California Divorce Blawg

Update on California's Proposition 8 Same Sex Marriage Litigation

Columnists, and UC Davis law professors, Vikram Amar and Alan Brownstein have written a great article on the latest happenings in the Prop 8/Same Sex Marriage litigation.  The article summarizes the recent ruling by the California Supreme Court, and suggests that the California ruling paves the way for the case to head toward the U.S. Supreme Court.

The California Supreme Court decided as a matter of California law, that initiative proponents enjoy some special capacity to represent the state’s electorate when public officials decline to defend a law adopted through direct democracy. This resolved a hangover question from the Federal courts regarding whether or not the matter should even be heard in the Federal courts.

The authors explain:

In addition to answering this state-law question, the [California Supreme Court] court—in a somewhat unusual and ambitious move—also rendered its view that proponents should have standing to defend initiatives in federal court (where the Prop. 8 litigation is taking place) as well as state court.  The California Justices acknowledged that standing in federal court is a matter not of state law, but rather federal law, and thus one for the federal courts ultimately to decide.  But the California court offered its own reading of U.S. Supreme Court precedents, and indicated its belief that to the extent the U.S. Supreme Court has been skeptical of initiative-proponent standing in federal court in the past, that was only (or largely) because, in the states involved in prior cases, state law did not authorize proponents to represent the state, whereas in California proponents are authorized to do so.

This would suggest that the California Court wants a ruling from the U.S. Supreme Court, and is doing all it can to get that answer.

Please click here for the original article.

For more information and same sex marriage in California, please click here. 

#johnharding #samesexmarriage #proposition8 #californiafamilylaw

In re Domestic Partnership of James and Christopher

We don't see too many appellate court opinions dealing with domestic partnerships, which is too bad because family law lawyers are clamoring for clarifying law on the emerging domestic partnership practice area.  Guess what? An unpublished opinion has come out of Orange County dealing with real property in a domestic partnership.

Chris and Jim started dating.  Eventually Chris moved into the home Jim owned.  In 1999 Jim sold his home, and bought a brand new property in his name only in the community of Evening Star.  While that new home was being built Jim and Chris moved into the home of Jim's grandparents. By 2003 the two men had created a joint checking account into which they were both depositing their paychecks and were presumably living in the Evening Star home.

It seems Chris started getting a bit cranky, and started insisting that Jim add him to the title of the Evening Star property.  If he did not, Chris threatened to "out" Jim's homosexuality and turn him in to the IRS over dubious tax practices (sounds like a great relationship).

In 2003 Jim finally relented to Chris's demands and put him on title to the Evening Star property.  In 2007 the couple broke up, and litigation ensued; including Jim's effort to have the grant deed transferring the Evening Star property to him and Chris cancelled.

After trial the court entered judgment in Jim’s favor, cancelling the pertinent deeds and finding that Chris had no rights or title in the Evening Star property on the basis of undue influence.

    “Undue influence consists:  [¶] 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; [¶] 2. In taking an unfair advantage of another’s weakness of mind; or, [¶] 3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress.”  (Civ. Code, § 1575.) 

    “Undue influence, in the sense we are concerned with here, is a shorthand legal phrase used to describe persuasion which tends to be coercive in nature, persuasion which overcomes the will without convincing the judgment.  [Citation.]  The hallmark of such persuasion is high pressure, a pressure which works on mental, moral, or emotional weakness to such an extent that it approaches the boundaries of coercion. In this sense, undue influence has been called overpersuasion.  [Citation.]”  (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 130.)

    As the party seeking to void the grant deed, [Jim] has the burden of demonstrating undue influence.  He is helped by a presumption of undue influence which arises when “a confidential relation exists between the parties, and the one in whom confidence is reposed actively participates in a transaction whereby he obtains a gift from, or advantage over, the other . . . .”  (Krug v. Meeham (1952) 109 Cal.App.2d 274, 278.)  Where such a presumption arises, the burden of rebutting it and showing “fairness and good faith” shifts to the party who received the gift.  (Id. at p. 279.)

