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 1

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? 2

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?

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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?

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