California Marriage: Gender Neutrality
Marriage is the triumph of hope over experience. - Samuel Johnson

The dream of finding that special person that you love dearly and creating a family together is exciting; fulfilling that dream can be one of life's greatest experiences. This opportunity is now open to all couples within the state of California. On May 15, 2008, due to In re Marriages Cases, the California Supreme Court declared that the California statutes limiting marriage to one man and one woman were unconstitutional. Therefore, on June 16, 2008 at 5:01 pm California County and city officials were instructed to begin using the new marriage license forms providing gender neutral terms in order to allow for same-sex couples to officially marry.

Prior to June 16, 2008, only a couple of one man and one woman could apply for a marriage license. However, per the May 28, 2008 letter sent to all county clerks by the California Department of Public Health, all clerks were instructed to use the new gender neutral marriage license applications and certificates. In preparation for the sudden surge in application for marriage licenses, 100 newly deputized officers in Los Angeles, and 200 in San Francisco to prepare for the rush. On June 16, 2008 the mayor of San Francisco "remarried" the first lesbian couple that was issued a same sex marriage certificate in 2004 that had been annulled by the Supreme Court only a few years before. As stated before, the In re Marriage Cases, made this official and legal marriage possible.

In RE Marriage Cases: What's in a Name

The In re Marriage Cases involved a constitutional challenge to the statutory limitation marriage to one man and one woman. The main issue was that Family Code §308.5, as worded, would not only limit recognition of same sex "marriages" entered into outside of California, but also prohibited the State of California from allowing same sex "marriage" to be solemnized in the State of California as well.

In layman's terms, the court was asked: "What's in a name?" The court had to construe the constitutional boundaries of the term "marriage." Specifically, whether, under the California Constitution, the state government was required to officially recognize a committed same-sex couple as a "marriage" under the equal protection clause. The majority decision stated that as the California Constitution currently stands - yes, it does. The court held reached this main conclusion by review previous case law and statutory provisions.

First, the court reviewed the "fundamental right to marry." According to the majority, an individual's right to marry includes the right to have the state recognize that individual's family unit with the equal dignity and respect of any other officially recognized family - regardless of whether the underlying relationship of the unit is a same sex or heterosexual couples. Thus the right to marry includes not only the right to have substantively the same rights, but also requires equal recognition.

Second, Although California's Domestic Partnership Rights and Responsibilities Act of 2003 provides almost all the same substantive rights as "marriage," by labeling the relationship a "domestic partnership" this potentially designates one group of people as being a separate class and does not provide the same dignity that the term "marriage" does.

Finally, as the court held that homosexuals as a group of people are a suspect class, meaning they have regularly been the subject of long term discrimination and historically have been unable to garner enough political power to defend their interest. As a suspect class, the government had to demonstrate a compelling state interest in order to restrict a same-sex couple's right to "marry." Here, there was no compelling state interest in defining marriage because (1) calling same sex couple marriage does not reduce the rights of heterosexual couples to "marry"; and (2) because the state has already made efforts to recognize same sex relationship with substantive rights, there is no compelling interest to maintain the limited definition of "marriage."

For these reasons, the court held that the portion of Family Code §300 which defines marriage as between one man and one woman, and Family Code §308.5 denied recognition of same sex marriages performed both inside and outside of the state of California, should both be held as unconstitutional.

This decision was by no means unanimous. In fact four of the Supreme Court Justices disagreed for two reasons. First, the expansion of the fundamental right to marry cannot be based on a new statutory scheme, such as the Domestic Partnership legislation, and should not be broadened as a general practice. Therefore, just because California statutes have gradually expanded the rights of same sex couples, does not mean that a constitutional right to recognition of the title "marriage" exists.

Second, because the basis of the different treatment is sexual orientation, the court should have held the state to a lesser standard - rational basis. Other courts, including previous holding by the California Supreme Court have held that sexual orientation is not a suspect class and therefore only a rational basis analysis was warranted. As the limitation of marriage does protect the acknowledged traditional definition of marriage - between a man and a woman - such a limitation is valid.

Regardless of the minority's basis for disagreement, as it stands the limitation of "marriage" to opposite sex couples is currently unconstitutional; thereby making the current situation, a true success story to the thousands of recently married same sex couples.

A Couple of Concerns

After the decision, there are a few legal questions that still remain: How will this be interpreted under federal law? And more importantly, how long will this be valid?

