History of marriage in California
Encyclopedia
The recorded history of marriage in California is long and encompasses a period as far back as the first Spanish missions
and even further back in unrecorded history of native American Indians and their marriage rituals.
California
was incorporated into the United States of America
in 1850.
Native communities in southern California of the Chumash Indians, practiced Matrilocal residence. The husband would move to the community of the wife. The exception to this rule being the chief, whose wife would move to live with the chiefs community. The chief was also the only one of the community with the option of multiple marriage.
Clemente Guillen, S. J., of Delores mission in Baja California reported in 1744 that he had destroyed the tables and paraphernalia of the Indian shaman and that same year Joseph de Torres Pereas noted the survival of marriage ceremonies indicated that shaman had been convincing adults not to accept baptism.
The church was anxious to legitimize the marriages of natives through Catholic ceremonies. Northern California Missions recorded the marriage of 2300 marriages of Native Americans previously joined by native custom with five thousand new unions and ten thousand neophyte widows and widower remarried.
Marriage between native Indian woman and Spanish men was encouraged by the California missions to increase the population and Spanish political power. Rape and other forms of violence was however a concern. Spanish Soldiers and settlers of a patriarchal colonial society put native woman in a vulnerable state.
Author, Charles Francis Saunders has documented the details of a California Mission wedding ceremony from 1890s in his book, "Capistrano Nights – Tales of a California Mission Town".
Maria Antonia Natalia Elija Carrillo was born November 27th 1810. Called Josefa, after her Grandmother, she was the first born of thirteen siblings to Maria Carrilla Lopez and Joaquin Victor Carrillo. Influential and socially well connected, the family was related to several other prominent Californians of the day. At the time the youth of California were pressured to marry early.
Instead of marrying another Californian, Carrillo fell in love with American merchant seaman, Henry Delano Fitch
. Fitch formally requested the hand of Maria Antonia in 1827.
On April 15, 1829, the ceremony was in progress, but was stopped by order of Governor Jose Maria Echeandia. It is believed that the Governor was enraged by Carrillo's choice of a man who refused to naturalize as a citizen, as well as rumored smuggling activity.
The couple eloped in Valparaiso Chile and upon returning to California 1830, Echeandia announced the marriage as "Illegal" and had Fitch imprisoned and placed Carrillo in Deposito, the practice of separating couples to ascertain if they married of their own accord.
Carrillo was held in San Gabriel and Fitch in Monterrey. In December of 1830, ecclesiastic authorities found the marriage valid but not legitimate under canon law. To end the scandal, the couple was ordered to pay penance in the order of attending special mass and reciting prayer.
and Molly McKay
) from Marriage Equality USA began asking for marriage licenses in Los Angeles and San Francisco. The issue of same-sex marriage reemerged in 2004, when Mayor of San Francisco
Gavin Newsom
directed the city-county clerk to issue marriage licenses to same-sex couples
, citing the California Constitution's guarantee of equal protection under the law to all groups. The marriages were quickly annulled
by the California Supreme Court, and the city of San Francisco issued a legal challenge that was consolidated with other challenges to California's marriage laws. Meanwhile, the California legislature twice passed, and twice received veto
s from governor Arnold Schwarzenegger
on, bills that would have legalized same-sex marriages in the state.
On May 15, 2008, at a time when only the Massachusetts Supreme Court
had ruled favorably
on same-sex marriage
, the California Supreme Court ruled on the 2004 San Franciscan challenge with other cases in the watershed In re Marriage Cases
. Applying strict scrutiny
to the state's discrimination between heterosexual
and other citizens, marriage was found to be a fundamental right that may not be denied based on sexual orientation
, and the relevant laws were struck down.
Social conservatives
and other dissenters capitalized on the case to renew its thrice-unsuccessful push to amend the Constitution of California
to restrict marriage to being between opposite-sex couples, and with unprecedented support from the Catholic and LDS churches, succeeded
by a slim margin of votes. One year later, the proposition was verified as legal by the California Supreme Court, but not held to be retroactive
, so the state of California only recognizes opposite-sex marriages, except for the same-sex marriages granted before the constitutional change in 2008 (including 18,000 marriages granted by California and possibly same-sex marriages granted by other jurisdictions before that date, although a test case has not yet arisen). Plans to take this case to the federal level have been announced.
Spanish missions in California
The Spanish missions in California comprise a series of religious and military outposts established by Spanish Catholics of the Franciscan Order between 1769 and 1823 to spread the Christian faith among the local Native Americans. The missions represented the first major effort by Europeans to...
and even further back in unrecorded history of native American Indians and their marriage rituals.
California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
was incorporated into the United States of America
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
in 1850.
California Native American marriage
While the Native Americans of California did not document their culture in the same way western civilization did, we still have a great deal of knowledge from archaeological evidence as well as the earliest records of the Spanish missions.Native communities in southern California of the Chumash Indians, practiced Matrilocal residence. The husband would move to the community of the wife. The exception to this rule being the chief, whose wife would move to live with the chiefs community. The chief was also the only one of the community with the option of multiple marriage.
