BILL ANALYSIS
SB 54
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Date of Hearing: July 9, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 54 (Leno) - As Amended: July 6, 2009
SENATE VOTE : Not Relevant
SUBJECT : SAME SEX MARRIAGE: OUT-OF-STATE MARRIAGES
KEY ISSUES :
1)SHOULD SAME-SEX MARRIAGES VALIDLY ENTERED INTO OUTSIDE OF
CALIFORNIA PRIOR TO PASSAGE OF PROPOSITION 8 BE RECOGNIZED IN
THIS STATE?
2)SHOULD SAME-SEX COUPLES MARRIED OUTSIDE OF CALIFORNIA AFTER
PASSAGE OF PROPOSITION 8 BE RECOGNIZED IN CALIFORNIA AS
MARRIED IN EVERYWAY OTHER THAN USE OF THE LEGAL DESIGNATION OF
"MARRIAGE"?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill addresses the presently uncertain question of how
California should treat same-sex marriages entered outside of
this state. After the narrow passage of Proposition 8, the
California Supreme Court on May 15, 2009, in Strauss v. Horton,
upheld its passage, but went on to hold that "same-sex couples
retain the same substantive protections embodied in the state
constitutional rights of privacy and due process as those
accorded to opposite-sex couples and the same broad protections
under the state equal protection clause that are set forth in
the majority opinion in the Marriage Cases, including the
general principle that sexual orientation constitutes a suspect
classification and that statutes according differential
treatment on the basis of sexual orientation are
constitutionally permissible only if they satisfy the strict
scrutiny standard of review." The Court also upheld the
validity of the 18,000 same-sex marriages validly entered in
California before passage of Proposition 8.
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Under this bill, sponsored by Equality Calfornia, all valid
same-sex marriages entered outside of California before passage
of Proposition 8 will be legally recognized as such in
California; and couples in all such marraiges entered into after
passage of Proposition 8 will have all of the same rights,
responsibilities and obligations as married couples, with the
sole exception of using the legal designation of "marriage."
SUMMARY : Provides that same-sex couples who validly married
outside of California be recognized in this state.
Specifically, this bill :
1)Provides that, notwithstanding any other provision of law, a
marriage between two persons of the same sex contracted
outside of California that is valid by the laws of the
jurisdiction in which it was contracted and that was
contracted before November 5, 2008 (before passage of
Proposition 8) is valid in California.
2)Provides that, notwithstanding any other provision of law, two
persons of the same sex who contracted a marriage outside of
California on or after November 5, 2008 that is valid by the
laws of the jurisdiction in which it was contracted shall have
the same rights, protections, and benefits and subject to the
same responsibilities, obligations, and duties under law,
whether they derive from the California Constitution, the
United States Constitution, statutes, administrative
regulations, court rules, government policies, common law, or
any other provisions or sources of law, as are granted to and
imposed upon spouses with the sole exception of the
designation of "marriage."
EXISTING LAW :
1)Provides that, pursuant to Proposition 8 which narrowly passed
on November 4, 2008, only a marriage between a man and a woman
is valid or recognized in California. (California
Constitution, Article I, Section 7.5.)
2)Provides, pursuant to the California Supreme Court's landmark
decision, in In re Marriage Cases ((2008) 43 Cal.4th 757) and
upheld by the Supreme Court's very recent decision in Strauss
v. Horton ((2009) 46 Cal.4th 364), that any law discriminating
on the basis of sexual orientation is constitutionally
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suspect. (In re Marriage Cases, 43 Cal.4th at 840-41.)
3)Upheld the validity of the same-sex marriages entered into in
California from the effective date of the Marriage Cases
decision until passage of Proposition 8. (Strauss v. Horton
(2009) 46 Cal.4th 364.)
4)Provides that a marriage contracted outside of California that
would be valid by the laws of the jurisdiction in which the
marriage was contracted is valid in California. (Family Code
Section 308.)
