# Did the Cali SC Really Just Take the Teeth Out of Prop 8? **URL:** \ **Category:** Great Debates\ **Created:** [May 26, 2009, 7:57pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725 "2009-05-26T19:57:19Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 27, 2009, 3:59pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/61 "2009-05-27T15:59:09Z")
> [@jtgain](#): > > I don’t see how this law would be retroactive. It isn’t saying that they were never married. It is saying that from this day forward, they are no longer considered married. Isn’t that a distinction without a difference? I mean sure, some people absolutely went through the process of getting married. However, if Prop-8 proponents had their way, they want to say that act was meaningless and has zero basis in law. So, while it might have “happened” it means nothing. ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [May 27, 2009, 4:01pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/62 "2009-05-27T16:01:24Z")
> [@Whack-a-Mole](#): > > Isn’t that a distinction without a difference? > > I mean sure, some people absolutely went through the process of getting married. However, if Prop-8 proponents had their way, they want to say that act was meaningless and has zero basis in law. It’s kind of like the NFA '34. People would go to a hardware store and buy a tommy gun. The Act made it illegal to have an automatic firearm, so people who already had them had to register them and pay the tax, or else get rid of them. ---
**Author:** ![Projammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/projammer/32/559_2.png) [@Projammer](https://boards.straightdope.com/u/Projammer)\ **Post date:** [May 27, 2009, 4:21pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/63 "2009-05-27T16:21:54Z")
> [@](#): > > Originally Posted by Projammer > Or is someone going to ratchet this all the way up the ladder? > [@Johnny\_L.A](#): > > I’m guessing that’s the plan. As I mentioned, I think that there is a move in Washington State to confer upon gay people in civil unions the same rights that are enjoyed by married couples. (Again, I haven’t been following the issue here.) Opponents who have objected to the term ‘marriage’ are now saying that you gay people can’t have ‘marriage’ even if it isn’t called ‘marriage’. The way I see it, they’ll either have to come out and declare gays to be second-class citizens, or allow ‘separate but equal’ civil unions. > > But that will bring us in the neighbourhood of _Brown v. The Board of Education_, which determined that ‘separate but equal’ is unconstitutional. How can ‘separate but equal’ be unconstitutional for one class of citizens and not unconstitutional for another class of citizens? > > As soon as ‘separate but equal’ civil unions are made legal, the next step is SCOTUS. I think you missed the point of my question. Or maybe I missed your answer. I have no doubt that SSM will eventually make it before the high bench. I was refering specifically to Prop 8. Has it reached its final adjudication or does some group still have the option to appeal to SCOTUS to have it struck down? I could see where the CA court did what they could to limit the scope of prop 8, but are leaving it to the high court to administer the coup de gras. That way they avoid all the blowback about the court ignoring the wishes of the voters. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 27, 2009, 4:26pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/64 "2009-05-27T16:26:27Z")
> [@Projammer](#): > > Has it reached its final adjudication or does some group still have the option to appeal to SCOTUS to have it struck down? It can be taken to the federal system if it is claimed it infringes a federally protected right. Unfortunately, it doesn’t as the law stands right now. Otherwise, the California Supreme Court is the final arbiter of the constitutionality of Californian laws as related to the California constitution. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 27, 2009, 4:31pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/65 "2009-05-27T16:31:47Z")
> [@jtgain](#): > > I don’t see how this law would be retroactive. It isn’t saying that they were never married. It is saying that from this day forward, they are no longer considered married. OK - I see what you mean. There are some problems with that, though. First, removal of a right from people who are benefitting from that right is a lot different from removing the right from people who have not yet gained the benefits, and presumably (I don’t know CA law on this) requires a higher standard of proof that it was the intent of the law. I’d think the court would want an express statement in there, which of course the proponents of 8 would not have included because it would have shown them to be the hateful scum that they are. Also, it is a lot more complicated to say to a couple that you once were married, but now aren’t, than that you were never married. What happens to property, for example? What about children of the married couple. It’s easy (though morally bankrupt) to return people to the _status quo ante_. It is much harder to force them into a divorce. I don’t know what happens, for example, if a brother and sister marry, and it is then determined they have that degree of consanguinity. My guess is that the marriage is voided - it is considered never to have happened at all. You can throw in the fact that they were unaware of their kinship before the wedding here. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 27, 2009, 4:34pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/66 "2009-05-27T16:34:17Z")
There is currently pending (just filed the other day) a lawsuit in federal district court challenging Proposition 8 on the basis of federal constitutional protections. Ex post facto provision doesn’t apply, since this isn’t a criminal law. Although “gays” have not been granted special status triggering higher level review, “marriage” has been found to be a “fundamental right.” Thus, the more likely successful attack on Proposition 8 is that it is the denial of a fundamental right between a given couple without being narrowly tailored to meet a problem of extreme importance to society. The basic case law cited should be _Loving_ and its progeny. ---
