California Prop 8 Ballot Initiative question for the legally inclined

I am confused by the contradictory claims made about the equality of Domestic Partnerships and Marriage under California State Law.

California’s Domestic Partnership code states

Yet there are nine exceptions found by the plaintiffs in In re Marriage Cases. (footnote 24 on page 42)

In a previous thread, Poster BrightNShiny, an LA lawyer, also claims that every time marriage changes, there must be discussion and a vote on whether to extend the same rights to domestic partnerships.

My layman’s understanding of California Family Code §297-297.5 assures their equality — but I’m only a layman. Can anyone explain it to me so I understand it?

Where is your confusion?

The nine exceptions listed in the Supreme Court of California case you linked all deal with specific differences between the statutes dealing with marriage and the statutes dealing with domestic partnerships. That is, they are the result of there being a specific difference in how the statutes which authorize and govern the mechanics of domestic partnerships deal with each of those issues from the way the marriage statutes deal with the same issues.

BrightnShiny is incorrect in the assertion that everytime there is a change considered for marriage that the Legislature would be forced to consider making the same change for partnerships. Clearly, if there was, for example, a new tax benefit codified for marriage, it would also apply to partnerships, regardless of whether or not it specifically said so. But if a change is considered to marriage which affects something covered by the statutes governing partnerships, and those statutes aren’t modified in harmony, a new exception could arise.

Married spouses aren’t required to have a common residence, domestic partnerships are.

Persons under the age of 18 can be married with consent of a legal guardian, domestic partners can’t enter into partnership.

Married spouses have the right to enter into “confidential marriage” in which the certificate and date of marriage are not made available to the public, domestic partnerships have no corresponding privelege.

So forth and so on.

Wheras all these things to me are extremely minor details, they demonstrate that “domestic partners” don’t get to do all the things (on a state level) that married couples do. But my understanding of the family code says that domestic partners DO get to do all thing things that married couples do.

Does that help to explain my confusion?

Can you explain this again, but treat me like I’m really dumb, because I don’t yet understand what you’re saying.

In view of the reference to Proposition 8, may I ask whether, as I’ve been given to understand, the wording of Prop. 8 would abolish not only gay marriage proper but also the domestic partnerships if it were to pass.

Prop 8 has no effect on domestic partnerships.

Also, they can’t say that they’re married. Which isn’t a minor detail.


Statutes are quite commonly contradictory. In the case of each of the nine contradictions, the other applicable statute has been upheld, rather than the Domestic Partnership code.

This would have been done by the courts in each case.

In the event that a change is made to the statutes which affect marriage and/or partnerships, it would be assumed that the newer language prevails. So, if the legislature cuts married couples a tax break, partners get it too, unless the language (of the change) specifically says they don’t, or a court rules that they don’t.

If the statutes aren’t contradictory, then the change applies to partnerships unless a court rules that it doesn’t.

Of the nine differences listed in that opinion, one is more or less mandated by federal law (which California has no control over) and two are really obscure differences. The remainder all pertain to the formation or termination of a domestic partnership.

So, I think it’s a fair summary to say that domestic partners enjoy (virtually) the same rights as married couples under California law, but the procedures for entering or leaving a domestic partnership are different than for marriage.