Same-Sex Marriage: Who Decides -- Calif. voters have, by init iative

[Scarberry, Mark]

First, note that neither the initiative nor the ballot pamphlet put the
proposed section 308.5 in the context suggested by Hank. The voter would not
have been led to believe that the new section 308.5 was an amendment of
section 308 that was limited to the prior subject matter of section 308.
Rather, the voter would believe that section 308.5 would stand on its own as
the California Defense of Marriage Act. 

Second, here is the table of contents for Division 3, Part 1, of the
California Family Code:

Part 1. Validity of Marriage
§ 300. Consent; issuance of license and solemnization 
 § 301. Adults; capability to consent to and consummate marriage 
 § 302. Minors; capability to consent to and consummate marriage 
 § 303. Consent of court to marriage of minor 
 § 304. Premarital counseling; fees 
 § 305. Proof of consent and solemnization 
 § 306. Procedural requirements; effect of noncompliance 
 § 307. Marriage of members of religious society or denomination;
requirements 
 § 308. Foreign marriages; validity 
 § 308.5. Between man and woman only 
 § 309. Action to test validity of marriage 
 § 310. Methods of dissolution

The initiative statute created section 308.5. It is between a section
dealing with foreign marriages and a section dealing more generally with
validity of marriages. It is in a "Part" entitled generally "Validity of
Marriage." There is nothing in 308.5 indicating that it is limited to
amending the preceding section, and its placement does not create a plain
meaning that it only amends the preceding section. The use of ".5" does not
indicate that it deals with the subject of the prior section. Note also that
although the title of section 308.5 ("Between man and woman only") could
make it look as though it were simply addressing the subject of the previous
section, that title was not a part of the initiative statute. Rather, the
initiative statute says the section can be cited as the California Defense
of Marriage Act. As I've previously argued, that title makes a crabbed
reading of section 308.5 even less plausible. And an "Act" normally has its
own subject, and is not just in effect a footnote to another section.  

Further, even if 308.5 were seen as somehow an add-on to section 308, what
it does is to state California's rule that only marriages between a man and
a woman will be "valid or recognized" and thereby make clear that California
will not, for that reason, recognize out-of-state same-sex marriages. The
application of the rule to one context, foreign marriages, does not exhaust
its meaning, or prevent it from applying to domestic marriages.
 
To use federal procedural language with which list members are likely
familiar, I would not impose Rule 11 sanctions on an attorney who made the
argument that Mae and Hank suggest could be made. But that does not mean
that the case is even close as to what section 308.5 means.
 
Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: Mae Kuykendall [mailto:mae.kuykendall at law.msu.edu] 
Sent: Thursday, September 08, 2005 10:15 AM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Same-Sex Marriage: Who Decides -- Calif. voters have,byinitiati
ve

Henry Chambers writes:

"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."

The tendency to reject this reasonable argument as though it were
off-the-wall illustrates the shortcomings of plain meaning as an avenue
to interpretive certainty uncontaminated by assumptions about intent or
preferred results.  A plain meaning reading would seem to yield the
conclusion that the words only apply to out-of-state marriages, since
they were inserted to amend the statute governing out-of-state
marriages.  The resistance to that plain meaning may arise from
assumptions about voter intent, or a ready common sense about an
undifferentiated  and un-nuanced voter opposition to same sex marriage. 
Mae Kuykendall