San Diego Divorce Lawyer Blog
The issue of gay marriage in California is likely headed to the U.S. Supreme Court after the Ninth Circuit recently refused to rehear arguments in support of Proposition 8, the California initiative that sought to ban same-sex marriage.
Proponents of Proposition 8 have 90 days from the date of the ruling to appeal the decision to the U.S. Supreme Court, and have already stated they intend to do so. The Ninth Circuit previously struck down Proposition 8 in February this year, stating that the law “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”
The Supreme Court could hear the case in its next session that begins in October. While it is unclear whether the justices will ultimately grant an appeal, some believe that because Proposition 8 applies specifically to California, the Court probably will not. If it refuses, then the Ninth Circuit ruling would stand, and the ban would be lifted, granting marital rights to same-sex couples. If the Court decides to review the 9th Circuit decision, then it would likely render its own decision on the matter next year.
Under the current state of California law, same-sex couples are entitled to enter into domestic partnerships. California Family Code §297-297.5. This requires the couple to file a Declaration of Domestic Partnership with the California Secretary of State. California Family Code §297(b). Domestic partnerships are afforded all the rights and protections of a marriage, without being granted society’s official recognition of the relationship as a marriage per se.
In addition to the Proposition 8 matter, the Supreme Court may also agree to review a recent decision by the 1st Circuit that held that the Federal Defense of Marriage Act (DOMA) was unconstitutional. Like Proposition 8, DOMA, which was signed into law by President Clinton in 1996, defined marriage as being between a man and a woman. It therefore denies same-sex couples federal benefits afforded to heterosexual married couples, including survivor’s benefits, joint-tax filings, and the sharing of insurance benefits with spouses of federal employees. As well, this September, the 9th Circuit is scheduled to hear an appeal from a California case challenging DOMA on constitutional grounds for denying insurance benefits to the same-sex spouse of a federal employee.
For now, both Proposition 8 and federal law remain in full effect in California. In California, only those marriages that took place after gay marriage was legalized on June 16, 2008, and before Proposition 8 was passed on November 8, 2008, are deemed legitimate marriages under the eyes of the law. These marriages are not legally sanctioned in states that do not recognize gay marriage–all but eight as of this date.
Same-sex marriage is nevertheless the most rapidly evolving area of family law in California and across the country because of the numerous court rulings in its favor. If you are thinking of entering into a domestic partnership — or a same-sex marriage should the ban be struck down — you need to speak with an attorney who is knowledgeable about the nuances of both state and federal law with regard to your rights.
San Diego family lawyer Roy M. Doppelt has over 20 years of experience practicing family law in California. His practice includes assisting same-sex couples in navigating the ins and outs of domestic partnership and marriage laws, as well as helping them with child adoption procedures, and counseling couples through the difficult process of legal separation and divorce. We are pleased to serve clients in Linda Vista, Encinitas, Scripps Ranch, and throughout San Diego and Southern California. For a Free In-Person or Virtual Consultation, contact Doppelt and Forney, APLC online, or call us toll-free at (800) ROY IS IT (769-4748).