California Divorce Blawg

Ted Olson and David Boies Join The Prop 8 Fray

On Tuesday, lawyers Theodore B. Olson and David Boies, who represented opposing sides in the 2000 Bush v. Gore election challenge, announced they had filed a lawsuit in federal court on behalf of two gay men and two gay women challenging the Constitutionality of California's recently enacted Proposition 8.  That Proposition, upheld by the California Supreme Court, amends California's Constitution to define marriage as only between a man and a woman.  Is has the affect of banning same sex marriages.  The case brought by Boies and Olson argues that California's voter-enacted ban on same-sex marriage violates the U.S. Constitution's guarantee of equal protection and due process.

A coalition of gay rights groups said Wednesday that a federal same-sex marriage lawsuit brought by two high-profile lawyers is premature and they'd rather work through state legislatures and voters to win wedding rights.

A day after the California Supreme Court upheld a voter-approved ban on gay marriage, the American Civil Liberties Union, Lambda Legal and other national organizations issued a statement saying they think the U.S. Supreme Court is not ready to rule in their favor on the issue.

"In our view, the best way to win marriage equality nationally is to continue working state by state, not to bring premature federal challenges that pose a very high risk of setting a negative U.S. Supreme Court precedent," said Shannon Minter, legal director of National Center for Lesbian Rights.

Click here to read the article from HuffingtonPost.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

California Supreme Court Upholds Same-Sex Marriage Ban

The California Supreme Court on Tuesday upheld a ban on same-sex marriage that state voters passed in November, but it allowed about 18,000 marriages performed before the ban to remain valid.

Opponents of the ban argued that the controversial Proposition 8 improperly altered the California Constitution to restrict a fundamental right guaranteed in the state's charter.

But the court found the measure restricted the designation of marriage "while not otherwise affecting the fundamental constitutional rights of same-sex couples."

"We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid," California Chief Justice Ronald George wrote.

The court, which is dominated by Republican appointees, ruled in May 2008 that the state constitution guaranteed gay and lesbian couples the "basic civil right" to marry. The 4-3 decision came four years after San Francisco began issuing marriage licenses to same-sex couples.

 But in November, state voters approved the Proposition 8 ballot initiative 52 percent to 48 percent. The measure provided that only heterosexual unions would be recognized as marriages by the state.

Supporters of the proposition argued that Californians long have had the right to change their state constitution through ballot initiatives. The effort to overturn the restriction "strikes directly at the heart of California's system of government," a brief by the conservative Family Research Council argued.

Please click here for the entire article from CNN.com.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Why Pay Attention To Gay Marriage?

I got an e-mail from an angry viewer of this blog complaining that I devote too much space to same sex marriage (not the exact language used, but close enough).  The author also asked (I presume a rhetorical question?) why I spend so much time on the topic?  Originally I thought the answer was pretty simple.  As I typed this post out I realized, maybe it isn't so simple? 

The evolution of same sex legal unions is the busiest developing area of family law.   And, it is an incredibly challenging component of any family law lawyer's practice.  We've got domestic partnerships, same sex unions, same sex marriages.  Here in California if you are in a same sex relationship you can get married one day, you cannot get married the next day.  Heck, I don't know if my same  sex clients are coming or going as married folk (right now in California there is no right of same sex marriage)?  We have fresh legal questions that call into play Federal law, the U.S. Tax Code, the laws of the States that we practice in, and the laws of the States (and countries) that our clients relocate from, or move to.  It is the birth of a new legal model, and it is walking through a mine field all at the same time.  It is an incredibly challenging, and incredibly intimidating time for same sex couples and for lawyers that practice family law.  The subject is also more than just a passing fancy or a blip on the map.  In my opinion there is a clear trend developing toward the full recognition of same sex marriage across the country.  It may take decades, but the writing is on the wall.  I am not passionate about the topic, I am not frustrated by it.  As a family law lawyer I have a professional obligation to develop my knowledge on the topic.  As a service to the public I deliver information concerning the topic.  This blog lets me do both. That's why I pay attention to it.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Proposition 8 Constitutional? Arguments in California Supreme Court

The California Supreme Court heard a three hour argument in Strauss v. Horton, the challenge to Proposition 8's constitutionality.   We've previously blogged about the issues here and here, including a report of the two panels held at AALS in San Diego in early January.

