Fate of California DP law hangs with judge

BY admin

August 25 2004 11:00 PM ET

A law granting same-sex couples legal rights and responsibilities nearly identical to those of married spouses hangs in the balance after a California superior court judge heard arguments on whether the measure should be upheld or overturned. Lawyers for two sets of plaintiffs opposed to marriage rights for gay couples want the law thrown out, claiming it violates the spirit and intent of a 2000 ballot initiative approved by California voters that defines marriage as a union between a man and a woman. But supporters of the new measure, passed by the legislature and signed into law by then-governor Gray Davis last year, said there was nothing in the language of the voter-approved mandate to prevent the state from conferring spousal benefits on the 26,000 gay couples who have registered as domestic partners.

The domestic-partnership law is scheduled to take effect January 1, but neither side in the debate left court Tuesday with a clear indication of how Judge Loren McMasters would rule after he took the matter under consideration. "The two sides are totally sure the initiative is clear and unambiguous on its face, but it means two entirely different things" to them, McMasters said after peppering opposing lawyers with equally pointed questions that never betrayed his leanings. Although Proposition 22 has been law for more than four years, the central issue during Tuesday's nearly two hours of oral arguments was whether voters intended to prevent gays from garnering any spousal privileges or merely to preserve the institution of marriage itself.

Plaintiff's attorney Robert Tyler said that if lawmakers wanted to grant domestic partners legal recognition, which he claimed would make them married "in everything but name only," they should have been required to do it by taking the matter to voters. Arguing on behalf of Gov. Arnold Schwarzenegger, who assumed his predecessor's role as a defendant in the case once he ousted Davis from office in last year's recall, Dep. Atty. Gen. Kathy Lynch said opponents of the domestic-partnership law are trying to inject Proposition 22 with a meaning it never had. "If they wanted to tailor Proposition 22 to limit or prevent the legislature from giving rights to other parties, they should have done so," Lynch said. "When the people vote on an initiative, they only get to vote on what's in front of them, so you can't say they were voting on domestic partnerships here."

Lawyer Scott Emblidge, representing Secretary of State Kevin Shelley, went even further, accusing Proposition 22's supporters of deliberately soft-selling the initiative's scope to get it by voters and then engaging in "a bait and switch." "There's a difference between what the voters could have been told and what they were told," he said. In 1999, California became the first state to allow gay and lesbian couples--as well as unmarried opposite-sex couples over age 62--to register as domestic partners. Three years ago the legislature passed a measure providing registered twosomes about a dozen rights previously available only to heterosexual spouses or next of kin, including the right to make medical decisions for incapacitated partners, to sue for a partner's wrongful death, and to adopt a partner's child. The domestic-partnership bill expands on those efforts by extending to registered couples every other marriage-based entitlement that could be amended under state law without a two-thirds vote. It does not authorize marriages between same-sex couples, but it would guarantee them legal and financial benefits including the ability to file joint income taxes and the right to petition courts for child support and alimony.

David Codell, an attorney representing Equality California, the state's largest gay rights lobbying group, noted that during the year since the new law was passed, the granting of domestic-partner benefits has become widely accepted as a compromise position now that gay couples are legally marrying in Massachusetts. "In a very short period, it's become old-fashioned to argue that offering legal protections to same-sex couples is tantamount to permitting them to marry," he said.

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