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Calif. Bill Would OK Out-of-State Gay Marriages
The Recorder
July 09, 2009
The California Legislature is getting back into the Proposition 8 fight with a bill that would recognize possibly thousands of same-sex marriages performed outside of California before the measure was passed.
SB 54 , introduced late last week by Sen. Mark Leno, D-San Francisco, also would ensure that gay and lesbian couples who have married in other states or countries since Nov. 5 -- when Prop 8 became official -- receive all the rights and obligations opposite-sex California couples enjoy, with the exception of the designation of "marriage."
The bill faces its first test today in the Assembly Judiciary Committee, which is dominated by Democrats. It already has generated opposition from two conservative groups, the California Catholic Conference and the Capitol Resource Institute.
"This bill is a direct effort to undercut what the voters did on Nov. 5, 2008," Karen England, executive director of CRI, which defends "family-friendly policies" in California, said in an e-mail alert sent out Monday.
Leno called that a complete misreading of SB 54. All he's doing, he said Monday, is trying to put into state statutes the language of the California Supreme Court's May 26 ruling in Strauss v. Horton (pdf), 46 Cal.4th 364, which said Prop 8 isn't retroactive and that the only exception to equal protection for same-sex couples is the use of the word "marriage."
"This is, in the strictest terms, merely codifying the Supreme Court decision," Leno said. "We don't interpret. We don't extrapolate. We don't extend. We just place in statute what the court said in the majority opinion."
The California Supreme Court explicitly declined in Strauss to decide the fate of out-of-state marriages that were performed while same-sex marriage was legal in California, saying that the question was not properly before the court.
Although Prop 8 is a constitutional amendment, Leno argued that adding statutory language shouldn't pose any problem because his legislation isn't trying to undo the controversial ballot measure.
Gay rights lawyers and family law attorneys think Leno's on the right track. Some have worried in recent weeks that the Supreme Court left thousands of couples in limbo.
"People are just coming out of the woodwork who actually did believe their marriages had been invalidated," San Francisco family lawyer Deborah Wald said.
Many California same-sex couples married in other states, assuming their licenses would be portable. And couples who have married in other locales before or after Nov. 5 worry their nuptials won't be recognized if they move here.
"It's a good idea [for legislators] to take the bull by the horns" and "create some clarity," San Francisco Chief Deputy City Attorney Therese Stewart said Tuesday.
"Now, do they have the final word?" she added. "Obviously, anybody can sue anybody over anything."
Courtney Joslin, an acting professor of law at UC-Davis School of Law, said Leno's bill is "entirely consistent" with her reading of Strauss.
"The people did not express any attempt to have Prop 8 applied retroactively to in-state or out-of-state marriages," she said, "and that should be the end of the question."
Jesse Choper, a constitutional law expert at UC-Berkeley School of Law, said that would seem reasonable. "If the Legislature wants to say that same-sex marriages performed legally outside the state of California shall be recognized in California, then it would seem that's a fair statute to pass," he said. "The California Supreme Court can always come back and say, no, by constitutional amendment they are not valid anymore."
But Carol Hogan, pastoral projects and communications director of the Sacramento-based California Catholic Conference, doesn't agree. The Supreme Court didn't address out-of-state marriages, she said Tuesday, adding that Leno's bill is an obvious attempt to undermine the will of the people.
"If you can read plain English," she said Tuesday, "it sounds to me like [same-sex marriages] are not valid and recognized."
Hogan's organization sent a letter to Leno last week criticizing him for using the so-called "gut and amend" process to turn SB 54 -- which began as a health care pricing bill -- into Prop 8-related legislation. The group called it "an evasion of the full deliberate process" that "will preclude a full review."
The conference's letter said the effort "to recognize more same-sex 'marriages' is unnecessary -- and divisive -- as domestic partnerships in California offer individuals exactly the same rights and benefits that marriage does."
Leno said he expects the bill to be headed to the governor's desk by late August. He anticipates a party-line vote in the Assembly and Senate.
"Inequality is a messy business," he said, "and in many ways this [Supreme] court has created some messes we're trying to clean up. Equality is cleaner and simpler."
