Gay married couples in California.

I believe they're grandfathered in.

My friend got married on the 28th, and he's under the impression that his marriage will be null and void should 8 pass.

How does that work? Well, I know technically how it works - but how does it make any sense? I'm glad that those who were already recognized get to keep that recognition, but doesn't it sort of dilute the entire thing? Given the grandfather clause (if that is indeed the case), how could it even be allowed back on the ballot?

Someone on the news said that a ballot initiative couldn't be retroactive.

It's a question that will have to be decided by the courts. While the Proposition doesn't explicitly state that it would be applied retroactively to overturn existing same-sex marriages, its language leaves the door open to not recognizing any same-sex marriages, including those that were legal before the election.

Yep.

But Wikipedia seems to imply that doing so would violate the provision in the Constitution against "ex post facto" laws. Right?

The entry on "domestic partnership in California," as EdHocken suggested in another thread, says that a lot of marriage benefits have been moved to domestic partnership.

If it was only a terminology dispute, that would be nice. Although I imagine there are still rights that are only attached to marriage.

It probably refers to FEDERAL law, not state.


If I had to guess I would say that the California Supreme Court will uphold those marriages pre-dating Proposition 8. I'm sure that many gay married couples made huge life-altering decisions based on their marriage. To render that marriage now null and void would be, from a legal perspective, highly inequitable. Courts try to balance equities.

It's a poorly written initiative that will hopefully be contested should it pass. Much like the one in Arkansas intended to deny same sex couples adoption rights. It also excludes single folks. So your parents died in a horrific accident and you'd like to adopt your 13 year old sibling? Too bad! You aren't married.

It's interesting that these measures all pass the same week ABC fires someone for playing a lesbian. Kind of feels like we're all taking a huge step back.

Law student friend on another board has this to say about how Prop 8 is likely to go:

A lawyer in SF already brought it to litigation.

From the LA Times:

Because a challenge to existing marriages would raise novel questions, no one is certain how the courts would rule. Two family law scholars interviewed by The Times predicted that the marriages would remain intact, while five constitutional scholars were divided over which side the law favors.

California Atty. Gen. Jerry Brown, the state's top law enforcement officer, has said that Proposition 8 would not be retroactive and that existing marriages would stand. But his view is likely to be challenged.

"There is no clear answer," said Erwin Chemerinsky, dean of UC Irvine Law School. "This is ultimately going to have to be litigated by the courts."

More.

(Yeah, I know, it's People Mag. Sue me, someone emailed it to me.)

It's been quite a few years since I took Constitutional Law, but I am fairly confident it won't be retroactive. Even if it were interpreted to ex post facto alter the California constitution, I think the Federal Constitution would step in and prevent such a change from occurring.

On another note: I cannot believe it passed.

See, our bigots are smart in Florida -- they included language in our amendment that not only renders invalid any legal union resembling marriage (there go civil unions), but that also prevents a judge from overturning the amendment. We got all the homophobic bases covered.

I'm fairly confident that when the raised the legal drinking age to 21, anyone already old enough to drink under the old law was still allowed to drink, so I think it's safe to assume Overlord is right.

Apples and oranges.

People do not "rely" upon a right to drink alcohol. There are no contracts based upon the "right to drink alcohol." Thus, you have no potential fundamental rights being affected. On the other hand, people do rely upon marriage contracts. For example, community property designations/transfers. Retroactively negating these acts will likely have disastrous consequences.

The reason why ex post facto laws are disfavored (and often specifically prohibited, for example, in criminal matters) is because of the issue of reliance. As a general matter of philosophical principle, people should not be punished for relying upon existing law. If act "X" is not a crime today, and someone commits it, they should not be punished if "X" becomes illegal a week later.

I think there are a few major reasons why this wouldn't have a retroactive effect:

1.)The proposition is not definitive on the issue; retroactive effect is typically not given unless specifically stated in the proposition.
For a proposition to retroactively declare all of these marriages null and void, it should clearly state so within its wording. Proposition 8 doesn't directly address the issue, so the default position is "no ex post facto effect."

