Same-sex marriage — a comprehensive analysis

Meghan McCalla (Article Editor, Estate Planning & Community Property Law Journal) has recently published her comment entitled The “Socially Endorsed, Legally Framed, Normative Template”: What Has In re Marriage Cases Really Done for Same-Sex Marriage?, 1 Est. Plan. & Comm. Prop. L.J. 203 (2008).

Here is an abstract of the article:

The allowance of same-sex marriage remains a contentious subject at the local, state, and federal level.  The recent California Supreme Court’s decision In re Marriage Cases, handed down in May 2008, briefly expanded to same-sex couples the right to marry.  However, Proposition 8, a constitutional amendment disallowing same-sex marriages, overturned the California decision in November 2008.  Although the short-lived decision expanded the right to marry to same-sex couples, California’s domestic partnership laws continue to provide comprehensive rights similar to those granted by marriage.   Even while marriage rights were afforded to same-sex couples, the federal Defense of Marriage Act (DOMA) continues to deny a great number of rights associated with the status of marriage to same-sex couples.  Thus, with California’s comprehensive domestic partnership laws, marriage rights and obligations, and the Defense of Marriage Act, the question becomes whether the California Supreme Court actually did anything worth celebrating or admonishing. 

The article first provides a history of same-sex marriage, particularly in American jurisprudence.  It then examines the holding and reasoning of In re Marriage Cases, followed by an analysis of what the case could mean for the status of same-sex relationships as marriage bonds.  This analysis includes a look at California domestic partnership law, how it compares to marriage, the federal treatment of same-sex couples under DOMA, and the values assigned to the designation of marriage.  Finally, the article makes a few comparisons, addressing what In re Marriage Cases could and could not do.  The author concludes with an overall evaluation of the status of same-sex marriage for California couples.

Note: due to the California Supreme Court’s grant to review the constitutionality of Proposition 8 and its potentially retroactive application, the resolution of the issues addressed in In re Marriage Cases has yet to be finally resolved.