Mark Leno Works A Prop 8 Loophole

Working a loophole, openly gay California Assemblyman Mark Leno has introduced legislation to allow the recognition of out-of-state same-sex marriages performed before the enactment of Prop 8. Couples married in other jurisdictions after Prop 8 would "receive all the rights and obligations opposite-sex California couples enjoy, with the exception of the designation of "marriage.""

The bill faces its first test today in the Assembly Judiciary Committee, which is dominated by Democrats. It already has generated opposition from two conservative groups, the California Catholic Conference and the Capitol Resource Institute. "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." The California Supreme Court explicitly declined in Strauss to decide the fate of out-of-state marriages that were performed while same-sex marriage was legal in California, saying that the question was not properly before the court.

Ron Prentice of Protect Marriage is worried:

As if the Legislature doesn’t have enough issues to deal with given the chronic $26 billion state budget deficit, some legislators are advancing a new bill in Sacramento designed to rip a huge hole in Proposition 8 and further undercut traditional marriage in California. We need your help immediately to contact legislators and the Governor to oppose Senate Bill 54, which seeks to undermine Proposition 8, and further attempts to sneak this change by the people of California through a legislative maneuver known as the “gut and amend.”