Schwarzenegger Terminates Inequality in Cali. Domestic Partnership Law – Prop. 8 Supporters Call it Unconstitutional

On Sunday, the constitutional deadline demanded that California Governor Arnold Schwarzenegger sign or veto all legislation on his desk. Two such pieces of legislation waiting for his signature were SB 547 or the Harvey Milk Day Bill, and SB 54, The Marriage Recognition and Family Protection Act, designed to clarify aspects of Proposition 8 and extend California’s domestic partnership law to recognize out of state gay marriages. He signed both. Conservative groups have reacted with strong condemnation and have even called SB 54 unconstitutional.

Firstly, Harvey Milk Day, honoring the life of the first openly gay elected official Harvey Milk, who was assassinated in 1978 by Dan White, is designed to allow schools to talk about this important civil rights figure and to commemorate his life in the political context of the time.

Milk, knowing that his life was in danger, once famously said:

“If a bullet should go through my head let that bullet go through every closet door.”

But conservative groups such as the California Family Council want to keep that door firmly shut, calling this bill part of the “radical gay agenda”, and saying:

“Commemorating Harvey Milk in public schools, primarily because of his sexual orientation, goes against the values and expectations of the vast majority of California’s parents.”

California’s Governor disagrees. After vetoing the measure last year, Gov. Schwarzenegger this time decided to sign the bill into law. His spokesman Aaron McLear pinpoints the reason why in this statement:

“Harvey Milk symbolizes the importance of the gay community in California, and the governor wanted to honor that community. A well-known film brought awareness of him.”

This is likely in reference to the film Milk, a biopic about Harvey Milk’s life and career, as written by prominent gay rights figure Dustin Lance Black.

It also bares mentioning that individual school districts are giving teachers the right to opt-out of observing Harvey Milk Day should they so choose.

Next up, The Marriage Recognition and Family Protection Act. Now this is the one the pro Prop.8 people are really upset with, but SB 54 is a vital piece of legislation to clear up legal the uncertainties that Proposition 8′s passage created.

The Supreme Court’s ruling in Strauss V. Horton, May, 2009, asserted that Prop. 8 was a viable constitutional amendment, but said that the 18,000 marriages carried out during the brief time between gay marriage bans must also be upheld.

But gay and lesbian couples that came to Californiia were left in legal limbo if they were married in another jurisdiction, such as Massachusetts, at the time when gay marriages were briefly allowed by California, because their marriages were not recognized under California law after the passage of Prop. 8 and the Supreme Court gave no guidance on how the law should treat out-of-state gay marriages from that period.

Those couples could not apply for a domestic partnerships within California either, as the law demands that both parties be unmarried, and although California did not recognize those marriages, they were still recognized in the state in which it they were carried out, therefore disqualifying them.  

This is what Senator Mark Leno (D-San Francisco) who introduced the two bills, wanted to clarify, and what Governor Schwarzenegger supported by signing SB 54 into law:

“Following the passage of Proposition 8, there has been some uncertainty as to how California should treat same-sex couples that married out-of-state while same-sex marriage was legal in California. Consistent with the California Supreme Court’s decision that upheld the validity of those in-state marriages entered into prior to the passage of Proposition 8, Senate Bill 54 clarifies that California must also recognize as married couples those legally married in another state during the same period of time in which same-sex marriage was legal in California.

“In addition, Senate Bill 54 also requires that California recognize the union of couples that marry in states where same-sex marriage is legal. As required by Proposition 8, California will not recognize such couples as “married.” However, Senate Bill 54 will provide the same legal protections that would otherwise be available to couples that enter into civil unions or domestic partnerships out-of-state. In short, this measure honors the will of the People in enacting Proposition 8 while providing important protections to those unions legally entered into in other states.” – Governor Schwarzenegger’s statement on SB 54.

The Family Council’s take on SB 54 was rather different:

“Governor Schwarzenegger and the Legislature continue their disregard for the expressed will of the people of California and the state Constitution which affirms traditional marriage’s definition. Article I, Section 7.5 of the California Constitution specifically states “Only marriage between a man and a woman is valid or recognized in California.”  SB 54 explicitly violates California’s Constitution.”

You can read more of their statement here.

In my opinion, this isn’t the case. SB 54 does not violate California’s Constitution, nor the will of the People. Here’s my take:

SB 54 is consistent with the Supreme Court’s ruling in Strauss V Horton when the Justices upheld those 18,000 marriages carried out between May 16 and November 5, 2008, and therein denied the assertion that Proposition 8 should apply retroactively. In their ruling, the Justices said:

“…same-sex couples retain the same substantive protections embodied in the state constitutional rights of privacy and due process as those accorded to opposite-sex couples,” (Strauss V Horton, 46 Cal.4th at 412).
By this the Supreme Court clarified that everything but the term marriage was protected for LGBTs under the constitution (therein ensuring that this ruling was consistent with their earlier ruling to strike down the previous gay marriage ban, Proposition 22, as being unconstitutional) and that Proposition 8 did not change that, only changing the legal definition of what constituted a “marriage” from the date that Proposition 8 was enacted, November 5, 2008.

