CITY ATTORNEY’S OFFICE
CITY HALL
10300 TORRE AVENUE• CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3195 • FAX: (408) 777- 3366
EMAIL: [email protected]
1 CITY COUNCIL STAFF REPORT
Meeting: April 13, 2023
Subject
Consider submitting a letter in support of , or otherwise regarding, Assembly Constitutional Amendment (“ACA”) 5, expressing the intent of the Legislature to amend the California Constitution to protect marriage equality.
Recommended Action
Consider submitting a letter in support of ACA 5.
Reasons for Recommendation
In November 2008, 52 percent of Californians voted in favor of Proposition 8, which amended the California C onstitution to state “only marriage between a man and a woman is valid or recognized in California.”
In August 2010, in Hollingsworth v. Perry, Chief U.S. District Court Judge Vaughn Walker ruled that Proposition 8 was unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution. In February 2012, the U.S. Ninth Circuit Court of Appeals affirmed the District Court ruling. On June 26, 2013, the Supreme Court ruled that the appellants in Proposition 8 did not have standing to bring the case, which had the effect of upholding the District Court decision.
On June 26, 2015, the U.S. Supreme Court ruled, in Obergefell v. Hodges, that state bans on same- sex marriage, as well as bans on recognizing same-sex marriages performed in other jurisdictions, were unconstitutional. The Court’s 5-4 ruling cited the due process and equal protection clauses of t he Fourteenth Amendment to the U.S. Constitution. The decision provided protection for marriage equality under federal Constitution.
Last year, the U.S. Supreme Court published its decision in the case Dobbs v. Jackson Women’s Health Organization, which overturned the Court’s previous rulings in Roe v. Wade and Casey v.
Planned Parenthood of Pennsylvania . Justice Clarence Thomas concurring opinion alluded to the decision’s potential implications for marriage as well, stating in his concurrence to the decision, that the Court “should reconsider all of [its] substantive due process precedents, including . . . 2 Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
If the Supreme Court overturns Obergefell v. Hodges, same-sex marriage could potentially be put at risk in the State of Califor nia. While Hollingsworth v. Perry invalidated the section of the California Constitution stating marriage to be only recognized when between man and woman, that section remains in the Constitution and could be revisited if the Supreme Court were to reverse its ruling in Obergefell.
ACA 5 (Attachment A ) would express the intent of the Legislature to amend the California Constitution relating to marriage equality, to protect equal rights to marry for LGBTQ+ people.
A draft letter of supporting ACA 5 is included for Council’s consideration as Attachment B. If Council elects to take a position in support of ACA 5, the letter will be finalized for the Mayor’s signature.
Sustainability Impact
Not applicable.
Fiscal Impact
No fiscal impact.
California Environmental Quality Act
Not applicable.
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Prepared by: Christopher D. Jensen, City Attorney
Approved for Submission by: Pamela Wu, City Manager
Attachments:
A – Assembly Constitutional Amendment 5
B – Draft Letter Re ACA 5