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.
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.
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.
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.
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.
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.
Let’s just hope we don’t get stuck in the eternal “civil union” beta.
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’.
Well, it’s either that or explore each protected class and come up with examples for all of them.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.