# Can Ken Starr Nullify 18K Gay Marriages? **URL:** \ **Category:** Great Debates\ **Created:** [February 6, 2009, 8:45am UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684 "2009-02-06T08:45:32Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![nameless](https://avatars.discourse-cdn.com/v4/letter/n/779978/32.png) [@nameless](https://boards.straightdope.com/u/nameless)\ **Post date:** [February 6, 2009, 8:45am UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/1 "2009-02-06T08:45:32Z")
So this is kind of old news, but this is honestly where I come for legal analysis I can understand. Also, I just heard about it today. Some background– > **[Archive blogs](https://www.latimes.com/archives/blogs/)** > > Los Angeles Times blogs that were published between 2006 and 2013. [http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/12/19/state/n150241S64.DTL](http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/12/19/state/n150241S64.DTL) As we are probably all aware, California recently amended its state constitution to define marriage as a contract between one man and one woman under Proposition 8. Problem is: 18,000 same-sex marriages occurred prior to the amendment’s passage. Kenneth Starr will be leading the case for their dissolution; arguing that the marriages should stand is Attorney General Jerry Brown. Personally, I’m heavily in favor of gay marriage. I find Prop. 8 sickening and have little regard for the arguments of those who support it. However, this amendment has been democratically enacted and it is somewhat unambiguous. For better or for worse, this is what a majority of voting Californians wanted. But a great many people got married to each other when it was perfectly legal to do so. It hardly seems just that they be stripped of that status now. On the one hand, the state constitution says: “marriage is like this now,” and so I can see that overriding agreements made in the past. On the other hand, it seems a little like passing Prohibition and then prosecuting everyone who drank the day before. So, Dopers with legal insight–what does the law say? What should happen? What likely will happen? ---
**Author:** ![Furious\_Marmot](https://avatars.discourse-cdn.com/v4/letter/f/dfb087/32.png) [@Furious\_Marmot](https://boards.straightdope.com/u/Furious_Marmot)\ **Post date:** [February 6, 2009, 12:44pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/2 "2009-02-06T12:44:55Z")
No, Ken Starr cannot nullifiy the marriages. The court might, however. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [February 6, 2009, 1:03pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/3 "2009-02-06T13:03:42Z")
My understanding is that you can’t pass a law to nullify an already established contract. Since marriage is a contract, and the marriages were legal prior to the passage of the amendment, I can’t really see how Starr is going to argue that the marriages should be broken up. IANAL, though. I do like that Ken Starr has managed to find a new project to get himself even more hated and vilified by large chunks of the American Public. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 6, 2009, 2:08pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/4 "2009-02-06T14:08:17Z")
> [@Simplicio](#): > > I do like that Ken Starr has managed to find a new project to get himself even more hated and vilified by large chunks of the American Public. **Kang:** “We are leaving now for your seat of government to collect more specimens for probing.” **Bart:** “Don’t forget Ken Starr!” ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [February 6, 2009, 5:02pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/5 "2009-02-06T17:02:26Z")
I once wrote that breaking up existing marriages that were legally performed would be the equivalent of sicking the dogs of the Selma marchers. The zealots might win the battle but their tactics will be too extreme and they will lost the support of the swing voters they need. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [February 6, 2009, 5:36pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/6 "2009-02-06T17:36:55Z")
> [@Little\_Nemo](#): > > I once wrote that breaking up existing marriages that were legally performed would be the equivalent of sicking the dogs of the Selma marchers. The zealots might win the battle but their tactics will be too extreme and they will lost the support of the swing voters they need. And yet it’s not stopping them. When Jerry Brown gave his opinion that Prop 8 couldn’t nullify SSMs already effected, the Prop 8 people were up in arms. That made it obvious to a lot of people that simply stopping gay marriage from happening wasn’t enough…these folks want to punish those who got married while it was legal. Not that some of us ever had doubts about that. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [February 6, 2009, 5:49pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/7 "2009-02-06T17:49:42Z")
IANAL and don’t know what I’m talking about, but wouldn’t this violate the [prohibition against _ex post facto_ legislation](http://en.wikipedia.org/wiki/Ex_post_facto_law#United_States) in Article 1, Section 9 of the Constitution? I thought it was a big no-no to interpret new laws (and a provision in a state constitution is part of the law, right?) in such a way as to retroactively criminalize formerly legal behavior. Or would simply nullifying the earlier marriages not count as criminalization (i.e., no legal penalties would apply to the “formerly” married couples\*)? Actual lawyers: little help, please. \*I like the versatile possibilities of scare-quotes notation in this case. If you’re against Prop. 8 you can call them “‘formerly’ married couples”, and if you’re for it you can call them “formerly ‘married’ couples”. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2009, 5:51pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/8 "2009-02-06T17:51:10Z")
There is no legal principle that makes it impossible for these marriages to be nullified. However, I agree with the observation **Little Nemo** makes. As ugly as this impulse is, it’s exactly what’s needed to swing wide swaths of uncommitted people against this. It’s one thing to dispassionately talk about stopping future marriages; it’s another to dissolve REAL people’s REAL unions. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2009, 5:53pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/9 "2009-02-06T17:53:21Z")