**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:** [May 27, 2009, 6:17pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/67 "2009-05-27T18:17:37Z")
> [@Ludovic](#): > > I concur, after all, if anyone can make marriage really work, it’s Google. Let’s just hope we don’t get stuck in the eternal “civil union” beta. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [May 27, 2009, 6:48pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/68 "2009-05-27T18:48:03Z")
> [@Johnny\_L.A](#): > > … As such, they have no option to not be gay any more than a person of a given ethnic group can choose not to be part of that ethnic group. Therefore, they must have the full protection of the law. > … > But you bring up separate toilets. A man or woman has little choice about his or her gender. You seem to be saying that equal protections are given because the person has “no choice” about it. But that is not a requirement for getting equal protection under the law. Religion is completely a personal choice, with no genetic or biological connections at all, yet all the Civil Rights laws provide protection for religion. (Sometimes even mentioning it twice: ‘race, religion, creed’ is a common listing, for example Iowa, Montana, NC, & Washington all list both religion and creed. Indeed, religion sometimes seems to trump other civil rights – many of the laws have exemptions for religious institutions.) So ‘equal protection’ is not legally connected to ‘choice’. ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [May 27, 2009, 6:52pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/69 "2009-05-27T18:52:04Z")
Well, it’s either that or explore each protected class and come up with examples for all of them. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 27, 2009, 9:15pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/70 "2009-05-27T21:15:06Z")
> [@villa](#): > > Oddly enough, as a lawyer, I find that complementary… 🙂 > > The question facing us now is not where do we want to go, it is where can we go. It isn’t about what the law should be, it’s what the law is, and what changes are possible. > > The Cali court (and I will stop calling the state Cali when y’all repeal Prop 8, deal?) made legally the right decision, I think, on both counts. There’s no basis to make the law retroactive and strike the marriages, but Cali has a (bloody stupid) system that allows amendment by simple majority. Don’t like the results, change that system… > > There is a silver lining. If Cali (now I am just being gratuitous) can overturn Prop 8 through the ballot box, and the NY legislature does allow gay marriage, then I think it is pretty much game over. We’ve won. As long as this was done throught the courts (not that I think the courts don’t have the authority to do this) there were going to be people whining about it. Cali goes, then the PNW, then the mountain states (with one obvious exception) then the Midwest and the mid-Atlantic. If CA & NY do the right thing, then the tipping point has been hit, and pretty soon you will only see Dixie and Utah holding out. > > I hope, at least. When do you think Virgi will allow SSM? 😉 Yeah, I pretty much agree with your assessment. The only fly in the ointment is that if CA votes in SSM then turns around and votes it out again next go 'round. Unlikely to happen, but could be given the simple majority needed. I hope they don’t decide to take this to the SCOTUS, though, as has been mentioned. That would be an almost sure-fire loss, and a significant set back. ---
**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:** [May 27, 2009, 9:39pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/71 "2009-05-27T21:39:27Z")
> [@villa](#): > > …But it isn’t at the moment. There’s not a lot we can do about that short of a pretty major shift on the Court. Kennedy had his chance to go with it with _Romer_ but didn’t. I highly doubt Roberts, Alito, Thomas or Scalia would support it. That’s a majority straight off… I think we’re a generation away from a gay Loving v. Virignia. I don’t think it’ll be all that long before DOMA get’s before SCOTUS. Until at least 13 states legalize same-sex marriage having SCOTUS do one a national basis would backfire horribly. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [May 27, 2009, 9:43pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/72 "2009-05-27T21:43:35Z")
It might not be politically wise to go to SCOTUS before the rightists are put back in the minority. We already know how result-driven that bunch is. If they get the opportunity to issue a decision against equal protection, using whatever rationalization, it will be very hard to fix later on. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [May 27, 2009, 9:59pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/73 "2009-05-27T21:59:57Z")
> [@John\_Mace](#): > > When do you think Virgi will allow SSM? 😉 Somewhere after the Ravens leave the Tower, and before Hell freezes over. Actually, if population trends continue, we might be the first of the South to do it. It’s going to come to a point that the writing is so clearly on the wall. And I think DOMA will get struck, so Virginny is going to have to deal with married homos in large numbers anyway. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 27, 2009, 11:26pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/74 "2009-05-27T23:26:11Z")
I would be shocked if we don’t have legalized SSM in CA within 5 years, at the latest. The legislature already voted for it, and all we need is a governor who won’t veto it, like Arnold did. More than likely, we’ll have a Dem governor next time. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 27, 2009, 11:32pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/75 "2009-05-27T23:32:40Z")
