The California Legislature Begins to Take Up Gay Marriage:
An Assembly Bill Permitting the Practice Is Approved in Committee

By VIKRAM DAVID AMAR

Tuesday, May. 11, 2004

Things are heating up on both coasts in the gay marriage legal controversy. In Massachusetts, on May 17 state executive officials are expected to begin issuing same-sex marriage licenses. Meanwhile, in California, the other two branches of government are busy dealing with the subject.

The California Supreme Court will hear oral arguments on May 25 concerning the question whether San Francisco Mayor Gavin Newsom had legal authority to ignore state statutes he believes are unconstitutional when he directed the issuance of same-sex licenses earlier this year. (Readers interested in this question can refer to a prior column I've written.)

And now the California legislature is beginning to weigh in; a few weeks ago, the Judiciary Committee of the California Assembly approved, by a vote of 8-3, a bill proposed by Assemblyman Mark Leno that would amend various California statutes to permit the state to issue marriage licenses to same-sex couples.

Although the fate of Assemblyman Leno's bill is quite uncertain, the bill itself - and the issues it raises - usefully illustrates the complexity, and sometimes the irony, of the legal battles over gay marriage.

Assemblyman Leno's Bill: What it Would Do, and Why it May Violate the California Constitution

The Leno proposal would amend various state statutes - some of the very ones Mayor Newsom thinks are unconstitutional -- in California's family law code. Currently, these statutes allow the issuance of marriage licenses only to couples containing a man and a woman.

For instance, one family code provision that Leno wants to change provides that "[m]arriage is a personal relation arising out of a civil contract between a man and a woman." Statutes like these were adopted by the California legislature in the 1970s, without a lot of fanfare, to limit marriage to heterosexual couples.

Leno's proposal is tricky enough as a political matter; but it is even more complicated legally. That is because one state statute in the family law code that currently rejects same-sex marriage was enacted by California voters themselves, as a so-called statutory initiative, in 2000.

Four years ago, the California electorate overwhelmingly -- by a majority of over 60% -- approved Proposition 22 (also called the Knight initiative, in reference to the Proposition's drafter, California Senator "Pete" Knight.) And here is the rub: Even though Proposition 22 took the form of a state statutory initiative, rather than a state constitutional amendment, the California constitution provides that the legislature cannot "amend or repeal an initiative statute by another statute" unless the amendment or repeal is "approved by" the state voters themselves.

In other words, a statutory initiative such as Proposition 22, like a state constitutional amendment, lies outside the control of the legislature to undo or modify. Assemblyman Leno's opponents charge him with ignoring this limitation on the legislature's power. They thus criticize his proposed bill not only as unwise and immoral, but also as unconstitutional under the state's highest law. What was done by state statutory initiative, they urge, can be undone only by state statutory initiative -- that is, directly by the voters and not by the legislature -- or by constitutional amendment.

Leno's Defense: Proposition 22 Deals Only With Out-of-State Marriages

Leno and his supporters have countered by arguing that Proposition 22, which rejects recognition of same-sex marriage, had nothing to do with same-sex marriage licenses California might want to issue. Instead, Proposition 22, they argue, was about whether California was going to recognize same-sex marriages performed in other states.

Put another way, Leno asserts that Proposition 22 rejected only the idea that California would respect same-sex marriages entered into in other jurisdictions - like Massachusetts and Hawaii - but did not address the question whether California itself would issue same-sex licenses to its own residents.

Leno bases his argument on the way Proposition 22 is codified, as a separate section of the family law code that seems to deal with out-of-state marriages; Leno finds significant that Proposition 22 is not codified in the sections of the family law code that deal directly with the issuance of licenses within the state of California. And he also points out that the debate and campaign literature surrounding Proposition 22 all focused on out-of-state same-sex marriages in particular.

Problems with Leno's Argument: Text and Context

Leno's argument is creative, but it has some vulnerabilities. For starters, while Leno is right that the debate around Proposition 22 in 2000 centered on out-of-state same-sex marriage licenses, that is only because everyone in California at the time took for granted that no same-sex marriage licenses could be issued within the state under other, already existing, provisions of the family law code.

Thus, to fault Proposition 22's supporters for not having talked enough about the possibility of same-sex marriage licenses being issued in California - when nobody was challenging existing state law that foreclosed such a possibility - seems a bit of a stretch.

Moreover, and perhaps more importantly, the text of Proposition 22 is quite broad, and by its terms is not limited to the treatment of out-of-state marriages. Proposition 22 says quite directly: "Only marriage between a man and a woman is valid or recognized in California."

Notice that the provision uses the word "valid" as well as the word "recognized." Even if the word "recognized" is a term of art referring to recognition of out-of-state marriages, the word "valid" would seem to apply to all same-sex marriages -- in-state as well as out-of-state -- in more general terms.