5)Provides registered domestic partners with the same rights,
protections, and benefits, and subjects them to the same
responsibilities, obligations, and duties under law, as are
granted to and imposed upon spouses. (Family Code Section
297.5)
6)Provides, in the California Constitution's Equal Protection
Clause, in Article I, Section 7, that:
a) "A person may not be deprived of life, liberty, or
property without due process of law or denied equal
protection of the laws. . ."; and
b) "A citizen or class of citizens may not be granted
privileges or immunities not granted on the same terms to
all citizens."
7)Provides, in the California Constitution's Declaration of
Rights, in Article I, Section 1, that "All people . . . have
inalienable rights. Among these are enjoying and defending
life and liberty, acquiring, possessing, and protecting
property, and pursuing and obtaining safety, happiness, and
privacy."
COMMENTS : This bill addresses the presently uncertain question
of how California should treat same-sex marriages entered
outside of this state. After the narrow passage of Proposition
8, the California Supreme Court on May 15, 2009, in Strauss v.
Horton, upheld its passage, but went on to hold that "same-sex
couples retain the same substantive protections embodied in the
state constitutional rights of privacy and due process as those
accorded to opposite-sex couples and the same broad protections
under the state equal protection clause that are set forth in
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the majority opinion in the Marriage Cases, including the
general principle that sexual orientation constitutes a suspect
classification and that statutes according differential
treatment on the basis of sexual orientation are
constitutionally permissible only if they satisfy the strict
scrutiny standard of review." (Strauss v. Horton (2009) 46
Cal.4th 364, 412.) The Court also upheld the validity of the
18,000 same-sex marriages validly entered in California before
passage of Proposition 8.
Under this bill, sponsored by Equality Calfornia, all valid
same-sex marriages entered outside of California before passage
of Proposition 8 will be legally recognized as such in
California; and couples in all such marraiges entered into after
passage of Proposition 8 will have all of the same rights,
responsibilities and obligations as married couples, with the
sole exception of using the legal designation of "marriage."
In support of the bill, the author states:
The Court in Strauss v. Horton did not specifically
address the marriages of same-sex couples who married
out-of-state because no one in that situation was a party
in the case; however, based on the Court's reasoning in
Strauss and In re Marriage Cases, as well as longstanding
family law principles, it is clear that those marriages
must continue to be recognized in California. . . .
The bill would also clarify, following the Supreme
Court's holding in Strauss v. Horton, the legal status of
same-sex couples who married outside of California after
the enactment of Proposition 8 on November 5, 2008. In
Strauss the Court made clear that its primary holding
from Marriage Cases is still valid: the California
Constitution requires that same-sex couples must be
granted full equality under the law, including all the
substantive rights and responsibilities of marriage,
other than the word "marriage." Therefore, same-sex
couples who legally marry in other jurisdictions are
entitled to precisely equal treatment under California
law as opposite-sex couples who marry in other
jurisdictions, except for the name "marriage." SB 54
would implement that holding, making clear that same-sex
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couples who marry in other jurisdictions will have the
same rights, protections, and benefits, and will be
subject to the same responsibilities, obligations, and
duties under law as are granted to and imposed upon
spouses with the sole exception of the designation of
"marriage."
California's Initial Recognition of Same-Sex Couples : The issue
of legal recognition of same-sex couples in California dates
back two decades. Before the 1980's, same-sex couples had no
legal recognition in California, or virtually anywhere else - as
families, they were essentially invisible to the law. Beginning
in the mid-1980's, local jurisdictions began to recognize
same-sex couples by establishing a legal status called "domestic
partnership," which gave same-sex couples not only limited
protections for themselves and their children, but also, for the
first time, government recognition as family units. By 2000, 18
California local governments had established domestic
partnership registries.
Registered Domestic Partnerships : California took notice of
this emerging movement to recognize the rights of same-sex
couples. In 1999, the Legislature enacted AB 26 (Migden), Chap.
588, Stats. 1999, to create the state's first domestic
partnership statute. This statute, which forms the backbone of
California's domestic partnership law, provided for domestic
partnerships to be registered with the Secretary of State, for
public employers to offer health benefits to domestic partners,
and for domestic partners to have hospital visitation rights.
