Same-Sex Marriage: Who Decides -- Calif. voters have,
byinitiati ve
Chambers, Henry
hchamber at richmond.edu
Thu Sep 8 07:18:43 PDT 2005
I do not want to be repetitive, but I do want to be as clear as
possible.
My impression is that before Prop. 22, California law included Cal. Fam.
Code Section 300:
300. Marriage is a personal relation arising out of a civil
contract between a man and a woman, to which the consent of the
parties capable of making that contract is necessary. Consent alone
does not constitute marriage. Consent must be followed by the
issuance of a license and solemnization as authorized by this
division, except as provided by Section 425 and Part 4 (commencing
with Section 500).
And Cal. Fam. Code Section 308:
308. A marriage contracted outside this state that would be valid
by the laws of the jurisdiction in which the marriage was contracted
is valid in this state.
All Prop. 22 did was add Cal. Family Code Section 308.5
308.5. Only marriage between a man and a woman is valid or
recognized in California.
Section 300 applies to California marriages. Section 308 clearly
applies to the validity and recognition of out-of-state marriages in
California. Section 308.5 arguably applies only to a subset of
out-of-state marriages, i.e., out-of-state same-sex marriages. The
argument may be rejected, but it is hardly off-the-wall. If Section
308.5 applies only to a subset of out-of-state marriages, a law allowing
same-sex marriages in California would not require the repeal of Section
308.5, and therefore would not require a legislature-pushed initiative.
The argument may not be a winner, but it is patently reasonable.
-Hank
Henry L. Chambers, Jr., Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, VA 23173
804-289-8199
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, September 07, 2005 10:57 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Same-Sex Marriage: Who Decides -- Calif. voters
have,byinitiati ve
A good question, to which there actually seems to be a definite
answer. (1) Prop. 22 is an initiative statute. (2) Initiative
statutes may not be modified or repealed through simple legislation.
See Cal. Const. art. 2 sec. 10(c). (3) If the legislature wants to
modify or repeal an initiative statute, it must vote to place another
statutory proposal on the ballot, and submit it to the voters; if the
voters approve the modification or repeal, it then takes effect. See
id.
I'm told that this is an unusual rule for states that have a
statutory initiative; but in any event, that seems to be the rule in
California.
Eugene
> -----Original Message-----
> From: Elizabeth Dale [mailto:edale1 at bellsouth.net]
> Sent: Wednesday, September 07, 2005 5:43 PM
> To: 'Chambers, Henry'; Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: Same-Sex Marriage: Who Decides -- Calif. voters
> have,byinitiati ve
>
>
> Perhaps this issue has already been addressed, if so, I
> apologize, I've been a bit swamped the past couple of days
> and haven't kept up with this thread.
>
> But it strikes me it matters what the status of the
> initiative was. Did it add a provision to the constitution?
> Did it merely ratify a provision that was the equivalent of a
> piece of legislation? If the initiative was merely the
> equivalent of a statute, it seems to me there might be a
> plausible argument that subsequent legislation (ie, this act)
> simply amended/altered/rescinded and revised an earlier
> provision. A part of that argument would be that the people
> speak equally through the legislature or through the
> initiative process.
>
> If, however, the initiative was the equivalent of a
> constitutional amendment, that argument doesn't fly. So it
> seems to me the first question is what the status of the
> initiative is. Is it the equivalent of legislation, or
> something more. If it's only legislation an argument could be
> made that the subsequent act reflected a new consensus, if
> it's more, that's a harder sell.
>
>
> Elizabeth Dale
>
> Associate Professor, US Legal History, Department of History,
> Affiliate Professor of Legal History, Levin College of Law
>
> University of Florida
> PO Box 17320
> Gainesville, Florida 32611
>
> edale at history.ufl.edu
> http://plaza.ufl.edu/edale
> 352-393-0271 ex 262
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> Chambers, Henry
> Sent: Wednesday, September 07, 2005 8:29 PM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: Same-Sex Marriage: Who Decides -- Calif. voters
> have,byinitiati ve
>
> There are at least two reasons why the arguing that Prop. 22
> only covered out-of-state marriages is reasonable. Note that
> I do not claim it is a winning argument, just a plausible one.
>
> 1) My impression, which may be wrong, is that the 2000
> initiative was a defense against the recognition of civil
> unions/marriages from other states. If so, the focus of Prop.
> 22 might have been only on out of state same-sex marriages
> because California same-sex marriages were already banned and
> the fear to be addressed was out-of-state marriages.
>
> 2) If Prop. 22 were to apply to California same-sex marriages
> (which were already not recognized), that would mean that
> part of the point of Prop. 22 was to firm up something that
> was already state law to guarantee that it could only be
> changed by initiative. That may have been the part of the
> motivation of the initiative, but confirming state law
> already in existence just to make it harder to change does
> not strike me as being the normal point of going through the
> initiative process (even if it was just an add-on to the main
> part of the initiative). If it was, maybe Californians have
> far too much time on their hands. :-)
>
> -Hank
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu on behalf of
> Volokh, Eugene
> Sent: Wed 9/7/2005 6:18 PM
> To: CONLAWPROF at lists.ucla.edu
> Cc:
> Subject: RE: Same-Sex Marriage: Who Decides -- Calif.
> voters have,byinitiati ve
>
>
>
> Why would it be sound to "argue that Prop. 22
> (codified as Cal. Fam.
