I guess this is why I’m not a legal scholar, but I can’t see how the Cali court has it both ways. It states that the 18,000 gay marriages that have previously been performed are still valid and still recognized in California. But California has this text as part of its constitution which the Court today says is okay:
“Only marriage between a man and a woman is valid and recognized in California”
Couldn’t someone have argued after the passage of the 13th amendment, that “Oh sure, from this day forward, no more enslaving of new people, but those already enslaved can continue being slaves”
(Note: I am not saying that legal gay marriage=slavery. I am just trying to use the same English construction)
Maybe I need to work on reading comprehension, but it seems to me that California is “recognizing” and holds as “valid” these relationships that its constitution disallows…
IANA legal scholar either, but I suspect this might be a set-up for an equal protection suit. If the 18,000 marriages are held valid, but another couple is not allowed to marry, ISTM that this is a violation of equal protection under federal law. If that’s true, then SCOTUS could strike down Prop. 8.
Well, that was one of the questions before the court. It seems they could have nullified the SSM that had already occurred if they wanted to (not sure if that is an ex post facto issue). Instead they chose not to and opted for an incredibly narrow definition of what Prop-8 did do (seemingly restrict the use of the word “marriage”).
In the end that is their purpose…to interpret the law. As the highest court in California that’s that barring an appeal to the SCOTUS.
The thing is that the california supreme court is RIGHT to give prop 8 a limited scope.
The text of prop. 8 (as it amended the constitution) sez:
SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.
I challenge you to find anything in that one line of text that even refers to the EQUAL PROTECTION holding that same-sex couples are entitled to the same rights as opposite-sex couples.
It’s just not there. Prop 8, by its own terms, didn’t attempt to change the conclusion that if the state of california gives goodies to some couples who register their partnership, it has to give them to all couples who want to register their partnership. That isn’t about marriage, that’s about equal protection under the laws. Prop 8. could have changed that, if it had read:
SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California, and no same-sex couple shall have a right to the legal benefits given to opposite-sex couples through marriage.
That may have been what the prop. 8 supporters intended, but it’s simply not the constitutional amendment the voters of california approved.
Err…first of all you are preaching to the choir here. I oppose Prop-8 completely.
That said I was referring to the issue of same-sex couples who were married prior to Prop-8. In that case that one line does cover them because it says same-sex couples cannot be “married”.
So, the Cali Supreme Court could have said all those 18,000 marriages are now null and void (again assuming ex post facto issues do not apply…I do not know…IANAL either).
Wasn’t intending to disagree (though on reading, it sounds like it), but to flesh the point out.
On the prior marriages, it’d have been a stretch to call the marriages null and void—the text of the amendment doesn’t on its face have retroactive effect. It doesn’t make their marriages void when created.
Also, you have to read the text carefully–it doesn’t say that same-sex couples cannot be married–it says that california will not recognize those marriages as valid. It’s a subtle, but important difference. (for one thing, it means that prop. 8. doesn’t require forcing same-sex couples to divorce).
I’m intrigued that california says it’ll recognize them (I haven’t read the opinion–that is based off of prior posters)—but the law is big on non-retroactivity.
The marriages are, in effect, grandfathered in–which is something we allow in a bunch of other contexts (the classic example of a city that won’t give any new liquor license permits on the boardwalk, but doesn’t revoke your existing permit.).
So I think it’s pretty reasonable (Especially when the law does still require equal benefits to all kinds of couples).
I am not sure if it should be called Garriage, a little too close to Garbage, but I think it’s safe to say that with this ruling both sides can cry that it’s been a Miscarriage of justice.
I’ve wondered that. Or if they never lived in CA but legally married in MA, IA, VT, CT, or ME during the time it was legal in CA and move to CA after today, is it legal?
I actually think the SCoCA decision to “We can’t make everyone happy with our decision, but we can do the next best thing and piss everybody off”.
And nice to see that Ken Starr is still out there doing good deeds to protect the public morality.
Would they want to simply “cancel” the marriages that had been legal when instituted? I don’t know how to argue this without rolling down th Slippery Slope, but I think it would be a bad precedent to set. Isn’t this the sort of situation that almost forces us to have “grandfather clauses” in laws?
Let’s say they got married in Vermont. Then they moved to California. They are still married according to Vermont. Their marriage does not have to be recognized in California, unless it does under comity/Full Faith and Credit, in which case the California statute is irrelevant to their status.
IF this is in fact true – and my reading of the relevant portion of the SCoCal opinion suggests it is – then we have a perfect instance of what Magellan01 has been touting as his panacea to the dispute. California would have to, by the previous marriage decisions, extend every single one of the rights and privileges due to married couples to same-sex unions; the only difference is that, under the new Article I Section 7.5, those unions cannot be termed ‘marriage’. It will now be interesting to see how his proposal works out in practice.
Between May and November 2008 (possibly later; I have no idea when Prop. 8’s effective date was), it was legal for a gay couple to contract marriage in California. Under FF&C, a Massachusetts same-sex married couple (Vermont’s marriage law was not yet in place) who moved to California would be legally married. (DOMA does not require but simply permits non-recognition; as between two states with same-sex marriage, FF&C would have to apply.) They would therefore be a legally married couple in California at the time of passage of Proposition 8 – and presumably grandfathered in along with the 18,000 same-sex marriages contracted during that period.
I’m prepared to see that analysis disagreed with – but work it on the basis of what the court decision said.
“I anal” just like almost everyone else here. But from my rather ignorant position it appears that California is recognizing “officially recognized family relationships between same sex couples”, not “marriages” which Proposition 8 clearly disallows. “Wink, wink.”
No. The decision says not that someone married elsewhere is grandfathered in, but rather that marriages that are licensed in California are grandfathered in. In all other cases, you are only married if you live in California because California gives FF&C to the marriage that was performed in the other jurisdiction (or does so out of comity if the marriage occurred in some other country).
For the non-Confucians in the audience, could California create two separate and not-to-be-confused family relationships, one, “marriage,” to be valid and recognized only between a man and a woman, and another, “gay marriage,” to be valid and recognized only between two persons of like gender? (The argument being that a sea lion is not a lion, a snack bar is not a bar, white chocolate is not chocolate, and gay marriage is not marriage but can be recognized separately.)