The most comprehensive set of rights and responsibilities for
registered domestic partners was enacted in 2003 by AB 205
(Goldberg), Chap. 421. That bill became fully operative on
January 1, 2005, and it has been upheld by the courts against
challenges. (See, e.g., Knight v. Superior Court (2005) 128
Cal.App.4th 14, 30.)
However, although domestic partnership laws extended many
protections to same-sex couples, their protections differ from
those extended to married couples. First, under the existing
laws, domestic partners have been denied access to certain
long-term care benefits that are available to married couples.
(However, after the Supreme Court decisions in Marriage Cases
and Strauss, discussed in more detail below, it is unlikely that
any differences in rights or responsibilities provided under
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California law are constitutionally permissible.) In addition,
the prerequisites for entering a domestic partnership differ
from the prerequisites for marriage. Marriage and domestic
partnership also have different formation procedures. For
example, unlike marriage, domestic partnership has no
solemnization requirement, a difference that suggests a
distinction in stature. Finally, domestic partners are denied
the protections available under more than 1,100 federal statutes
relating to marriage.
The Federal Defense of Marriage Act : In 1996 Congress passed,
and President Clinton signed, the federal Defense of Marriage
Act (DOMA), which includes the provision that no state is
required under federal law to give effect to a same-sex marriage
contracted in another state.
California's Proposition 22 : A group of citizens led by the
late State Senator William J. ("Pete") Knight placed an
initiative on the March 2000 California ballot to prohibit
California from recognizing same-sex marriages. The Proposition
22 ballot materials emphasized the prospect that California
might soon be required to recognize the out-of-state marriages
of same-sex couples. The measure passed with 61 percent of the
vote and became codified as Section 308.5 of the Family Code.
Other States' Laws Enacted in Light of the Federal DOMA : In
light of the federal DOMA, many other states have also enacted
measures prohibiting recognition of marriages entered into by
same-sex couples in other jurisdictions. Some states have gone
so far as to enact into their constitutions provisions that
purport to prohibit recognition of relationships between
same-sex couples other than marriage, such as domestic
partnerships or civil unions.
Massachusetts Marriage Rulings : The Massachusetts Supreme
Judicial Court ruled in November 2003 that laws prohibiting
marriage between persons of the same sex violate the
Massachusetts Constitution. Noteworthy portions of the court's
opinion include:
The marriage ban works a deep and scarring hardship on a
very real segment of the community for no rational
reason? The Constitution cannot control such prejudices
but neither can it tolerate them. Private biases may be
outside the reach of the law, but the law cannot,
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directly or indirectly, give them effect. Limiting the
protections, benefits, and obligations of civil marriage
to opposite-sex couples violates the basic premises of
individual liberty and equality under law protected by
the Massachusetts Constitution. (Emphasis added and
citation omitted.)
Three months later, in February 2004, acting on a request from
the Massachusetts Legislature, the Supreme Judicial Court issued
an advisory opinion stating: "The history of our nation has
demonstrated that separate is seldom, if ever, equal." Even
where a state grants substantially similar rights to same-sex
"civil unions," the Court found that refusing to recognize these
unions as "marriage" is a "considered choice of language that
reflects a demonstrable assigning of same-sex, largely
homosexual, couples to second-class status." To permit such a
distinction would amount to "maintaining and fostering a stigma
of exclusion that the Constitution prohibits."
San Francisco Response to Massachusetts Ruling : In February
2004, the City and County of San Francisco began issuing
marriage licenses to same-sex couples. However, on March 11,
2004, after 4,037 same-sex couples were married, the California
Supreme Court ordered San Francisco to stop issuing marriage
licenses to same-sex couples while the Court considered the
legality of San Francisco County's actions. On August 12, 2004,
the California Supreme Court unanimously ruled that San
Francisco officials exceeded their authority in issuing the
licenses because it is the role of the courts, not local
officials, to determine the constitutionality of the state's
marriage laws. By a 5-2 vote, the Court also invalidated the
4,037 marriages that had taken place in San Francisco. The
Court did not rule on the constitutionality of the state's
statutory prohibition of marriage by same-sex couples. Rather,
an order filed by the Court in March 2004 expressly invited the
filing of a lawsuit in Superior Court to address this issue,
which occurred thereafter (see "Coordinated Marriage Cases"
discussion below).