This was, in fact, one of the primary reasons given as to why, rightly or wrongly, the Supreme Court upheld Proposition 8–  that the constitutional amendment did not have far reaching consequences beyond denying the term “marriage” to lesbian and gay Californians.

Applying this, out-of-state gay marriages carried out during that window when gay marriage was allowed by the State of California would seem to have just as much validity as in-state gay marriages that were carried out during that time frame and therefore can not be in violation of the California Constitution or the will of the People.

The other portion of SB 54 simply extends domestic partnership rights to out-of-state gay marriages whilst reserving the term “marriage” to partnerships between one man and one woman, therein expressly respecting the Prop. 8 vote.  

To read the SB 54 bill analysis made by the California Senate, please click here.

But one Republican hoping to succeed Gov. Schwarzenegger next year, former Rep. Tom Campbell, disagrees, and is claiming in an email to CNN that this move was unconstitutional because it “amends the ban” on gay marriage, something that can only be done at the ballot box.  

As I have said above, to my mind this doesn’t appear to be the case, but I’m keen to know what you think on both the out-of-state gay marriage recognition law, and the Harvey Milk Day recognition that Gov. Schwarzenegger signed.

Do you agree with Gov. Schwarzenegger’s stance that out-of-state gay marriages should be recognized by California, or do you think that he and the California Legislature have ignored the voice of the People? Have your say below.

Photo used under the Creative Commons Attribution License, with thanks to Mirrocle World.


David B.
David B8 years ago

i shake my head in wonder at the catholic churches fight to stop this so called radical gay adjenda!all i see is couples who want to be happy and show there love for one another the same way the radical hetrosexual adjenda does!besides i wouldn't trust anything coming from a cult where there priests and bishops can't keep there hands off every lil boy and some times girls they come in contact with !!

Nancy Freedland
Nancy Freedland8 years ago

I agree with Gabriela A. Kudos to the governor of California. The fear and hype of people against gay marriage has overtaken the state's sanity and understanding of the world today.

Citlalli Valles
Citlalli Valles8 years ago

I'm from California, and I'm honestly thrilled that Schwarzenegger is finally doing the right thing. I might even stop calling him Governator.

Terrance H.
Terrance Hodgins8 years ago

Hooray for Schwarzenegger. He's really trying to do the right thing.

Jaette C.
Jaette Carpenter8 years ago

Which is why issues such as this should be handled federally so that it is never left up to whatever boob is in the state office

ian L.
ian l8 years ago

I applaud Gov. Schwarzenegger but I think it's sad that his successor will probably overturn it or change things for the worst. : (

Jaette C.
Jaette Carpenter8 years ago

How can this be deemed unconstitutional? It does nothing to oppress or change in any way the lives of the conservative heterosexual couples. They are still married aren't they, their children go to school and continue to learn, nothing has changed for them other than a challenge to their own shallow belief system. Maybe it is time that these beliefs BE challenged.

Jade H.
Jade H8 years ago

Well, a green star to Governor Arnold! It's about time someone stood up and said, "enough of the BS!" Now, all of you living in the Stone Age need to get over it and on with may be able to catch up with the rest of the world if you hurry!

Susanne Dawn P.

BMutiny Thom/Defy said with such clarity,exact information,compassion/kindness, and positivity that I could never articulate. Her words are mine! I will not remove my prop-8 banners until this bill is passed. If only one seed is planted.....

BMutiny ThemIDefy

Prop. 8 was passed because an unlikely combination of Catholics, Mormons and Christian Evangelicals {many of them out-of-state}, running a campaign that would have done the Taliban proud, spent tons of their devotees' money spreading blatant lies and propaganda. In all justice, such churches should LOSE their tax-exempt status, for using their great untaxed wealth to engage in a Political Campaign that serves to promote their own narrow religious interests above the interests of secular citizens. They arrogantly assume that "they speak for God" and thus have the RIGHT to forcibly impose their wills on the rest of us. Again, the Taliban has that same outlook.

Prop. 8 created a HUGE BACKLASH, as State after State after State is mobilizing to PASS pro-Gay Marriage legislation. If not declared Unconstitutional finally, Prop. 8 WILL BE DEFEATED AND RESCINDED EVENTUALLY by the citizens of California. It is just a matter of time. It is sad, tho, that loving couples will find themselves in legal limbo in the meantime, facing both petty and major handicaps of discrimination.
People DO change and learn; as was shown by the Civil Rights movement, and the Women's movement, of previous decades.