What the California Federal Marriage Decision Means for Families

From Guest Blogger Rachel K. Toberty, Regent Law J.D. Candidate 2013, and California resident:

You are likely now aware of the Ninth Circuit’s latest opinion declaring Proposition 8, a California voter initiative which defined and protected marriage as between one man and one woman, unconstitutional. This federal appeal of a California State High Court decision came from a three judge panel where two out of the three judges found that Proposition 8 violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The Court’s full opinion can be read here.

The San Francisco-based three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued its ruling Feb. 7, 2012 in the federal constitutional challenge to California’s state marriage protection amendment. The constitutional amendment was enacted by a vote of the people of California in 2008. The panel’s 2-1 ruling, authored by one of the most overturned judges in America, Stephen Reinhardt, struck down California’s state marriage protection amendment as a violation of the 14th Amendment’s equal protection guarantee. The court adopted the claim that the amendment was based on animus toward a particular group of Californians despite the fact that the movement to protect marriage in the state constitution preceded the judicial activism of the state high court, which imposed a redefinition of marriage on California mere months before the Nov. 2008 vote. The decision is currently stayed. At the lead in the litigation is Regent 1997 law alumnus, Brian Raum, Alliance Defense Fund Senior Counsel and head of the ADF Marriage Litigation Center, who states, “While this is purportedly a ‘constitutionally narrow’ decision, it is sweeping in its implications.” The decision does not rule on whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to same-sex couples must do so. Rather, the court appeared to limit its ruling, concluding that once same-sex relationships are granted the title of “marriage,” the moniker cannot be taken away.

Should this ruling be upheld, it imperils marriage in every state where marriage expansion schemes (domestic partnerships/civil unions) have been established. While the Perry ruling purports to be limited to the circumstance in California where same-sex couples could for a very short time obtain a marriage license, it could be extended beyond those deceptively narrow borders to undermine marriage in all 50 states. Read the NY Times article on the case at NYTimes.com. This was a sweeping opinion (see “Ninth Circuit strikes down California same-sex marriage ban”) that will be appealed to the Supreme Court of the United States immediately, staying its enforcement until and throughout any appeal. There are some legal commentators that do not expect the Supreme Court the hear the appeal. See the LA Times commentary; the Christian Science Monitor analysis; and third commentary.

This blog post in no way agrees with the ultimate conclusion of the Ninth Circuit Court’s opinion; it does, however, want to help readers understand how we have gotten to this point.

While it may be easy to focus on the next step in the appeals process for this case, there may be wisdom in pausing to reflect on the fundamental notions guiding this opinion. This opinion could and will be referred to as judicial activism, or a far-too-progressive liberal ruling that forsakes a democratic majority (which it does), and it also illuminates the socio-legal cultural debate on the notion of family, and marriage as its foundation, and how we have disrupted that underpinning with common-place cohabitation.

There is some ominous truth in this opinion. One of the major themes throughout this opinion is that same-sex couples, as a result of domestic partnerships, are essentially the same as married couples except in their name. He says,

…California had created the designation “domestic partnership” for “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” Cal. Stats. 1999, ch. 588 §2 (codified at Cal. Fam. Code § 297(a)). At first, California gave registered domestic partners only limited rights, such as hospital visitation privileges, id. §4, and health benefits for the domestic partners of certain state employees, id. §3. Over the next several years, however, the State substantially expanded the rights of domestic partners. By 2008, “California statutory provisions generally afford[ed] same-sex couples the opportunity to…obtain virtually all of the benefits and responsibilities afforded by California law to married opposite-sex couples.” Marriage Cases, 183 P.3d at 417-18. The 2003 Domestic Partner Act provided broadly: “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.” Cal. Stats. 2003, ch. 421, § 4 (codified at Cal. Fam. Code § 297.5(a)). It withheld only the official designation of marriage and thus the officially conferred and societally recognized status that accompanies that designation.

