# 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:** 2
**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, 7:22pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/21 "2009-02-06T19:22:16Z")
> [@Bricker](#): > > There is no legal principle that makes it impossible for these marriages to be nullified. **Bricker,** why wouldn’t it be possible to challenge it under Article I, s. 10, identified by **Steve MB**? Isn’t a marriage a civil contract? Marriages can be annulled or ended by divorce under state law, but that’s at the request of one or both of the parties to the marriage. That’s not what’s happening here - this would be nullifying the marriages even though both parties to the contract want it to continue. Is there no scope for a challenge under the impairment of contracts clause? ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [February 6, 2009, 7:37pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/22 "2009-02-06T19:37:18Z")
> [@Northern\_Piper](#): > > **Bricker,** why wouldn’t it be possible to challenge it under Article I, s. 10, identified by **Steve MB**? Isn’t a marriage a civil contract? Marriages can be annulled or ended by divorce under state law, but that’s at the request of one or both of the parties to the marriage. That’s not what’s happening here - this would be nullifying the marriages even though both parties to the contract want it to continue. Is there no scope for a challenge under the impairment of contracts clause? I’m not a lawyer, but doesn’t the state reserve the right to revoke any license it issues? It can revoke my drivers license (usually for poor driving, I admit), for example. ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [February 6, 2009, 7:40pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/23 "2009-02-06T19:40:17Z")
> [@mlees](#): > > I’m not a lawyer, but doesn’t the state reserve the right to revoke any license it issues? > > It can revoke my drivers license (usually for poor driving, I admit), for example. Another example: hunting/fishing license. If hunting were made illegal, any hunting licenses currently issued would become null and void. ---
**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, 7:46pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/24 "2009-02-06T19:46:17Z")
> [@Northern Piper](#): > > **Bricker** , why wouldn’t it be possible to challenge it under Article I, s. 10, identified by Steve MB? Isn’t a marriage a civil contract? Marriages can be annulled or ended by divorce under state law, but that’s at the request of one or both of the parties to the marriage. That’s not what’s happening here - this would be nullifying the marriages even though both parties to the contract want it to continue. Is there no scope for a challenge under the impairment of contracts clause? Not to answer for **Bricker** , but it’s my understanding that marriage is a special class of civil contract, which is the major reason the FFC clause of the U.S. Constitution doesn’t take the legality of SSM in Massachusetts and apply it to all 49 of the other states. There may be other reasons for it not applying. Or it might actually apply. I’m no lawyer. ---
**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, 7:59pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/25 "2009-02-06T19:59:59Z")
Yes, but a marriage is a contract, not a simple licence. A licence grants permission to do something. An exchange of marriage vows in accordance with the laws of the state creates a legal relationship between the two parties to the marriage. Is that the sort of contract that is protected by the n-impairment-of-contracts clause? ---
**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, 8:10pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/26 "2009-02-06T20:10:06Z")
> [@Steve\_MB](#): > > 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. > [@Northern\_Piper](#): > > **Bricker,** why wouldn’t it be possible to challenge it under Article I, s. 10, identified by **Steve MB**? Isn’t a marriage a civil contract? Marriages can be annulled or ended by divorce under state law, but that’s at the request of one or both of the parties to the marriage. That’s not what’s happening here - this would be nullifying the marriages even though both parties to the contract want it to continue. Is there no scope for a challenge under the impairment of contracts clause? No. > [@](#): > > Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority. Legislation, therefore, affecting this institution and annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts by state legislation. Maynard v. Hill, 125 U.S. 190 (1888). ---
**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, 8:12pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/27 "2009-02-06T20:12:50Z")
thanks, **Bricker**. ---
**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, 8:38pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/28 "2009-02-06T20:38:11Z")
> [@Northern\_Piper](#): > > **Kang:** “We are leaving now for your seat of government to collect more specimens for probing.” > > **Bart:** “Don’t forget Ken Starr!” On a related note, I checked Starr’s wiki last night when I heard about this. He’s really picked up some volatile (and personally infuriating) causes. Defending Blackwater, defending the school in the “Bong hits 4 Jesus” case. Kinda have to admire a guy who repeatedly throws himself into the meat grinder. Maybe. **Bricker** if you don’t mind prognosticating, what do you think is the likely outcome? ---
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [February 6, 2009, 8:40pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/29 "2009-02-06T20:40:55Z")
My guess would be they will argue the marriages were never legal in the first place. Now I don’t know how they will do this, but that is the best route to go. I’ve been trying to think of cases where the laws have changed substantially and in every case I’ve found so far the law permits a “grandfather clause.” So that would mean the marriages are legal but should the gay couples ever divorce they would not be free to remarry. It may also be argued that no one expects to win, instead they want to get this into the federal courts somehow. Again, I don’t know how they’d do that, but that is the direction I see them wanting to take this ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [February 6, 2009, 8:43pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/30 "2009-02-06T20:43:36Z")
> [@Markxxx](#): > > My guess would be they will argue the marriages were never legal in the first place. I can’t imagine that would be their argument, there is no doubt the marriages were legal in the first place. I suspect what they will argue that Prop 8 defines marriage as betweena man and a woman and since these marriages do not fall under that definition they are no longer valid. ---
