Tuesday, August 19, 2008

Marriage in Arizona,-- More on the California marriage decision

This is the link and citation to the California Supreme Court case:

http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF

In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal.,2008)

The Court’s decision was based on an initiative statute submitted to the voters of California. The Court observed concerning the wording of the statute:

“There is no similar agreement between the parties, however, as to the meaning and scope of a second provision of the Family Code — section 308.5 — that also contains language limiting marriage to a union between a man and a woman. Section 308.5, an initiative statute submitted to the voters of California as Proposition 22 at the March 7, 2000, primary election and approved by the voters at that election, provides in full: “Only marriage between a man and a woman is valid or recognized in California.” Plaintiffs maintain that section 308.5 should not be interpreted to apply to or to limit marriages entered into in California, but instead to apply only to marriages entered into in another jurisdiction; plaintiffs take the position that although this provision prohibits California from recognizing out-of-state marriages of same-sex couples, it should not be interpreted to speak to or control the question of the validity of marriages performed in California. The Proposition 22 Legal Defense Fund and the Campaign contest plaintiffs’ proposed interpretation of section 308.5, maintaining that the statute properly must be interpreted to apply to and to limit both out-of-state marriages and marriages performed in California.” (emphasis added).

The wording of the California statute is similar to the language of the proposed amendment to the Arizona Constitution. Arizonans will vote on November 4, 2008 on Ballot Proposition 102 which reads:

“Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”

The California Court notes the significance of the fact that the measure was an initiative rather than a bill passed by the legislature:

“As already noted, it is clear that section 300 in itself limits marriages performed in California to opposite-sex couples, but the proper interpretation of section 308.5 nonetheless is quite significant because, unlike section 300, section 308.5 is an initiative statute — a measure that, under the provisions of article II, section 10, subdivision (c) of the California Constitution, cannot be modified by the Legislature without submitting the proposed modification to a vote of the people.Accordingly, if section 308.5 applies to marriages performed in California as well as to out-of-state marriages, any measure passed by the Legislature that purports to authorize marriages of same-sex couples in California would have to be submitted to and approved by the voters before it could become effective.”

The issue discussed by the California Court was whether or not the statute was ambiguous given the position of the Plaintiffs in the case, as to whether it was intended to prohibit same-sex marriages in California or only prevent those of other states from being recognized. The Court goes on to state:

“In view of the asserted ambiguity of the statute, plaintiffs urge this court to consider the measure’s purpose as reflected in the initiative’s “legislative history.” In this regard, plaintiffs maintain that the arguments relating to Proposition 22 set forth in the voter information guide indicate that this initiative measure was prompted by the proponents’ concern that other states and nations might authorize marriages of same-sex couples, and by the proponents’ desire to ensure that California would not recognize such marriages. (See Voter Information Guide, Primary Elec. (Mar. 7, 2000) arguments in favor of and against Prop. 22, pp. 52-53; see also Armijo v. Miles (2005) 127 Cal.App.4th 1405, 1422-1424.) Plaintiffs assert that in light of this objective, and the circumstance that when Proposition 22 was submitted to the electorate the provisions of section 308.5 were not needed to establish a limitation on marriages performed in California because section 300 Section 308 provides in full: “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.” already specified that marriage in California is limited to opposite-sex couples, section 308.5 should be interpreted to apply only to out-of-state marriages and not to marriages solemnized in California.”

Although the California Court recognizes the argument, it finds that statute is ambiguous because the “average voter is likely to have understood the proposed statute to apply to marriages performed in California as well as to out-of-state marriages.”

The complete quote is as follows:

"Although we agree with plaintiffs that the principal motivating factor underlying Proposition 22 appears to have been to ensure that California would not recognize marriages of same-sex couples that might be validly entered into in another jurisdiction, we conclude the statutory provision proposed by this initiative measure and adopted by the voters — which, we note again, provides in full that “[o]nly marriage between a man and a woman is valid or recognized in California” — cannot properly be interpreted to apply only to marriages performed outside of California. Unlike section 308, section 308.5 itself contains no language indicating that the statute is directed at and applies only to marriages performed outside of California. Further, because section 308.5 states both that only a marriage between a man and a woman is “recognized” in California and also that only a marriage between a man and a woman is “valid” in California, the average voter is likely to have understood the proposed statute to apply to marriages performed in California as well as to out-of-state marriages.”

Because of this supposed ambiguity, the California Court decides that it needs to resolve the issue because, as they state:

“Imposing such discriminatory treatment against out-of-state marriages of same-sex couples, as contrasted with marriages of same-sex couples performed within the state, would be difficult to square with governing federal constitutional precedents.”

The case is not about the rights of the same-sex couples. The Court acknowledges that:

“Although California statutes always have limited and continue to limit marriage to opposite-sex couples, as noted at the outset of this opinion California recently has enacted comprehensive domestic partnership legislation that affords same-sex couples the opportunity, by entering into a domestic partnership, toobtain virtually all of the legal benefits, privileges, responsibilities, and duties that California law affords to and imposes upon married couples. The recent comprehensive domestic partnership legislation constitutes the culmination of a gradual expansion of rights that have been made available in this state to same-sex couples who choose to register as domestic partners.”

This California case is about labels. It is basically saying that “marriage” is a label and nothing more and that despite the clear intent of the initiative statute and the legislative intent, the Court can redefine the label so as to preserve the dignity of same-sex couples. In other words no one should be made to feel bad about how society views their choices and behavior.

More later.

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