Further on in the opinion the extent to which domestic partnerships have designated almost identical rights and responsibilities as married couples was again highlighted by showing the relative lack of change that Proposition 8 actually achieved. Judge Stephen Reinhardt writes for the court,

Both before and after Proposition 8, same-sex partners could enter into an official, state-recognized relationship that affords them “the same rights, protections, and benefits” as an opposite-sex union and subjects them “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.” Cal. Fam. Code § 297.5(a). Now as before, same-sex partners may:

• Raise children together, and have the same rights and obligations as to their children as spouses have, see Cal. Fam.Code § 297.5(d);
• Enjoy the presumption of parentage as to a child born to either partner, see Elisa B. v.Super. Ct., 37 Cal.4th 108, 33 Cal.Rptr.3d 46, 117 P.3d 660, 670 (Cal.2005); Kristine M. v. David P., 135 Cal.App.4th 783, 37 Cal.Rptr.3d 748 (2006); or adopted by one partner and raised jointly by both, S.Y. v. S.B., 201 Cal.App.4th 1023, 134 Cal.Rptr.3d 1 (2011);
• Adopt each other's children, see Cal. Fam.Code § 9000(g);
• Become foster parents, see Cal. Welf. & Inst.Code § 16013(a);
• Share community property, see Cal. Fam.Code § 297.5(k);
• File state taxes jointly, see Cal. Rev. & Tax.Code § 18521(d);
• Participate in a partner's group health insurance policy on the same terms as a spouse, see Cal. Ins.Code § 10121.7;
• Enjoy hospital visitation privileges, see Cal. Health & Safety Code § 1261;
• Make medical decisions on behalf of an incapacitated partner, see Cal. Prob.Code § 4716;
• Be treated in a manner equal to that of a widow or widower with respect to a deceased partner, see Cal. Fam.Code § 297.5(c);
• Serve as the conservator of a partner's estate, see Cal. Prob.Code §§ 1811–1813.1; and
• Sue for the wrongful death of a partner, see Cal.Civ.Proc.Code § 377.60—among many other things.

[Perry v. Brown, 10-16696, 2012 WL 372713 (9th Cir. Feb. 7, 2012).]

The heavy emphasis the Court puts on the similarities between domestic partnerships and marriage should act as a warning to those committed to traditional marriage. Professor Lynne Marie Kohm had a prophetic word on the dangers of domestic partnerships when she wrote in 2002,

The homosexual marriage challenge arises within a culture that has already degraded marriage, and it promises to precipitate further contests in the future. Achieving the same status enjoyed by marriage is one central goal of the homosexual marriage movement. If that goal is accomplished in domestic partnerships as the [American Law Institute] ALI proposes, then better recovery from those partnerships results, while simultaneously downgrading and degrading the institution of marriage.

Indeed, the ALI's proposals are an attempt to “create a status-like recovery for cohabitants.”16 No state in the United States currently has such a statute, and such a rule can only be found in some states in Scandinavia and Australia.17 Vermont's effort to institutionalize domestic partnerships with civil unions [then and same sex marriage now] makes strides at this ultimate goal. “[W]hat is at issue is not the provision of benefits to couples who need them, but an attempt to create a new status that will parallel and compete with marriage and which offers a very significant threat to marriage.” Affording this result to cohabitants clearly downgrades marriage.

Lynne Marie Kohm, How Will the Proliferation and Recognition of Domestic Partnership Affect Marriage, 4 J. L. & Fam. Stud. 105, 108-09 (2002)[which can be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=269418. ] (Professor Kohm has also written on the need for Fairness, Accuracy and Honesty in Discussing Homosexuality and Marriage, available at http://ssrn.com/abstract=317699.)

Hindsight is always twenty-twenty, but this opinion highlights the importance of having a critical eye towards the implications of new proposals. While at the time domestic partnership sounded like a way to appease same-sex couples and deal with issues like end of life questions and rights without extending marriage, the reality is that this very concept of domestic partnerships has turned into one of the leading reasons for allowing same-sex marriage.

It is also very troubling that this court found no particular distinctives in marriage; no connections or links between marriage and child bearing; no inexorable links between marriage and parentage. Here's how the court reasoned in that regard:

"Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It striped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right-the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parent’s rights to control their children’s education; it could not have been enacted to safeguard these liberties.

Perry v. Brown, 10-16696, 2012 WL 372713 (9th Cir. Feb. 7, 2012)

At a time in American history when family fragmentation is taking a greater toll than ever on our culture and our economy, this statement is very troubling.

Family restoration is prohibited by cultural standards of cohabitation and domestic partnership, particularly when those standards are adopted into law in some manner. Same sex marriage expansion takes those seemingly casual cultural mores a step further toward significantly and effectively redefining marriage and the family alltogether. All of these are formidable efforts to recreate the foundation and underpinnings of families. The pragmatic effect serves to foster greater family destruction.