California's Domestic Partnership Equality Act: Further Blurring the Line Between Domestic Partnerships and Marriage

California Governor Jerry Brown recently signed Senate Bill 651, the Domestic Partnership Equality Act into law. Senator Mark Leno, sponsor of the bill, has stated that, "by maintaining different requirements for domestic partners and married couples, California law is currently inconsistent with the state Supreme Court's ruling that all couples in domestic partnerships be treated equally. This measure would eliminate a number of inequities that exist between marriage and domestic partnerships…" (http://sd03.senate.ca.gov/legislation). SB 651 changes the California Family Code in three important ways that affect marriage and family law in California.
First, Section 297 of the Family Code has been amended to omit any common residence requirement for persons wishing to enter into a Domestic Partnership. Domestic partners are defined as, "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." Before SB 651 was enacted in order for a same sex couple to register for a domestic partnership they must share a common residence. There is no longer such requirement.
The second important change made to the California Family Code is that the age requirement for Domestic Partnerships is removed. Previously, in order to register for a Domestic Partnership both persons had to be 18 years or older. The new law does away with this bright line rule and instead permits minors to enter into a Domestic Partnership with either parental or judicial consent.  Though a minor has no legal capacity to enter into a legal relationship like this, he or she can bypass that incapacity by obtaining the consent of a parent or a judge to become a domestic partner, just like marriage.
The third substantive change made by SB 651 is its amendment of Family Code Section 2320. This section governs divorce. The new code allows California courts to grant divorces to same sex couples who were married in California but now reside in a jurisdiction that will not grant them a divorce. Previously, in order to have a California court grant a divorce there was a six month residency in the state and a three month minimum residency in the county requirement. However, this new law terminates any residency requirements for same sex couples who were married in California and now reside in a state that will not grant them a divorce because the state refuses to recognize same sex marriage.
Taken individually these changes may seem minimal, however the larger issue is that these changes represent a further blurring of the lines between marriage and domestic partnerships. The stated goal behind the enactment of these changes was to deal with the inequalities between marriage and domestic partnerships as perceived by proponents of the expansion of marriage. Essentially, erasing the common residence requirement and eliminating the 18 year or older age requirement were supposed to make registering for a domestic partnership look like entering into marriage. This effectively levels the difference between marriage and domestic partnerships, further blurring the distinctions, diluting and weakening marriage and families.
Under existing marriage laws in California in order to enter into a valid marriage the parties must not be already married to another, the persons must not be related by blood or affinity, they must be 18 years or older or obtain parental or judicial consent, they must be of opposite sex (although this is currently being fought over in the case of Proposition 8), and they must be capable of consenting. The current California Family Code governing Domestic Partnerships now reads to look very much like the requirements for marriage. Now in order to register for a Domestic Partnership the persons must not be presently married or registered in another domestic partnership, unrelated by blood, over the age of 18 or obtained judicial or parental consent, capable of consenting, of the same sex, or eligible under Title II of the Social Security Act.
Furthermore, amending the divorce code seeks to further legitimize that California allows same sex marriage. Senator Leno has stated, "Ultimately, domestic partnerships have never and will never offer the same dignity and protections that come with marriage. To ensure people are treated equally under the law, we must restore the freedom to marry for all Californians."  See http://www.eqca.org/site/apps/nlnet/content2.aspx?c=kuLRJ9MRKrH&b=6493233&ct=9134403.
The ultimate goal behind the changes in the California Family Code is to make domestic partnerships as close to marriage as possible while California waits for the case on Proposition 8 to be settled in the courts. Proponents of this new bill subscribe to the theory if it looks like a duck and quacks like a duck it is probably a duck. Here the thought is, if domestic partnership looks like marriage and acts like marriage it should be marriage.
Making these changes to the California Family Code affect marriage and family law in California and will effectively overhaul the Family Code to legalize same sex marriage in California, regardless of what the voters chose in Proposition 8, and regardless of what rulings are made in the federal case moving through the Ninth Circuit to the Supreme Court of the United States.
[This excellent post is courtesy of guest blogger Rachel Toberty, Regent Law J.D. Candidate 2013, currently taking Family Law this semester.]


  1. This story makes it crystal clear that California's left-leaning elected representatives will stop at nothing (not even an outright rejection by their own constituents) in continuing to force radical changes to the traditional family structure on the people of California.

    The statement in this article about the Proposition 8 case pending in the state court system is a telling detail. Prop 8 was passed as a statewide referendum by a clear majority of the people in the same election that was responsible for delivering California's 55 electoral votes to Democratic President Barack Obama, helping to secure his victory. The demographic breakdown of voters published after the election revealed embarrassing statistics for opponents of prop 8. Experts determined that the high turnout of minority voters at the polls voting as a direct result of Obama's popularity as a candidate led to the bill’s passing. The Hispanic and African American voters tended to vote in accordance with their Christian beliefs which would not permit them to recognize a system seeking to include couples engaging in homosexual sodomy within its definition of marriage. The amazing irony was that these very voters who were responsible for helping to elect various state and local officials who vehemently objected to Prop 8 and participated in demonstrations against it were instrumental in getting it passed.

    The unfortunate fact of the matter, however, for the majority of Californians, is that their many fiercely liberal "representatives" are also very bright legal minds, and they will continue to work tirelessly in Sacramento to discover new outlets by which to change the law such that the practical results of the Prop 8 decision are rendered useless. SB 651 is a perfect illustration of this subversion of voters beliefs that has become so typical of the 9th circuit and frequently leads to a great exodus of disgruntled citizens to places outside state lines

  2. I think that this is illustrative of the tactics that have been used for decades by gay rights organizations. They will have a large agenda but implement it one small piece at a time, desensitizing the public at large incrementally. And it is working well for them. Instead of insisting on major social change they do it with "baby steps" and will gain a few inches here and a few inches there, but before long they have covered the entire distance. This change in California is huge. And is laying the groundwork for their ultimate goal of having heterosexual and homosexual unions viewed as having no difference between them. Sadly, it has been quite effective amongst the children of the current generation. We are encouraging tolerance to the point of becoming our own undoing.