The Impact of Proposition 8's Passage on Gay Married Couples In California

In the aftermath of Proposition 8's passage, many gay and lesbian couples who took their vows after the California Supreme Court's July 16, 2008 ruling, are now left on a legal "island," without knowing how this constitutional amendment's enactment may impact their marital status.

The Amendment's language is simple: "Only marriage between a man and a woman is valid or recognized in California."

The amendment says nothing about whether it is retroactive to the date the Supreme Court issues its ruling. Generally, there is a, constitutional limitation against retroactive impairment of a vested right without due process of law. The enactment is now under legal challenge, as there is a writ pending with the appellate courts to address these issues.

Practically speaking, the best course of action is for gay couples married between July 16th and November 4th to assume that their marriage is no longer valid or recognized in California. The answers vary on their legal standing; a couple registered as domestic partners may suffer no consequence. Others are left with no clear idea of what to do as we have no answers whether the marriages are nullified or merely dissolved. The verbiage is important in ascertaining whether community property rules which exist in heterosexual marriages and domestic partnerships are in effect; or whether such rights were voided, such that they never existed.

Definitive answers to these perplexing questions may have to wait until the constitutional challenges are addressed. In the meantime, most counties (San Francisco being a notable and predictable exception) have stopped issuing marriage licenses to gay and lesbian couples.

Couples married between July 16th and November 4th who wish to preserve their property rights should each contact independent counsel and negotiate cohabitation, property, or pre-partnership agreements that expressly define those rights. While it may seem like a short stretch of time to be concerned with, there is no harm in memorializing the appropriate terms, and certainly more harm could result by not putting these agreements into writing.

Article Submitted by: Attorney Daniel Gold