One of the best recaps of the argument I've read so far has been from Josh Richman of the Oakland Tribune on [San Jose] mercurynews.com here.   The National Center for Lesbian Rights had a blog with minute-by-minute descriptions of the argument starting here.  The California Channel should have streaming video here, but I’ve found it difficult to access.

The California Supreme Court described the three issues it would hear in today's oral argument as:

        (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
        (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
        (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The issue of whether Proposition 8 is an amendment (and thus a referendum is proper) or a revision (and thus requiring 2/3 vote of the California legislature, or a constitutional convention) implicates one’s views of the right at stake.   According to the NCLR argument blogger, Chief Justice George “immediately” asked Shannon Minter, arguing for NCLR, whether Proposition 8 overturned the court’s holding in In re Marriage Cases that Sexual orientation was subject to strict scrutiny; Justice Wergerder then followed with a question assuming that if strict scrutiny was not affected, why was Proposition 8 significant enough to be a revision.   Minter’s answer referred to the “existing purposes and principles” of the California Constitution.  Of course, it is these very purposes and principles about which the parties - - -  and the thousands of activists on both sides of this issue - - - so vehemently disagree.

Please click here for the balance of the article from the Constitutional Law Professor Blog.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

California Supreme Court Recognizes Same-Sex Marriage

The California Supreme Court today has decided that it is Unconstitutional to limit "marriages" to opposite-sex couples.  Marriage cannot be limited to a union "between a man and a woman." The ruling recognizes the right of same-sex couples to engage in the ritual of "marriage" rather than limiting the definition of their relationships to "domestic partnerships."  Please click here to read the Court's opinion.

California Supreme Court Hears Same Sex Marriage Case

SAN FRANCISCO -- -- Four years after thousands of same-sex couples streamed into this liberal bastion to apply for marriage licenses, the California Supreme Court on Tuesday took up the question of whether gay people have a constitutional right to wed.  Click here for the entire LA Times article.

During more than three hours of arguments from lawyers for and against same-sex marriages, several justices appeared to be skeptical of legalizing the unions, suggesting they see the state's domestic partnerships as marriage in all but the name.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Schwarzenegger vetoes gay marriage bill

Gov. Arnold Schwarzenegger followed through Thursday on his promise to veto a bill to legalize same-sex marriage, leaving the issue up to voters or judges who will likely face the volatile issue in the next year.

“This bill simply adds confusion to a constitutional issue,” the Republican governor said in a veto message.

Scwarzenegger had announced his intention on Sept. 7, a day after the Legislature became the first in the country to approve a bill allowing gays and lesbians to wed.  Click here for more.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

"Family Values" in the 21st Century: Registered Domestic Partnerships, Same Sex Marriage, and the New Law in California

A nice overview article on the changing field of domestic partnership law in California.  Click here for more.

Case Law Development: California Upholds Constitutionality of Ban on Gay Marriage

The long-awaited decision of the California Court of Appeals on the constitutionality of gay marriage followed much of the same pattern as the New York and Washington state decisions holding that the ban on gay marriage does not violate due process or equal protection and that the decision to make marriage available to same-sex couples is for the legislature.

The opinion provides a fine overview of how marriage legislation has evolved, including the development of domestic partner legislation.  The opinion also fairly thoroughly explores all the major arguments and analyses that have been raised in the same-sex marriage constitutional challenges.  The majority opinion examines the reasons for a rational basis standard of review on due process and equal protection challenges and the government interests advanced by the definition of marriage. The dissent advances a vigorous attack on the majorities reasoning and presents an entirely different framework of constitutional interpretation.  Finally, the opinions provide a fascinating commentary by the judges on the role of courts in constitutional interpretation.

Visit the Family Law Professor Blog for an the entirety of its excellent overview (from which the above is taken), or read the court opinion itself.

Case Law Development: California Domestic Partners must Register their Partnership to Benefit from Domestic Partner Act - No Putative Spouse Analogies Available

The California Court of Appeals reviewed a number of issues that arose in the context of an individual seeking to dissolve a domestic partnership who had not registered that partnership with the state.  The court affirmed the trial court's dismissal of the petition for dissolution of a domestic partnership and found that other claims arising out of the relationship must be brought in a separate civil action.

The couple in this action acted as domestic partners and twice registered as domestic partners with the City and County of San Francisco before the effective date of the California Domestic Partner Act.    The 2003 amendments to that acct provided that "Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses."  Please click here for more.