2.)It violates either the "Contract" or "Due Process" Clauses of the Federal Constitution
However, let's say it does retroactively nullify marriages. There is a real question as to whether doing so would violate the "Contract Clause" of the U.S. Constitution. Additionally, would it violate the "Due Process" Clause? Essentially, people are losing contractual rights that have already been granted to them pursuant to valid State law.

We'll see what happens, but my gut instinct is "no retroactive effect."

They have been, as sad as the passing of this prop was. The fact remains the rights allowed to Domestic Partners still stand. This wasn't the Briggs initiative. The anti-discrimination laws still stand. Just for whatever reason fundies cannot let this one thing go. This one thing.

And like I said, it's going to the courts and it already has.

It's actually kind of funny how positive I'm being about this (I'm not usually this way). Probably because of the Obama win I can figure that at some point in time that this will change.

That and because my opinion on marriage is shot to shit due to dealing with a parental divorce and the fact my dating life sucks to the point that this prop could have gone either way and would have had no effect on me.

More on the "Contracts Clause."

Article I, section 10, clause 1: “No State shall ....pass ... any ex post facto Law, or Law impairing the Obligation of Contracts ... "

The Contracts Clause prevents only substantial impairments of contract, i.e. destruction or loss of most or all of a party's rights under an existing contract. However, not all substantial impairments violate the Contracts Clause. To determine whether state legislation is valid under the Contracts Clause, the following three part test applies:

(i) Does the state legislation substantially impair a party's rights under an existing contract? If it does not, the state legislation is valid under the Contracts Clause. If it does, such impairment will be valid only if it:

(ii) Serves an important and legitimate public interest; and

(iii) Is a reasonable and narrowly tailored means of promoting that public interest.

There you go. I think everyone's pretty familiar with the due process clause, so I won't bother cutting and pasting it.

More litigation on the way:

Source

It's a pretty good argument, and it could work, particularly since the California Supreme Court said that marriage was a fundamental right. If it's a fundamental right already enshrined in the California constitution, then any proposition of this nature is a revision of the California Constitution instead of an amendment. A revision requires different procedures, including passage in the state legislature by potentially super-majority margins before the proposition can go to the ballot box.

The true test of wills will be when a suit is filed in federal court testing the legality of all of this stuff under the equal protection clause of the US Constitution. Such a suit is inevitable. I'm hesitant to drag another social issue to the federal level, but if that's what it takes, so be it. Time and time again, states have proven incapable or unwilling to guarantee minorities equal protection under the law.

A social issue to the federal level? That's pretty much what happened to Prop 187 which later got quashed in the 9th District IIRC.

I mean, we federalized abortion. We also federalized desegregation and protections for African Americans. It's not new, but it generally makes it hard for the party who sponsored such efforts to ever win again. The Democrats spent 40 years in the wilderness because LBJ basically forced the Civil Rights Act through Congress. Whatever people say about Bill Clinton, he won in 1992 thanks to Ross Perot. He won in 1996 because he ran against Bob Dole, and even then he lost the popular vote.

This is an aside, and perhaps something I want to write on later, but I'm bitter about the way African Americans behaved on this issue. On the eve of the election of the first black President, they slam the door shut behind them. Prop 8 pretty much passed due to high voter turn out.

As a Hispanic, I'll never understand what makes other embattled minorities want to shut the door behind them once they get a modicum of equality. The Cubans want to do it to the Mexicans; the Cubans came here mostly illegally, but, because they were under Communism, it's different. Fuck the Mexicans! They were just escaping crushing poverty. Same with gays and lesbians. Many blacks have said that civil unions are good enough. Yeah? And so were drinking fountains across the street, right?

Separate is never equal. Ever. In all honestly, I'm livid.

Interacial marriage was federalized.

And I wouldn't necessarily pin the Civil Rights Act as the cause the 40 year exile. It wasn't just that.

