Proposition 22’s constitutional clone has qualified for the November ballot. Despite that, and the numerous polls indicating it will likely pass (not to mention the margin by which Proposition 22 originally did pass, nor the fact that Mark Leno lacked the guys to put his own gay marriage bills to a popular vote as the California constitution requires), gay-Juneteenth is right on schedule for June 17, two days ahead of the original one. This will afford gays in California a once in a lifetime opportunity to enjoy legal marriage for up to 140 days, rather than merely pretending to be married for a month or two like they did last time. It may also create some interesting court cases in the event of separation for briefly married, previously domestic partnered pairs. I haven’t found anything in the domestic partnership law that would necessarily preclude a couple from being simultaneously married and domestic partnered, but the possibility does seem a bit counterintuitive. To the extent that a given couple can have only one relationship or the other, would a domestic partnered couple who gets married in June, followed by a mass annulment in November, end up with no legal protection at all? I don’t know, but I do know this - if I were a gay man in California considering marriage, I’d seek competent counsel before testing the theory.

Another possible, though perhaps less probable side effect of the court’s decision would be to invalidate California’s domestic partnership law, thereby stripping gays of the very protections it sought to guarantee them. Why? Because while a simple majority of the electorate can undo the court’s ruling on marriage per se, it will leave their tortured reasoning intact. If conditioning marriage on the sexual preference of the partners (or, more technically, on the sex of either partner vs. the other) violates equal protection, surely imposing the same restriction on domestic partnerships does, also. Cal. Fam. Code 297(b)(5) does just that, explicitly prohibiting the vast majority of straight couples (basically all except certain elderly and retired ones) from becoming domestic partners. If one violates today’s version of the California Constitution, how can the other not violate it as well? The new Section 7.5 would change this result in the case of marriage, but would not affect it with regard to any other arrangements, including domestic partnerships.

Bear in mind that among the seven justices, only one, Carol A. Corrigan, ruled that gays have an equal protection right to de facto gay marriage, and that the domestic partnership law satisfies that requirement. The other six ruled either that gays have no such rights under the California constitution, or that they do, and that nothing short of the M-word will satisfy it. So if last month’s ruling were applied to such a challenge, we’d end up with 4 out of 7 justices striking down California’s domestic partnership law, leaving gays with only true marriage as an option - followed by no legal protection whatsoever if the marriage amendment should pass.

Note that I’m emphatically not predicting that this will actually happen. After all, I am convinced that in ruling as they did, the majority of California’s Supreme Court Justices proved themselves to be political hacks, not serious legal scholars who dispassionately apply the law and allow the chips to fall where they may. There are some places they’ll never let the chips fall, and wiping the domestic partnership law off the books while leaving nothing in its place is one such place. There are at least two easy ways out, one of which (or perhaps a third) they are bound to take. One way to weasel out of this dilemma would be to create a red bottle / green bottle distinction and rule that while the right to marry a “person” of one’s choice is a “fundamental” right triggering strict scrutiny, a domestic partnership law aimed at addressing that fundamental right only a “non-fundamental right” of its own, which in turn is subject to rational basis review. Another, less obviously silly (and therefore more likely to be adopted) approach would be to uphold most of the domestic partnership law, strike down Cal. Fam. Code 297(b)(5) only, and open up domestic partnerships to gays and straights alike. [As to why any straight couple might actually want to choose a domestic partnership over marriage, remember that there is no "domestic partnership penalty."]

Lastly, lest there by any doubt that the amendment would invalidate any marriages performed in California between gay-Juneteenth and Election Day, consider this. The wording of the amendment is identical to Proposition 22, and the notion that Proposition 22 meant anything short of what it said was struck down 7-0. Neither measure carried anything that could remotely be construed as a grandfather clause, any more than the original Prop 22 said it only applied to out of state marriages (the frivolous position Mark Leno and others used to justify their unconstitutional gay marriage bills). If someone gets “legally” married this summer, and seeks to enforce that marriage anytime after November 4 (assuming the amendment passes), they will run into a new Section 7.5 of Article I of the California Constitution stating that “only a marriage between a man and a woman is valid or recognized in California.” Notably missing from that language is “unless it used to be valid or recognized in California.”

I’m tempted to rib the Ass. Press for calling it “unclear” whether the amendment would do what it says or whether courts would make up a grandfather clause, but then again, this court has been behaving erratically enough that you never know what they’ll do. Maybe Courageous George will lead a new ruling that “man” refers to both sexes, thereby legalizing all marriages that include at least one woman. Then it can rightly rule that any law that permits lesbians but not gay men to marry does indeed violate equal protection, this time under the federal Constitution, and therefore, the constitution is unconstitutional. Stranger things have happened (and recently did).