Home    |    About the Firm    |    Practice Areas    |    Firm Profiles    |    The BLawG    |    Resources   |   Contact Us
  The BLawG        Back to Blawg index page HERE

California Gay Couples: Legal Analysis of Relationships in Flux


        The recent passage of California’s Proposition 8 has placed the status of gay couples, especially those 18,000 couples who married since the May 2008 California Supreme Court decision allowing for gay marriages to take place, in a state of uncertainty and ambiguity. This article will examine the current legal status conferred on committed gay relationships in light of the passage of Proposition 8 as well as the implications of a petition currently before the California Supreme Court, which challenges the validity of Proposition 8.

Unmarried Gay Couples

       As the California Supreme Court stated in its May 2008 opinion In Re Marriage Cases, the California Legislature’s enactment of the Domestic Partner Act guarantees that all those eligible couples, including same sex couples registering as domestic partners, have the same rights, protections, and benefits, and are subject to the same responsibilities, obligations, and duties under law as are granted to and imposed upon spouses. (Family Code §297.5). Proposition 8’s language and stated purpose on the ballot strictly confine its nullifying effect to marriage other than marriage between a man and a woman, which, by definition, would exclude domestic partnerships from its reach. Even the ballot argument in favor of Proposition 8 explicitly states it is meant to have no affect on the rights entitled to gay couples existing prior to the legalization of gay marriage.

       Therefore, the Domestic Partner Act will remain in effect and available to those unmarried gay couples who have already registered as domestic partners or plan to do so in the future. As previously stated, the Domestic Partner Act grants virtually all of the substantive rights and responsibilities that are accorded to spouses through marriage under California law with certain exceptions. The most significant of these exceptions are the following:

• The term “domestic partnership” may to some persons convey a second class status of the parties to the domestic partnership as opposed to the societal status the term “marriage” and “spouses” convey.

• Secondly, the creation of a domestic partnership does not require a solemnization and a license from a county clerk as does a marriage.

• Thirdly, the residential requirements to initiate a default dissolution of a domestic partnership are much more lenient than are the requirements to dissolve a marriage by default.

       Overall, despite the passage of Proposition 8, and regardless of its future validity, California gay couples registering as domestic partners will still be entitled to virtually the same legal status as heterosexual spouses under California law. Federal benefits conferred on heterosexual spouses are still denied to gay couples regardless of whether they are married or domestic partners.

Married Gay Couples

       Proposition 8’s language on its face does not say it is meant to apply retroactively. However, the Proposition’s proponents argue that it is only logical that it would apply retroactively.

      The reality is that Courts place a strong emphasis against retroactivity of a statute in order to protect the rights and interests of those who relied on the state of the law at a time before it was changed. In addition, the California Attorney General has emphasized, even though he is being sued on behalf of gay couples who want to marry in the future, he will argue to the Supreme Court that the gay marriages that legally took place prior to the passage of Proposition 8 will remain valid. Due to the odd category legally married gay couples would find themselves in were their marriages to remain valid while Proposition 8 also remained valid, it is possible the California Supreme Court will invalidate these marriages.

Pending Litigation

        In light of the foregoing, a comprehensive analysis on this subject must acknowledge that a petition challenging the constitutional validity of Proposition 8 itself is pending before the California Supreme Court. The petition has been brought by, and on behalf of, certain gay couples who desire to marry despite the passage of Proposition 8. Their underlying argument is that, instead of amending the California Constitution, Proposition 8 has revised it, which requires two thirds approval by the legislature instead of a simple majority vote. The California Supreme Court has defined revisions as those changes to the constitution that drastically restructure the way the government functions.

       This has been a high standard to meet in the past. However, the opponents of Proposition 8 are arguing that, in light of the Court’s ruling in In Re Marriage Cases that gays, as a highly suspect class, are entitled to the ultimate constitutional protection for equal protection clause purposes and that marriage is a fundamental right, Proposition 8 drastically changes the structure of government by depriving the California Supreme Court of its role to enforce constitutional protections on behalf of an historically persecuted minority group and is therefore a revision unconstitutionally accomplished by majority vote.

        The Proposition 8 supporters principle response will likely be that in one of the closest cases on point, People v. Frierson (1979), the California Supreme Court rejected a challenge to a constitutional initiative that negated the California Supreme Court’s ruling that the death penalty violated an individual’s right to be free from cruel and unusual punishment. The Court ruled that the initiative was only an amendment, not a revision, due to the Court’s view that, despite the amendment, it still retained broad powers of judicial review of death sentences to assure that each sentence has been properly and legally imposed and to safeguard against arbitrary or disproportionate treatment.

       The opponents of Proposition 8’s likely principle counterargument will be that, unlike in Frierson, Proposition 8 completely deprives the Supreme Court of judicial review of disproportionate treatment of a highly suspect class (homosexuals) from enjoyment of a fundamental right (marriage) and thereby effects a revision rather than a mere amendment.


While the legal status of the committed gay couple remains in a constant state of change, the virtual marriage under California law conveyed by domestic partnership will likely remain available for those gay couples that want it. What decision the Supreme Court will make on the constitutionality of a ban on gay marriage is yet to be determined. Oral arguments are scheduled to take place March 5, 2009, and a decision by the Court is required to be announced within 90 days of that date pursuant to the Court’s own internal operating procedures.

Back to Top of Page HERE

We Listen To Our Clients

21600 Oxnard Street, Suite 1100 Woodland Hills, CA 91367-7845    Phone: (818) 999-9100   Fax: (818) 999-9184

© 2015 Bergman Law Group