Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Thursday, November 20, 2008

Same-Sex Marriage - California Prop 8

The California proposition amending the state constitution to define marriage as limited to one man and one woman will be heard by the California Supreme Court.   I have discussed this issue on the ConLawProf blog here.


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There is a great opportunity here to link this issue to the upcoming federal DOMA debate. Assuming the court finds the proposition was an amendment and is now part of the Constitution, California has to figure out a way to make DP's constitutional, since the May decision still rules. The May decision said that they couldn't have differently-named institutions that gave the same rights because it is harmful to families. It said that any civil package that gives the same rights as marriage has to be called marriage. So, that means Prop 8 must be interpreted as "only a civil-package-that-gives-the-rights-as-marriage between a man and a woman is valid or recognized in California." There can be still civil packages of rights and benefits for same-sex couples, but after Prop 8, they can't be virtually identical to marriage and give the same rights.

So here is the opportunity: If California defines new Civil Unions that don't give all the rights of marriage, they should do so in a way that Congress can then recognize federally. Obama is going to have to revisit the DOMA debate, and is looking for a way to give equal recognition to Civil Unions. That won't be easy, no one likes Civil Unions that are marriage in all but name, and they're unconstitutional in every Supreme Court that has considered the question. But if there weren't "marriage in all but name" and if they preserved marriage rather than threatened it, they could be politically viable, and Obama could check off that campaign promise.

California should lead the way with "Recognition-Ready" Civil Unions that are defined as "Marriage minus conception rights". That is, instead of protecting the couple's right to attempt to have offspring together using their own gens, they would prohibit the attempt to have offspring together, using the couple's own genes. Very few same-sex couples or gay people are interested in being the guinea pigs (or rather their children being the guinea pigs) in radical genetic engineering experiments to enable same-sex procreation. And yet, there is enough demand that some people are going to be exploited into trying it, and many researchers are spending scarce resources researching it, and children are being raised in an era of uncertainty about whether it may be possible someday, so it needs to be prohibited now anyhow.

But at the same time that Congress prohibits genetic engineering to create children, they could recognize state Civil Unions that are defined as "marriage minus conception rights" and preserve marriage's conception rights for a man and a woman.

What do you think of this opportunity to make great progress in this debate? As far as I know, no one is talking about how California's DP's are back to being unconstitutional again and need to be re-defined. And no one is talking about how this could be tied in to the DOMA debate to make them recognized. Please share this idea and let me know what people think.

Visit my blog for information on same-sex procreation. Thanks.

Posted by: John Howard | Jan 1, 2009 8:09:14 PM

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