Update: According to a legislative counsel source, the likely answer is that Leno's bill is, in fact, unconstitutional. From reading the text of the bill, it seems that the author takes a rather tortured approach to Prop. 22's Family Code Section 308.5. Section 3(k) of the bill reads:
(k) It is the intent of the Legislature in enacting this act to end the pernicious practice of marriage discrimination in California. This act is in no way intended to alter Section 308.5 of the Family Code, which prohibits California from treating as valid or otherwise recognizing marriages of same-sex couples solemnized outside of California.Section 3 lists the findings and declarations of the Legislature, which, while helpful and nice, are not binding unless deemed so (or accepted by the court) if an ambiguity exists in the actual text of the statute giving rise to the court's ability to turn to outside evidence on the legislative intent of the measure.
Section 4 of the bill, the operative language, provides in subsection (b):
b) Where necessary to implement the rights and responsibilities of spouses under the law, gender-specific terms shall be construed to be gender-neutral, except with respect to Section 308.5.It would seem then that Leno is attempting to change every reference to gender in the relevant code section save the one that specifically limits the relevant defining language to one man, one woman.
Here's where it gets slightly arguable.
Though the numbering of the code isn't really part of the code itself (get meta with me here), it's still guiding insofar as definitions are taken to govern at least the articles in which the term is used, if not the division, chapter, or whole code, unless specifically stated otherwise.
Analyzing from the plain code (as opposed to the Lexis-added titled versions, etc), Section 308.5 is part of the Family Code, Division 3 (Marriage), Part 1. Part one is titled "Validity of Marriage." Marriage is not defined in Division one which contains general definitions we can reasonable conclude are meant to govern the whole of the Family Code.
Prop. 22's proponents made some odd choices when they placed the "Defense of Marriage" measure in front of voters. First, they didn't change the State Constitution, which I would maintain still prohibits the DOMA's selective language. Second, they chose (and I'm think they chose and not the AG, but I could be wrong and welcome correction - DR, are you reading this?) to insert the DOMA within Division 3 and specifically directly below Section 308 which reads:
308. A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state.And, if you recall, historically, California's DOMA was passed in direct response to actions in - was it - Vermont (or Mass or Hawaii). The fear was that some other state would allow men and men or women and women to marry and that California would have to recognize that marriage as valid.
So now we get into broader questions of interpretation - if the court even gets that far. Does it matter what was intended at the time? Or does it just matter what's actually written down? Mr. Justice Scalia, what do you think? And on this topic specifically?
It would lead to an absurd result then, if same-sex California couples could marry legally within the state, but a same-sex couple from another state could not marry in their home state and move to California and still have a legally recognized marriage within the State of California. Wouldn't they have to get remarried here, according to Leno's bill's contention?
The broadest theme here, of course, is that this is what happens when people get to much around in the code and add things wherever they want them added. The position of Section 308.5 within an Article shouldn't matter, but I bet you someone will make that argument. Its position within the Division or Code should matter, but who knows.
Of course, in the last few hours, we've received confirmation from the state's chief executive that he has no idea how laws actually are made, nor any diehard need to safeguard the lawmaking process for the branch constitutionally tasked with making them. Clearly, the theme of his entire administration has been to remove as much power from the legislative branch as possible (and yes, they are responsible for allowing some of that themselves, via bad press alone). The moral of the story: California lawmaking is so far from the ideal it's not even funny. And the man elected to govern all of it doesn't seem to care and is, in fact, responsible for a lot of it, and probably a lot of the bad that is to come.
Back to the Leno bill: with the courts acting the way they are (Prop. 77 and the death of the substantial compliance doctrine comes to mind), who knows how this would play out in court. Since I started this update, I've convinced myself it's less open-and-shut than I thought when I opened the "edit posts" page.
Time to seek out more expert commentary . . . .
Side note: It may be valuable to check out the ballot pamphlet from March 2000 when Prop. 22 was presented to voters. Note that while the pro-argument says it is the "Protection of Marriage Act," the actual text calls it "Defense of Marriage." The court only gets to the ballot arguments if there's ambiguity in the text. The pro-22 argument does cite actions in other states raising concerns, but doesn't say the measure is aimed solely at out-of-state marriage. And while I'm tempted to get all lit-major on the difference between "protecting" and "defending" something (I'd say the former implies pro-action; the latter, re-action), I won't right now. Also - I am far from an expert on the Prop. 22 litigation, which could/would shed light on that angle of this debate, though it's not done winding its way through the courts quite yet.