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  • Writer's pictureJames Chau

The Outcome of Same Sex Marriage in California

Updated: Oct 17, 2022

Today marked what many Californians may have considered a day of “reckoning”, as the California Supreme Court took up oral arguments to decide the fate of Proposition 8 — the same-sex marriage ban. Proposition 8, which prohibits same-sex marriage in California, was approved by voters last November in a narrow 52% to 48% margin. Subsequently, the highly controversial proposition was added to the California constitution to limit marriage to a man and a woman.

In May of 2008, the California Supreme Court justices had ruled a previous gay marriage ban as unconstitutional and thus legalized gay marriage in May 2008. While same-sex couples rushed clerks offices across the State to marry, same-sex marriage opponents wasted no time in gathering enough voter signatures to put a same-sex marriage ban on the November ballot. When approached by attorneys to prevent Proposition 8 from going to the ballot, the high court refused to hear the case, a case that would ultimately boomerang back to the same court and justices.

Today the California Supreme Court spent over 3 hours listening to and drilling into lawyers from both sides regarding the legality of how Proposition 8 was passed, whether the proposition violated separation of powers, and the ultimate fate of 18,000 same-sex marriages already performed last year. The California Supreme Court seemed visibly reluctant to invalidate the voter-approved proposition and, thus, trump the will of the people.

Regardless of the outcome, perhaps what lay more dubious is the fate of those 18,000 same-sex marriages performed during the brief 5-month period last year. Will the State of California recognize and validate those 18,000 same-sex marriage licenses, whether or not the Supreme Court upholds Prop 8?

And if California doesn’t divorce its recognition of same-sex married couples, what impact would same-sex marriage have on areas of family law? How would same-sex marriage affect property rights, child support and custody, should a gay or lesbian couple decide to divorce?

My San Jose LGBT lawyer offices can help answer the confusing myriad of questions resulting from this relatively uncharted territory in family law. Our San Jose property division lawyer offices, San Jose divorce, separation and nullity lawyer offices, and San Jose child custody lawyer offices can help provide guidance and insight.

Whatever the result of the Supreme Court’s ruling within the next 90 days, issues surrounding family and divorce law where same-sex couples are involved will most definitely be the subject of scrutiny and debate for years to come.

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