I had a professor who believed (jokingly) that miscegenation laws went the way of the Do-Do because no Supreme Court would rule against the petitioner in Loving v. Virginia.

Who the hell wants to rule against "Loving"?

I mean, it's simplistic, but you can't deny that the Democrats lost the South for a long time in part because of LBJ's actions. He was pretty clear about that in his own mind.

Part of the cause was that. Part it also had to do with Vietnam, the death of Bobby Kennedy. The clusterfuck of the '68 convention and the ability of the Nixon campaign to exploit all of that voters. Apparently Nixonland is the word on this sort of thing but I haven't read the book.

Can someone explain this part to me? These kinds of technical legal details can fly over my head sometimes, I'm certainly no expert, but I don't understand how the part that I highlighted could even be allowed in the legislation. Is that seriously even legal?

You're young though Ed. Most gay men in their 20s are too busy exploring their sexual identity (having repressed or denied it in their teens) and making new friends in a different sub-culture (mind you, this is in my experience and I came from a city with a quite sizable gay population). While there may be limited
amount of gay men in your age group who are interested in a long term relationship, the pool certainly grows as the population gets older and ready to settle down (re gets tired of the nightlife and the games associated).

Here's the problem-


What's being done to homosexuals IS wrong and it IS inequality. There is no question about that (at least to all non-retards). The problem is the middle ground. The people that don't see, due either to their own ignornace or uninterest, gays as being victims. The reason the whole "Gay Rights is the New Civil Rights Movement!" thing falls on deaf ears is because the inequality doesn't register with most people. They see gay movie stars, gay athletes, gay singers. Gay politicians. They don't perceive homosexuals as a persecuted minority on the same level that blacks pre-Civil Rights were.

As always, the culrpit here is ignorance.

But you'd think that minorities themselves would see past that. Before black people could vote, we had Duke Ellington and Louis Armstrong. After slavery, a lot of the black people that white people saw with any frequency were artists, etc.

It's the lack of empathy of any kind that kills me.

To be fair, it's not entirely clear whether you can tell judges "no, you can't review this". One of the bedrock principles of our democracy is an independent judiciary. While you can restrict the jurisdiction of courts, when you do so in order to prevent judges from applying the law equally, that restriction is suspect in and of itself.

Actually the problem is that the vast majority of people STILL consider homosexuality as a choice. Until that changes then gay rights will not be legitimately seen as a real civil rights issue.

Well, I mean, if those black people hadn't spent so much time outside, they wouldn't be as dark!

I'm sorry if I sound unreasonable, but I can't believe that my new home, the state of California, has enshrined bigotry as a constitutional norm.

As most people still consider it a choice, then they don't consider it bigotry. You chose to be gay, you could choose to marry a women.

I knew this wouldn't pass legal muster if it were to succeed. It might be as little as a year before it's stricken down.

Which is ridic, because these "conservative" people would - in any other situation - claim that the government has zero right to meddle with its citizens' choices.

Exactly. It's extreme hypocrisy on the part of the right who say that government should have no business in our affairs and yet want to alter government to say who can marry whom. It's is complete nonsense.

I also think it passed because the YES side said they had no problem with "Civil Unions" and that the issue was over the word "Marriage", which probably gave the greenlight to some who voted for this thinking that gays and lesbians will still have what they want.

I think it's a mistake to think the Obama win is an endorsement of Liberal ideals like Gay marriage. A lot of people who voted for Obama also voted for Prop 8

Protesters are marching!
And as well they should! One of my best friends is a lesbian and in a married relationship out in California, she's safe from the law because she married during the tiny window of opportunity, but I would implore any CA Chewers out there to help roadblock the shit out of this proposition so that every one else like her can have a fair shake at happiness.

Yeah, some of friends were there. By the time I heard about it I was back home and getting back to WeHo would have been a bitch. Of course I wonder where were they during the campaign? Even though it wouldn't have done much since the YES side effectively "Willie Hortoned" the whole thing.