Schwarzenegger Signs California Law Recognizing Out-of-State Same-Sex "Marriages"

Californians may have voted in November to amend their state constitution to define the institution of marriage as the union of a man and a woman, but new legislation signed into law by Gov. Arnold Schwarzenegger now requires California to validate and recognize same-sex "marriages" performed outside the state as either legal "marriage" or marriage-like "unions."

Earlier in the week, Gov. Schwarzenegger signed into law Senate Bill 54, which allows the state to recognize same-sex "marriages" performed outside California between June 16, 2008, when the state Supreme Court legalized same-sex "marriage," and November 5, 2008, when Proposition 8 came into effect banning homosexual "nuptials."

Proposition 8, which passed by a 42 percent to 48 percent majority, reads, "Only marriage between a man and a woman is valid or recognized in California."

However, the new legislation requires California to recognize same-sex "marriages" from out of state as legal "unions" that must be accorded the "same respect and dignity accorded a union traditionally designated as marriage." Such unions, says the bill, will receive the "same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law … with the sole exception of the designation of 'marriage.'"

Originally Gov. Schwarzenegger vetoed the bill, when it first came to his desk. But he changed his mind the second time around, hailing the legislation as a benefit for the state's resident homosexual couples as well as for Californians who passed Proposition 8.

"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," said Schwarzenegger in a signing statement.

"This is tragic news for California families," stated Karen England, executive director of Capitol Resource Institute. "The governor has chosen to completely undermine the will of the people -- the millions of Californians who have twice stated that they intend for only traditional marriage to be recognized in our state."

The governor, England added, has struck a blow to the state's democratic institutions by signing SB 54, and showed great disrespect to the "voters who trust that their vote means something."

"The governor has joined with other elected representatives by choosing to place the demands of special interest groups over more than 7 million California voters," said Evertt Rice, the Legislative Coordinator for California Family Council, a family policy council associated with Focus on the Family.

"The failure of our elected representatives to support the people illustrates the need for new leaders who value the people over special interests," added CFC Director Ron Prentice.

However, the family advocacy organizations that fought to preserve the institution of marriage through Prop. 8 are soon likely to mount a legal challenge, saying that the legislation is unconstitutional.

Mat Staver, founder of Liberty Counsel (LC), a public advocacy group that fought to defend Prop. 8 before the state Supreme Court, has litigated in California for almost six years to uphold the natural institution of marriage. He told LifeSiteNews.com that LC and other pro-family advocates are looking to mount a legal challenge to SB 54.

Staver said that the legislature has tried to circumvent Prop. 8 by trampling upon Prop. 22, a super-statute passed by voters in 2000 by a 61 percent to 38 percent majority that defined marriage as the union of a man and a woman, and barred the state from recognizing out-of-state same-sex "marriages."

"People can go to California and apply for a separate domestic partnership, but they cannot be automatically recognized just by crossing the border, and magically having either same-sex 'marriage' in California or something identical that they call by a different name," said Staver. "That is contrary to Prop. 22."

Although the state Supreme Court had invalidated Prop. 22 in its ruling on legalizing same-sex "marriage," Staver believes that the legislation still has the force of law, because Prop. 8 reversed the high court's ruling. As a super-statute, only the people, not the governor or the legislature, have the power to override those provisions, he said.

Staver says that the timing of filing a challenge will depend in part on how a change in the composition of the bench could affect the case. A new appointment is expected to the state high court by as early as next year. Staver pointed out that at the moment the court is still narrowly divided 4-3.

"We're going to assess the timing of the matter as well as the substance of the matter," said Staver. "But we are definitely not going to sit there and let it happen without seriously considering the timing of a challenge."

The Full Faith and Credit Clause—Article IV, Section 1, of the U.S. Constitution—provides that the various states must recognize legislative acts, public records, and judicial decisions of the other states within the United States.

It states that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” The statute that implements the clause, 28 U.S.C.A. § 1738, further specifies that “a state’s preclusion rules should control matters originally litigated in that state.”

The Full Faith and Credit Clause ensures that judicial decisions rendered by the courts in one state are recognized and honored in every other state.

For comparison, consider how in the 1950s states that restricted divorce had to accept Reno and Mexican divorces.

Not at all. Here’s why from a legal standpoint (and this is important for both sides to understand in order to effectively argue their points):

Regardless of whether one agrees or disagrees with gay marriage, the refusal to recognize out of state marriages is unconstitutional as established in the equal faith and credit clause by the founding fathers. This is why the more intelligent lawyers on the cultural right wing demanded a constitutional amendment limiting marriage to one man and one woman nearly ten years ago(!), long before the nation was in the situation in which it now finds itself.

“Article IV, Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

The last sentence merely gives Congress the power to decide what paperwork or proof of a marriage is required, not determine the criteria of those state decisions because that would be an imposition on state sovereignty. Even if one state allows marriage at 16 years old and another at 18, the latter must recognize any lawful marriages of 16 year old people performed in its sister state. To refuse to recognize the 16 year old’s marriage is an infringement upon the sovereign right of another state.

In regards to the Boise and Olson case, they are making an extraordinarily brilliant tactical argument that is a very convincing: They are posturing that Proposition 8 violates the equal protection clause because it prohibits marriage based solely on the GENDER of one party - not sexual orientation (i.e., a woman is prohibited from marrying a woman BECAUSE she is a woman). That is why, frankly, they are considered the two most brilliant lawyers on the left and right, respectively. When the question is framed that away, a ruling in favor of gay marriage wouldn’t open the door to polygamy as some fear. Given that gender discrimination is firmly established in constitutional law, this is a breathtakingly simple argument that could be the silver bullet.

My professional circle of friends includes both right wing (think Brownback from Kansas) Republicans and left wing (think Nancy Pelosi) professionals and even the traditional marriage side around here is in awe of the argument. Regardless of whether I agree, it makes me respect Olson’s mind even more.

I’m not really a betting man, but if I had to lay odds, I think they’ll win. It will take a few years to work out, but unless a constitutional amendment is passed at the Federal level, gay marriage is inevitable, especially when you factor in my generation (heck, I’m from a *firmly* established republican family, who owns a whole lot of businesses in the Midwest and are about as conservative as you get and because I’m in my mid-twenties, I just don’t get the whole gay thing; isn’t abortion a much bigger concern? It seems to be to all of my friends. At family reunions, the grandparents are baffled by our social views but the feeling is mutual.)

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