Do Domestic Partnerships Equate to Same-Sex Marriage? Courts are Inconsistent!


The California Supreme Court stated that domestic partners must be treated the same as married spouses because as California Supreme Court Justice Carlos Moreno stated “the Legislature has granted legal recognition comparable to marriage.”

But doesn’t that mean that the Legislature violated the state constitution by amending Prop. 22? There is a glaring inconsistency in the California court system when it comes to the issue of whether domestic partnerships laws have made them significantly similar to marriage.

The Courts say Domestic Partnerships and Marriage are Completely Different.

As originally created back in 1999, domestic partnerships carried with them very limited rights and benefits. For example, they allowed partners to visit one another in the hospital and offered a vehicle whereby private companies and municipalities could offer benefits to the partners of their employees. Then in 2000 California passed the nation’s first ever measure protecting the definition of marriage as being between one man and one woman. Prop. 22 was chaptered into law as the Defense of Marriage Act.

Since that time the California legislature passed two measures designed to elevate domestic partnerships to a level equivalent to marriage. The first was AB 25, which was passed in 2001 and acted as a weather balloon of sorts; in that it provided only a few additional marriage benefits to domestic partnerships. These included the ability to:

1. Make medical decisions in the hospital or act as a conservator.
2. Inherit property without a will.
3. Administer an estate.
4. Seek compensation for the loss of economic or social support.
5. Relocate with a domestic partner without losing unemployment benefits.
6. Use sick leave to care for a family member or provide them with employer-based health coverage without additional taxation.
7. File disability benefits on behalf of an incapacitated partner.
8. Adopt a partner’s child using the stepparent adoption process.
9. Continue health coverage for surviving domestic partners of retired government workers.”


Then in 2003 the Legislature passed AB 205 which gave to domestic partners all of the rest of the rights and benefits afforded to married couples under California law. Interestingly though, this was not accomplished by enumerating these rights. Rather, they chose the following language which requires domestic partners to look at the rights granted to married spouses in order to determine what their rights are:

Registered domestic partners have the same rights, protections, and benefits, and are subject to the same responsibilities, obligations, and duties under [California state] law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.” Cal. Fam. Code 297.5(a).

In 2004, Sacramento Superior Court Judge Loren McMaster ruled that AB 205 did not undermine Prop. 22 in that it did not make domestic partnerships equivalent to traditional marriage. The California Third District Court of Appeals would later support his ruling stating:

The domestic partners act does not amend the defense of marriage initiative and therefore, it’s enactment without subsequent voter approval does not violate California’s Constitution,…

And within the last month, the California Supreme Court ruled unanimously (6-0) not to hear the case, thus supporting the McMaster ruling and that of the Appellate Court. This dubious move occurred right after the Judge Janice Rogers-Brown, the lone conservative on the court stepped down to accept an appointment to the Federal Court of Appeals.

The Courts say Domestic Partnerships and Marriage are Significantly Similar.

In March of this year, San Francisco Superior Court Judge Richard Kramer ruled that Prop. 22 was unconstitutional. As a major part of his reasoning, he pointed to the Legislature’s passage of AB 25 & AB 205.

…the existence of marriage-like rights without marriage actually cuts against the existence of a rational government interest for denying marriage to same-sex couples. California’s enactment of rights for same-sex couples belies any argument that the state would have a legitimate interest in denying marriage in order to preclude same-sex couples from acquiring some marital right that might somehow be inappropriate for them to have.

Kramer surmised that because the legislature passed laws creating an institution significantly similar to marriage (AB 25 and AB 205) there is no rational reason for the state to deny full marriage to same-sex couples.

The idea that marriage-like rights without the marriage is adequate smacks of a concept long rejected by the courts: separate but equal.

And in this most recent ruling California Supreme Court Justice Moreno wrote in the opinion for this unanimous 6-0 ruling that like the decision to marry, a decision to enter into a domestic partnership results in “the creation of a new family unit with all of its implications in terms of personal commitment as well as legal rights and obligations,” and that For those couples, he said, “the Legislature has granted legal recognition comparable to marriage.”

His assertion is that by extending all of the rights and benefits of marriage to domestic partners, California decided to “equalize” domestic partnerships with marriage.

“In creating domestic partners, the Legislature has also created a policy favoring such partnerships similar to the policy favoring marriage,”

The Inconsistency

Within one month the California Supreme Court has stood on opposite sides of this issue. By not addressing the McMaster decision, the statement was made that domestic partnerships have not been made significantly similar to marriage. But this most recent opinion is consistent with Judge Kramer’s assertion that domestic partnerships are now significantly similar to marriage. Well folks…Which is it?

Why does it Matter?

California Attorney General Bill Lockyer is lobbying to have the Kramer decision advance past the appellate courts and go directly to the State Supreme Court. Once there, it will be difficult for the court not to address this inconsistency in their reasoning.

If they rule that recently passed legislation has made domestic partnerships significantly similar to marriage, then that means that the Legislature in fact violated the state constitution by amending an initiative passed by the voters. Article II, Section 10(c) of the California Constitution states “The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.”

And while this should result in the dissolution of domestic partner laws, it could also result in the termination of Prop 22. This would not necessarily make same-sex marriage legal. But by eliminating the ban on such unions, it would open the door for the legislature to pass legislation making them legal.

On the other hand, if the court rules that domestic partnerships are not similar to marriage, then this will undermine the basis of Judge Kramer’s argument in that the passage of AB 25 & AB 205 do not constitute a significant change in public policy in regards to marriage and does not violate the separate but equal clause. Such a ruling should keep Prop. 22 in place, but may solidify the constitutionality of domestic partnerships in California.

What can we do?

Neither of the above mentioned scenarios are win-win. Both represent partial victories that would also open the door to the redefining and undermining of the institution of marriage. The only way to fully protect marriage in the State of California is by passing a constitutional amendment to protect marriage.

Currently there are two amendments that have received title and summery by the Attorney General’s office. One is offered by VoteYesMarriage.com and the other by ProtectMarriage.com. I encourage you to visit both of their websites and review the language of their respective amendments. Please support one or the other, or even both!

If nothing else, the facts laid out in this commentary should serve as proof that the only way we are going to fully protect marriage is by codifying it in law as a part of our state constitution.

Craig DeLuz

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