Domestic Partnerships: Not Gay Marriage
Monday’s decision in Knight v. Superior Court (Schwarzenegger) (2005) , ___ Cal.App.4th ___ upholding California’s domestic partnership law (Cal. Fam. Code 297.5) against a Prop 22 challenge, strikes me as about right. The basis of the challenge was that the domestic partnership law, which affords registered domestic partners most of the same same rights as married couples, constituted an end run around Proposition 22, the Defense of Marriage Initiative passed by voters in 2000. That statute, codified at Cal. Fam. Code 308.5, provides that:
Only marriage between a man and a woman is valid or recognized in California.
The Court of Appeal noted that unlike many other states defense of marriage initiatives/amendments, Section 308.5 applies by its terms only to marriage, and not to other legally binding unions between consenting adults. My initial reaction to that was “oh, please,” but this section of the opinion changed my mind:
Prior to the passage of Proposition 22, the Legislature enacted section 297, establishing domestic partnership as a recognized legal relationship. (Stats. 1999, ch. 588 (Assem. Bill No. 26), § 2.) That section authorized two persons to register as domestic partners if they were adults sharing a common residence, they agreed to be jointly responsible for each other’s basic living expenses, and they were either (1) both persons of the same sex, or (2) persons of the opposite sex, who were both over the age of 62 and eligible to receive social security. (Former § 297, subd. (b).) Domestic partners were entitled to certain limited rights concerning hospital visitation, and to health benefits if one of the partners was a state employee. (Former §§ 297, 299.5, subd. (a); former Gov. Code, § 22868 et seq.; Health & Saf. Code, § 1261.)
Thereafter, the Legislature amended the domestic partnership statutes to expand the rights and obligations of domestic partners (Stats. 2001, ch. 893 (Assem. Bill No. 25), §§ 1-61; Stats. 2002, ch. 447 (Assem. Bill No. 2216), §§ 1-3) and to provide that for heterosexual domestic partnerships only one of the partners need be over the age of 62. (Stats. 2001, ch. 893 (Assem. Bill No. 25), § 3.) {Slip Opn. Page 8}
In 2003, the Legislature amended the domestic partnership laws again in The California Domestic Partner Rights and Responsibilities Act of 2003 (the Act). (Stats. 2003, ch. 421 (Assem. Bill No. 205), § 4, eff. Jan. 1, 2005.) Section 297.5, subdivision (a) of the Act states: “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.”
[Emphasis added.]
To me, that’s game set and match right there. Up until now, I had been operating under the assumption that the challenged 2003 legislation created “domestic partnerships” for the first time under California law. Seeing as the legal concept of a domestic partnership existed prior to Prop 22, however, I do not believe that the word “marriage” can reasonably be construed to subsume it. If it did, the plaintiffs shoudn’t have waited until the 2003 revisions. If that’s what the plaintiffs really believe, they should have filed suit the day after Prop 22′s passage to have the original version of Section 297.5 struck down. Or if they thought that Prop 22 was intended to all domestic partnerships only to the extent they existed then – a strained interpretation of Prop 22, but not an inherently illogical one – they should have sued to block the 2002 amendments. The notion that Prop 22 allows the Legislature to retain domestic partnerships and even change them somewhat, but not change them more, is sheer nonsense. Which, I might add, is exactly what I would have expected from this suit had I known all along that Liberty Counsel was behind it.
I should point out, however, that while this case vindicates the concept of civil unions in California, there are two important things it emphatically does not do. First, if you live in any DOMA state other than California, this case probably will not help you, as most other states’ DOMA statutes or amendments are more broadly worded than ours. Second, if you do live in California, and support true blue gay marriage, this case won’t help you, either. While Mark Leno may claim, through Ass. Bill 19, that Prop 22 only applies only to out of state marriages, all three judges in Knight made it clear that this is not true:
The plain language of Proposition 22 and its initiative statute, section 308.5, reaffirms the definition of marriage in section 300, by stating that only marriage between a man and a woman shall be valid and recognized in California. This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state.
[Emphasis added.]
April 6th, 2005 at 2:31 pm
I’m kind of surprised that you didn’t know domestic partnerships existed prior to 2003. They’ve been around in California for what seems like quite a while. In any event, I agree that this suit was really unfounded. After all, Pete Knight was in the legislature, and knew about them. It’s not like domestic partnerships were a hidden issue from the drafters of Prop. 22. A
Also, marriage is what most people really care about anyway. So I think it was probably a tactical choice to keep Prop. 22 short, simple, and sweet. And say it in as least offensive way as possible, but also get that initiative level of protection. (Legislature can’t change without going back to people, but they really should’ve gotten a constitutional amendment, but who knew, 2000 seems so quaint by now…Judges weren’t quite the monarchs they have recently decided to be).
