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Civil Rights

Apr. 7, 2009

Whatever the Prop. 8 Outcome, Some Families Will Be Stuck in Legal Limbo

Questions will remain surrounding the many people who entered into same-sex marriages during the window when it was legal.

Mary Ellen Waller

Director, Shareholder, General Counsel , Feinberg & Waller, A Professional Corporation


The California Supreme Court heard oral argument last month on the validity of Proposition 8, a measure banning same-sex marriage that California voters approved in November. The Supreme Court decision will be historic and have implications for decades to come determining the fate of same-sex marriage in the state as well as the validity of an estimated 18,000 same-sex marriages already performed in California.

After oral argument, the court took the issues under submission and has up until early June 2009 to decide whether it will uphold Prop. 8, though there is speculation in the legal community that this decision is bound to come sooner rather than later, since the lives of those who have already married under California law hang in legal limbo. The California Supreme Court indicated that it will likely uphold Prop. 8 but will also let the marriages that have already taken place stand. If that projection is correct, it will essentially create three classes of people in California: those who can marry, those who can't marry and the limited class who married during a window when same-sex marriages were allowed to take place.

There was strong indication from the court that the marriages should be upheld after already receiving the right by the highest court of the state. The California Supreme Court justices entertained argument on Prop. 8 being applied retroactively and questioned whether it was the intent of the voters to invalidate the same-sex marriages retroactively. Here, they looked to language in the ballot stating that "marriage is between a man and a woman regardless of when or where performed," indicating that the words "when or where" were significant and could indicate that the voters meant to ban even the marriages that have already taken place. It was argued in opposition that the language of the ballot failed to address prior marriages and is thus too vague and ambiguous to be applicable to existing marriages. There was indication from the court, however, that Prop. 8 turns on the intent of the electorate rather than the drafters, and the electorate by voting that marriage should be "between a man and a woman" appears to have intended to disallow same-sex marriages. In addition, the court looked at the word "is" in the Prop. 8 initiative sentence, "Marriage is between a man and a woman," suggesting that if the "is" is read as a present tense then past marriages may be viewed as void.

The court, however, may be reluctant to allow the same-sex marriages to stand because it could create a potential legal and social quagmire for a small class of people. The already complex field of family law will become even more intricate if the 18,000 same-sex marriages are allowed to stand. These couples and their families would in all likelihood incur more legal fees and costs associated with resolving these unique issues, including peripheral issues relating to adoption, parentage and tax implications.

California family law attorneys who are currently seeing the first round of gay couples contemplating divorce and family law issues from the same-sex marriages that have taken place were advised at a recent seminar to hold off filing for same-sex marital dissolutions until a Supreme Court decision is rendered. Questions have already arisen from divorced heterosexual former spouses who are paying spousal support and now wish to stop payment because their former spouse has entered into a same-sex marriage. The Conference of Delegates of California Bar Associations has recommended legislation seeking to streamline the procedural process governing dissolutions if two people are registered domestic partners and are married. Legal questions still go unanswered as to whether the California courts will have jurisdiction to dissolve marriages from the states of Connecticut or Massachusetts, which allow same-sex marriages.

The California Supreme Court may be able to avoid the issue as to the status of the same-sex marriages that have already taken place. The court could produce a ruling that Prop. 8 is unconstitutional without reaching the issue of its effect on the same-sex marriages already legally performed. These Supreme Court justices are under a tremendous amount of personal and political pressure. The world is watching this decision, which will come from a country and a state known for equality and tolerance.

The Supreme Court hearing focused on whether Prop. 8 was a revision to the state's Constitution or an amendment. The people of California have a long-established inalienable right to change the Constitution as they desire. The California Constitution permits amendment by initiative with a majority of votes. A "revision" to the constitution however must go thorugh a more formal, deliberative and difficult legislative process. The California Constitution contains no clear definitions of which types of changes require the more difficult and deliberative process.

The Supreme Court is looking at prior cases that focus on the magnitude of the change. Previous cases have held that a structural change to the government is to be accomplished by revision, not amendment. There is no precedent, however, limiting the definition of constitutional revisions to structural changes.

Court consideration of an initiative that would selectively deprive some but not others of a fundamental right has never come up in the past. This is a case of first impression; the law in this area is unsettled. The court has the leeway to expand previous holdings. It is foreseeable that the court will rule that the people have an inalienable right to amend the Constitution as they see fit, but a change to core constitutional guarantees of equal protection of the Constitution that would selectively deprive a disfavored suspect class of fundamental rights must be subject to the rigors of the constitutional revision process.

The constitutional framers placed safeguards on the initiative process by requiring that certain changes go through a more deliberative process. The court could overturn Prop. 8 to preserve its institutional integrity and that of the California Constitution by refusing to allow the majority to reinstate discrimination.

The justices also acknowledged amicus briefs submitted to the court inferring that marriage has religious origins and that maybe we should call these all "civil unions" and have the state get out of the marriage business. The court's inquiry here may indicate that it is leaning toward a ruling that requires the state to use the term "civil union" rather than "marriage" for all couples.

There is no doubt that whatever the outcome, this battle will continue to rage in California, the United States and throughout the world for a long time to come as the courts, legislatures and family law bars continue to struggle with these issues.

Mary Ellen Waller is a family law attorney licensed in California and New York. She is a shareholder of Feinberg & Waller, a law firm practicing exclusively in the area of family law with offices in Calabasas and Beverly Hills. A full length version of this article is at

This article appears on Page 6


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