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California
Law unequivocally states that marriage is for a man and
a woman |
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California
Family Code, Section 300
defines marriage as “a personal relation arising
out of a civil contract between a man and a woman, to
which the consent of the parties capable of making that
contract is necessary.” |
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California
Family Code, Section 301
states marriage is only for “an unmarried male of
the age of 18 years or older, and an unmarried female of
the age of 18 years or older, and not otherwise
disqualified, are capable of consenting to and
consummating marriage.” |
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California
Family Code, Section 308.5
“Only marriage between a man and a woman is
valid or recognized in California.” |
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Nowhere in the United States of America can a
same-sex couple legally marry. In 2000, Vermont passed a law
permitting a "civil union" program, mimicking
Vermont's state rights and benefits to couples, but none of the
federal ones. Currently, there are 37 states with
unconstitutional, so-called "Defense of Marriage Acts"
(DOMA's), and 1 (Nebraska) that passed an anti-"civil
union" bill.
More importantly, there are 6 states that
have introduced pro same-sex marriage legislation. The hope is
as strong as ever that gay men, lesbians, bisexual and
transgender persons shall indeed have full equality in the eyes
of the law.
See
where your state stands
in the fight for equal rights:
from
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Pro-Marriage Measures Introduced:
Rhode Island, Hawaii, Maryland, Vermont, Wisconsin, New York
"Civil Unions" Legal Status:
Vermont
Anti-Marriage Measures Adopted:
AK, AL, AR, AZ, CA, CO, DE, FL, GA, HI, IA, ID, IL, IN, KS, KY,
LA, ME, MI, MO, MS, MT, NC, ND, NE, NV, OK, PA, SC, SD, TN, UT,
VA, WV, WA
Anti-Marriage Measures Pending:
Massachusetts, New Jersey, New York, Ohio, Wisconsin
Same-sex
couples began exchanging vows in Massachusetts Monday, marking
the first time a state has granted gays and lesbians the right
to marry and making the United States one of four countries
where homosexuals can legally wed. (Read
More)
Federal "Defense of Marriage
Act"
The so-called "Defense of Marriage Act" (DOMA) passed
by the House of Representatives (7/12/96) and the Senate
(9/10/96), was signed into law by President Clinton under cover
of darkness September 21. DOMA does not ban marriages by
same-sex couples, but it does bar federal recognition of those
marriages once they become legal in any state.
DOMA violates the Constitution's Full Faith
and Credit clause that requires that official acts and
proceedings of each state be recognized by other states.
Congress does not have the constitutional power to decide
when, or which, state acts get interstate respect or when
people are stripped of those rights as they travel through the
country.
DOMA violates the constitutional
principles of federalism, non-discrimination, and respect
for lawful marriages and is, in the words of the New York
Times, "constitution bashing."
DOMA violates constitutional
protections that forbid the Government from discriminating
by creating second-class citizens and second-class
marriages.
DOMA gives Congress the power to punish
disfavored marriages by denying them federal protections and
benefits such as Social security, federal pensions for
surviving spouses, and family unification in Immigration.
DOMA violates the Tenth Amendment,
which reserves the power for the states, by inserting the
federal government for the first time in history into the
definition of marriage.
The "MINI DOMA's"
Moreover, those states which have passed anti-marriage laws have
simply invited headaches for themselves down the line since
those laws are very likely unconstitutional. Such laws:
Violate the Fundamental Right to Marry:
By their very terms, such laws violate the fundamental right
to marry as promised to "all Americans." There is
no good reason for carving off gay and lesbian couples from
the basic freedom to marry.
Violate Equal Protection Guarantees:
State DOMA's also violate the promise of equal protection of
the laws. Today, virtually all states overwhelmingly tend to
recognize the lawful marriages performed in other states. A
state anti-marriage law could change that general rule. When
another state allows marriages of same-sex couples in the
future, all states will recognize and respect a marriage
validly entered into between a man and a woman, but the
state with an anti-marriage law will attempt to refuse to
recognize a marriage validly entered into between a woman
and a woman, or a man and a man.
This non-recognition (as well as the
prohibition on marriage between same-sex couples) is
discrimination based on gender forbidden by both the federal
and most state Constitutions. It is also discrimination
based on sexual orientation. Romer v. Evans, 116 S.Ct. 1620
(1996) (striking down Colorado constitutional amendment
which refused to gay people the protections of laws).
Violate Full Faith and Credit: A state
public policy against the marriages of same-sex couples also
likely violates the Full Faith and Credit Clause of the
United States Constitution. Article IV, Section I of the
U.S. Constitution provides: "Full Faith and Credit
shall be given in each State to the public Acts, Records and
judicial Proceedings of every other State." Marriage
qualifies under each prong of the clause: a public
"act" because it is performed by a public official
or agent and occurs pursuant to a statutory scheme; a
"record" because marriage certificates are public
records; and a "judicial proceeding", particularly
in states where marriages are performed by judicial
officials or agents, and because marriages are a great deal
like legal judgments.
Defy Common Sense: Legal jousting
aside, we all know that our basic freedoms as Americans do
not expire when we cross state lines. Just like a corporate
charter or adoption or even a divorce, states must respect
marriages lawfully celebrated in other states. The state
anti-marriage laws invite us back to the days when people
had to travel to Reno to get a legal divorce and if was
unclear if they were married or divorced when they returned
to their home state.
Laws
from Around the Globe
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California
Law prohibits the issuance of marriage licenses to
persons other than a man and a woman |
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California
Penal Code, Section 360, states “Every person
authorized to solemnize any marriage, who solemnizes a
marriage without first being presented with the marriage
license…or who willfully makes a false return of any
marriage or pretended marriage to the recorder or clerk
and every person who willfully makes a false record of
any marriage return, is guilty of a misdemeanor.” |
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California
Penal Code, Section 359, states “Every person
authorized to solemnize marriage, who willfully and
knowingly solemnizes any…marriage forbidden by law, is
punishable by fine of not less than one hundred nor more
than one thousand dollars, or by imprisonment in the
County Jail not less than three months nor more than one
year, or by both.” |
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