    The trial court broke down the requirements of establishing the undue influence presumption into the following elements:  “The analysis is as follows:  (1) The parties were in a confidential relationship during the relevant period; (2) the title transfer transaction unduly benefitted [Chris]; and (3) [Chris] was an active participant in the procurement of that benefit.”  Assuming that the proper evidentiary standard is the clear and convincing evidence standard of section 662, we conclude there is substantial evidence to support the trial court’s finding of clear and convincing evidence.

    There is no real doubt that [Jim] and [Chris] were in a confidential relationship, and the parties admitted as much in the trial court.  The trial court found that “[a]s to the second element, it is abundantly clear that [Chris] was the beneficiary of a benefit that was well outside the range of any prior gift he had ever received from [Jim], and it was certainly not bargained for, paid for, or earned in any fashion. . . .”  [Chris] contends[1] this was not sufficient because “the court disregarded the evidence of both parties that they were in a long term committed and loving relationship, they had already been living together for more than eight years and were sharing everything else in their life.”  Whether the parties were in a long-term relationship is pertinent to whether the relationship was a confidential one, not as to whether the transaction unduly benefitted [Chris].  When it comes to financial matters, the record amply demonstrates that [Jim] had contributed the vast majority of the money to the relationship.  Given all of the facts, the court correctly found that giving a one-half interest in a home with close to $2 million in equity was an “undue benefit.”

    Finally, as to whether [Chris] actively participated in the procurement of the benefit, there was clear and convincing evidence.  Chris pursued his desire to be included on the deed continuously and over a period of years, resulting in a number of arguments with [Jim].  He enlisted others in his quest.  There is no real doubt in the record that [Chris] wanted to be on the deed to the Evening Star property and actively lobbied Burns to include him on the deed.  

I am calling this the case where "whining gets you nowhere!"

Please click here to read the full opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

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[1] At several points, Binkley argues that the court altered its findings on several issues between its tentative and final rulings.  This is ultimately irrelevant and not helpful in determining whether the final ruling was correct.

U.S. District Court Strikes Down California Same Sex Marriage Ban

Northern California U.S. District Court Judge Vaughn Walker has struck down California's same sex marriage ban, known as Proposition 8, on the ground that it is unconstitutional.  The New York Times online has a great analysis of the ruling.

A federal judge’s forceful opinion Wednesday in favor of same-sex marriage is only the beginning of a process that is likely to go all the way to the United States Supreme Court.

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U.S. District Court Decision: Perry v. Schwarzenegger

The ultimate outcome of the California case cannot be predicted, but appeals court judges and the justices at the highest court in the land could find themselves boxed in by the careful logic and structure of Judge Vaughn R. Walker’s opinion, legal experts said.

In his ruling, Judge Walker found that California’s voter-approved ban on same-sex marriage irrationally discriminates against gay men and lesbians. The judge immediately stayed his own decision temporarily, and agreed to consider a longer stay that would last until a ruling on appeals by proponents of Proposition 8.

To opponents of same-sex marriage, the ruling was a travesty that usurped the will of millions of California voters. Brian S. Brown, the executive director of the National Organization for Marriage, called it “a horrendous decision” that “launched the first salvo in a major culture war over same-sex marriage and the proper purview of the courts.”

But Andrew Koppelman, a professor at Northwestern Law School, said that “if the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision.”

The reason, he said, is that while appeals courts often overturn lower-court judges on their findings of law — like the proper level of scrutiny to apply to Proposition 8 — findings of fact are traditionally given greater deference.

“They are supposed to take as true facts found by the district court, unless they are clearly erroneous,” he said. “This opinion shows why district courts matter, even though the Supreme Court has the last word.”

And to that end, Judge Walker’s 136-page opinion lays a rich factual record, with extensive quotation of expert testimony from the lengthy trial. The 2008 initiative campaign to ban same-sex marriages was suffused, the judge said, with moral comparisons of these unions and heterosexual marriage, with the clear implication that “denial of marriage to same-sex couples protects children” and that “the ideal child-rearing environment” requires marriage between a man and a woman.

Judge Walker wrote, however, that the Supreme Court has stated that government cannot enforce moral or religious beliefs without an accompanying secular purpose. The judge suggested that the defendants shifted their arguments for the courtroom, with a focus on “statistically optimal” child-rearing households and by arguing that they were abiding by the will of California voters.