> [@Kimstu](#): > > IANAL and don’t know what I’m talking about, but wouldn’t this violate the [prohibition against _ex post facto_ legislation](http://en.wikipedia.org/wiki/Ex_post_facto_law#United_States) in Article 1, Section 9 of the Constitution? > > I thought it was a big no-no to interpret new laws (and a provision in a state constitution is part of the law, right?) in such a way as to retroactively criminalize formerly legal behavior. > > Or would simply nullifying the earlier marriages not count as criminalization (i.e., no legal penalties would apply to the “formerly” married couples\*)? Yes - ex post facto applies to criminal law. This isn’t about charging the couples with a crime. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [February 6, 2009, 5:54pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/10 "2009-02-06T17:54:33Z")
Thanks, Big **B**. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [February 6, 2009, 6:10pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/11 "2009-02-06T18:10:25Z")
> [@](#): > > And yet it’s not stopping them. When Jerry Brown gave his opinion that Prop 8 couldn’t nullify SSMs already effected, the Prop 8 people were up in arms. That made it obvious to a lot of people that simply stopping gay marriage from happening wasn’t enough…these folks want to punish those who got married while it was legal. > > Not that some of us ever had doubts about that. My point is that every time the zealots win a victory they try to move on to the next level. It’s a foolish tactic because the ultimate result will be they’ll alienate the non-zealots among their movement. And when that happens the backlash will cost them the results of the victories they’ve already won. The ultimate result of racist attempts to intimidate black voters was the election of Barack Obama. The ultimate result of the Nazi attempt to kill the Jews was the foundation of Israel. And I suspect the ultimate result of this anti-gay movement to annul 18,000 existing marriages will be the full legalization of gay marriage. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2009, 6:15pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/12 "2009-02-06T18:15:58Z")
> [@jayjay](#): > > And yet it’s not stopping them. When Jerry Brown gave his opinion that Prop 8 couldn’t nullify SSMs already effected, the Prop 8 people were up in arms. That made it obvious to a lot of people that simply stopping gay marriage from happening wasn’t enough…these folks want to punish those who got married while it was legal. > > Not that some of us ever had doubts about that. Also interesting is that during the campaign season, the “Yes on 8” side said nothing (so far as I can recall) that would lead voters to realize they intended to seek nullification of the extant same-sex marriages. Almost as if they knew that wouldn’t play… ---
**Author:** ![VinylTurnip](https://avatars.discourse-cdn.com/v4/letter/v/b2d939/32.png) [@VinylTurnip](https://boards.straightdope.com/u/VinylTurnip)\ **Post date:** [February 6, 2009, 6:18pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/13 "2009-02-06T18:18:12Z")
Well, sure. You never _lead_ with your Final Solution… ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [February 6, 2009, 6:26pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/14 "2009-02-06T18:26:45Z")
> [@Kimstu](#): > > IANAL and don’t know what I’m talking about, but wouldn’t this violate the [prohibition against _ex post facto_ legislation](http://en.wikipedia.org/wiki/Ex_post_facto_law#United_States) in Article 1, Section 9 of the Constitution? That’s not applicable, since this isn’t a matter of charging someone with a crime. However, insofar as marriage is a contract, the Article 1, Section 10 prohibition against a state making any “Law impairing the Obligation of Contracts” would appear to apply. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [February 6, 2009, 6:28pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/15 "2009-02-06T18:28:39Z")
> [@Bricker](#): > > Also interesting is that during the campaign season, the “Yes on 8” side said nothing (so far as I can recall) that would lead voters to realize they intended to seek nullification of the extant same-sex marriages. Almost as if they knew that wouldn’t play… :mad: The text of the initiative didn’t say it, so the passage of the “amendment” didn’t do it. That’s my position and I’m sticking to it. Let 'em put another initiative on the ballot. Just let 'em try… :mad: :mad::mad::mad: ---
**Author:** ![Caffeine.addict](https://avatars.discourse-cdn.com/v4/letter/c/f475e1/32.png) [@Caffeine.addict](https://boards.straightdope.com/u/Caffeine.addict)\ **Post date:** [February 6, 2009, 6:33pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/16 "2009-02-06T18:33:52Z")
Can an iniative to overturn Prop 8 and amend the State Constitution be brought for the next election? It seems to me that any outrage over all of marriage nullification may be just the push needed to get out the voters and hopefully get the state constitution amended to permit Same Sex Marriage? ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [February 6, 2009, 6:41pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/17 "2009-02-06T18:41:51Z")
> [@Caffeine.addict](#): > > Can an iniative to overturn Prop 8 and amend the State Constitution be brought for the next election? It seems to me that any outrage over all of marriage nullification may be just the push needed to get out the voters and hopefully get the state constitution amended to permit Same Sex Marriage? Yes. And it will. And, depending on who wins, the initiative one way or another will be brought at the next California election, and so on until the pro-SSM side wins 2 in a row (probably). ---
**Author:** ![hajario](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hajario/32/171_2.png) [@hajario](https://boards.straightdope.com/u/hajario)\ **Post date:** [February 6, 2009, 6:52pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/18 "2009-02-06T18:52:00Z")
> [@iamthewalrus\_3](#): > > Yes. And it will. And, depending on who wins, the initiative one way or another will be brought at the next California election, and so on until the pro-SSM side wins 2 in a row (probably). I don’t think that it will make it in time for the June’09 ballot. Maybe Nov’09. ---
**Author:** ![Illuminatiprimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/illuminatiprimus/32/11520_2.png) [@Illuminatiprimus](https://boards.straightdope.com/u/Illuminatiprimus)\ **Post date:** [February 6, 2009, 7:09pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/19 "2009-02-06T19:09:02Z")
> [@VinylTurnip](#): > > Well, sure. You never _lead_ with your Final Solution… Of course not. It wouldn’t be final if you did, would it? ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [February 6, 2009, 7:14pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/20 "2009-02-06T19:14:09Z")
> [@Illuminatiprimus](#): > > Of course not. It wouldn’t be final if you did, would it? If it solves the problem the first time it would be. Which is an excellent case for Voltron leading with the _Blazing Sword_. [Next page](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684.md?page=2)