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.

Proposition 8, the constitutional amendment passed into law by the majority of California voters in November 5, 2008, provides that “Only marriage between a man and a woman is valid or recognized in California.”

But on October 12, Governor Arnold Schwarzenegger signed into law SB 54 which states that while California’s constitution remains unchanged, California courts will recognize out-of-state same-sex marriages which contracted prior to the passing of Proposition 8.

The new law does not recognize out-of-state same-sex marriages contracted after November 5, 2008, but it does provide that parties contracted in out of state same-sex marriages would be afforded the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, as specified, as are granted to and imposed upon spouse with the sole exception of the designation of “marriage”.

A legal challenge to constitutionality of Proposition 8 goes before the Supreme Court early next year.

The California Supreme Court, May 29, determined 6-1 in re Strauss v. Horton (S168047) that Proposition 8, the 2008 constitutional amendment which simply states that “Only marriage between a man and a woman is valid or recognized in California,” is a legal amendment.

Prop 8, passed by 52% of the voters last November, was put on the ballot in response to a prior supreme court decision in re Marriage Cases (2008) 43 Cal.4th 757 . The Court then upheld the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage”

The Supreme Court affirmed the constitutionality of the amendment, arguing that Prop 8 does not fundamentally alter the meaning or the substance of state constitutional equal protection principles. Only the designation “marriage” is reserved from same-sex couples. All other protections granted under the law are undisturbed, the court decided.

The Court did not, however, overturn the thousands of marriages created between the Marriage Cases decision and the passing of Prop 8. It was determined that the Court has a duty to interpret and enforce California’s Constitution in its current form, not as it was when the court decided Marriage Cases.

As the lone dissenter, Justice J. Moreno said, “requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus ‘represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof.’”

Justice Moreno concluded, “Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons.”

On the day of the Strauss v. Horton decision, the American Foundation for Equal Rights filed suit in U.S. District Court for the Northern District of California to challenge the validity of Proposition 8. The American Foundation for Equal Rights also filed a preliminary injunction that would, if successful, immediately restore same-sex marriage in California until the federal suit is decided.

By Rivka Israel-Moss, Marcus Family Law Center, PLC

(originally published in Lavender Lens)

In my last article covering children of Domestic Partners I listed a few ways RDP’s can protect their families while waiting for the law to catch up with life. I will elaborate here. The first thing a Gay couple will want to do to protect their relationship with their children is to Register as Domestic Partners. This gives a same-sex couple the same rights, in California, as those of spouses. This, by no means, is enough. It is certainly advisable to take the additional steps necessary to obtain a court Judgment declaring that both partners are the child’s legal parent. This is extremely important to ensure that the child’s relationship with both partners/parents will be respected by other states as well as the federal government and to avoid the possibility of litigation over this issue should the couple split up. It is also good practice to prepare a parenting agreement in advance and to place the names of both partners on the child’s Birth Certificate at the time of birth. While this does not provide any guarantees, it does reflect an intention regarding parentage and co-parenting.

There are several ways in which RDP’s can obtain a court Judgment recognizing their legal rights for their child. One can either obtain a Judgment of Parentage under UPA or one can obtain such a Judgment through adoption. When conception is doctor assisted via Artificial Insemination, where the donor retained no legal rights, second-parent adoption is a means by which the law may recognize the legal rights of both partners. Registered Domestic Partners have the option of using the Step-Parent/Domestic Partnership adoption process which is streamlined and therefore faster and less expensive than other methods. Neither of these methods of adoption require the biological/original legal parent to relinquish any of their rights. The adoption process is not particularly difficult or complicated but it can feel intrusive to have the court “grant” an adoption of a child which one feels is already theirs. Thinking of the adoption as a means to an end may make this process easier to swallow. The adoption process also has its limitations and potential pitfalls. For example, if the couple used a known donor and did not involve a doctor in the Artificial Insemination, consent for the adoption may need to be obtained from the biological father. A Judgment of Parentage, as an option for obtaining a legal recognition of Parentage, will have its own problems and limitations.

The nagging question is “do we have to wait until the child is born to protect our family unit?” The answer is “No!” Sometimes early action can be critical and the time of birth is already too late. Although one can only adopt a child who already exists, there are many things that can be done while waiting for and at the time of the birth. The adoption paperwork can be started, an advance parenting plan can be drafted and signed, Domestic Partners can register with the state, and a parentage action can be started prior to the birth of the child, to name a few.

Rivka Israel-Moss is an attorney with the Marcus Family Law Center. She can be reached at marcussd@barefootlawyer.com.

By Rivka Israel-Moss, Marcus Family Law Center, PLC

The area I find to be of most concern with the new Domestic Partnership laws pertains to our children. Many Same-Sex couples have the misconception that the current state of the law provides them with security in the parentage, and therefore custody, of their children. This misconception can lead to serious complications for the children of these couples in the future.

As discussed briefly in my prior article, per the Family Code section 297 et seq., RDP status provides Registered Domestic Partners the same rights and obligations with respect to the child of either partner as those held by spouses. Unfortunately, this protection is not what it may seem. A child born during a Marriage is presumed to be the child of both spouses. This is only a presumption which can be challenged. The same presumption applies to children of RDP’s. This presumption may be challenged, in some instances, without too much difficulty, especially when there is incentive to do so. The protection of this presumption also only applies to DP’s who are registered with the State at longer than the state mandated minimum period prior to birth of the child. This law will also not protect a child who is removed from California to another state that does not recognize our RDP laws. This presumption will also not protect a couple who use home insemination with a known donor to get pregnant.

The current controlling case law does not provide much more protection than do the statutes. The case law rests mainly on the intent to create/parent a child. The basic three guidelines the Court has used to determine parentage in cases involving Same-Sex couples are whether the Partner actively participated in causing the child to be conceived intending to parent the child jointly, whether the Partner voluntarily accepted the parenthood after the child was born, and whether there are competing claims to the Partner being the child’s second parent. Obviously, the last guideline can be a real problem. To date, the case law has held that known donors of Artificial Insemination can have competing parentage rights. In fact, the known donor will have rights unless certain steps are taken to cut off those rights.

So what can RDP’s do to protect their families while waiting for the law to catch up with life? While the rights of RDP’s are not yet what they should be, RDP’s do have avenues to better protect themselves and their families in the interim. First and foremost, when a child is born to an RDP couple the names of BOTH partners should be placed on the birth certificate. Second parent adoptions are still one of the best protections for parents and children, as this will protect the children in other jurisdictions as well. When using a known donor – make sure the sperm goes through the hand of a licensed physician! This will effectively cut off the rights of the donor even if the insemination itself occurs at home. Knowing and understanding the law and how it affects RDP families and proper legal planning in advance can help RDP’s protect their families.

Rivka Israel-Moss is an attorney with the Marcus Family Law Center

She can be reached at marcussd@barefootlawyer.com.