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.