Prop 8 Loophole: Out-of-State Gay Marriges Welcome in California?


What to do if a bunch of well-funded anti-equality types get voters to overturn a same-sex marriage law? Well if you’re the California Senate, you find a loophole in Prop 8’s language to score rights for gay couples.

So long as they’re from out-of-state. And don’t mind losing the “M” word.

San Francisco’s State Sen. Mark Leno introduced a bill, SB 54, that would grant all the rights and privileges straight married couples enjoy in California currently enjoy to … same-sex couples married in other states (or countries). Wait. Didn’t Prop 8 ban any such recognition of “alternative” marriage?

Yes, but also, no. Prop 8 reserved the word “marriage” for heteros in California, argues Leno, but granting marriage rights to out-of-state gays is not prohibited.

Naturally, hate groups like the California Catholic Conference and the Capitol Resource Institute aren’t pleased, but again, Leno says he’s not doing anything out of the ordinary.

“This bill is a direct effort to undercut what the voters did on Nov. 5, 2008,” Karen England, executive director of CRI, which defends “family-friendly policies” in California, said in an e-mail alert sent out Monday.

Leno called that a complete misreading of SB 54. All he’s doing, he said Monday, is trying to put into state statutes the language of the California Supreme Court’s May 26 ruling in Strauss v. Horton (pdf), 46 Cal.4th 364, which said Prop 8 isn’t retroactive and that the only exception to equal protection for same-sex couples is the use of the word “marriage.”

“This is, in the strictest terms, merely codifying the Supreme Court decision,” Leno said. “We don’t interpret. We don’t extrapolate. We don’t extend. We just place in statute what the court said in the majority opinion.”


Courtney Joslin, an acting professor of law at UC-Davis School of Law, said Leno’s bill is “entirely consistent” with her reading of Strauss.

“The people did not express any attempt to have Prop 8 applied retroactively to in-state or out-of-state marriages,” she said, “and that should be the end of the question.”

Jesse Choper, a constitutional law expert at UC-Berkeley School of Law, said that would seem reasonable. “If the Legislature wants to say that same-sex marriages performed legally outside the state of California shall be recognized in California, then it would seem that’s a fair statute to pass,” he said. “The California Supreme Court can always come back and say, no, by constitutional amendment they are not valid anymore.”

But Carol Hogan, pastoral projects and communications director of the Sacramento-based California Catholic Conference, doesn’t agree. The Supreme Court didn’t address out-of-state marriages, she said Tuesday, adding that Leno’s bill is an obvious attempt to undermine the will of the people.

“If you can read plain English,” she said Tuesday, “it sounds to me like [same-sex marriages] are not valid and recognized.”

Which means if you got gay married in one of the states (or countries) where it is legal after Nov. 5, when Prop 8 went into effect, one day you might be able to move to the Golden State … and piss off the Mormon Church.