AB 849, First Such Bill to Pass in the Country : After AB 19,
Senator Leno's first legislative attempt to permit same-sex
couples to marry, passed this Committee but failed passage on
the Assembly floor in June of 2005, Senator Leno revived his
bill as AB 849, which became the first such bill in the nation
to be passed by both houses of a state legislature. However, on
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September 29, 2005, Governor Schwarzenegger vetoed the bill.
The Governor suggested that the only way the law could be
changed is if the courts voided the ban as unconstitutional, or
if the people reversed Proposition 22 through another initiative
or a referendum. Senator Leno nevertheless reintroduced the
measure in 2007 as AB 43, and the Governor once again vetoed the
bill, stating it was up to the Supreme Court to decide if the
state's ban on same-sex marriage was constitutional. This
happened the very next year.
Coordinated Marriage Cases: Supreme Court Decision : On May 15,
2008, the California Supreme Court, in a 4-3 decision, struck
down as unconstitutional the California statutes limiting
marriage to a man and a woman. The majority opinion concluded
that "the California Constitution properly must be interpreted
to guarantee this basic civil right to all Californians, whether
gay or heterosexual, and to same-sex couples as well as to
opposite-sex couples." (Marriage Cases, 43 Cal.4th at 782
(footnote omitted).)
The Court found that "[a]lthough our state Constitution does not
contain any explicit reference to a 'right to marry,' past
California cases establish beyond question that the right to
marry is a fundamental right whose protection is guaranteed to
all persons by the California Constitution." (Id. at 809.) The
core substantive rights embodied in the right to marry "include,
most fundamentally, the opportunity of an individual to
establish - with the person with whom the individual has chosen
to share his or her life - an officially recognized and
protected family possessing mutual rights and responsibilities
and entitled to the same respect and dignity accorded a union
traditionally designated as marriage." (Id. at 781.) The Court
noted that "in contrast to earlier times, our state now
recognizes that an individual's capacity to establish a loving
and long-term committed relationship with another person and
responsibly to care for and raise children does not depend upon
the individual's sexual orientation, and, more generally, that
an individual's sexual orientation - like a person's race or
gender - does not constitute a legitimate basis upon which to
deny or withhold legal rights." (Id. at 782.) Accordingly, the
Court concluded that "in light of the fundamental nature of the
substantive rights embodied in the right to marry - and their
central importance to an individual's opportunity to live a
happy, meaningful, and satisfying life as a full member of
society - the California Constitution properly must be
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interpreted to guarantee this basic civil right to all
individuals and couples, without regard to their sexual
orientation." (Id. at 820, emphasis added.)
Although the opinion acknowledges that the recent comprehensive
domestic partnership legislation enacted in California affords
same-sex couples most of the substantive elements embodied in
the constitutional right to marry, the opinion further concludes
that by assigning a different name for the family relationship
of same-sex couples, while preserving the historic and honored
designation of "marriage" only for opposite-sex couples, the
California statutes threatened to deny the family relationship
of same-sex couples dignity and respect equal to that accorded
the family relationship of opposite-sex couples.
The Court also addressed whether the statutory assignment of
different labels for the official family relationship of
opposite-sex couples and same-sex couples raises constitutional
concerns under the California Constitution's Equal Protection
Clause. The Court concluded that the "strict scrutiny" standard
was applicable in this case (1) because the statutes
discriminate on the basis of sexual orientation, a
characteristic the majority determined to be - like gender,
race, and religion - a constitutionally suspect basis upon which
to impose differential treatment, and (2) because the different
statutory treatment impinges upon same-sex couples' fundamental
interest in having their family relationship accorded the same
respect and dignity enjoyed by opposite-sex couples.
