Revoking same sex marriages in Cali: How will this be implemented?

As I type this California’s Prop 8 is not yet officially decided, but it is becoming more clear that this thing will actually pass.

My question is how exactly this will work. Is there an american precedent for the removal of previously held rights from people? Will current same sex couples in Cali have their marriage status revoked or is there some sort of grandfather clause?

I reckon they will all be annulled.

This is a good question. Under the CA constitution, a vested property right cannot be revoked, absent government compensation. My guess is that the marriages which have been recognized heretofore will continue to be recognized, but we’ll have to see how the court rules.

The legal eagles on Fox are saying that if they annulled the existing relationships, then it would be an ex post facto law. That doesn’t seem right. IANAL, but I did sleep at a Holiday Inn Express.

An ex post facto law would be if Prop 8 punished gay marriage by a $500 fine, and then promptly fined all of the gay couples who married.

I can’t understand how the marriages wouldn’t be annulled. It will now say right there in the Cali constitution that marriage is only an institution between a man and a woman. There was no grandfather clause included.

I predict many lawsuits will be filed tomorrow to prevent Prop 8 from actually going into effect right away. This prop was totally funded by out-of-state interests, there must me some kind of law against that.

Prop 187 (anti-immigration) also passed & was ruled unconstitutional; California’s history is littered with these types of initiatives.

Yay, CA. :rolleyes:

I can’t see the federal issue involved for a lawsuit…

Prop. 187 wasn’t, as far as I can tell, a constitutional amendment. The whole point of making Prop. 8 a measure to amend the state constitution was precisely so that it couldn’t be declared unconsitutional (at least under the CA constitution, at least.)

I suppose it’s possible that someone could launch a challenge to the amendment under the Equal Protection Clause of the Fourteenth Amendment of the federal Constitution. However, it’d be a long shot, and likely to be as contentious (and legally suspect) as Roe v. Wade.

Well there is the “full faith and credit clause in the constitution” that would apply to gay marriages from MA, NY, and CT. This would apply to all states of course, not just CA. More speculatively, the equal protection clause could be considered to legalize gay marriage all over the US. This was precisely the reasoning used in outlawing anti-miscegenation laws. It was also the reason Nevada divorces had to be recognized everywhere. Even when NY state, say, recognized adultery as the only grounds for divorce, you could just go to Reno, spend six weeks in a cheap rooming house, get divorced the next day and hightail back to NY, divorce in hand.

Here is another federal issue. Presumably gay marrieds from MA, NY, and CT will be able to file joint tax returns. It goes back quite a way, but once upon a time income splitting was available only to marrieds in community property states (CA and a few others in the southwest whose law was based on Spanish law). This gave them a significant financial advantage (few wives worked after all). This inequity was cured by extending income-splitting to all marrieds (and then to heads of households). So Americans could end up having to recognize gay couples in civil unions for taxation purposes independent of state laws. Alternatively, they could pass a constitutional amendments banning it everywhere. Then twenty years later they would have to pass a repeal amendment.

I don’t think they can do that. I believe (guess) that those lawfully married will remain lawfully married. I’m expecting another court battle.

Equal Protection Clause, Full Faith & Credit Clause, 9th Amendment, 19th Amendment… the list of plausible Federal questions is endless.

Defense of Marriage Act, which says

  1. States don’t have to give full faith and credit to gay marriages


  1. Marriage is defined federally as between a man and a woman, so even a gay couple married in CA can’t file as married on their federal taxes.

DOMA is irrelevant in Constitutional terms, as it’s not a constitutional amendment.

Well, the use of the federal EP clause in this area would be making new law, as well as overturning Baker v. Nelson.

The Full Faith & Credit clause argument runs into problems with DOMA, because DOMA was enacted pursuant to Congress’ authority under the Full Faith and Credit Clause. (" Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.") In other words, the Constitution explicitly gives Congress the authority to regulate how the FF&C clause is applied, and Congress did so.

I’m not really aware of any Ninth or Tenth Amendment law that might apply here, so again, a court reviewing on these grounds would be making new law.

No – as I said above, while DOMA is itself only federal law and not CVonstitutional text, it was enacted pursuant to Congress’ authority under Art. IV, Sec 1. So it’s not really irrelevant, since the clause itself gives Congress the explicit power to do what it did with DOMA.

Sure, but jtgain just asked if there was a federal question. I’m not suggesting that any of those are likely to be winning strategies, and three out of four would require an entirely new application, but they are plausible.

Congress is empowered to govern how the acts of states are documented, not what they shall be. I won’t take this any further here or we’ll be straying into GD territory.

What about this court challenge, Bricker?

Could the Cali Supreme Court rule that the amendment process is unconstitutional? I know it is written in the constitution, but couldn’t they rule that it conflicts with (insert other portion where it talks about fundamental rights) and conclude that since the amendment process conflicts with the more basic fundamental right to (whatever) then the amendment process is null and void, along with Prop 8…

In general terms, under [federal] constitutional law, if an amendment conflicts with existing language, the amendment prevails. If the amendment conflicts with something that it clearly wasn’t meant to, courts have the option to interpret it narrowly - ie., based on original intent - but they don’t have to. I’m pretty sure the body of CA constitutional law includes the same general principle, although CA judges have been much more willing to interpret constitutional provisions liberally recently than most judges do.

That’s how we got constitutional protection for abortion- the Fourth Amendment was interpreted (rightly or wrongly) to cover something entirely outside its original scope.

Full faith in credit does not apply to marriage, it never did. Marriage is a licensed ceremony. States don’t have to recognize each others licenses. For example a driver’s license is sometimes accepted in another state, but in some states you have to take all the tests again.

Nurses and doctors are licensed to practice in a state, and unless that state has a receprical agreement, they have to be relicensed. Same for lawyer etc etc

Divorces also aren’t always recognized in every state. Nevada divorces used to be notorious for not be recognized in other states.

So full faith and credit does not apply to marriage, never did.

Er… cite?

In my view, no… and I don’t think you’ll find any serious legal scholars who say differently.