> [@John\_Mace](#): > > I would be shocked if we don’t have legalized SSM in CA within 5 years, at the latest. The legislature already voted for it, and all we need is a governor who won’t veto it, like Arnold did. More than likely, we’ll have a Dem governor next time. How could this matter? The Constitution of the State of California now explicitly permits the state to recognize only opposite-gender marriages. Any bill from the Legislature would be unable to overturn this, unless it was supported by sufficient legislators to accomplish a constitutional amendment of its own, which is highly unlikely. ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [May 27, 2009, 11:34pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/76 "2009-05-27T23:34:29Z")
> [@John\_Mace](#): > > I would be shocked if we don’t have legalized SSM in CA within 5 years, at the latest. The legislature already voted for it, and all we need is a governor who won’t veto it, like Arnold did. More than likely, we’ll have a Dem governor next time. Regrettably, now that discrimination is enshrined in the california constitution, it’s got to be removed before the legislature can create same-sex marriages again. So absent Prop. 8, I’d agree with you. Now, however, the constitution has to be changed first (and note that if the constitution is changed to remove prop. 8, no new law is necessary to allow same-sex marriage–the California Supreme Court has already ruled on what the constitution (absent prop 8.) requires. ---
**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:** [May 27, 2009, 11:35pm UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/77 "2009-05-27T23:35:59Z")
> [@DSYoungEsq](#): > > …Any bill from the Legislature would be unable to overturn this, unless it was supported by sufficient legislators to accomplish a constitutional amendment of its own, which is highly unlikely. I know a constitutional _revision_ needs a 2/3rds majority in both house before going to the voters, but what’s a threshold for another _amendment_? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 28, 2009, 12:01am UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/78 "2009-05-28T00:01:25Z")
> [@whorfin](#): > > Regrettably, now that discrimination is enshrined in the california constitution, it’s got to be removed before the legislature can create same-sex marriages again. So absent Prop. 8, I’d agree with you. Now, however, the constitution has to be changed first (and note that if the constitution is changed to remove prop. 8, no new law is necessary to allow same-sex marriage–the California Supreme Court has already ruled on what the constitution (absent prop 8.) requires. Right. Somehow I keep forgetting. Anyway, there will be a pro-SSM ballot measure every 2 years, at least, and the demographics are playing against the anti-SSM crowd. It’s just a matter of time. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [May 28, 2009, 12:14am UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/79 "2009-05-28T00:14:54Z")
> [@villa](#): > > What happens to property, for example? This is an important point that’s being glossed over in this thread. Under California constitutional jurisprudence (primarily due process jurisprudence), you can’t simply wipe out people’s vested property rights. And when you get married, you get vested property rights. Since Prop 8 didn’t clearly address this issue, then the court was left with 2 provisions of the CA constitution that seemingly conflict. This isn’t the reasoning the court just used, but generally, when provisions seem to conflict, you have to try and give maximum weight to both provisions, and that’s the result the court has ended up with here. If the drafters of Prop 8 had wanted to wipe out existing vested property rights, then they should have explicitly said so. As to the OP, the court didn’t really defang Prop 8, because it didn’t have a lot of teeth to begin with. Sexual orientation in CA is a suspect class, subject to strict scrutiny. Which means that for practical purposes, the government cannot discriminate on the basis of sexual orientation. Prop 8 is a carve-out to that, but the carve-out explicitly limited itself to “marriage.” Since Prop 8 didn’t disrupt the suspect classification of sexual orientation, the government is going to have to deal with sexual orientation in a non-discriminatory manner as much as possible, with the one exception of marriage. The only practical way to accomplish that now is to move the domestic partnership scheme into full parity with marriage. ---
**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:** [May 28, 2009, 1:37am UTC](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725/80 "2009-05-28T01:37:37Z")
> [@Whack-a-Mole](#): > > [QUOTE=jtgain] > > I don’t see how this law would be retroactive. It isn’t saying that they were never married. It is saying that from this day forward, they are no longer considered married. Isn’t that a distinction without a difference? [/QUOTE] No, there is a difference between a retrospective law and one that makes a change from this day forth. Suppose a couple gets married, and the next day one of them has an accident and goes to the hospital, on his new partner’s medical benefits from his partner’s employer. The fellow is in the hospital for some time, and the employer’s insurer pays out a lot of money. The fellow recovers and leaves the hospital. If same-sex marriage is then abolished retroactively, the partners were never married, and the employer’s health insurer could sue to recover the money as improperly paid. However, if the law only takes effect from the date of passage, ending the marriage, there were nonetheless legally married at the time the benefits were claimed, so the insurer wouldn’t have a basis to try to recover the payments. [Previous page](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725.md?page=3) [Next page](https://boards.straightdope.com/t/did-the-cali-sc-really-just-take-the-teeth-out-of-prop-8/497725.md?page=5)