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.
Another example: hunting/fishing license.
If hunting were made illegal, any hunting licenses currently issued would become null and void.
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.
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?
No.
Maynard v. Hill, 125 U.S. 190 (1888).
thanks, Bricker.
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 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
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.
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.
I’d say recognition doesn’t equal illegality.
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These marriages were indisputably valid when celebrated.
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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).
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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”
Especially since he won the “Bong Hits” case, 6-3.
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.
… 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?
Why? It’s a question of the state constitution, isn’t it?
Equal protection, full faith and credit, due process.
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
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