California Same-Sex Marriage Ban Gains Voter Acceptance

November 12, 2008

A controversial state constitutional amendment banning same-sex marriage in California, Proposition 8, has won voter approval in the November general election, complicating the legal landscape for employers. Approved by voters 52.5 percent to 47.5 percent, the California Marriage Protection Act, as it is called, adds a new provision to the California Constitution limiting marriage to opposite-sex couples.

The amendment overrides the landmark state Supreme Court ruling that legalized same-sex marriage, In re Marriage Cases, No. S147999 (May 5, 2008). The May court ruling resulted in 18,000 same-sex couples marrying in California. These couples now may face legal uncertainty as to whether the constitutional amendment will be enforced retroactively. Bobbie Wilson, who represented San Francisco in the four-year legal battle that led to the state Supreme Court In re Marriage Cases decision, said that, traditionally, for a law to be applied retroactively, the directive must be spelled out in the measure, which Proposition 8 did not do.

Thus far, at least two legal challenges have been filed to Proposition 8. In the first case, Strauss v. Horton, No. S168047, the cities of San Francisco and Los Angeles, and Santa Clara County have joined with three civil rights groups to petition the California Supreme Court. They are challenging Proposition 8 on equal protection grounds and questioning whether Proposition 8 was a valid constitutional “amendment” or a “revision,” which requires two-thirds approval by the Legislature before being submitted to the voters. The suit seeks to invalidate Proposition 8 as an illegal effort to undo the fundamental state constitutional right of equality, specifically, for lesbian and gay Californians. It was filed on behalf of six same-sex couples who did not marry before the November 4th election, but would like to marry now. The second lawsuit, Tyler v. Horton, No. S168066, was filed by Los Angeles attorney Gloria Allred on behalf of a lesbian couple claiming equal protection violations.

Many believe that until Proposition 8 is fully litigated, the legal status of every same-sex couple married before November 5th will be in limbo. Jackson Lewis Partner Jamerson Allen in San Francisco cautions employers against acting hastily. “The legal status of couples married prior to passage of Proposition 8 is uncertain,” he notes. “Employers who do not provide same-sex married couples with the same privileges and non-ERISA governed benefits of employment as heterosexual married couples enjoy risk possible liability. Unless an employer is prepared to undertake such a risk, waiting until the courts provide a definitive ruling on Proposition 8 and its possible retroactive application seems prudent.”

Speaking before the final ballot results were available, State Attorney General Jerry Brown said that he would enforce the constitutional ban on gay marriage if it passed. Additionally, he said he would resist efforts to invalidate retroactively the existing 18,000 same-sex marriages performed before the ban. The Attorney General’s position underscores the uncertainty employers still face.

To be on the safe side, employers should review their benefit programs, policies, and practices in light of both the Court's decision and Proposition 8 so as to determine the impact on their operations. In doing so, employers should be aware that Proposition 8 does not at all impact the validity of California's Registered Domestic Partnership Act, which requires employers to provide their employees with registered domestic partners the same state statutorily mandated benefits as provided to their married employees. Employers also may wish to evaluate whether granting benefits to same-sex couples where they are not legally required to do so is advisable from an employee relations or administrative perspective. Finally, employers should anticipate employee inquiries about these issues and develop strategies for responding to them. Jackson Lewis can assist in reviewing benefit plans and policies, and offer guidance for responding employee inquiries.

Proposition 8 was just one of three blows to supporters of same-sex unions around the country. Voters in Arizona and Florida also approved constitutional amendments recognizing marriage as a union only between one man and one woman. In Arizona, Proposition 102 passed with 56 percent of the vote. Florida voters approved that state’s amendment 62 percent to 38 percent.