A small wrinkle regarding the Volokh proposal on Prop 8 retroactivity
posted by Kaimipono D. Wenger
At the conspiracy, Eugene Volokh has a thoughtful post discussing the “what now?” question for same sex couples who married between Marriage Cases and the election. After looking at some different options — grandfathering in couples, invalidating all marriages — Eugene suggests a statutory conversion of sorts:
Finally, it’s possible that the legislature will step in, specifically providing that any invalidated same-sex marriage will become a domestic partnership. I think that would be good, because it would minimize disruption and best effectuate people’s preferences, and I see no reason why it would be unconstitutional.
That proposal has several potential advantages. In particular, it complies with the proposition’s wording, and does so in perhaps the least disruptive way possible. Obviously, such a conversion would also have critics who cite to the social or emotional cost to same-sex couples who see their legal status altered without their consent.
It would also potentially run into a few additional legal wrinkles, due to some specific ways that marriage differs from domestic partnership in California.
Recall, marriage is not exactly the same as domestic partnership in California. Rather, it’s almost exactly the same, but there are nine areas in which there is less than complete overlap. These are relatively obscure, and are set out in a footnote in the Marriage Cases. Remember this one? It was long:
Although the governing statutes provide that registered domestic partners have the same substantive legal rights and are subject to the same obligations as married spouses, in response to a request for supplemental briefing by this court the parties have identified various differences (nine in number) that exist in the corresponding provisions of the domestic partnership and marriage statutes and in a few other statutory and constitutional provisions. First, although the domestic partnership provisions require that both partners have a common residence at the time a domestic partnership is established (§ 297, subd. (b) (1)), there is no similar requirement for marriage. Second, although the domestic partnership legislation requires that both persons be at least 18 years of age when the partnership is established (§ 297, subd. (b)(4)), the marriage statutes permit a person under the age of 18 to marry with the consent of a parent or guardian or a court order. (§§ 302, 303.) Third, [filing differences]. . . Fourth, although the marriage statutes establish a procedure under which an unmarried man and unmarried woman who have been residing together as husband and wife may enter into a “confidential marriage” in which the marriage certificate and date of the marriage are not made available to the public (§ 500 et seq.), the domestic partnership law contains no similar provisions for “confidential domestic partnership.” [additional items on divorce and benefits, plus one on putative spouses which has since been overruled]
Would these differences potentially impact a conversion statute? They might, though any impact would be minimal.
For instance, consider a hypothetical couple who married during the interim period, with one of the two being 16 or 17 years old and marrying with parent or guardian permission. That couple could legally marry, but they would not be eligible for a registered domestic partnership under the statute as now written. The same would apply to a couple who has never cohabited.
However, any conversion statute of the kind that Eugene suggests could simply provide an exception for any such cases. So these differences, while real, would likely have only minimal impact on any statutory conversion plan of the sort that Eugene has suggested.