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 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. Howevber, 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.

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.

by the Judicial Council of California

SAN FRANCISCO—A new domestic violence study has found that the strongest predictors of success in treating offenders convicted of a criminal domestic violence offense were the individual characteristics of the offenders, not the features of batterer intervention programs (BIPs) or the attributes of the court jurisdiction.

The study, conducted by researchers at the Administrative Office of the Courts’ Office of Court Research, found that offenders who are more educated, are fully employed, have short criminal histories, and show no clear signs of drug or alcohol dependence are more likely to successfully complete batterer intervention programs and are least likely to be re-arrested.

The results of the study indicate how the justice system can increase the likelihood that batterers will complete court-ordered education and training programs and not commit new acts of domestic violence either during or after attendance in the programs.

“Screening mechanisms should seek, to the extent possible, to include needs assessment to assist in directing offenders to resources that might improve their chances of successfully completing the BIP and remaining violence free during and following their attendance in the program,” concluded the study, which is entitled Batterer Intervention Systems in California – An Evaluation and can be found online at www.courtinfo.ca.gov/reference/batintsys.htm

The federally funded study, the largest of its kind ever conducted, examined data on nearly 1,500 offenders enrolled in 53 different batterer intervention programs in Los Angeles, Riverside, San Joaquin, Santa Clara, and Solano Counties. The study sought to identify variations in policies and practices across courts, probation departments, and batterer intervention programs that affect the likelihood of an offender completing the program and the probability of being re-arrested.

However, the data revealed that the strongest predictors of outcomes were the individual characteristics of the offenders, not the programs in which they were enrolled or the characteristics of each court jurisdiction. The study has been submitted to the National Institute of Justice, which provided $250,000 in funding for the three-year study.

Under California law, persons convicted of a criminal domestic violence offense must attend a 52-week batterer intervention program as a condition of probation. The programs are structured courses designed to stop the use of physical, psychological, or sexual abuse to gain or maintain control over a person such as a spouse or cohabitant.

# # #

The Judicial Council is the policymaking body of the California courts, the largest court system in the nation. Under the leadership of the Chief Justice and in accordance with the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. The Administrative Office of the Courts carries out the official actions of the council and promotes leadership and excellence in court administration.

By Rivka Israel, Esq. Marcus Family Law Center, PLC

(originally published in Lavender Lens, 11-08)

In my prior article I began with the statement “Now that marriage is possibly on the horizon…” The reason for my careful phrasing has now become clear. Between the time of the Supreme Court ruling in May and the “amendment” to the California constitution earlier this month, I and many other attorney’s were recommending that same-sex couples register as DP’s in addition to marrying. This was aimed at protecting the legal rights of couples and their families the validity of whose marriages would be in question if proposition 8 passed.

The Prop 8 issue has been on everyone’s minds. Why it passed and why it is so wrong? Why shouldn’t such a law pass by majority vote in a democracy? What effect, if any, does it have or is it only a ‘feel good’ issue with no real legal or social effect? Though many same-sex couples are not interested in getting married, everyone, regardless of race, religion or sexual orientation should be interested in the potential civil rights ramification of the legitimacy of such an “amendment” to our constitution.

Our system and our laws are designed to afford equal rights to everyone and to protect minorities from the oppression of the majority. This is one of the basic foundations that make our country so great. Here in California, there are two distinct procedures for making changes to our constitution. These procedures reflect the seriousness of the change. A change that is relatively minor and does not effect substantive rights is considered an amendment and can pass by way of obtaining sufficient signatures and then passing by majority vote. A change to the constitution that has a more profound effect, such as one which eliminates the fundamental rights of a minority group, must first be presented to both legislative houses and pass by a 2/3rds vote before being submitted to the voters. In addition, enforcement of equal protection is placed in the hands of the judiciary. The issue of people’s rights is not left to the majority. If the rights of an entire minority group can be eliminated by a simple majority vote, just think what other 1discriminatory laws can be enacted by a majority vote.

In May the Supreme Court concluded that 1) gay and lesbian citizens are a protected class of minority entitled to heightened protection and 2) marriage is a fundamental right under the due process and equal protection clauses of our state Constitution. The Supreme Court has now agreed to hear the matter of the legality of the amendment and its effects in the context of several cases filed after the election.

The issues which the Court will address are: 1) Is proposition 8 a revision rather than an amendment of the state Constitution? 2) Does proposition 8 violate the separation of powers doctrine of the state Constitution? & 3) If the proposition is constitutional, what effect will it have on the same-sex marriages performed before the adoption of the amendment? As a family law practitioner, I believe that the third issue is the most important on an individual basis, as it will determine many of the rights of these couples, relating to issues such as custody and property. Argument on the case is anticipated to take place in March of 2009.

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