Assignment for Next Class • California Cases interpreting Family Code 308(a) • McDonald v McDonald (Handout p. 1) • Kaur v Florence Boyles (Handout pp. 2-3) • California Family Code 308 and 308.5 (Handout pp. 4-5) • Same-sex Marriage Cases • Martinez v. County of Monroe (Handout pp. 6-7) • In re Marriage of J.B. and H.B. (Casebook pp. 78-87) • Koppelman, “Interstate Recognition of Same-Sex Marriages” (Handout pp. 8-14) • Questions on the next pages • Optional • Hoffheimer, Chapter 9 p. 105 and Qs 8 & 9 • Spillenger pp. 277-79
Questions for Next Class • McDonald v McDonald • The California Supreme court in this case recognized an exception to Civil Code 63 “when marriage is regarded as odious by common consent of nations….” • Is this exception based on sound statutory interpretation? • Do you think the case might have come out differently if the woman, upon turning 18, had petitioned the court to annul the marriage so that she could marry a different man? • Suppose, in 1936, the only country to recognize same-sex marriages was Thailand and that a same-sex couple from Thailand moved to California. Do you think California courts would have recognized the marriage? • Does yoru answer to the previous question depend on whether (a) one of the men was being prosecuted for bigamy for a subsequent marriage to a California woman, or (b) one of the men was seeking inheritance after the other died intestate?
Questions for the Next Class • Kaur v Boyles • Did the outcome surprise you? • The last paragraph mentions that public policy might have had a greater role in a suit against the man for cohabitation. Why? • California Family Code 308 • Based on Kaur v. Boyles and McDonald v McDonald, do you think a same-sex marriage contracted in a state which allowed such marriages would have been recognized in California before the 2009 amendments to California Family Code 308? • What difference do the 2009 Amendments make? • Do you think that the 2009 Amendments are constitutional? • Martinez v County of Monroe and In re Marriage of J.B. and H.B • Why do you think these two cases came out differently? • If the Texas courts won’t grant J.B. a divorce, is there any way that he can get one? • Suppose H.B. does not want to get divorced, how would you advise him to retain his marital status?
Questions for the Next Class: Koppelman • Do you agree that the most sensible approach to migratory marriages is to decide them on a case-by-case approach depending on which “incident” of marriage is at issue? • Suppose the scenario discussed on p. 12 unfolds in Texas. How do you think a Texas judge would handle the issues? • That is, suppose a lesbian coupled married in Massachusetts and had a child there with a sperm donor. The biological mother and child travel to Texas and get into an accident. • Would the other half of the lesbian couple be allowed to visit her in the hospital? • If the biological mother died, would the child be declared an orphan and put in foster care? • If you were a Texas judge, how would you try to avoid these outcomes? • According to Koppelman, southern states in the time of Jim Crow recognized mixed-race marriages for inheritance purposes. He argues that the same should be true for same-sex marriages, even in states which do not recognize them. (See p. 12) • Do you think Texas would recognize same-sex marriages for the purpose of inheritance? • If your answer is “no,” why do you think Koppelman either rejected or did not consider your arguments?