Jesuit Missionary period 1697–1767
The founding of the California missionary system by the Spanish began in 1697 located in Baja with the founding of Nuestra Senora de Loreto. Several times during the Jesuit period, Indians revolted against church doctrine against polygamy.Clemente Guillen, S. J., of Delores mission in Baja California reported in 1744 that he had destroyed the tables and paraphernalia of the Indian shaman and that same year Joseph de Torres Pereas noted the survival of marriage ceremonies indicated that shaman had been convincing adults not to accept baptism.
Marriage, California natives and the Spanish missions, 1785–1810
While the Franciscan Missions strived to incorporate the native California Indians into their fold, they worked hard to eliminate all marriage and family customs the Spanish Catholic Church disapproved of or found repugnant.The church was anxious to legitimize the marriages of natives through Catholic ceremonies. Northern California Missions recorded the marriage of 2300 marriages of Native Americans previously joined by native custom with five thousand new unions and ten thousand neophyte widows and widower remarried.
Marriage between native Indian woman and Spanish men was encouraged by the California missions to increase the population and Spanish political power. Rape and other forms of violence was however a concern. Spanish Soldiers and settlers of a patriarchal colonial society put native woman in a vulnerable state.
Author, Charles Francis Saunders has documented the details of a California Mission wedding ceremony from 1890s in his book, "Capistrano Nights – Tales of a California Mission Town".
1829 Carrillo-Fitch elopement
In 1829 a controversy erupted when the Spanish Governor was asked to intervene in the marriage between a local San Diego Spanish woman and a foreigner.Maria Antonia Natalia Elija Carrillo was born November 27th 1810. Called Josefa, after her Grandmother, she was the first born of thirteen siblings to Maria Carrilla Lopez and Joaquin Victor Carrillo. Influential and socially well connected, the family was related to several other prominent Californians of the day. At the time the youth of California were pressured to marry early.
Instead of marrying another Californian, Carrillo fell in love with American merchant seaman, Henry Delano Fitch
Henry D. Fitch
Henry Delano Fitch was an early settler of San Diego, California.-Life:Henry D. Fitch was born 1799 in New Bedford, Massachusetts. He was a sea captain and trader...
. Fitch formally requested the hand of Maria Antonia in 1827.
On April 15, 1829, the ceremony was in progress, but was stopped by order of Governor Jose Maria Echeandia. It is believed that the Governor was enraged by Carrillo's choice of a man who refused to naturalize as a citizen, as well as rumored smuggling activity.
The couple eloped in Valparaiso Chile and upon returning to California 1830, Echeandia announced the marriage as "Illegal" and had Fitch imprisoned and placed Carrillo in Deposito, the practice of separating couples to ascertain if they married of their own accord.
Carrillo was held in San Gabriel and Fitch in Monterrey. In December of 1830, ecclesiastic authorities found the marriage valid but not legitimate under canon law. To end the scandal, the couple was ordered to pay penance in the order of attending special mass and reciting prayer.
1850 statehood to 1872
On September 8, 1850, California entered the US as the 31st state of the union. At the time marriage statutes described marriage as "a civil contract to which the consent of the parties is required" with gender specific pronouns applied to "husband" and "wife". Later court decisions and some statutes dating from both statehood and the 1872 codification of the civil law state; "Any unmarried male of the age of 18 years or upward and any unmarried female of the age of 15 years old or upward are capable of consenting to and consummating marriage." The code makes no mention of what gender may marry which.Ban on interracial marriage
In 1850, "all marriages of white persons with Negroes or mulattoes [were] declared to be illegal and void". This stricture held until 1948, at which point the California Supreme Court became the first state court in the country to strike down a law prohibiting interracial marriage, recognizing marriage as a fundamental right:Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective and by reasonable means. No law within the broad areas of state interest may be unreasonably discriminatory or arbitrary.... The right to marry is as fundamental as the right to send one’s child to a particular school or the right to have offspring. Indeed, “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.” (Skinner v. Oklahoma, supra, at p. 541.) Legislation infringing such rights must be based upon more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws.
Poorly kept records
While the state required records be kept on marriage certificates and contracts as early as 1851, it wasn't until 1858 that any further information was kept, such as births, divorce and death. At that time the office of the state Registrar was created.Contemporary history
In 2001, same-sex couples (including Davina KotulskiDavina Kotulski
Davina Kotulski, Ph.D., born on January 22, 1970, is a well-known, long-time marriage equality activist and leader in the Lesbian, Gay, Bisexual and Transgender Equal Rights movement. Kotulski began publicly advocating for marriage equality in 1999...
and Molly McKay
Molly McKay
Molly B. McKay, born September 9, 1970, is an attorney and a civil rights activist for lesbian, gay, bisexual and transgendered individuals. McKay was the former Co-Executive Director of Marriage Equality California and the former Media Director for Marriage Equality USA...