In defense of the other side…although weakly Prop. 22 was one of the first DOMA-type iniatives and perhaps they didn’t think about it, but would’ve put that in there. BUT, Of course, nothing stops them from attempting a referendum (well now it’s too late), or at least a new initiative campaign.
April 6th, 2005 at 3:48 pm
XRLQ, when have you EVER accepted as fact the entirety of a judge’s ruling in a case like this?
HOWEVER, it does establish the basis for a “Separate But Equal does not mean Equal” challenge…
April 6th, 2005 at 3:50 pm
Also, it is pretty clear from the code that Sec. 308.5 is a subsection of Sec. 308:
“308. A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state.
308.5. Only marriage between a man and a woman is valid or recognized in California.”
Now I am no lawyer, but I would read that to clearly imply that Sec. 308.5 amends Sec. 308, especially when Sec. 301 gives a definition of the parties who can get married in California legally.
April 6th, 2005 at 4:13 pm
Oh my that’s some legal analysis…worth every penny. That’s not the way codes work. Just because 308.5 is numbered that way has no bearing on it’s legal affect. It was number 308.5 because 301-310 are already being used. Part I of Division 3 of the Family Code is sections 300-310 those number correspond with validity of marriages. 308.5 was probably chosen because it corresponds with other declarations of validity. So, if a bill was passed stating Marriage between a dog and cat is not recognized in California it would probably be number 308.6. In any event the use of a decimal does not make it a subsection, even if it did, a subsection can overtake other entire sections, provided the right language.
April 6th, 2005 at 4:24 pm
Not only that. Even if Section 308.5 had been codified as a subsection of Section 308, i.e., Prop 22 had moved the existing language of 308 into a new subsection (a), and enacted Prop 22 as a new Subsection (b), that still wouldn’t affect the plain meaning of either subsection. Each would still have to be read and interpreted on its own, just as any two separately numbered statutes must be (unless, of course, they cross-reference each other, which these two don’t). If the intent of Prop 22 had been to amend Section 308, that’s what we would have done – pass an initiative amending Section 308 to make it say whatever we wanted it to say. That’s not what we did.
As to when I have ever accepted a judge’s ruling on a law at face value, frankly, that’s what I usually do. I don’t usually blog about cases like that because I generally have nothing to add. In this case I did, both because I myself had previously taken a skeptical view of the validity of California’s domestic partner law, and because at least one prominent blogger has been insisting that 2+2=3. So that three appellate judges have unanimously said that “nope, 2 plus 2 really does equal 4,” I thought it worthwhile to point that out.
As to the “separate but equal” challenge, rotsa ruck. Rather than overplay your hand, you’d do well to accept this gift horse from the Legislature rather than look it in the mouth, and end up losing everything to a new DOMA amendment more in line with the one that passed in Kansas yesterday.
April 7th, 2005 at 12:51 am
Well, the ruling seems OK to me – except:
I keep pointing out that no matter what the state calls it the laws prior to these amendments concerned “civil unions”. You can get “married” with or without the involvement of the State. FORMALLY married, in the religion of your choice.
It’s just that the State (at least here in L’il Rhody) provides for a State license for cohabitation, and which provides certain services (eg a formalized of estate distribution in the absence of a will) for license holders. And SOME religious leaders (as I recall what I read of the law about a year ago, only about six reigions are so recognized) may in turn be licensed to sign for the State, in lieu of a judge or other government official.
Yeah, the legislators who wrote the laws before roughly the mid-1990′s, and dictionary authors ditto, only thought of hetero unions. But then, the legislature of Ohio in the late nineteenth century passed a law that pi was exactly 3. And the Oxford dictionary tentatively traces the expletive “bloody” to an Elizabethan (I, not II) bunch of ruffians, without mentioning that it had been in common usage for centuries before.
April 7th, 2005 at 11:31 am
Domestic Partnership Ruling a setback for Marriage
As XRLQ pointed out yesterday, language in a recent California ruling affirming the status of Domestic Partnerships may deal a setback to efforts to provide equal marriage rights through the legislative process. The San Francisco Chronicle reports toda…
September 11th, 2005 at 5:56 pm
[Irrelevant, rambling, race-baiting spam deleted, user banned. -X.]