LGBT POV

UPDATED:

Late last night, Gov. Arnold Schwarzenegger signed the Harvey Milk Day, out-of-state marriages bill and domestic violence protection bill.

“This is huge!” Equality California legislative director Alice Kessler tweeted early this morning.

However, Schwarzenegger vetoed AB 1185 (Lieu), which Kessler described as “a simple bill allowing better access to birth certificates for transgender people.” He also vetoed AB 382 (Ammiano), which would have established protections for LGBT prisoners, which he said was “unnecessary.”

The Harvey Milks Day bill - AB 2567  requires “the governor proclaim May 22 each year as Harvey Milk Day. It would encourage public schools and educational institutions to conduct suitable commemorative exercises on that date.” It does not make it a state holiday.

EQCA Executive Director Geoff Kors says this is great news:

“This is a historic year for LGBT rights in California.  With the signing of these bills a record nine EQCA sponsored LGBT piecs of legislation were passed in California in 2009.  The Milk Day Bill marks the very first time an openly LGBT person has been officially recognized by any state government.  As a result, Harvey’s legacy and our history will be taught for decades to come and youth will learn that they have a role model who sacrified everything to make the world safer and more equal for them.  The marriage recognition bill requires that all legally married same-sex couples who married in other states and nations before Prop 8 passed are recognized as legally married in California. And even more importantly, that all same-sex couples who get married in other states or countries after Prop 8 passed be treated the same as married couples with the exception of use of the word “married” for legal purposes.  These bills passed thanks to strategic lobbying and grassroots work on the ground and on-line by EQCA staff and our members.  We owe a great amount to Senator Leno for his hard work and to our Republican Governor for standing up to right wing attacks on both of these bills.”

Kors added:

“The Governor signed three EQCA sponsored bills and vetoed two others bills on the grounds that existing law and policy already provided the protections the bills sought to put into statute:  legislation allowing out of state transgender individuals to get new birth certicifcates and a bill to require that the special needs of LGBT people in the correction system be taken into account.  While we believe it is important to have these protections in statute rather than just as policy or court precedent, and are disappointed by the unnecssary vetos, the Governor’s reaffirmation of these policies will hopefully help ensure they are enforced so that all Californians are treated equality and with dignity.”

Update from EQCA press release - Sen. Mark Leno reacts:

“When California offered marriage licenses to same-sex couples in 2008, spouses who were already married in another state or country were prohibited from re-marrying in California. Now those couples and their families are in limbo because their rights and protections under law are not clear. This new law will ensure that same-sex couples are protected by existing California law that recognizes all marriages equally, regardless of where they are performed.”

The Governor also signed EQCA-sponsored legislation by Assemblymember John A. Pérez to help leverage funding for same-sex domestic violence services.

Here’s what the governor said in signing state Sen. Mark Leno’s marriage bill:

To the Members of the California State Senate: I am signing Senate Bill 54.

Following the passage of Proposition 8, there has been some uncertainty as to how California should treat same-sex couples that married out-of-state while same-sex marriage was legal in California. Consistent with the California Supreme Court’s decision that upheld the validity of those in-state marriages entered into prior to the passage of Proposition 8, Senate Bill 54 clarifies that California must also recognize as married couples that legally married in another state during the same period of time in which same-sex marriage was legal in California.

In addition, Senate Bill 54 also requires that California recognize the union of couples that marry in states where same-sex marriage is legal. As required by Proposition 8, California will not recognize such couples as “married.” However, Senate Bill 54 will provide the same legal protections that would otherwise be available to couples that enter into civil unions or domestic partnerships out-of-state. In short, this measure honors the will of the People in enacting Proposition 8 while providing important protections to those unions legally entered into in other states.

Sincerely,
Arnold Schwarzenegger

Equality California played this bill very close to the vest and low key. But it has great significance and will probably cause an uproar. Here’s the memo EQCA sent to the governor to explain SB 54.

TO: Governor Arnold Schwarzenegger

FROM: Equality California and National Center for Lesbian Rights

DATE: September 17, 2009

RE: SB 54 (Leno)

Clarification of the Rights of Same-Sex Couples Who Married Out of State Is Appropriate and Necessary

SB 54 (Leno) would make clear the rights and responsibilities to which same-sex couples are entitled if they married outside of California, in light of the California Supreme Court’s rulings in Strauss v. Horton, 46 Cal.4th 364 (2009), and In re Marriage Cases, 43 Cal.4th 757 (2008).