**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, 8:56pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/31 "2009-02-06T20:56:30Z")
> [@Gangster\_Octopus](#): > > I can’t imagine that would be their argument, there is no doubt the marriages were legal in the first place. I suspect what they will argue that Prop 8 defines marriage as betweena man and a woman and since these marriages do not fall under that definition they are no longer valid. According to the wiki page on prop 8, it changed the CA constitution to read: “Only marriage between a man and a woman is valid or recognized in California”. Given the SCOTUS case that **Bricker** cited showing that Marriage isn’t protected by Section 10, I’d have to say that even pre-existing marriages are illegal under the CA constitution. ---
**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, 9:02pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/32 "2009-02-06T21:02:59Z")
> [@nameless](#): > > On a related note, I checked Starr’s wiki last night when I heard about this. He’s really picked up some volatile (and personally infuriating) causes. Defending Blackwater, defending the school in the “Bong hits 4 Jesus” case. Kinda have to admire a guy who repeatedly throws himself into the meat grinder. Maybe. > > **Bricker** if you don’t mind prognosticating, what do you think is the likely outcome? My guess: although the language of Prop 8 does say that no marriage will be recognized, it has to be harmonized with the existing state of law. In order to void the existing marriages, Prop 8 needed to include language explicitly doing just that. Because it didn’t, the measure forbids the solemnization for future marriages but does not void existing ones. ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [February 6, 2009, 9:09pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/33 "2009-02-06T21:09:06Z")
> [@Simplicio](#): > > According to the wiki page on prop 8, it changed the CA constitution to read: “Only marriage between a man and a woman is valid or recognized in California”. Given the SCOTUS case that **Bricker** cited showing that Marriage isn’t protected by Section 10, I’d have to say that even pre-existing marriages are illegal under the CA constitution. I’d say recognition doesn’t equal illegality. 1. These marriages were indisputably valid when celebrated. 2. There are other states (IIRC, NY, MA, CT), that recognize same-sex marriages. (NY doesn’t allow them in-state, but follows the “place of celebration rule”–that if a marriage was legal where enacted, it’s almost always legal in NY). 3. Hence, there are places that will recognize a CA marriage, even if CA itself no longer does. I think that means something–that the marriages do have a validity beyond CA–and that there is a distinction between CA not recognizing the marriages (they’re meaningless in CA), and divorcing the couples (no marriages exist). To me, (and to some lawyers I’ve read who’ve commented on it), It’s a stretch to read the text of Prop 8 to go any further than its plain meaning–that the marriages aren’t recognized in california. I take that to mean what it says–that they aren’t recognized in california-and no more. For one thing, the proposition only talks about the treatment of the marriages in california–and it would go beyond the proposition to extend its effect in a way that leads to the marriages being invalid elsewhere. As others note, it would be easy to have had the wording to say “and all marriages heretofore created not consistent with this proposition are void” or something like that. It doesn’t. So I think Starr will lose this one—and that, apart from the merits of the case, that divorcing these couples is just the wrong thing to do. Edit to add— I’d like to agree with **Bricker** that existing marriages will stay valid in CA—but on balance, I’m not sure I can.. The text of Prop. 8 is clear that the marriages won’t be valid in CA–so I guess I’d say the outcome will be “not valid in CA, but still married in any state that recognizes gay marriage or the place of celebration rule” ---
**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, 9:12pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/34 "2009-02-06T21:12:27Z")
> [@nameless](#): > > Defending Blackwater, defending the school in the “Bong hits 4 Jesus” case. Kinda have to admire a guy who repeatedly throws himself into the meat grinder. Especially since he won the “Bong Hits” case, 6-3. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [February 6, 2009, 9:30pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/35 "2009-02-06T21:30:06Z")
If the CA Supreme Court actually rules that existing same-sex marriages are no longer valid then the issue will wind up before the _United States_ Supreme Court. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 6, 2009, 9:33pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/36 "2009-02-06T21:33:09Z")
… who will pretend it isn’t an issue and refuse to take it. What, and have to rule that their own principles require recognizing sodomites as equivalent to normal people? ---
**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, 9:33pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/37 "2009-02-06T21:33:33Z")
> [@alphaboi867](#): > > If the CA Supreme Court actually rules that existing same-sex marriages are no longer valid then the issue will wind up before the _United States_ Supreme Court. Why? It’s a question of the _state_ constitution, isn’t it? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 6, 2009, 9:37pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/38 "2009-02-06T21:37:34Z")
Equal protection, full faith and credit, due process. ---
**Author:** ![Strassia](https://avatars.discourse-cdn.com/v4/letter/s/e8c25b/32.png) [@Strassia](https://boards.straightdope.com/u/Strassia)\ **Post date:** [February 6, 2009, 9:52pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/39 "2009-02-06T21:52:46Z")
I don’t think legal or illegal really enters into it. I don’t think that anyone is arguing that crimes were committed or these marriages never happened. Rather they are arguing that with Prop 8 in effect, the state no longer recognizes these marriages. So no one will arrest them if the call themselves married, and no one is going to come confiscate the wedding photos, but for state purposes (benefits, inheritance, powers of attorney, etc.) they have no reverted to a non-married status. The most just outcome possible, without overturning Prop 8, is to automatically convert all SSMs to domestic partnerships. I would prefer overturning Prop 8, although I hope someone comes up with a better motion than Jerry Browns cockamamie “you can’t do it because it’s wrong” argument to base it on. Jonathan ---
**Author:** ![Strassia](https://avatars.discourse-cdn.com/v4/letter/s/e8c25b/32.png) [@Strassia](https://boards.straightdope.com/u/Strassia)\ **Post date:** [February 6, 2009, 9:58pm UTC](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684/40 "2009-02-06T21:58:12Z")
> [@ElvisL1ves](#): > > Equal protection, full faith and credit, due process. That does not apply to marriages performed in CA prior to Prop 8. Has anyone tried to bring a case to the SC about Massachusetts marriages crossing borders? As far as I know, the USSC has no jurisdiction on whether or not things violate state constitutions. For those issues, the state Supreme Courts are the final arbitrators. Jonathan [Previous page](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684.md?page=1) [Next page](https://boards.straightdope.com/t/can-ken-starr-nullify-18k-gay-marriages/484684.md?page=3)