Same Sex Marriage

Same Sex Marriage: Can same sex couples “marry?”  If not, do same sex couples have any rights with respect to each other?

The issue of same sex marriage has been hotly debated for quite some time now, especially in California. The issue is far from resolved, and it seems that everyone, from the Mayor of San Francisco to the former Ms. California, has an opinion on whether or not same sex couples should be afforded the right to enter into a legally recognized marriage.

Regardless of what a person believes regarding the morality of same sex marriage, there are legal constructs which govern both the “right” of same sex couples to marry and their rights with respect to each other outside of traditional marriage.

The California Supreme Court has recognized that since California has been a state, the legal institution of “marriage” has been understood to refer to a relationship between a man and a woman, even though early statutes did not explicitly state as much. In 1977 the phrase “between a man and a woman” was added to the Family Code section regarding marriage, making it clear that same sex couples could not enter into a legally recognized marriage in California. On March 7, 2000, California voters approved Proposition 22 which provided that “Only marriage between a man and a woman is valid or recognized in California.” Proposition 22 ensured that a same sex marriage was not valid in California, no matter where that marriage took place.

Although it is clear that California law historically limited marriage to opposite sex couples, in 2003 California enacted domestic partnership legislation that afforded same sex couples who register as domestic partners the “same rights, protections, and benefits as well as all of the responsibilities, obligations, and duties to each other, to their children, to third parties and to the state, as the laws of California extend to and impose upon spouses.” (California Domestic Partner Rights and Responsibilities Act of 2003 regarding the purpose of the act). The legislation (along with subsequent legislation) effectively allowed same sex couples to enter into a legally recognized marriage-like relationship without actually calling it a “marriage.”

Despite the broad rights afforded to same sex couples through domestic partnership, many people took issue with the fact that the designation of “marriage” was reserved for opposite sex couples only. This issue was at the heart of the California Supreme Court’s decision in 2008 wherein they held that the right to legally marry extended to same sex couples as well as opposite sex couples. In reaching that conclusion, the California Supreme Court found that the “right to marry” a fundamental constitutional right, includes the right to marry someone of the same gender. The Court also found that the equal protection clause of the Constitution was violated by treating opposite sex relationships as official marriages, but treating same sex relationships as something different.

With the Court’s landmark decision in 2008, between June 16, 2008 and November 4, 2009, approximately 18,000 marriage licenses were issued to same sex couples. On November 4, 2008, however, Proposition 8 was passed in California and the next day, counties throughout California stopped issuing marriage licenses to same sex couples. On May 26, 2009, the California Supreme Court upheld Proposition 8, overruling their previous decision that it was unconstitutional to deprive same sex couples of the official designation of their relationship as a “marriage.”

So what effect did the May 26, 2009 decision have on same sex marriage? Since Proposition 8 was upheld, California law again reads that “only marriage between a man and a woman is valid or recognized in California.” From that date on, even though same sex couples are afforded the same rights and obligations as opposite sex couples if they register as domestic partners, they may not officially “marry.” However, the 18,000 same sex marriages that occurred before Proposition 8 passed remain valid and are treated as valid “marriages” in the eyes of the law.

Same sex couples who were married before Proposition 8 passed, must follow the same procedures as opposite sex couples upon separation or dissolution of their marriage. As of 12/1/2005, same sex couples who are not legally “married” but are registered domestic partners who wish to dissolve their domestic partnership, nullify the domestic partnership, or legally separate from their partner, must follow the same procedures, and the partners possess the same rights, protections, and benefits, and are subject to the same responsibilities, obligations, and duties as apply to the dissolution of marriage, nullity of marriage, and legal separation of spouses in a marriage.

At Mello & Pickering, we can assist same sex couples, as well as opposite sex couples, with the dissolution, legal separation, or nullity of their marriage or domestic partnership. We can also help with issues regarding Child Custody/Visitation, Child Support, Paternity, Domestic Violence/Restraining Orders, Prenuptial/Postnuptial Agreements, and Property Valuation and Division. Call our office today to schedule a 20 minute phone consultation or meeting with one of our attorneys at (408) 288-7800.