Wanted to jot down some quick “day after” thoughts on the in re Marriage Cases decision that was handed down yesterday in California.
Procedurally, the case is now remanded back to the Court of Appeals for action consistent with the Court’s opinion. Clearly, part of that action is the invalidation of the parts of the marriage law, both for in-state and for recognition of out-of-state marriages, which limit “marriage” to opposite-sex couples. Same-sex couples will be able to marry once the Court of Appeals takes action. What is less clear is the status of those who have entered into domestic partnerships under California law. The Court did not explicitly address the domestic partnership statutes in the final part of their decision. It’s now unclear how the Court of Appeals and/or the legislature will address the issue.
From my limited view of California law (culled pretty much entirely from the decision), part of the elligibility for a domestic partnership was inelligibility for marriage. If the courts were to read the new availability of marriage as invalidating current domestic partnerships without making the partners go through the usual 6 month process for dissolution of the partnership, that might not be a bad thing. What I don’t see them doing is automatically converting partnerships to marriages, at least not by the court alone. The legislature could make such a thing a possibility, and I would hope they would do so for partnerships where one of the partners has died (since other rights and responsibilities for partnerships were added retroactively even for partnerships where one member was deceased, according to the decision), but I would not impose the full structure of marriage on those who entered into a partnership without their express consent.
The other thorny issue is those partnerships where the main reason was for support of the elderly, and not for “marriage light.” Not even going to touch that one, but it would be good if they kept that part of the partnership law in place.
In any case, those folks who are in valid domestic partnerships under California law now find themselves in a legal limbo, not knowing where they’re going to come out. Will the courts declare them de facto married? Will their partnerships get dissolved without being married? Will they have to go through the six month process to dissolve the partnership in order to get married? The Court didn’t address this, which was a weakness of the decision, in my opinion.
The other interesting note in the decision was the Court’s explanation of how the Governor was correct to veto the two attempts by the legislature to pass full gay marriage statutes. In essence, because Prop 22 was passed by initiative and because it did not allow for the legislature to change the law without putting the change to a vote, as is required by the California constitution. The statutes would not have been upheld by the courts, and as such the Governor was simply exercising his constitutional duty to veto legislation which he (properly) did not feel was constitutional. See footnotes 16-17 and the surrounding text. Knowing that puts his veto in a much better light, especially viewed together with his opposition to the current attempt to amend the state constitution to limit marriage to opposite-sex couples.
I won’t get into the classification of “sexual orientation” as a suspect class under California law except to say, “Wow, that was unexpected, yet quite, quite cool.” Smarter folks than I would better address all of the ramifications of that.