The In re Marriage cases and California Statutes do not have any effect on federal law. In fact, The United States Code, 1 USC §7, states that in any federal administrative ruling regulation or interpretation, the "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." Therefore, the change in California law has no affect on any federally granted benefits to a spouse.

In addition to Federal limitations, the most immediate concern at this time, is the proposed California Marriage Amendment. After the passage of Proposition 22 which created Family Code 308.5, there was a strong push for a constitutional amendment to define marriage as between one man and one woman. This coming November 2008, the proposed amendment will be put on California's state ballot. The amendment was proposed in 2004 and obtained the necessary signatures to be placed on the ballot just prior to the In re Marriages decision. This means, that although the case held that it is currently unconstitutional to deny the title of "marriage" to a committed and intimate same sex relationship, the constitution itself may change to reverse this situation.

California's Constitution only requires a simple majority to add an amendment. There are many who believe that the In re Marriages decision will be short lived as Proposition 22 was originally passed with 61% of California voters approving it. Unless same sex marriage supporters take action and actively stand against the amendment, the In re Marriage cases may be changed by popular vote enacting a Constitutional amendment.

What Happens to the Domestic Partnership?

In 2003, California enacted the Domestic Partnership Rights and Responsibilities Act, this act was not affected by the In re Marriage cases. As the California Supreme Court noted, this was the most extensive and in depth legislation dealing with same-sex couples in the United States. It allows for two adults in an intimate and committed relationship to file a Declaration of Domestic Partnership with the Secretary of State; and provides the couple the same rights, protections, obligations and benefits as married spouses under state law.

Domestic Partnership may still be registered and are not automatically terminated by the marriage of a same-sex couple. If a Domestic Partnership is already registered, the couple must still file a Notice of Termination with the California State Department to terminate the Partnership. Until further changes in the legislature, a same-sex couple actually has the option of marriage, domestic partnership, or both.

With these current options, it is important to know what the legal differences are between a marriage and a domestic partnership in regards to the rights of the couple. There are only nine legal differences between a domestic partnership and a marriage as the law stands now. They are:

1. Domestic Partnership requires common residence, marriage does not;
2. Domestic Partnership requires parties be 18 yrs, marriage requires the age of 18 or consent of parent, guardian or court order;
3. Domestic Partnership requires registration with Secretary of State, a marriage license is obtained from county clerk and the marriage must be solemnized by authorized individual;
4. There can be a confidential marriage in which the marriage date and certificate are not public information under limited circumstances, domestic partnership registration cannot be made confidential;
5. A summary dissolution of a domestic partnership is initiated by filing a Notice of Termination of Domestic Partnership with the Secretary of State instead of a joint filing in superior court as with a marriage;
6. A dissolution of marriage requires that at least one party be a California resident for 6 months, a dissolution of a domestic partnership does not require California residency (same sex union, civil union, domestic partnership registered in another state);
7. Domestic Partnership does not allow for eligibility of long-term care plans for state employees because federal laws do not recognize nonemployee partners as a spouse (this would not change for a same sex marriage);
8. Property tax exemption for unmarried partner of deceased spouse does not get extended to domestic partners; and
9. A person who has a reasonable belief they are married, but are technically not married may still be entitled to community property or other rights during the period they were unaware they were not legally married. There is no such protection for a mistaken domestic partner.

Keeping these differences in mind entering into a marriage or a domestic partnership should be weighed carefully. In either case, there are important considerations regarding how the change in status will affect your property in the long term as well as daily life.

A Final Note Before Rushing to the Alter

Considering that marriage is a legal agreement between two parties - either same-sex or heterosexual- any couple should consult with a family law attorney prior to following through with their marriage. With the divorce rate at around 50%, many couples fear that they will not be protected should their marriage end in divorce. A lawyer can detail all the legal obligations and rights that a couple will obtain when getting married and can offer suggestions for steps that can be taken to ensure that both parties are protected in the worst case scenario. A properly prepared prenuptial agreement or domestic partnership agreement should be considered.

Further, with the current option of marriage or a Domestic Partnership for a same-sex couple, the attorneys of Smith and Garg will be more than eager to discuss options and provide information regarding obtaining both, or simply entering a marriage.

Call Smith & Garg, LLC today at 1-877-517-4275 or complete our Contact Form and let us assist you with your Marriage law needs.