In response to the California Supreme Court's affirming Prop 8 yesterday, many were inclined to find the bright side of the decision. While I find that a laudable attitude, and I also am persuaded that this may be the politically advantageous outcome in the long term, I disagree that this somehow has judicial merit.
One argument was that the case eliminated the differences between California's domestic partnerships and marriage. Did it? We don't know; no court has applied that ruling to the differences yet. Perhaps the first will be a lawsuit filed last week by former Bush Solicitor General Ted Olson and Gore attorney David Boies. (What a team.) But I wanted to quote from that case to point out that this is a separate but equal regime as of now. Quote and analysis on the flip:
UPDATE: (Valid until 6/26/09) Download the Complaint here
UPDATE 2: Assigned to Judge Vaughn R. Walker, a Bush I appointee.
- Domestic partnership enables same-sex couples to obtain many of the substantive legal benefits and privileges that California law provides to married couples, but denies them access to civil marriage itself. It also treats same-sex couples differently in other respects, including but not limited to the following: (1) To qualify for domestic partnership, both partners must have a common residence at the time the partnership is established, Cal. Fam. Code § 297(b)(l), but there is no such requirement for marriage; (2) both individuals must be 18 years of age to enter into a domestic partnership, Cal. Fam. Code § 297(b)(4), but a person under 18 may be married with the consent of a parent or guardian or court order, Cal. Fam. Code §§ 302, 303; (3) to become domestic partners, both individuals must complete and file a Declaration of Domestic Partnership with the Secretary of State, who registers the declaration in a statewide registry, Cal. Fam. Code § 298.5(a) & (b), but a couple who wishes to marry must obtain a marriage license and certificate of registry of marriage from the county clerk, have the marriage solemnized by an authorized individual, and return the license and certificate of registry to the county recorder, who transmits it to the State Registrar of Vital Statistics, Cal. Fam. Code §§ 306, 359; Cal. Health & Safety Code §§ 102285, 102330, 102355; (4) the marriage laws establish a procedure through which an unmarried man and woman who have been living together as husband and wife may enter into a "confidential marriage" in which the marriage certificate and date of marriage are not made available to the public, Cal. Fam. Code §§ 500,511, but the domestic partnership law contains no such provision; (5) Article XIII § 3(0) & (p) of the California Constitution grants a $1,000 property tax exemption to an "unmarried spouse ofa deceased veteran" who owns property valued at less than $10,000, but not to a domestic partner of a deceased veteran; and (6) domestic partners may initiate a summary dissolution of a domestic partnership without any court action, whereas a summary dissolution of a marriage becomes effective only upon entry ofa court judgment, Cal. Fam. Code § 299(a)-(c); Cal. Fam. Code § 2400 et seq.
Compl. at 5:1-23 (May 22, 2009).
Notably, FWIW, I do not have access to a DP should I want one. There are reasons I might—should I have to explain? I'm not 62 and I like girls. Can't do it. I know that reverse discrimination against white men is such a huge problem these days (snark), but I thought I would point that out as well.
These procedural differences are more than a name. You have to affirm that you live with someone and you are denied the normal county-level procedure, and instead have to file something with the state. That right there might create a huge waiting period given the fiscal situation in this state.
I just want to point out, though: this really is separate but equal. No court has specifically held that these six enumerated differences are stricken as a result of yesterday, and to the extent the Cal Supremes said or intimate that, it's just dicta, because the didn't turn on the difference of these procedures, but on the electorate's right to amend the constitution. (There two original questions presented and the AG added one.)
I applaud this challenge because the U.S. Constitution is apparently all we have left in California. I hope Boies and Olson can get this law stricken. Interesting, even if they cannot get strict scrutiny, I think there is an argument that this has no rational basis in the law.