Saturday, April 14, 2007

Gender Neutral Marriage?

Assemblyman Mark Leno of San Francisco reintroduced his Gay Marriage bill this year. This week, it made its first major progress in the 2007-2008 legislative session.

On Tuesday, April 10, Assembly Bill 43 was heard in the Assembly Committee on Judiciary. After a heated discussion with passionate witnesses on both sides, the bill was passed on a 7-3 vote.

In favor were Assemblymembers Evans, Feuer, Jones, Krekorian, Laird, Levine, and Lieber. In opposition were Tran, Adams, and Keene. This constituted a strict party-line vote with Democrats in support and Republicans in opposition.

While marriage is the last real legislative inequality faced by Gays and Lesbians in California, this bill isn't the magic pill that will cure our problems. Even if this bill is passed and signed by Governor Schwarzenegger (who has indicated he will veto it on the same grounds he used last year), Gay Marriage in California would require a vote of the people or a ruling of the courts to be granted.

The Knight Initiative, Prop 22, banned same sex marriage. Specifically, Section 308.5 of the California Family Code states, "Only marriage between a man and a woman is valid or recognized in California." Because those words were added by an initiative passed by a majority of voters, it would require an act of the voters to remove those words--an act of the Legislature would be insufficient to repeal the Knight Initiative.

However, although Prop 22 seems clear under a first reading, it is actually quite ambiguous. Section 300, et. seq of the Family Code seem to be clearly arranged in a specific order. Section 300 governs the definition of marriage as a relationship arising out of a civil contract between a man and a woman. Subsequent sections govern the solemnization of marriage. Section 308 clarifies that marriages contracted outside of California are valid in this state.

It is possible, therefore, that Section 308.5 is really a subsection of 308 intended to prevent California from recognizing same-sex marriages obtained outside of this state.

Supporting this case, the ballot arguments in support of Proposition 22 focused on marriages from other states. For example, it was stated in the proponents' arguments: "Opponents say Proposition 22 is unnecessary. THE TRUTH IS, UNLESS WE PASS PROPOSITION 22, LEGAL LOOPHOLES COULD FORCE CALIFORNIA TO RECOGNIZE 'SAME-SEX MARRIAGES' PERFORMED IN OTHER STATES."

While AB 43 may not be the magic, cure-all pill for marriage equality, it can't hurt our cause in California. The Legislature and Governor Schwarzenegger would do well to pass and sign this bill into law. Still, it is the Court that should immediately interpret the meaning of Prop 22 and the constitutionality of any Gay Marriage ban in California. The rights of millions of Californians hang in the balance.

1 comment:

Kevin Norte said...

Technically, when the legislature passes a bill and it is signed into law (Fam. Code 300), the people lose the right to turn the law into a ballot initiative. Therefore Fam. Code 308.5 which follows 308 (recognition of out of state marriages) may very well mean that Prop 22 only applies to out of state marriages. The ramifications for ruling any other way would mean that any law that is passed in the state could then be turned into a ballot initiative. It changes the precedent in California. The intent may have been to bar same gender marriages but Fam Code 300 can't be changed by 308.5 unless the Supreme Court creates new law on ballot initiatives.