Prop 8 Proponents Seek to Vitiate Marriages of Same-Sex Couples

“I'm holding on with both hands and both feet, oh/Promise that you won't pull the rug out from under me”


With closing arguments today in the lawsuit challenging California’s Proposition 8, the attorneys on both sides have filed answers to a series of questions posed by Chief Judge Vaughn Walker of the United States District Court for the Northern District of California. And in a bit of shameless overreaching, the attorneys for Prop 8’s official sponsors (the “defendant-intervenors” in the litigation) are seeking to overturn the estimated 18,000 marriages entered into by same-sex couples before Prop 8 was adopted.

After California’s voters approved Prop 8 in November 2008, it was challenged on state law grounds. In May 2009, the Supreme Court of California rejected those arguments, acting over Associate Justice Carlos Moreno’s cogent dissent. The Court was unanimous, however, in holding that Prop 8 had no effect on marriages entered into before it was adopted. Because that question of the meaning of state law was completely within the control of the California high court, there was no basis in law for Prop 8’s sponsors to ask the U.S. Supreme Court to review that conclusion.

Now, however, the attorneys for Prop 8’s sponsors are seeking to do an end run around that binding holding under the guise of legal remedies. One question Judge Walker had posed was: “If the court finds Proposition 8 to be unconstitutional, what remedy would ‘yield to the constitutional expression of the people of California’s will’?” The answer given by the defendant-intervenors’ attorneys? “[S]ustain Proposition 8 by giving it retrospective effect or invalidating the conflicting feature of California law.”

Translation: If Judge Walker thinks it unconstitutional for California to recognize marriages of some same-sex couples but not others depending on the date when they got married, Prop 8’s sponsors say Walker should order California to deny ALL same-sex couples’ marriages. Even though the federal courts don’t have the power here to tell the state supreme court that it is wrong about what state law (Prop 8) means.

Technically, the defendant-intervenors’ attorneys say they’re not actually asking Judge Walker to invalidate these 18,000 marriages, the San Francisco Chronicle reports, “but only to rule that government agencies, courts and businesses no longer have to recognize the couples as married.” So, in their view, these legal marriages should be legally inoperative in California.

Prop 8’s sponsors lost the fight to extend Prop 8 to existing marriages in 2009. They will almost certainly lose their outrageous effort to relitigate the meaning of Prop 8 this time.


-David B. Cruz