The legal status of gay marriage in California has been a rollercoaster ride. First, the California Supreme Court held that a ban on gay marriage was unconstitutional. Then California passed Proposition 8, writing a ban on gay marriage into the California Constitution — and the California Supreme Court bowed to that new statement of California’s popular will, declaring Proposition 8 constitutional.
The issue then was put to the federal court, and Chief District Court Judge Vaughn Walker struck Proposition 8 down as unconstitutional. Prop 8 supporters then attacked the ruling as legally flawed and challenged Judge Walker, who is gay, for not recusing himself.
On February 7, 2012, a three-judge appellate panel on the Ninth U.S. Circuit Court of Appeals in San Francisco agreed that Judge Walker could hear the case and agreed that Proposition 8 is unconstitutional! The court held that there was no “legitimate reason for the passage of [this] law that treats different classes of people differently.”
This won’t be the end of the story. The entire Ninth Circuit might decide to rehear the case as a group — a step it takes in important cases. But whether or not it decides to hold that group hearing, the case eventually will find its way to the U.S. Supreme Court, which undoubtedly will have the final word someday. Enforcement of the Ninth Circuit’s order will be delayed until the final appeal is determined.
In the meantime, not much changes for California employers, no matter what the final outcome. Under California law, registered domestic partners have the same rights, protections, and benefits as spouses. California employers have to treat registered gay couples as if they were spouses for purposes of insurance coverage and benefits, for the purposes of “kin care” eligibility, and under the California Family and Medical Leave Act. As a matter of employment law, by and large, gay couples already have the same benefits and protections as married couples
A fuller explanation of the ruling will be provided in a future issue of California Employment Law Letter. And sometime in the next two years, we will learn where this bouncing ball will finally land.