Wednesday, November 5, 2008

Californians Enshrine Discrimination in Constitution

Prop 8 passage ensures questions

The Los Angeles Times has reported that Proposition 8, which eliminates the right of same-sex couples to marry in California, is ahead, 52% to 48%. Almost 95% of California's voting precincts have been counted, and the counties with significant measures of votes outstanding voted heavily in favor of Prop 8.

This assures that a new round of legal questions will have to be confronted. Was the measure merely an amendment to the constitution, or was it a qualitatively deeper "revision,"? If it amounts to a revision, then the measure was procedurally irregular and void, for revisions must originate in the state legislature with a 2/3 vote of each house before going to the voters. Prop 8, in contrasts, got on the ballot via initiative (registered voters signing petitions).

What is the fate in California of existing marriages? Does Proposition 8 operate prospectively only, effectively "grandfathering" in the estimated 16,000 same-sex couples who married between mid-June and the passage of Prop 8 last night? Even if it bars, California from continuing to treat those couples as married, it probably (though this remains to be worked out) would not stop other states from recognizing the pre-Prop 8 marriages. States such as Massachusetts, which allows same-sex couples to marry civilly, or New York, which doesn't itself marry same-sex couples but recognizes their validly entered marriages from other jurisdictions, are likely free to continue recognizing these marriages. I have sometimes described the quasi-retroactive view of Prop 8 as akin to a forced divorce, but it is probably more like a legal blind spot on the part of California; these marriages were validly entered, the parties have not divorced, so even though California will no longer treat them as marriages, others states most likely will be able to.


  1. I didn't think anything could take the shine off of Obama's victory, especially because I expected to lose. But this is hitting me much harder than I thought.
    Do you think the AG's statement that Prop 8 is not retroactive has any force? Will a court be forced to resolve this? Would someone from the right actually go to court and seek to dissolve those marriages, or would this question get resolved anyway in the ACLU case filed today?

  2. I don't understand this fundamental issue:
    A constitution by nature is intended to protect people's rights from the majority.
    How, then, can a simple majority referendum vote change a constitution to take minority rights away?