> Code Sec. 308.5) means only that marriages from outside
> of California
> could not be deemed valid in or recognized by
> California as marriages,
> because there was no need to address California
> marriages already
> covered"? Seems to me that this very situation illustrates the
> need:
> If the opposite-sex-only rule were just statutory, then
> the legislature
> could reverse it through a simple statute. By making
> it a statutory
> initiative, the people kept the legislature from
> messing with it without
> voter approval (if I'm reading the California
> Constitution right).
>
> Eugene
>
> Hank Chambers writes:
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> Chambers, Henry
> Sent: Wednesday, September 07, 2005 3:03 PM
> To: Sanford Levinson; Scarberry, Mark; CONLAWPROF at lists.ucla.edu
> Subject: RE: Same-Sex Marriage: Who Decides -- Calif. voters
> have,byinitiati ve
>
>
> The issue, I think, may be a bit more interesting. By statute,
> California already deemed marriage to be between a man
> and a woman prior
> to Prop. 22. See Cal. Fam. Code Sec. 300. Thus, one
> could argue that
> Prop. 22 (codified as Cal. Fam. Code Sec. 308.5) means only that
> marriages from outside of California could not be
> deemed valid in or
> recognized by California as marriages, because there
> was no need to
> address California marriages already covered. Indeed,
> Cal. Fam. Code
> sec. 308 deals with out of state marriages, possibly
> suggesting that
> code section 308.5 is an add-on to that provision.
>
> If Section 300 was a legislative enactment rather than
> an initiative
> enactment, presumably (I could easily be wrong about this) the
> California legislature could repeal that law by
> implication or directly
> without worrying about Section 308.5. Sure the Full
> Faith and Credit
> problem arises, but that would just mean that one of
> two presumably
> valid California laws (New sec. 300 (that repealed old
> sec. 300) and
> current sec. 308.5) would be invalid. Take your pick
> as to which one.
>
> Of course, I am not a California lawyer, so there may
> be a number of
> invalid assumptions in the above post.
>
> -Hank
>
> Henry L. Chambers, Jr., Professor of Law
> University of Richmond School of Law
> 28 Westhampton Way
> Richmond, VA 23173
> 804-289-8199
>
>
>
>
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> Sanford Levinson
> Sent: Wednesday, September 07, 2005 5:37 PM
> To: Scarberry, Mark; CONLAWPROF at lists.ucla.edu
> Subject: RE: Same-Sex Marriage: Who Decides -- Calif. voters
> have,byinitiati ve
>
> Unfortunately (given my own views), I find Mark's analysis below
> persuasive. Can it possibly be the case that
> California could recognize
> its own gay and lesbian marriages, but refuse such
> recognition to
> marriages conducted in Massachusetts (between bona fide
> Mass. residents,
> so there is no problem presented by "quickie
> marriages")? I remember,
> from a long-ago course in conflicts, that states could refuse to
> recognize the decisions of other states only when a
> strong "public
> policy" interest intervened. If California allows gay
> and lesbian
> marriages, it would, I think, be utterly frivolous to
> make a public
> policy claim vis-a-vis Massachusetts, Canada, the
> Netherlands, or any
> other entity enlightened enough to allow such
> marriages. So it does
> seem to me that the "limited" reading of the California
> initiative,
> though compatible with my own views on the merits,
> would be recognized
> as totally illegitimate were the methodology applied to
> an initiative
> that proponents of gay and lesbian marriage support. I
> would love to be
> shown that Mark is mistaken in his analysis.
>
> sandy
>
>
>
>
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> Scarberry, Mark
> Sent: Wednesday, September 07, 2005 4:47 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: Same-Sex Marriage: Who Decides -- Calif.
> voters have,
> byinitiati ve
> My final post on this topic (at least for today):
>
> Suppose we interpret the initiative statute somehow as
> only prohibiting
> recognition in California of out-of-state same-sex
> marriages. If the
> California legislature thus can allow same-sex marriage
> in California
> despite the initiative statute, and if the legislature
> does so, then
> won't the initiative statute then violate the federal
> Full, Faith and
> Credit Clause (FFC)? How could California justify a
> refusal to recognize
> a Massachusetts same-sex marriage, if California would
> have allowed the
> same two people to marry in California?
>
> Thus, to interpret the initiative statute so as to
> allow the California
> legislature to permit same-sex marriage is to interpret
> it as carrying
> within itself the seeds of its own destruction. Such an
> interpretation
> could allow the legislature, without a vote of the
> people, to invalidate
> the initiative statute. I can see no reason for such an
> interpretation
> of a statute that flatly provides that only marriage
> between a man and a
> woman will be valid or recognized in California.
>
> And, finally, the initiative statute provides that
> "This act may be
> cited as the 'California Defense of Marriage Act.' "
> Note that the
> federal DOMA has two purposes: (1) to set forth a
> definition of marriage
> for purposes of federal law, and (2) to give states the
> right not to
> have to recognize same-sex marriages that other states
> might permit. The
> California DOMA has two analogous purposes: to set
> forth a definition of
> marriage for purposes of California law precluding
> California same-sex
> marriages, and to make clear that California will not recognize
> out-of-state same-sex marriages. Thus the initiative
> statute refers not
> just to recognition but also to validity. Note that it
> is the California
> Defense of Marriage Act, not the California Defense of
> the Right of Our
> Legislature To Decide Act. It was designed to protect
> traditional
> marriage in California, not to protect the right of the
> legislature to
> determine the nature of marriage.
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
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