) from Marriage Equality USA began asking for marriage licenses in Los Angeles and San Francisco. The issue of same-sex marriage reemerged in 2004, when Mayor of San Francisco
Mayor of San Francisco
The Mayor of the City and County of San Francisco is the head of the executive branch of San Francisco's city and county government. The mayor has the duty to enforce city laws, and the power to either approve or veto bills passed by the San Francisco Board of Supervisors, the legislative branch....
Gavin Newsom
Gavin Newsom
Gavin Christopher Newsom is an American politician who is the 49th and current Lieutenant Governor of California. Previously, he was the 42nd Mayor of San Francisco, and was elected in 2003 to succeed Willie Brown, becoming San Francisco's youngest mayor in 100 years. Newsom was re-elected in 2007...
directed the city-county clerk to issue marriage licenses to same-sex couples
San Francisco 2004 same-sex weddings
The San Francisco 2004 same-sex weddings took place between February 12 and March 11, 2004. Newly-elected San Francisco Mayor Gavin Newsom gained international attention and attracted controversy when he issued a directive to the city-county clerk to issue marriage licenses to same-sex couples...
, citing the California Constitution's guarantee of equal protection under the law to all groups. The marriages were quickly annulled
Annulment
Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place...
by the California Supreme Court, and the city of San Francisco issued a legal challenge that was consolidated with other challenges to California's marriage laws. Meanwhile, the California legislature twice passed, and twice received veto
Veto
A veto, Latin for "I forbid", is the power of an officer of the state to unilaterally stop an official action, especially enactment of a piece of legislation...
s from governor Arnold Schwarzenegger
Arnold Schwarzenegger
Arnold Alois Schwarzenegger is an Austrian-American former professional bodybuilder, actor, businessman, investor, and politician. Schwarzenegger served as the 38th Governor of California from 2003 until 2011....
on, bills that would have legalized same-sex marriages in the state.
On May 15, 2008, at a time when only the Massachusetts Supreme Court
Massachusetts Supreme Judicial Court
The Massachusetts Supreme Judicial Court is the highest court in the Commonwealth of Massachusetts. The SJC has the distinction of being the oldest continuously functioning appellate court in the Western Hemisphere.-History:...
had ruled favorably
Goodridge v. Department of Public Health
Goodridge v. Dept. of Public Health, 798 N.E.2d 941 , was a landmark state appellate court case dealing with same-sex marriage in Massachusetts. The November 18, 2003, decision was the first by a U.S...
on same-sex marriage
Same-sex marriage in Massachusetts
Same-sex marriage in the U.S. state of Massachusetts began on May 17, 2004, as a result of the Supreme Judicial Court of Massachusetts ruling in Goodridge v. Department of Public Health that it was unconstitutional under the Massachusetts constitution to allow only heterosexual couples to marry...
, the California Supreme Court ruled on the 2004 San Franciscan challenge with other cases in the watershed In re Marriage Cases
In re Marriage Cases
In re Marriage Cases 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], was a California Supreme Court case with the dual holding that "statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny" and the existing "California legislative and...
. Applying strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
to the state's discrimination between heterosexual
Heterosexuality
Heterosexuality is romantic or sexual attraction or behavior between members of the opposite sex or gender. As a sexual orientation, heterosexuality refers to "an enduring pattern of or disposition to experience sexual, affectional, physical or romantic attractions to persons of the opposite sex";...
and other citizens, marriage was found to be a fundamental right that may not be denied based on sexual orientation
Sexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
, and the relevant laws were struck down.
Social conservatives
Social conservatism
Social Conservatism is primarily a political, and usually morally influenced, ideology that focuses on the preservation of what are seen as traditional values. Social conservatism is a form of authoritarianism often associated with the position that the federal government should have a greater role...
and other dissenters capitalized on the case to renew its thrice-unsuccessful push to amend the Constitution of California
California ballot proposition
In California, a ballot proposition is a proposed law that is submitted to the electorate for approval in a direct vote . It may take the form of a constitutional amendment or an ordinary statute. A ballot proposition may be proposed by the State Legislature or by a petition signed by members of...
to restrict marriage to being between opposite-sex couples, and with unprecedented support from the Catholic and LDS churches, succeeded
California Proposition 8 (2008)
Proposition 8 was a ballot proposition and constitutional amendment passed in the November 2008 state elections...
by a slim margin of votes. One year later, the proposition was verified as legal by the California Supreme Court, but not held to be retroactive
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
, so the state of California only recognizes opposite-sex marriages, except for the same-sex marriages granted before the constitutional change in 2008 (including 18,000 marriages granted by California and possibly same-sex marriages granted by other jurisdictions before that date, although a test case has not yet arisen). Plans to take this case to the federal level have been announced.