California’s law, he wrote, demanded discrimination on the basis of sex and sexual orientation. “Proposition 8 places the force of law behind stigmas against gays and lesbians,” he wrote, including the notion that “gays and lesbians are not as good as heterosexuals” and “gay and lesbian relationships do not deserve the full recognition of society.”

In his ruling, Judge Walker took a conservative approach to his findings of law, said Erwin Chemerinsky, dean of the law school at the University of California, Irvine. Judge Walker laid the factual groundwork that might have allowed him to invoke the tough “strict scrutiny” test to Proposition 8 — a test that most laws flunk.

“His decision does not depend on the higher court finding strict scrutiny,” a legal finding that a higher court might well overturn, Professor Chemerinsky said. Instead, Judge Walker subjected the law to a lower standard that many laws can pass, but that this one, in his opinion, does not.

“He finds it doesn’t even meet rational basis review” for the legal distinction between same-sex marriage and heterosexual unions, Professor Chemerinsky said.

Even some of those who applauded the opinion, however, said the path ahead for it was not clear or easy. Doug NeJaime, an associate professor at Loyola Law School, Los Angeles, said that while he considered Judge Walker’s ruling “a great opinion,” he was skeptical that the strategy behind it would survive through the federal courts. Despite Judge Walker’s efforts to set a factual foundation and the traditions of deference, Mr. NeJaime said, the Supreme Court is not completely constrained by lower court findings of fact.

“We’ve seen time and time again that the Supreme Court can do whatever it wants” with the factual record, and “I don’t see five justices on the Supreme Court taking Judge Walker’s findings of fact to the place that he takes them.”

Professor NeJaime suggested the case might turn on the court’s traditional swing vote, Anthony M. Kennedy, who has shaped decisions that struck down laws that discriminated against gay men and lesbians. The rational basis test used by Judge Walker is in line with the standard used by Justice Kennedy in cases like Lawrence v. Texas, which struck down a state sodomy law. By structuring an opinion that allows the Court to use the lower level of scrutiny, Judge Walker “is speaking to Justice Kennedy,” he said.

Professor Jesse H. Choper, a professor of law at the University of California, Berkeley, said that it was too soon to tell which way Justice Kennedy might come down on the issue of same-sex marriage. “I have no way of predicting how he’d come down on this, and I don’t think he does, either, at this point.”

Ultimately, Professor NeJaime said, even the four more liberal justices on the Court might shy away from a sweeping decision that could overturn same-sex marriage bans across the country. “The Supreme Court rarely likes to get too far ahead of things,” he said.

The Rev. Jim Garlow, pastor of Skyline Church in La Mesa, Calif., and a leading supporter of Proposition 8, agreed.

“Given the present makeup of the Supreme Court at this time, ‘one woman, one man’ will stand,” he said.

And that is why, Professor Chemerinsky said, “this is a huge victory for the supporters of marriage equality — but it’s not the last word.”

Please click here for the original article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Looking For More Information on the Proposition 8 Trial?

The Constitutional Law Prof Blog provides outstanding, ongoing coverage of the landmark Prop 8 trial being conducted in U.S. District Court in San Francisco.  This case will end up going to the U.S. Supreme Court.  If you want to learn about the specifics of the Prop. 8 case, or follow a case as it goes to the Supreme Court, the CLPB coverage is a great place to start.

Click here to visit the Prop 8. specific coverage.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

California Courts Maintain Stellar Divorce Self-Help Website

There is an abundance of good, free family law information on the internet.  If you have questions about the process in California, one of the best resources that I have come across is the California Courts Self-Help Center.  This site covers the California process from A to Z, and is definitely worth your time.

Click here to visit the site.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

California Trial on Same-Sex Marriage Ban Has National Effect

The validity of California's Proposition 8, which bans same-sex marriage, is being challenged in a trial in U.S. District Court in San Francisco.  The trial is drawing national attention because it presents a U.S. Constitutional challenge to the legitimacy of state laws banning same sex marriage.  The case has already reached the U.S. Supreme Court, which overturned the trial judge's decision to post video of the trial on YouTube.

