Prop 8 Overturned – What are Your Rights?

Domestic Partnership and Family Law Attorney

On August 4, 2010, the Northern District Court of California ruled that Proposition 8, the 2008 state constitutional amendment banning gay marriage, violates the United States Constitution.

In May 2008, the California Supreme Court ruled that an earlier state ban on gay marriage, Proposition 22, violated the California Constitution. In response, conservative religious groups introduced Proposition 8, a constitutional amendment that defined marriage as only between a man and a woman, to the November 2008 ballot. In a highly contested and emotional campaign, California voters narrowly passed Prop. 8, 52% to 47%.

Shortly after Prop. 8 passed, same-sex marriage opponents filed documents in state court arguing that Prop. 8 violated other portions of the California Constitution. On May 25, 2009, the California Supreme Court upheld the legality of Prop. 8 under the California Constitution.

On May 23, 2009, David Boies and Theodore Olson, the opposing attorneys in Bush v. Gore, filed a federal lawsuit on behalf of several parties arguing that Prop. 8 violated the United States Constitution.

The Northern District Court of California ruled that Prop. 8 violated the plaintiffs’ federal constitutional rights. Specifically, the court held that Prop. 8 denied plaintiffs their fundamental rights as guaranteed by the Due Process Clause. In addition, Prop. 8 violated the Equal Protection Clause because it treated heterosexual and homosexual couples differently, without any rational basis for doing so.

What does this mean for California gays and lesbians who want to get married now? Though this is a significant victory for the gay and lesbian movement, defendants will surely file an appeal to the federal circuit court. While an appeal is pending, the Ninth Circuit will probably enjoin gay and lesbian marriages, meaning that California will not recognize those marriages until the case is resolved.

Though official legal enforcement of today’s ruling is likely not imminent, under California Family Code section 297, the state does recognize domestic partnerships between same sex couples. While domestic partners do not have all the legal benefits that married couples do, they do enjoy community property rights, parental and adoption rights, certain tax benefits, access to the partners’ health insurance, etc. (California Family Code section 297.5.)

If you or someone you know wishes to get married or enter into a domestic partnership, you will need an experienced Southern California family law attorney to advise you of your legal rights and responsibilities. At Bohm Wildish, we have helped families in need of legal counsel for over 15 years. Call us today at 949-231-1305 at or visit us at our website at – We will be there when you call.