Saturday, November 08, 2008

It passed. Now what?

Proposition 8 is now part of the California State Constitution.  Now what?
Eugene Volokh ... suggests a statutory conversion of sorts:
Finally, it's possible that the legislature will step in, specifically providing that any invalidated same-sex marriage will become a domestic partnership. I think that would be good, because it would minimize disruption and best effectuate people's preferences, and I see no reason why it would be unconstitutional.
Concurring Opinions has a small wrinkle:

Recall, marriage is not exactly the same as domestic partnership in California. Rather, it's almost exactly the same, but there are nine areas in which there is less than complete overlap. These are relatively obscure, and are set out in a footnote in the Marriage Cases. Remember this one? It was long:

...domestic partnership provisions require that both partners have a common residence at the time a domestic partnership is established, there is no similar requirement for marriage.

Second, although the domestic partnership legislation requires that both persons be at least 18 years of age, the marriage statutes permit a person under the age of 18 to marry with the consent of a parent or guardian or a court order.

Fourth, although the marriage statutes establish a procedure under which an unmarried man and unmarried woman who have been residing together as husband and wife may enter into a "confidential marriage" in which the marriage certificate and date of the marriage are not made available to the public, the domestic partnership law contains no similar provisions for "confidential domestic partnership." 

....

For instance, consider a hypothetical couple who married during the interim period, with one of the two being 16 or 17 years old and marrying with parent or guardian permission. That couple could legally marry, but they would not be eligible for a registered domestic partnership under the statute as now written. The same would apply to a couple who has never cohabited.

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