Although Proposition 8, a constitutional amendment enacted on November 5, 2008, took away the right of same-sex couples to marry in California, the state Supreme Court held in Strauss that the more than 18,000 marriages that took place in California between June 16 and November 4, 2008 continue to be valid and recognized by the state of California.  However, the Court did not explicitly address the validity of marriages that took place outside of the state either before or after the election as that issue was not before the Court.

SB 54 provides essential clarification for same-sex couples who were married outside of the state and who now live in or travel through California.  This clarification is also critical for businesses such as employers, insurance companies, banks, and mortgage lenders, state government agencies, local governments, and other third parties who interact with those families.[1]

Providing such clarification will provide significant benefits to the families and businesses affected by the present uncertainty of the law; by the same token, there is  little if any downside to enacting this clarification.  If SB 54 becomes law, anti-gay groups may challenge the law in court – as they have with other legislation advancing LGBT equality – providing the California Supreme Court ample opportunity to determine whether the bill is in fact an appropriate clarification and codification of the Court’s holdings in Strauss and Marriage Cases.  In the meantime, families will be protected and third parties will have the benefit of greater certainty as to their legal obligations.

If SB 54 is not enacted, however, same-sex couples will be forced to litigate piecemeal to determine their rights and obligations.  In the interim many same-sex couples and their families who traveled or moved to California in the good-faith expectation that they are entitled to equal treatment will be denied their constitutional rights.  A same-sex married couple traveling through California would face grave uncertainty about their legal rights and responsibilities if one spouse were injured or became ill or incapacitated.  Similarly, for married same-sex couples with children who are traveling through California or vacationing in the state, the parental rights of the non-biological parent might not be recognized in a myriad of potentially devastating circumstances involving either a parent or a child, including death, injury, illness, or medical emergency.  LGBT legal organizations already have received many inquiries from same-sex couples who are married in another state and who are concerned about relocating or vacationing in California for this very reason.  In the absence of SB 54, there is little doubt that many same-sex couples will choose to avoid California in order to avoid placing their families at such grave legal risk.

Additionally, just as lack of certainty regarding the rights and obligations of same-sex couples married outside the state would penalize couples and individuals who are acting in good faith, it also would provide perverse incentives for fraudulent behavior.  For example, a spouse who wished to evade responsibility for marital debt or financial obligations to his or her spouse could simply cross state lines into California and might well be considered to have none of the legal obligations of marriage.  Someone legally married to a person of the same sex in another state could come to California and enter into a domestic partnership here with a different person, because their marriage would be entirely unrecognized under California law.  That would clearly be counter to public policy and the clear statement by the Court that same-sex and opposite-sex couples must be treated identically.  See Strauss v. Horton, 46 Cal.4th at 388 (holding that Prop 8 reserved “the official designation of the term ‘marriage’ for the union of opposite-sex couples . . . but [left] undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.)

Same-Sex Couples Who Married Outside of California Before the Passage of Proposition 8

First, SB 54 would clarify that marriages entered into by same-sex couples in jurisdictions outside of California prior to November 5, 2008, are fully recognized as valid marriages in California.

The Court in Strauss did not specifically address the marriages of same-sex couples who married outside of California because that issue was not raised or presented by any party in the case.  However, based on the Court’s reasoning in Strauss and Marriage Cases, as well as longstanding family law principles, it is clear that those marriages must continue to be recognized in California.

In Marriage Cases, the Court struck down Family Code section 308.5, which purported to prohibit in-state marriages of same-sex couples and deny recognition to such marriages performed out of state.  The Court held that such marriages must be recognized pursuant to California’s general marriage-recognition law, found in Family Code section 308, just as the out-of-state marriages of different-sex couples are recognized.  The Court also held that different treatment of out-of-state and in-state marriages would violate the federal Privileges and Immunities Clause.  In re Marriage Cases, supra, at pp. 799-800 (holding that “serious constitutional problems under the privileges and immunities clause . . .. of the federal Constitution would be presented were [California law to create] a distinct rule for out-of-state marriages as contrasted with in-state marriages”)

Same-sex couples who married outside of California before the passage of Proposition 8 reasonably relied on that holding and Section 308’s express mandate of recognition.  The state must honor that reliance.  Indeed, same-sex couples who were already married in another jurisdiction were actually prohibited from remarrying in California, based on Family Code section 301, which states that an individual must be unmarried in order to marry in California.

In Strauss, the Court held that to retroactively invalidate existing marriages between same-sex couples would violate fundamental principles of fairness and due process, and also held that the language of Proposition 8 could not be read to result in such retroactive application.  That holding applies just as forcefully to marriages between same-sex couples entered into in other jurisdictions prior to November 5, 2008.