On balance, then, Leno's reading of Proposition 22 seems to me far from a clear winner: after all, how likely would it be for the voters of California to clearly reject out-of-state same-sex marriages while expressing no opinion about the propriety of limiting in-state licenses to heterosexual couples only?

For these reasons, Leno's current proposal may very well undermine the spirit of voter-adopted Proposition 22. And under the California constitution, the legislature is not allowed to undermine statutory initiatives.

Another Problem with Leno's Argument: Full Faith and Credit

Let us assume, however, that Leno can overcome what I have argued seems to be the clear and broad meaning of Proposition 22. Even then, his bill will face another legal problem - one that involves the intersection of federal and state law.

If Leno's bill were to be enacted, and Proposition 22 were to remain on the books and be enforced, then California would be in the position of issuing same-sex licenses in-state, but denying recognition to out-of-state same-sex marriages. And that situation might very well violate the provision in the United States Constitution that requires each state to give "full faith and credit" to the judicial decrees of other states.

The full faith and credit principle in the federal Constitution requires, for example, that a money damage award issued by a Massachusetts court be respected and enforced by a California court against the defendant. (A plaintiff might request such enforcement if, for example, the defendant owned property located in California that the plaintiff wanted to obtain in order to satisfy the judgment.) Under the full faith and credit clause, a California court would have to treat the Massachusetts judicial decree just as a Massachusetts court would treat it.

Whether, and how, full faith and credit principles apply to a state's obligation to recognize out-of-state marriages is an open and difficult question.

The Bush Administration and social conservatives have expressed fear that federal courts will, under the full faith and credit idea, require every state to recognize same-sex marriages entered into in one state, like Massachusetts. This fear is said by some to explain why the country needs a federal constitutional amendment to deal with gay marriage. (It should be noted, however, that such a justification cannot explain the breadth of the federal constitutional amendment proposals currently on the table; these proposals go beyond insulating each state from having to recognize out-of-state same sex marriages, and would prevent a state like Massachusetts from recognizing same-sex marriage even internally.)

But most thoughtful observers believe that full faith and credit notions ordinarily would not require each state to recognize same-sex marriages from other states. (Clearly, states have some control over which out-of-state marriages they respect; each state today would not have to recognize a marriage between 12-year-olds even if that marriage were valid in the state where it was formed.)

If a "full faith and credit" gay marriage case were to present itself, conflicts of law scholars tend to suggest that each state's interests in defining marriage consistent with its own values would trump the national interest in permitting the interstate mobility of married persons that underlies the full faith and credit norm. For this reason, the full faith and credit clause, scholarly opinion indicates, probably would not force a state to recognize marriages that it found inappropriate.

Yet even if full faith and credit principles do not ordinarily require a state to recognize out-of-state same-sex marriages, it will be hard under full faith and credit for a state, like California, to refuse to recognize out-of-state marriages when that state recognizes the exact same kind of marriages for in-staters. Under such circumstances, the state does not look like it is trying to preserve any particular definition of marriage, but rather is trying simply to treat in-state unions differently than similar out-of-state unions.

Thus, if Leno's bill were enacted, Proposition 22 might very well be invalidated as violating full faith and credit requirements. While California need not recognize same-sex marriages if it doesn't want to, California may not be able to recognize such marriages internally and refuse to recognize them simply because they are entered into in Massachusetts.

This conclusion ends up being very important, for if Leno's proposal would have the effect of bringing Proposition 22 down, it could not be enacted in the first place, since - again - California's legislature cannot cause the repeal or invalidation of a voter-approved initiative.

One Last Line of Defense for Leno: The Federal Defense of Marriage Act

Leno's supporters might have one last argument available to them - the contention that his proposal and Proposition 22 can peacefully coexist, notwithstanding the federal full faith and credit idea, because of the federal Defense of Marriage Act (DOMA) passed by Congress and signed by President Clinton.

The federal DOMA says quite straightforwardly : "No state. . . shall be required to give effect to any . . proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of the other state."

If the federal DOMA is valid (a conclusion of which no one is entirely sure -- DOMA itself may violate the Constitution's Full Faith and Credit Clause), and if we read DOMA according to its plain terms - no state shall ever have to recognize a same-sex marriage from another state, period -- then it follows that the federal statute allows Proposition 22 to remain, and be enforced, even if California adopts Leno's proposal to issue same-sex licenses within the state.

In other words, the federal DOMA, by its terms, might insulate Proposition 22 from federal constitutional attack, no matter what California law says or does with regard to in-state marriages.

That result would be quite ironic, to say the least: A federal law designed to combat the spread of same-sex marriage would in effect permit the California legislature to begin to issue same-sex marriage licenses even though in the absence of that federal law California's legislature would be powerless to do so.

But stranger things have happened. And there are many aspects of the legal controversy over same-sex marriage that tend to confirm Charles Dickens' observation that "the law is an ass."


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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