouses to specialize their labor and encourages spouses to increase household efficiency by dividing labor to increase productivity.
* The tangible and intangible benefits of marriage flow to a married couple's children.