To survive strict scrutiny, a law must be necessary to serve a
compelling government interest. The majority found that the
California statutes failed both parts of this test. The
majority determined that the state interest underlying the
marriage statutes' differential treatment of opposite-sex and
same-sex couples - the interest in retaining the traditional and
well-established definition of marriage - cannot properly be
viewed as a compelling state interest for purposes of the Equal
Protection Clause, or as necessary to serve such an interest,
and, thus, the statutes were unconstitutional.
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Proposition 8 : On October 5, 2007, the proponents of
Proposition 8, apparently contemplating that the California
Supreme Court might (as it did indeed do) find the state's
discriminatory marriage provisions unconstitutional, began the
legal process of proposing an initiative amendment to add to the
California Constitution the provision that in California
marriage could only be between one man and one woman. Then, as
noted above, on May 15, 2008, the Court issued its decision in
the Marriage Cases, holding that statutes limiting marriage to a
union between a man and a woman unconstitutional. The
Proposition 22 Legal Defense & Education Fund and others
requested a stay of the effective date of the Marriage Cases
decision until after the vote on Proposition 8. The Court
denied the request, and on June 16, 2008 the Marriage Cases
decision took effect. Approximately 18,000 same-sex couples
married in California after the effective date of the Marriage
Cases decision.
On November 4, 2008, Proposition 8 narrowly passed on a vote of
52-48 percent.
Constitutionality of Proposition 8: Supreme Court Decision :
Immediately after the passage of Proposition 8, its opponents
filed a petition directly with the California Supreme Court
seeking to invalidate the measure on the grounds that it was not
permissibly enacted. On May 26, 2009, the Supreme Court in
Strauss v. Horton upheld Proposition 8 in a 6-1 decision, but
held, unanimously, that the same-sex marriages performed in
California before the passage of Proposition 8 remain valid.
Amendment vs. Revision: Opponents of Proposition 8 argued that
it amounted to a constitutional revision, rather than an
amendment, that could not be accomplished through the imitative
process. The California Constitution may be changed in two
distinct ways. The constitution may be amended by the voters of
California through the initiative process. A revision to the
Constitution, by contrast, cannot be initiated by the voters,
but requires a two-thirds vote of the Legislature to propose a
measure to the electorate, who may then approve the revision by
majority vote.
The Supreme Court first determined that Proposition 8 did not
repeal the constitutional rights of individuals to choose their
life partners and enter into "a committed, officially
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recognized, and protected family relationship that enjoys all
the constitutionally based incidents of marriage" recognized by
the Court in Marriage Cases. (Strauss, 46 Cal.4th at 388.)
Instead, the Court found, Proposition 8 "carves out a narrow and
limited exception to these state constitutional rights,
reserving the official designation of the term 'marriage' for
the union of opposite-sex couples as a matter of state
constitutional law, but leaving undisturbed all of the other
extremely significant substantive aspects of a same-sex couple's
state constitutional right to establish an officially recognized
and protected family relationship and the guarantee of equal
protection of the laws." (Id.)
The Court next determined that Proposition 8 amounted to neither
a quantitative revision, given the proposition's 14 words, nor a
qualitative revision because it did not make a "far-reaching
change in the fundamental governmental structure or the
foundational power of its branches as set forth in the
Constitution. Under this standard, which has been applied
repeatedly and uniformly in the precedents that govern this
court's jurisprudence, it is evident that because Proposition 8
works no change of that nature in the California Constitution,
it does not constitute a constitutional revision." (Id. at
444.)
The Court also rejected claims that Proposition 8 was
unconstitutional because it violated the separation of powers
doctrine and, as the Attorney General had contended, that it
abrogated inalienable rights without a compelling state
interest.