Same-Sex Couples Who Married Outside of California After the Passage of Proposition 8

SB 54 would also clarify that same-sex couples who married outside of California after the passage of Proposition 8 are entitled to all the substantive rights, protections, and benefits that California law provides to spouses, but are not entitled to the formal status or designation of “marriage,” in accordance with the California Supreme Court’s ruling in Strauss.

The Court in Strauss held that Proposition 8 left intact “the constitutional right of same-sex couples to ‘choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage,’” other than the name “marriage.”  46 Cal.4th at 388 (quoting Marriage Cases, 43 Cal.4th at 829).

The Court also held that while same-sex couples could no longer enter into recognized marriages, they continue to be entitled to equal treatment under the California Constitution “in all other respects,” and laws that treat same-sex couples differently than different-sex couples are still presumptively invalid under the state’s equal protection clause.  46 Cal.4th at 412.

The Court concluded that Proposition 8

carves out a narrow and limited exception to those state constitutional rights, reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

46 Cal.4th at 388 (emphasis added).

Because same-sex couples continue to enjoy the constitutional right to equal treatment, same-sex couples married outside of California must be granted all the rights, benefits, and responsibilities of marriage other than the term “marriage.”  This is so because a different-sex couple married outside of California would be entitled, under Family Code section 308, to all the rights or marriage in California, and also would be deemed validly married in the state.  Under the holding of Strauss, then, a same-sex couple that is similarly situated is entitled to identical treatment, with the sole exception of the designation of “marriage.”

The Family Code currently provides that a same-sex couple who has entered into a civil union or domestic partnership in another jurisdiction will be granted all the rights of spouses in California, but, paradoxically, provides no recognition to a same-sex couple who has legally married in another jurisdiction.  See Fam. Code § 299.2.  In the absence of SB 54, that omission will result in grossly arbitrary and unfair treatment.   For instance, Connecticut is ending its civil union system, and will convert all civil unions to marriages by October 1, 2010, S.B. 899, Jan. Sess. 2009 (Conn. 2009), and New Hampshire will do the same by January 1, 2011, H.B. 436, 2009 Gen. Court, 2009 Sess. (N.H. 2009).

Under the current statutory scheme in California, a Connecticut couple in a civil union who travels or moves to California is entitled to all the rights and benefits of marriage under California law, but once that relationship converts to a marriage, California will consider the couple legal strangers.  That simply makes no sense.  In the event of an unexpected illness or accident, the couple could be denied all the legal incidents of marriage, including the right to take time off from work to care for a sick partner, the ability to make decisions for an incapacitated partner, and automatic inheritance rights.  Third parties would be affected as well.  For instance, a bank that made a loan to one partner on the assumption that both spouses would be liable for the debt could be left unable to collect on the loan from the borrower’s partner once the relationship loses all legal significance in California.  Stripping away the substantive marital rights and responsibilities that couples and third parties reasonably counted on is unfair and untenable and, as a practical matter, would result in almost unimaginably chaotic situations and endless litigation..

Furthermore, such a result would blatantly violate the constitutional requirement of equal treatment set forth in Strauss.  Taking away a committed couple’s legal rights and treating them as legal strangers just because they are both of the same sex – when a heterosexual married couple from another state who moves to California would be entitled to retain all their legal rights – is a clear example of discrimination against same-sex couples.  SB 54 acts to correct that injustice to bring the laws of our state in line with the California Supreme Court’s settled interpretation of the California Constitution’s equal protection clause as reaffirmed in Strauss.

In sum, fairness and sensible public policy, as well as the constitutional mandate of equal treatment for same-sex couples, require that the state of California extend all the rights, benefits, and obligations of marriage, other than the name “marriage,” to same-sex couples married in other states after the passage of Proposition 8.

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[1] It should be noted that it is common practice for the California Legislature to enact legislation to codify or clarify court decisions, to ensure that individuals and businesses in the state are fully apprised of their legal rights and obligations.  See, e.g., AB 1400 (2005) (clarifying that sexual orientation and marital status are protected categories under the Unruh Act, even though courts had already held both categories were covered by the Act); SB 1519 (1994) (implementing California Supreme Court’s decision in Marriage of D’Amico, 7 Cal.4th 673 (1994), that a parent who is owed child support may be stopped from collecting child support arrearages owed during a period in which that parent actively concealed the child from the other parent, and providing a definition of concealment and a mechanism for enforcement); SB 764 (1993) (codifying the court decision in Hung v. Wang, 8 Cal.App.4th 908 (1992), that an order permitting or denying claims of civil conspiracy against an attorney is immediately appealable).