Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, November 05, 2008

Proposition 8 and Existing Marriages

Interpreting Proposition 8 under The California Constitution

Presumption Against Retroactivity
Under the California Constitution, there is presumption against retroactivity. The Supreme Court of California must decide if Proposition 8 is to be applied retroactively to bar existing marriages.

Annulment or Retroactivity?
The California Supreme Court may decide that question is not whether Proposition 8 is "retroactive" but whether it should be interpreted as an annulment of existing marriages. It is presumed that the text was not intended to alter other provisions of the constitution unless it expressly said so. California Supreme Court ruled in May 2008 that homosexuality is a suspect classification. This means that a rule targeting homosexuals cannot survive unless it is narrowly tailored to its goal and supported by a compelling government interest. This Supreme Court is likely to find that there is no compelling governmental interest favoring the application of Proposition 8 to annul existing marriages.

If the California Supreme Court decides that, as a matter of state constitutional law, Proposition 8 does not annul existing marriages, there is no federal question presented, and no US Supreme Court review should follow.

If the California Supreme Court decides that Proposition 8 annuls existing marriages, the California Supreme Court must then analyze whether such retroactive application would comport with the federal constitution. That decision will be reviewable by the US Supreme Court.

Application of the Federal Constitution

Separation of Powers
Annulment of marriages is a judicial function, not a legislative function. If the legislature were to consider a "private" bill to annul a marriage, the Courts would almost certainly find that an unconstitutional invasion of judicial power. Legislative divorce or annulment is not permitted under our constitutional system. Although it is not a bill of attainder (which is explicitly barred by the text of the constitution) the same functional argument about separation of powers bars legislative action to declare a marriage, divorce, annulment, adoption, parentage, paternity, or any other matter of family law traditionally entrusted to the judiciary. This may be the strongest argument against annulment of marriages that were valid when entered into.

Equal Protection I
While homosexual status is not a "suspect class" under the Fourteenth Amendment, there must still be a rational basis for deciding that valid gay marriages may be annulled by legislative fiat. The Court may find that where there is no defect in the validly issued marriage license, the marriages cannot be annulled simply because the partners to that marriage are both of the same sex.

Equal Protection II
Under Romer v. Evans, the Supreme Court said that "animus towards homosexuals" was a constitutionally impermissible basis for legislation, and struck down Amendment 2 to the Colorado constitution (passed by citizen referendum) that was intended to wipe out all antidiscrimination laws in the state that protected gays and lesbians. The California Supreme Court held that because the State of California already offered gay couples, through a sweeping domestic partnership act, all the rights and privileges of marriage, there was no rational basis to deny gay couples the right to call it "marriage." The US Supreme Court may agree that "animus towards homosexuals" is the only basis for denying couples the name of marriage (while otherwise granting them all benefits of marriage), and strike down the law. Note that this argument does not require states to create gay marriages or civil unions: A state need not extend the rights and benefits of marriage to same sex couples, but where it does so, it may not arbitrarily deny such couples the right to call it marriage.
This argument would invalidate the Proposition 8 in its entirety.

Vested Rights Doctrine
The "vested rights" doctrine has its constitutional basis in the due process clause of the Fourteenth Amendment (and the "takings" clause of the Fifth Amendment). It holds that once a person has acted in reliance upon a validly issued government permit, the government may not revoke that permit without due process of law or (in the case of an affected property right just compensation). If you break ground on a building with a valid building permit, for example, you are "grandfathered" in. Similarly, a person who has established a right to welfare benefits cannot have them taken away by arbitrary action. Similarly, I would argue that in California, gay couples received marriage licenses that were valid when issued, then were married in reliance upon these licenses. There is, in other words, a due process problem with summarily revoking those licenses without notice and an opportunity to be heard.

How will this proceed?