According to cnn.com:

The case will likely head to the U.S. Supreme Court no matter what the outcome. It is expected to set legal precedents that will shape society for years to come and result in a landmark court decision that settles whether Americans can marry people of the same sex.

In legal circles and across the Internet, it has been dubbed this generation's Brown v. Board of Education, the case that led to the Supreme Court decision that outlawed segregation in schools. Some say it could be the biggest ruling since Roe v. Wade, which tackled abortion. It also closely echoes the Supreme Court case that overturned bans on interracial marriage.

"It does not weaken the fabric of our communities to grant them these basic familial rights -- it strengthens them," said Chad Griffin, President of the American Foundation for Equal Rights, when the lawsuit was announced in May. "It does not undermine marriage to extend to these loving couples -- it affirms it."

"This is one of the threshold civil rights issues of our generation," he said. "Justice is on our side and we're about to reclaim it."

Representing them are two high-powered attorneys, Ted Olson and David Boies. They're an unlikely pair -- former courtroom adversaries best known for being on opposing sides of the "hanging chad" dispute of the 2000 presidential election in Florida.

Olson, a staunch political conservative who defended the government's positions as solicitor general, was a choice that surprised many supporters of the case for same-sex marriage. He said there's nothing inconsistent about him fighting for the rights of same-sex couples.

"They call it a teaching moment these days," he said. "This gives us an opportunity to explain how wrong it has been to deny rights to individuals on that basis."

Republican California Gov. Arnold Schwarzenegger and the state's Democratic Attorney General Jerry Brown are defendants in the lawsuit because of their positions in California government. However, both have said they would not defend the suit. Brown filed a legal motion saying he agreed with the position advanced by Olson and Boies. Schwarzenegger has taken no position.

Andrew Pugno, a lawyer for an organization called Protect Marriage, the group that came up with Proposition 8, said he believes the issue was solved when the people of California made their voices heard in the voting booth.

"Seven million Californians voted to preserve or restore what marriage has meant since the beginning of time," he said. "If they're not permitted to do something as basic as that, then there's something, really something, wrong with our system."

For Pugno and supporters on his side of the issue, keeping the definition of marriage as a union between a man and a woman is what makes sense.

"Marriage legally and socially has always been a social public institution that affects far more than the adults involved," he said. "We are taking a position that society has a very good reason for limiting marriage the way it does. ... The relationship of a man and woman bears a relationship to child-rearing that no other relationship can duplicate."

The Proposition 8 vote is part of a long line of seesaw rulings, court cases, debates and protests in California over the issue.

After California's Legislature approved same-sex marriages [sic], voters took to the polls in November 2008; a slim majority -- 52 percent -- approved of banning the marriages. In May 2009, California's highest court upheld the ban, but allowed about 18,000 unions performed before the ban to remain valid.

This is high legal drama.  Please click here for the original cnn.com article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Ted Olson and David Boies Join The Prop 8 Fray

On Tuesday, lawyers Theodore B. Olson and David Boies, who represented opposing sides in the 2000 Bush v. Gore election challenge, announced they had filed a lawsuit in federal court on behalf of two gay men and two gay women challenging the Constitutionality of California's recently enacted Proposition 8.  That Proposition, upheld by the California Supreme Court, amends California's Constitution to define marriage as only between a man and a woman.  Is has the affect of banning same sex marriages.  The case brought by Boies and Olson argues that California's voter-enacted ban on same-sex marriage violates the U.S. Constitution's guarantee of equal protection and due process.

A coalition of gay rights groups said Wednesday that a federal same-sex marriage lawsuit brought by two high-profile lawyers is premature and they'd rather work through state legislatures and voters to win wedding rights.

A day after the California Supreme Court upheld a voter-approved ban on gay marriage, the American Civil Liberties Union, Lambda Legal and other national organizations issued a statement saying they think the U.S. Supreme Court is not ready to rule in their favor on the issue.

"In our view, the best way to win marriage equality nationally is to continue working state by state, not to bring premature federal challenges that pose a very high risk of setting a negative U.S. Supreme Court precedent," said Shannon Minter, legal director of National Center for Lesbian Rights.

