In a decision issued August 4, 2010, Vaughn Walker, Chief Judge of the United States District Court for the Northern District of California, ruled that Proposition 8, which defines marriage as strictly between a man and a woman, is unconstitutional as violative of both the Due Process and Equal Protection Clauses. Proposition 8 was passed by a narrow majority of voters in November 2008 and has been in litigation ever since.

According to Walker, the 18,000 gay marriages granted between June 16, 2008 and November 5, 2008 (the brief window during which same-sex marriages were legal) have not and do not pose any public harm. Walker ordered an entry of judgment permanently enjoining enforcement of Proposition 8. However, Walker also ordered a temporary stay of execution of that judgment pending the anticipated appeals to higher courts, perhaps all the way to the Supreme Court.

Both current governor, Arnorld Schwarzenegger, and former governor and current gubernatorial candidate, Jerry Brown, delivered letters to the Chief Judge on August 7, 2010, opposing the stay. “The Administration believes the public interest is best served by permitting the court’s judgment to go into effect, thereby restoring the right of same-sex couples to marry in California,” Schwarzenegger wrote in his letter.

IN RE: the MARRIAGE OF XIA GUO AND XIAO HUA SUN, No. B215595.

In a July 28, 2010 decision, the 3rd California Court of appeal denied the petition of Xiao Hua Sun to appeal the 2008 decision of the Los Angeles County Superior Court which denied Sun’s request for a finding of putative spouse status.

California Family Code Section 2251 outlines “putative spouse” status, preserving community property rights for someone “if a determination is made that a marriage is void or voidable and the court finds that either party or both parties believed in good faith that the marriage was valid…” In Xiao Hua Sun vs. Xia Guo, the Los Angeles-residing couple had been married on Feb. 14, 2001 in Las Vegas. However, Sun was, at the time, already married to a woman in Italy. Guo believed, on the representation of Sun, that Sun had divorced his wife prior to Feb. 14, 2001. In fact, Guo did not file for divorce until Feb. 15, 2001, and judgment was not entered until August 21, 2001. In 2008, Guo filed a petition for nullity which was granted on August 15, 2010. Sun then sought to be declared a putative spouse on the grounds that Guo had a good faith belief in the validity of the marriage, even if Sun didn’t. The L.A. Superior Court denied Sun’s request on December 28, 2008. Sun then appealed to CA-3.

In 2009, the 6th California Court of Appeals ruled, in Tejeda (2009) 179 Cal.App.4th 973, that section 2251 must be applied “without regard to guilt or innocence, when the court makes the predicate findings that (1) the marriage is void or voidable, and (2) at least one party to the union maintained a good faith belief in the validity of the marriage.” This language would seem to support Sun’s request. However, it should be noted that, in Tejeda, the court permitted an innocent spouse to assert a putative spouse status. By contrast, Sun clearly is not an innocent party.

In its decision, CA-3 deliberately repudiated (or perhaps clarified) Tejeda, stating that “the purpose of section 2251 is to protect innocent parties of an invalid marriage from losing community property rights… If Tejeda were correct, then a party who fraudulently and in bad faith conceals his or her bigamy can reap the benefits of putative spouse status even when his or her innocent spouse does not contend that there was a putative marriage. This result is inconsistent with the equitable principles underlying 2251. We thus hold that a party who seeks to be a putative spouse must have an objective good faith belief in the validity of the marriage.”

Full transcript of the Court’s decision can be found here.