Rosky Co-Authored Report Quoted by Federal Court in Landmark Marriage Case

On August 4, the U.S. District Court for the Northern District of California held that Proposition 8, a state constitutional amendment that prohibited same-sex couples from marrying in California, violates the Due Process and Equal Protection Clauses of Fourteenth Amendment of the United States Constitution.  In this ruling, the District Court quoted a California Census report co-authored by Clifford Rosky, an Associate Professor of Law at the University of Utah S.J. Quinney College of Law, while he was serving as a Research Fellow at the Williams Institute on Sexual Orientation Law & Public Policy at the UCLA School of Law.

Background on the District Court’s Marriage Case


In November 2000, the voters of California adopted Proposition 22 through the state’s initiative process. Entitled the California Defense of Marriage Act, Proposition 22 amended the state¹s Family Code by adding the following language: “Only marriage between a man and a woman is valid or recognized in California.” This amendment further codified the existing definition of marriage as “a relationship between a man and a woman.”

In February 2004, the mayor of San Francisco instructed county officials to issue marriage licenses to same-sex couples. The following month, the California Supreme Court ordered San Francisco to stop issuing such licenses and later nullified the marriage licenses that same-sex couples had received. The court expressly avoided addressing whether Proposition 22 violated the California Constitution.

Shortly thereafter, San Francisco and various other parties filed state court actions challenging or defending California’s exclusion of same-sex couples from marriage under the state constitution. These actions were consolidated in San Francisco superior court; the presiding judge determined that, as a matter of law, California’s bar against marriage by same-sex couples violated the equal protection guarantee of Article I Section 7 of the California Constitution. The court of appeal reversed, and the California Supreme Court granted review. In May 2008, the California Supreme Court invalidated Proposition 22 and held that all California counties were required to issue marriage licenses to same-sex couples.  From June 17, 2008 until the passage of Proposition 8 in November of that year, San Francisco and other California counties issued approximately 18,000 marriage licenses to same-sex couples.

After the November 2008 election, opponents of Proposition 8 challenged the initiative through an original writ of mandate in the California Supreme Court as violating the rules for amending the California Constitution and on other grounds; the California Supreme Court upheld Proposition 8 against those challenges. The Strauss decision left undisturbed the 18,000 marriages of same-sex couples performed in the four and a half months between the decision in In re Marriage Cases and the passage of Proposition 8. Since Proposition 8 passed, no same-sex couple has been permitted to marry in California.

In this most recent case, Perry v. Schwarzenegger, the Plaintiffs challenged the constitutionality of Proposition 8 under the Fourteenth Amendment of the United States Constitution — an issue not raised during any prior state court proceeding.

Background on the California Census Report

Before joining the faculty, Professor Rosky served as a research fellow for the Williams Institute on Sexual Orientation Law & Public Policy at the UCLA School of Law.  While at the Williams Institute, Rosky co-authored over 30 demographic reports on lesbian, gay, and bisexual populations in the United States.  In August 2008, Rosky co-authored a report that analyzed data from the U.S. Census Bureau to provide demographic and economic information about same-sex couples in California.  In summarizing the findings of this report, the authors concluded: “In many ways, the more than 107,000 same-sex couples living in California are similar to married couples. According to Census 2000, they live throughout the state, are racially and ethnically diverse, have partners who depend upon one another financially, and actively participate in California’s economy. Census data also show that 18% of same-sex couples in California are raising children.”

After quoting this report and other sources, the U.S. District Court made the following findings of fact: “Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.”  Based upon these and other factual findings, the Court concluded that “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”

The District Court¹s ruling can be found here: Prop-8-Ruling-FINAL.

The California Census Snapshot can be found here: California Census Report