Click here to read the article from HuffingtonPost.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

California Supreme Court Upholds Same-Sex Marriage Ban

The California Supreme Court on Tuesday upheld a ban on same-sex marriage that state voters passed in November, but it allowed about 18,000 marriages performed before the ban to remain valid.

Opponents of the ban argued that the controversial Proposition 8 improperly altered the California Constitution to restrict a fundamental right guaranteed in the state's charter.

But the court found the measure restricted the designation of marriage "while not otherwise affecting the fundamental constitutional rights of same-sex couples."

"We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid," California Chief Justice Ronald George wrote.

The court, which is dominated by Republican appointees, ruled in May 2008 that the state constitution guaranteed gay and lesbian couples the "basic civil right" to marry. The 4-3 decision came four years after San Francisco began issuing marriage licenses to same-sex couples.

 But in November, state voters approved the Proposition 8 ballot initiative 52 percent to 48 percent. The measure provided that only heterosexual unions would be recognized as marriages by the state.

Supporters of the proposition argued that Californians long have had the right to change their state constitution through ballot initiatives. The effort to overturn the restriction "strikes directly at the heart of California's system of government," a brief by the conservative Family Research Council argued.

Please click here for the entire article from CNN.com.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Why Pay Attention To Gay Marriage?

I got an e-mail from an angry viewer of this blog complaining that I devote too much space to same sex marriage (not the exact language used, but close enough).  The author also asked (I presume a rhetorical question?) why I spend so much time on the topic?  Originally I thought the answer was pretty simple.  As I typed this post out I realized, maybe it isn't so simple? 

The evolution of same sex legal unions is the busiest developing area of family law.   And, it is an incredibly challenging component of any family law lawyer's practice.  We've got domestic partnerships, same sex unions, same sex marriages.  Here in California if you are in a same sex relationship you can get married one day, you cannot get married the next day.  Heck, I don't know if my same  sex clients are coming or going as married folk (right now in California there is no right of same sex marriage)?  We have fresh legal questions that call into play Federal law, the U.S. Tax Code, the laws of the States that we practice in, and the laws of the States (and countries) that our clients relocate from, or move to.  It is the birth of a new legal model, and it is walking through a mine field all at the same time.  It is an incredibly challenging, and incredibly intimidating time for same sex couples and for lawyers that practice family law.  The subject is also more than just a passing fancy or a blip on the map.  In my opinion there is a clear trend developing toward the full recognition of same sex marriage across the country.  It may take decades, but the writing is on the wall.  I am not passionate about the topic, I am not frustrated by it.  As a family law lawyer I have a professional obligation to develop my knowledge on the topic.  As a service to the public I deliver information concerning the topic.  This blog lets me do both. That's why I pay attention to it.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Proposition 8 Constitutional? Arguments in California Supreme Court

The California Supreme Court heard a three hour argument in Strauss v. Horton, the challenge to Proposition 8's constitutionality.   We've previously blogged about the issues here and here, including a report of the two panels held at AALS in San Diego in early January.

One of the best recaps of the argument I've read so far has been from Josh Richman of the Oakland Tribune on [San Jose] mercurynews.com here.   The National Center for Lesbian Rights had a blog with minute-by-minute descriptions of the argument starting here.  The California Channel should have streaming video here, but I’ve found it difficult to access.

The California Supreme Court described the three issues it would hear in today's oral argument as:

        (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
        (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
        (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The issue of whether Proposition 8 is an amendment (and thus a referendum is proper) or a revision (and thus requiring 2/3 vote of the California legislature, or a constitutional convention) implicates one’s views of the right at stake.   According to the NCLR argument blogger, Chief Justice George “immediately” asked Shannon Minter, arguing for NCLR, whether Proposition 8 overturned the court’s holding in In re Marriage Cases that Sexual orientation was subject to strict scrutiny; Justice Wergerder then followed with a question assuming that if strict scrutiny was not affected, why was Proposition 8 significant enough to be a revision.   Minter’s answer referred to the “existing purposes and principles” of the California Constitution.  Of course, it is these very purposes and principles about which the parties - - -  and the thousands of activists on both sides of this issue - - - so vehemently disagree.

Please click here for the balance of the article from the Constitutional Law Professor Blog.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.