Central to many subsequent disputes over Prop 22's effect is a distinction between statutes enacted by the legislature and initiative statutes enacted directly by the electorate. The legislature is free to amend or rescind its own enactments, but voters must approve any attempt by the legislature to amend or repeal an initiative statute unless the initiative itself states otherwise.
Controversy over domestic partnerships In 1999, California enacted the first in a series of
domestic partnership provisions. California courts have entertained several challenges to legislative expansions of the domestic partnership scheme enacted after Prop 22. Generally, these challenges alleged that the legislature inappropriately amended Prop 22 by making California's domestic partnership scheme too similar to marriage, or more broadly, that Prop 22 made 'any' subsequent recognition of same-sex partnerships beyond the legislature's inherent power.
California Courts of Appeal rejected those claims, noting that domestic partnerships already existed as a legal institution separate from marriage at the time Prop 22 was enacted.
Controversy over marriage licensing within California In September 2005, the
California legislature passed a bill, A.B. 849, eliminating the gender requirements for marriage now found in Family Code section 300. Governor
Arnold Schwarzenegger vetoed the bill. In his veto message, Schwarzenegger argued that passing a law that would implicitly repeal Section 308.5 required the assent of the electorate (and separately made note of pending court challenges). In ruling on the disputes between Prop 22 and the domestic partnership enactments,
California Courts of Appeal have reached differing conclusions as to Prop 22's scope within the marriage statutes. In
Armijo v. Miles, the Second Appellate District Distinguished Prop 22 from the case at bar by noting, in part, that the initiative prevented the recognition of same-sex marriages conducted
outside California: The legislative analysis and the ballot arguments readily demonstrate that Proposition 22 was crafted with a prophylactic purpose in mind. It was designed to prevent same-sex couples who could marry validly in other countries or who in the future could marry validly in other states from coming to California and claiming, in reliance on Family Code section 308, that their marriages must be recognized as valid marriages. With the passage of Proposition 22, then, only opposite-sex marriages validly contracted outside this state will be recognized as valid in California. The
Armijo court may not have ruled that the historical purpose of Prop 22 limited its scope to out of state marriages. The court appears to have ultimately presumed that Proposition 22 did indeed apply to in-state arrangements deemed to be "marriages," but held that the challenged wrongful death statute did not violate that prohibition: The question remaining is whether the portion of AB 2580 that amends the wrongful death statute subverts Proposition 22. Defendants' position that it does is based on the faulty premise that the right to sue for wrongful death is an exclusive benefit of marriage. It is not. Less than a week later, on April 4, 2005, the Third Appellate District ruled more explicitly, in
Knight v. Superior Court, that Prop 22 also included within the initiative's ambit marriages licensed
within the state: The plain language of Proposition 22 and its initiative statute, section 308.5, reaffirms the definition of marriage in section 300, by stating that only marriage between a man and a woman shall be valid and recognized in California. This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state. As with
Armijo, the
Knight court upheld the challenged statute on the grounds that it did not constitute a "marriage" for purposes of Prop 22 or Section 300. The cases differed, however, in that
Armijo appeared to rely on a narrow observation that a particular benefit was not exclusive to marriage, while
Knight upheld a broad domestic partnership statute against challenges it left almost no substantive difference between the two institutions. Parties in subsequent cases, including the same-sex marriage cases, have noted the apparent split between the appellate courts with respect to its scope. As the ultimate rulings in these cases arguably did not require a finding that Prop 22 applies to in-state marriages (both were upheld against a challenge that they constituted marriage under Prop 22, the same result that would have obtained if they had ruled Prop 22 did not apply to in-state marriages), some argue that these findings are
dicta. On the flip side, an argument can be made that these holdings are
not dicta, as both courts ruled on the merits of whether or not a challenged in-state arrangement constituted a "marriage" for purposes of Prop 22, an allegation that would be moot if either court believed Prop 22 permitted in-state marriages. In 2008, the
California Supreme Court resolved the controversy in ruling on the constitutionality of statutes limiting marriage to a man and a woman: "this provision reasonably must be interpreted to apply both to marriages performed in California and those performed in other jurisdictions." ==Invalidation==