The following quote appears in this article today on cnn.com:
What will happen to the marital status of married gay couples in California if this measure is passed? Are their marriages dissolved, or will it only apply after it becomes law? What will happen if a similar amendment is appended to the U.S. Constitution?
I heard this happened previously in California (2005 maybe?) and once the voters overturned it, all of the previous marriages were negated. So I don’t think getting married will help if the voters decide against it in November, as I believe they will be voting again.
The signatures have already been certified and the amendment will be voted on in november. Likely the licenses would be invalidated if it passed. Ditto if the US constitution were to be amended.
On the plus side, the most recent poll shows the amendment failing with 51% opposed and 42% for. This is the first statewide poll to support same sex marriage and is an encouraging sign.
What happened here in CA is that prop 22 was passed in 2000, It amended the marriage code to state that only opposite sex marriages were valid. In 2004, San Francisco mayor Gavin Newsom ordered the city clerks to provide marriage licenses to same sex couples. A court battle went to the supreme court where they ruled that the mayor had overstepped his authority and the licenses were invalidated.
The recent supreme court decision has decided that prop 22 violates the CA state constitution and struck it down. To boil down the 178ish page decision, they ruled that sexual orientation was a suspect class that was entitled to equality under state law. The push for an amendment is intended to attempt to overrule the court and write the discriminatory language of prop 22 into the constitution.
To answer the question, what will happen to marriages between today and Nov 5th (which is when the referendum will go into effect if it wins) is …nothing.
It’s a general principle that marriage contracts entered into validly under existing laws remain legal contracts, even if the laws are later changed. For example, many states used to have ‘common-law’ marriages, where couples who lived together like married couples for x number of years were considered to be legally married. Nearly all states have now repealed those laws, but this has had no effect on people who had previously becom 'common-law
married – they were still married. Just new ‘common-law’ marriages were no longer recognized in the state.
A general legal principle is that new laws can’t retroactively change things that were legal at the time they were done.
(The previous same-sex marriages in California were invalidated because they were not validly and legally done under the laws in force at that time.)
Adding to what t-bonham said, there are serious questions that have been raised as to whether the current attempt to amend the CA constitution can have any legal force whatsoever. The CA supreme court found that the right of same-sex couples to marry is grounded in several fundamental constitutional rights. There is a strong case to be made that fundamental rights may not be stripped away via voter referendum. Should the amendment pass, there will be immediate (as in, most likely Wednesday) challenges to it which will drag through the courts for a year or more.
How can a constitution be impervious to amendment? Is their some other method of amendment, besides referendum, that would have to be followed?
I don’t claim to understand all of the legalese, but the argument seems to hinge on whether the proposed “Limit on Marriage Amendment” constitutes an “amendment” to the California constitution or a “revision” of it. Amendment is permissible via initiative but “revision” is not.
Ex post facto applies to criminal law. These couples can’t be charged with a crime (if said bill/amendment passes) but the marriages can be invalidated.
I don’t think California could amend its constitution to allow slavery (for example). IANAL, but at some point the SCOTUS would probably step in (after litigation wound its way through the courts) to rule that the US Constitution trumps the state constitution.
Well, that would be arguable in court, since they were legal when contracted.
But the amendment would have to specifically state that such previous marriages are hereby declared null and void, and there is no such language included.
To clarify: I draw no conclusions about whether or not the marriages would remain valid. I just wanted to point out that ex post facto doesn’t apply here.
But there is no support in the US Constitution for same-sex marriage – so in what area would the “trumping” occur?
I dunno…14th Amendment? The SCOTUS could conceivably decide that gays should have access to the same rights & privileges as straights, including marriage, and that a state cannot abridge those rights. Like I said, IANAL.
The California marriage cases raised no federal questions, so should the amendment pass, and should it be determined to be an “amendment” and not a “revision” of the California constitution, none of the preceding legal action would remain relevant. An entirely new round of legal action, seeking to establish SSM as a federal constitutional right, would be needed. SCOTUS has said, in Baker v. Nelson, that there is no federal constitutional right to SSM but that was for all intents and purposes a one-line opinion which didn’t actually examine the issue. Presumably should a new federal case be initiated and should SCOTUS take it up, it will not be so dismissive again and will actually examine the issue.
Sure, if you had said “could conceivably decide” I’d have had no beef. They could conceivably decide that, yes. But it’s not particularly likely. And you said:
Where do you get the “probably?”
Holy crap, Bricker, there’s no need to parse my wording so finely. I’m pulling this out of my ass. Jeez, lighten up.
There’s a forum for pulling stuff out of your ass.
A couple, actually.
GQ ain’t it.
If it was possible for there to be a factual answer to the question “what will happen if…”, I’d like to hear it. So everything in this thread has been speculation.
But let me rephrase my response more precisely: if the constitution is amended to ban gay marriages, I believe it unlikely that that will be the end of it. Will the new amendment be challenged? Quite likely. Would that challenge wind up in the Supreme Court? Seems reasonable. How will the court rule? Who knows.
It would certainly be helpful if the amendment addressed the issue of existing same-sex marriages, but it doesn’t, so the court will have to make the most logical application of the existing amendment. Personally, I think the best interpretation would be that existing same-sex marriages terminate when the amendment becomes effective – they’re not retroactively invalidated, they’re just over.
This approach may create some practical problems for the couples affected. When a marriage ends, the marital property needs to be divided up. Normally this would happen in the divorce proceeding, but in this case there wouldn’t be one, so some uncertainty might arise over property rights. The same might be true of custody arrangements for children, something else that’s normally established in the divorce proceeding.
Another wrinkle is the existence of domestic partnerships, which, as I understand it, are the legal equivalment of marriage without the name. One solution might be to convert all existing same-sex marriages to domestic partnerships, but I don’t know if there’s any procedural mechanism to do that. If I were a gay-marriage proponent in the state legislature, I might try to push through a law that says that any same-sex marriages invalidated by the constitutional amendment will be deemed immediately converted to domestic partnerships.