May 29, 2009

California Supreme Court Upholds Proposition 8, Recognizes Pre-Election Marriages

I'm off to Book Expo America this week, but here's a post on the latest developments from California's Supreme Court from guest blogger Frederick Hertz, co-author of the upcoming book Making It Legal.

In a decision that wasn't unexpected, the California Supreme Court ruled that Proposition 8 was a valid exercise of the voters' right to amend the state constitution -- and was not a revision, which would have required legislative action to put on the ballot. One disturbing fact is that the decision was 6-1, with only Justice Carlos Moreno dissenting. Another is that the Justices focused on the fact that same-sex couples have access to marital rights and obligations through California's domestic partnership registration system. While technically the Court is correct that the rules of marriage apply now to state-registered domestic partners, this decision backtracks from the 2008 opinion that recognized the larger social meaning of the word "marriage."

Also as predicted, the Court upheld the validity of the approximately 18,000 marriages that were solemnized between June and November 2008. Those couples will be treated as legally married in California and in any other state that recognizes same-sex marriage, and all the rights (and obligations) of marriage will still apply to them.

One major issue the Court did not rule on is the question of whether marriages from other states will be recognized from now on. Given this uncertainty, couples married outside of California should consider registering as domestic partners -- which they can do even if already legally married -- so that if their marriage is not recognized in California, they will still have the protections of marriage as domestic partners.

Attorney Frederick Hertz