Rights of Same-Sex Couples: As discussed above, while upholding
Proposition 8, the Court reiterated its key holding in Marriage
Cases, namely that in all respects, other than the word
marriage, "same-sex couples retain the same substantive
protections embodied in the state constitutional rights of
privacy and due process as those accorded to opposite-sex
couples and the same broad protections under the state equal
protection clause that are set forth in the majority opinion in
the Marriage Cases, including the general principle that sexual
orientation constitutes a suspect classification and that
statutes according differential treatment on the basis of sexual
orientation are constitutionally permissible only if they
satisfy the strict scrutiny standard of review." (Id. at 412.)
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Validity of Same Sex Marriages Legally Entered in California
Prior to Passage of Proposition 8: The Court then ruled
unanimously that Proposition 8 applied prospectively only. The
Court reiterated the widely recognized legal principle that
statutory enactments apply prospectively only, absent clear
intent to the contrary. The Court went on to discuss whether a
retroactive application of the proposition would deprive any
individual of vested rights with due process:
Here, same-sex couples who married after the decision
in the Marriage Cases, supra, 43 Cal.4th 757, was
rendered, and before Proposition 8 was adopted,
acquired vested property rights as lawfully married
spouses with respect to a wide range of subjects,
including, among many others, employment benefits,
interests in real property, and inheritances. These
couples' reliance upon this court's final decision in
the Marriage Cases was entirely legitimate. A
retroactive application of the initiative would
disrupt thousands of actions taken in reliance on the
Marriage Cases by these same-sex couples, their
employers, their creditors, and many others, throwing
property rights into disarray, destroying the legal
interests and expectations of thousands of couples and
their families, and potentially undermining the
ability of citizens to plan their lives according to
the law as it has been determined by this state's
highest court. By contrast, a retroactive application
of Proposition 8 is not essential to serve the state's
current interest (as reflected in the adoption of
Prop. 8) in preserving the traditional definition of
marriage by restricting marriage to opposite-sex
couples; that interest is honored by applying the
measure prospectively and by having the traditional
definition of marriage enshrined in the state
Constitution where it can be altered only by a
majority of California voters.
(Id. at 473-74.) As a result, the estimated 18,000 same-sex
marriages that occurred in California between the Marriage Cases
decision and passage of Proposition 8 remain valid.
Issue of Out-of-State Same-Sex Marriages Not Addressed: The
Court specifically did not address the validity of marriages
entered into outside of California before passage of Proposition
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8. In a footnote, the court wrote: "We have no occasion in
this case to determine whether same-sex couples who were
lawfully married in another jurisdiction prior to the adoption
of Proposition 8, but whose marriages were not formally
recognized in California prior to that date, are entitled to
have their marriages recognized in California at this time.
None of the petitioners before us in these cases falls within
this category, and in the absence of briefing by a party or
parties whose rights would be affected by such a determination,
we conclude it would be inappropriate to address that issue in
these proceedings." (Id. at 474, Footnote 48.) Thus, the first
issue addressed by this bill - whether pre-Proposition 8
out-of-state same-sex marriages should be recognized in
California was specifically left as an open question by the
Court in Strauss.
New Federal Court Action Challenging Proposition 8 : On May 22,
2009, opponents of Proposition 8 filed an action in federal
court in the Northern District of California challenging
Proposition 8 as violating both the due process clause and equal
protection clause of the 14th Amendment to the federal
constitution and seeking injunctive relief enjoining application
of the proposition. (Perry v. Schwarzenegger, 09-CV-2292.) On
July 2, 2009, U.S. District Court Judge Vaughn Walker denied
plaintiffs' request for a preliminary injunction to enjoin
Proposition 8, but set the matter to proceed expeditiously to a
trial on the merits. The next hearing in the case is scheduled
for August 19, 2009.
Same-Sex Recognition by Other Jurisdictions : Currently, six
states permit same-sex couples to marry. These states are
Connecticut, Iowa, Maine, Massachusetts, New Hampshire and
Vermont. Seven foreign countries - Belgium, Canada, the
Netherlands, Norway, South Africa, Spain, and Sweden - also
allow same-sex couples to marry.
In addition, while not allowing same-sex couples to marry, New
York and the District of Columbia recognize marriages between
same-sex couples entered in other jurisdictions.
