A small wrinkle regarding the Volokh proposal on Prop 8 retroactivity

At the conspiracy, Eugene Volokh has a thoughtful post discussing the “what now?” question for same sex couples who married between Marriage Cases and the election. After looking at some different options — grandfathering in couples, invalidating all marriages — Eugene suggests a statutory conversion of sorts:

Finally, it’s possible that the legislature will step in, specifically providing that any invalidated same-sex marriage will become a domestic partnership. I think that would be good, because it would minimize disruption and best effectuate people’s preferences, and I see no reason why it would be unconstitutional.

That proposal has several potential advantages. In particular, it complies with the proposition’s wording, and does so in perhaps the least disruptive way possible. Obviously, such a conversion would also have critics who cite to the social or emotional cost to same-sex couples who see their legal status altered without their consent.

It would also potentially run into a few additional legal wrinkles, due to some specific ways that marriage differs from domestic partnership in California.

Recall, marriage is not exactly the same as domestic partnership in California. Rather, it’s almost exactly the same, but there are nine areas in which there is less than complete overlap. These are relatively obscure, and are set out in a footnote in the Marriage Cases. Remember this one? It was long:

Although the governing statutes provide that registered domestic partners have the same substantive legal rights and are subject to the same obligations as married spouses, in response to a request for supplemental briefing by this court the parties have identified various differences (nine in number) that exist in the corresponding provisions of the domestic partnership and marriage statutes and in a few other statutory and constitutional provisions. First, although the domestic partnership provisions require that both partners have a common residence at the time a domestic partnership is established (§ 297, subd. (b) (1)), there is no similar requirement for marriage. Second, although the domestic partnership legislation requires that both persons be at least 18 years of age when the partnership is established (§ 297, subd. (b)(4)), the marriage statutes permit a person under the age of 18 to marry with the consent of a parent or guardian or a court order. (§§ 302, 303.) Third, [filing differences]. . . Fourth, although the marriage statutes establish a procedure under which an unmarried man and unmarried woman who have been residing together as husband and wife may enter into a “confidential marriage” in which the marriage certificate and date of the marriage are not made available to the public (§ 500 et seq.), the domestic partnership law contains no similar provisions for “confidential domestic partnership.” [additional items on divorce and benefits, plus one on putative spouses which has since been overruled]

Would these differences potentially impact a conversion statute? They might, though any impact would be minimal.

For instance, consider a hypothetical couple who married during the interim period, with one of the two being 16 or 17 years old and marrying with parent or guardian permission. That couple could legally marry, but they would not be eligible for a registered domestic partnership under the statute as now written. The same would apply to a couple who has never cohabited.

However, any conversion statute of the kind that Eugene suggests could simply provide an exception for any such cases. So these differences, while real, would likely have only minimal impact on any statutory conversion plan of the sort that Eugene has suggested.

You may also like...

5 Responses

  1. todd says:

    I have read ther court decision and while not a lawyer, I don’t understand why the passing of Prop 8 would necessarily “overturn” the court’s ruling. My understanding is that the court ruled that sexual orientation was a suspect class and therefore could not be treated differently by the laws of California. They then ruled that marriage would be available to same-sex couples as that was the more likley move by the legislature. If the amendment stands, and the State can only recognize marriage as between a man and a woman, why can’t the ruling for equal application under the law still apply? The court made it fairly clear that they could call ALL relationships by some other name and still meet the requirement of the equal protection clause. What if the State determined that in keeping with the ruling and the new amendment, California did not recognize ANY marriage and instead only recognized Domestic Partnerships and Marriage would be a religious ceremony with no legal rights attached?

    I realize that would be a radical concept, but it would be in keeping with the intent of Prop 8 and leave the court’s ruling intact.

  2. A.W. says:


    What’s wrong with that approach is that Prop 8 is a specific rebuke of that decision. Its isn’t right to pretend that this decision is still good law.

    Let’s face it: the Cali Supreme Court overstepped and got their hands slapped. Good for the people of California. The notion that that gay relationships are so “equal” to straight ones that you cannot even discriminate by stigmatization is patently ridiculous on its face.

    And bluntly, all the marriages should be annulled. If they want to be domestic partners, let them go for that next.

  3. Lij says:

    A hypothetical or two for you. First, a gay Native American and his equally gay Native American partner have married in California during the last summer of 2008. They did so in a ceremony based in their native religions which allow two men to marry. Second, two lesbians Wiccans have married this last summer in their religion’s ceremonial handfasting which allows for the marriage of persons of the same gender.

    Then comes the obvious questions. Do they have recourse based in their First Amendment rights to petition the courts to demand their marriages be upheld as constitutionally protected? And if they do, then do atheists not have the same protections?

    Furthermore, in an interview with the German magazine Spiegel Chief Justice Ronald George is quoted as having said the following:

    If this amendment to the constitution passes, it would prevent gay people from being married, but it would not remove this protection that we put in our analysis. … We’re saying that if you look at a classification of gay people, you must treat it just as if you are classifying on the basis of the color of their skin or their religion. And that is probably the most important thing in the whole ruling, even though the population’s attention understandably has mostly been on the “M word” of marriage.

    As gay people are to be treated the same as any person’s religion or skin color does that mean that a religion or a person of a certain ethnicity can be barred from the institution of California civil marriage? And if they cannot, then how can a person based upon their sexual persuasion?

  4. Bill says:

    “As gay people are to be treated the same as any person’s religion or skin color does that mean that a religion or a person of a certain ethnicity can be barred from the institution of California civil marriage? And if they cannot, then how can a person based upon their sexual persuasion? ”

    Prop 8 does not prohibit gay people from getting married. Indeed, it says nothing about sexual orientation. It simply requires, as the people of California have ALWAYS required, that marriage be between a man and a woman. Thus a gay man and a gay woman could still marry. The laws makes absolutely no distinction based on sexual orientation whatsoever.

  5. Dan says:

    I was married to my same sex partner before Prop 8 took affect. I have one question for the legal experts out there that seems to have been overlooked, and I don’t think it’s an unimportant detail. Our marriage license does not recognize any gender. It simply states party A and party B. If, as some people are arguing, Prop 8 would invalidate marriages between same sex couples, then how will it be possible to identify those of us in same sex marriages? I can only see a couple of ways out of this situation. Either they have to allow ALL marriages that occured before the election to remain valid, or have same sex couples come in voluntarily to invalidate our licenses. Same sex couples cannot be identified properly by just looking at names. What about Chris and Chris? Are they same or opposite genders? Also, will we be able to sue the state for wedding expenses, honeymoon expenses, and pain and suffering if our marriage is invalidated? In that case, I HOPE that they invalidate it. I could use the extra million I’ll sue for… Also, it seems that there’s another overlooked important distinction between domestic partnerships and marriages. An employer has the OPTION to recognize or NOT recognize and grant benefits for domestic partners. They have NO option but to recognize and grant benefits for marriage couples. This seems to be the most important difference of all, and why same sex couples MUST be allowed to marry. Otherwise, we will never be equal in the eyes of the law, unless this is changed…