1. The Attorney General (Jerry Brown) will issue an opinion, probably stating that Proposition 8 does not affect any marriages that were valid when entered into in California.
2. The AG's opinion will be challenged (regardless), and that challenge will end up with the California Supreme Court.
3. The CA Supreme Court will likely agree with one of the rationales advanced above to bar application to existing marriages.
4. If the CA Supreme Court does not uphold existing marriages, or upholds them on a basis that otherwise presents a plausible federal question, (i.e., if the CA Supreme Court rests its decision on federal rather than state constitutional law), the case will move to the US Supreme Court on federal constitutional grounds.
5. At the US Supreme Court, Justice Anthony Kennedy will be the likely tiebreaking vote. He is a Californian who authored Romer v. Evans. That bodes well for advocates of equal marriage rights and for those with existing marriages.


Dr. Strangelove said...

LTG, can you clarify and correct the following for me? And I'm sorry if you have already addressed these things and I just don't get it. I think I need to have the right frame first before I can understand it all.

1. I might also be misunderstanding some legal terms. As I have understood it, to "annul" a marriage means to declare that legally speaking the marriage never even existed. I thought annulment was retroactive by definition.

2. But at first glance it seems to me that the courts need not go that far. Could the courts simply declare that these marriages were valid when the certificates issued, and remained valid until the election, but are no longer valid as of Nov. 5th?

3. Of course, that sort of depends on how "marriage" is used in the legal sense in Prop 8 and elsewhere. Is the word "marriage" used as a participle, meaning the one-time legal act of marrying, or is "marriage" used as a noun--the enduring legal state of being married? The former sense would require annulment while the latter could be invalidated going forward. (Or does a "marriage" refer to the marriage certificate itself?)

4. At any rate, the sort of "invalidation going forward" that I envision is, for all intents and purposes, divorce. Over 18,000 couples have already legally joined their lives and their community property... Surely there is a huge federal problem-- equal protection and due process stuff--with the idea divorcing people without alimony settlements, custody proceedings, or anything. I mean, you cannot just end a marriage by tearing up a sheet of paper--marriage is not a contract.

5. Validity and recognition are different. Even if my marriage is deemed to be valid, I don't see how the State of California can continue to recognize it. Can the State refuse to recognize a marriage certificate it nevertheless deems to be valid, or to have been granted validly? Does that even make sense? (If they are not different things, then why were they called out separately in Prop. 8?)

Dr. Strangelove said...

It occurs to me that more and more Christians believe that God blesses gay and lesbian marriages too. Someday soon, a church or congregation is going to go to court to demand the state recognize their right to perform same-sex marriages, on First Amendment religious freedom grounds...

The Law Talking Guy said...

Maybe this will help.

A marriage license is valid or invalid like a driver's license. But the license is *to get married*, not to *be* married. It is for the act of becoming married.

Marriage is also status that exists as of the moment it is validly entered into. Thus, it is incorrect to say that a Canadian gay marriage is not valid in California: it is not *recognized*. By contrast, a marriage performed with an improper license is invalid (ab initio). A marriage between a parent and child is not valid because it is unlicensed. If such a marriage were valid when performed somewhere, it would not be recognized in California.

So, a marriage is "valid" if it is the act of marrying is valid at the time it is performed. A marriage is "recognized" or not thereafter by a state or government.

This is why the question is: by what right can the state of California refuse to recognize a valid marriage? While rare, a valid marriage (e.g., polygamy) may not be recognized in California if it would not have been valid had it been performed in California, usually because of some overriding public policy of the state. No state to my knowledge has ever refused to recognize a marriage that was valid under its own laws when performed. (The closest analogy is that when exilses were sent to the Molokai leper colony, the exiles were declared legally "dead," so their marriages were terminated and their wills were probated). This procedure is probably not available today.

The biological gender of the marriage partners may be an insufficient basis for doing refusing to recognize a valid marriage, even if it is sufficient to prospectively refuse to grant licenses.

The Law Talking Guy said...

Annulment is retroactively invalidating a marriage. That is another way to look at what Prop 8 might do. If so, that is an improper legislative usurpation of judicial authority.