This Bill Addresses Significant Uncertainties Following the
Supreme Court's Recent Decision in Strauss : In analyzing this
bill, there are several significant legal and policy issues that
this bill seeks to address:
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Is it Constitutional to Treat In-State and Out-of State
Marriages Differently? After the Marriage Cases decision and
before passage of Proposition 8, same-sex couples were permitted
to marry in California; and, after Strauss, their marriages
continue to be recognized in this state. The first
constitutional question is whether California can recognize
same-sex marriages that occurred in this state, but refuse to
recognize similar marriages validly entered in other states.
The Privileges and Immunities Clause of the U.S. Constitution
requires that citizens of each state are entitled to all the
privileges and immunities of citizens of other states. As a
general rule, the privileges and immunities clause bars
discrimination against citizens of other states when "there is
no substantial reason for the discrimination beyond the mere
fact that they are citizens of other States." Hicklin v. Orbeck
(1978) 437 U.S. 518, 525 (quotations and citations omitted.)
The question then becomes is there a substantial reason for
treating same-sex marriages validly entered in California
differently from those entered outside of the state?
In its Marriage Cases decision, the Court found, in holding that
Proposition 22 applied to all marriages, not just to those
entered in another state, that there would be serious
constitutional problems under the federal privileges and
immunities clause if Proposition 22 were interpreted "as
creating a distinct rule for out-of-state marriages as
contrasted with in-state marriages." (Marriage Cases, 43
Cal.4th at 800.) Thus, in a very similar situation, the
California Supreme Court did not find a substantial reason for
treating in-state and out-of-state marriages differently.
Although the Supreme Court in Strauss specifically did not
decide the issue of how to treat same-sex marriages entered
outside of California when California allowed such marriages, it
seems highly likely that the Court would, following its analysis
in Marriage Cases, reach a similar decision and require that
in-state and out-of-state marriages be treated the same,
particularly since there does not appear to be any substantial
reason for treating such marriages differently.
Would Application of Proposition 8 to Same-Sex Marriages Entered
Outside of California Before Passage of the Proposition Result
in its Retroactive Application? After the Marriage Cases
decision, California recognized same-sex marriages that were
validly entered both within and outside of California. A couple
that, for example, validly married in Massachusetts and later
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traveled or moved to California would have, prior to passage of
Proposition 8, been recognized as married. If Proposition 8 is
now applied to invalidate these marriages, it will, by
definition, be applied retroactively.
As the Supreme Court determined in Strauss, retroactive
application of Proposition 8 would have substantial negative
consequences. The Court wrote that same-sex couples who had
married in California had "acquired vested property rights as
lawfully married spouses with respect to a wide range of
subjects, including, among many others, employment benefits,
interests in real property, and inheritances. These [in state]
couples' reliance upon this court's final decision in the
Marriage Cases was entirely legitimate. A retroactive
application of the initiative would disrupt thousands of actions
taken in reliance on the Marriage Cases by these same-sex
couples, their employers, their creditors, and many others,
throwing property rights into disarray, destroying the legal
interests and expectations of thousands of couples and their
families, and potentially undermining the ability of citizens to
plan their lives according to the law as it has been determined
by this state's highest court." (Strauss, 46 Cal.4th at
473-74.) These negative consequences apply equally to marriages
entered in California and marriages entered outside of this
state, but in reliance on the Marriage Cases decision.
This reliance is well illustrated by an example provided by the
bill's proponents of a same-sex couple who lived in California
and who married between the Marriage Cases decision and
Proposition 8. However, because both the couple's families
lived in Massachusetts, they chose to marry there. Since then,
they have had a child in California, both spouses are listed on
the child's birth certificate, and one member of the couple
receives health insurance as a spouse through the other spouse's
employer. If their out-of-state marriage is not recognized in
California, it is not clear how their family will be treated.
Moreover, as discussed below, after being married in
Massachusetts, this couple could not have remarried in
California, since they were already married.