Dr. Strangelove said...

Thanks, that helps A LOT. Thank you. It seems likely to me that I will end up with a valid marriage, good in some places but not in California.

Now dream with me for a moment. Imagine the Democrats replace DOMA with a law granting Federal recognition to all valid state marriages. We could still be eligible for the "big prize" :-)

Pombat said...

So you could in fact end up with a valid Californian marriage (I call it Californian because that's where you got married), which is no longer recognised in California, but is both valid and recognised Federally. And cheaper health care for Mr.S too.

The way I'm reading this, there is absolutely no way that they can make your marriage legally cease to exist without breaking multiple laws, which ain't happening - they can stick their fingers in their ears and shout la la la as much as they want, but you will remain fully legally married. Which is a relief (a small one, and I'd rather not be having this discussion, obviously, but still). And of course, even if they *could* somehow make it legally cease to exist (moot point...), there's no way they can erase it from our minds (and if they ever try, they're gettin' a kickin').

The Law Talking Guy said...

Pombat - these are all sound constitutional principles, but they are in the hands of courts. As we saw in Bush v. Gore, a determined court can produce the political outcome it desires. This is why Obama's victory is so important - for the Supreme Court.

Raised By Republicans said...

I heard on CNN that the ACLU has already begun the legal challenges.

Anonymous said...

So if the US Supreme Court were to rule on this, could they use a 'rational-basis' argument to find the law unconstitutional and thereby overturn all same-sex marriage bans in all 50 states as well as the Defense of Marriage Act?

Dr. Strangelove said...

Anonymous: sure, US Supreme Court could overturn all same-sex marriage bands as well as DOMA. But that is very unlikely right now. At least one of the super-conservative Justices would have to retire, and that does not look likely.

The Law Talking Guy said...

Anonymous: I strongly believe that the best argument for the US Supreme Court as to all gay marriages (not just the 18,000 already valid marriages) is that WHERE a state has a civil union/domestic partnership law that gives a gay couple all the rights, benefits, and privileges of marriage, there is no rational basis to deny them the name of "marriage." That is what the CA Supreme Court said, actually. However, the SC will not find that gay people have a right to get married (what conservatives misleadingly call a "fundamental right to gay marriage"). This will then be an argument against civil unions, which are viewed (wrongly, I think) as a "compromise" that gives gay people the benefits of marriage but in a second-class, "separate but equal" way.

Anonymous said...


Am I to understand that you DO NOT think that that the rights conferred to Registered Domestic Partners in California under AB 205 is a "compromise"?

For what it's worth, I do not see it as a compromise. I believe that Prop 8 passing might just give us an opportunity to rethink the approach to full state and federal civil rights vis a vis "Civil Unions" or whatever they might end up being called.

Please correct me if I am wrong, but if the gay (and straight) community could embrace a "Civil Union" which confers all state and federal rights- one that was open to both gay couples and straight couples seeking a secular union-this could do an "end-around" DOMA. The end result would be a tacitly accepted form of "marriage". Of course this brings me back to the "separate but equal" argument.

As someone who has suffered greatly without the protection of the rights granted under AB 205 ie. before it was enacted, I can tell you, it is the rights we need. Marriage is a failing institution and I believe that as we evolve as a society, all couples will seek a better domestic contract that will be free of religious overtones. Those who wish to have their unions blessed in a church can do so. It is very similar to what straight couples have now. One must have a license from the state to get "married", but how that marriage manifests in each couples life is a personal issue.

Am I wrong?

Canuck married in CA said...

My family and friends have been bombarding me with questions about the status of my marriage. Am I still married now that prop 8 has passed?? Truth is, I dunno and I can't seem to find a conclusive answer anywhere. As far as I'm concerned, until I get a letter from the State of California, along with a cheque refunding me for the money I shelled out for the license and ceremony, I'm still a married woman.
Boy the state sure is going to lose a lot of money if they have to refund some 18,000 of us...