Recognizing Out-of-State Marriages Entered Prior to the Marriage
Cases Decision: Could Those Couples Have Legally Married in
California? After Marriage Cases, same-sex couples were legally
able to marry in California. However, a same-sex couple who had
been validly married in another jurisdiction prior to the
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Marriage Cases decision not only would have had their marriage
recognized in California, but they would have been unable to
marry in California during that time, even if they had so
desired. Under Family Code Section 308, a marriage entered
outside of California that is valid under the laws of the
jurisdiction in which it was performed is valid in California.
In addition, these couples could not have married in California
because they were already married, and state law requires that
to be eligible for marriage, a prospective spouse must be
unmarried. (Family Code Section 301.) As a result, same-sex
couples who had entered valid marriages outside of California
before the Marriage Cases not only did not, since they were
already married and their marriages were legally recognized in
this state, need to get married during the window when same-sex
marriage was permitted in California, but they also could not
have married in California during that time.
Proponents have cited examples of same-sex couples who had
married outside of California prior to the Marriage Cases
decision and who have since moved to California. There is
nothing these couples could have done, short of divorcing in
their home jurisdiction, to have been able to re-marry in
California. Moreover, contend proponents, they relied on the
legality of their marriage in many of the decisions they have
made. Finally, they argue that they cannot even register as
domestic partners in the state, since the domestic partnership
registry is limited to unmarried individuals (Family Code
Section 297). If California does not recognize their marriages
in some fashion, they will, in effect, become legal strangers.
How Should California Treat Same-Sex Couples Who Validly Married
Outside of the State After Passage of Proposition 8? After
passage of Proposition 8, same-sex couples may no longer marry
in California and California may no longer recognize such
marriages performed outside the state. The question before this
Committee is how state law should treat such couples.
Proponents argue that they should be treated as married couples
in all ways, except for the designation of marriage. This
proposal is consistent with both Marriage Cases and Strauss
which made clear that "same-sex couples retain the same
substantive protections embodied in the state constitutional
rights of privacy and due process as those accorded to
opposite-sex couples" (Strauss, 46 Cal.4th at 412) and that
Proposition 8 did not repeal the constitutional rights of
individuals to choose their life partners and enter into "a
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committed, officially recognized, and protected family
relationship that enjoys all the constitutionally based
incidents of marriage" recognized by the Court in Marriage
Cases. (Id., 46 at 388.) It is also consistent with how
domestic partnership will likely be treated by the courts after
Marriage Cases and Strauss. It is likely that any different
treatment of these out-of-state marriages would run afoul of the
state constitution.
ARGUMENTS IN SUPPORT : Supporters the argue that this bill is
necessary to clarify the legal status of same-sex marriages
entered outside of California both before and after passage of
Proposition 8. Without this bill, the legal status of same-sex
couples and their families remains confused because the court in
Strauss did not specifically address the situation. "However,
based on the Court's reasoning in Strauss and In re Marriage
Cases, as well as longstanding family law principles, it is
clear that those marriages must continue to be recognized in
California," writes sponsor Equality California.
ARGUMENTS IN OPPOSITION : Opponents, including Concerned Women
for America, argue that this bill is "simply another attempt to
thwart the will of the people of California" and the
constitution, as amended by Proposition 8. Opponents content
that the people have spoken twice - through Proposition 22 and
most recently through Proposition 8 - and made clear that only
marriage between a man and a woman should be valid or recognized
in this state.
Opponents' arguments, however, fail to consider that 18,000
same-sex marriages are now valid and recognized in California
and that our constitution requires due process and equal
protection for all couples, including same-sex couples.
REGISTERED SUPPORT / OPPOSITION :
Support
Equality California (sponsor)
California Communities United Institute
California Society for Clinical Social Work
Commission on the Status of Women
National Association of Social Workers, California Chapter
Planned Parenthood Affiliates of California
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Opposition
California Catholic Conference
California Family Council
Concerned Women for America
Pacific Justice Institute
Many individuals
Analysis Prepared by : Drew Liebert / Leora Gershenzon / JUD. /
(916) 319-2334