I really doubt it. The whole point of an Amendment is that it changes the Constitution. It’s not reasonable to say that because the new Amendment conflicts with the old Constitution, it’s invalid. That’s why there was an Amendment in the first place: to overrule the old Constitution.
As far as I know, a more recent Amendment takes precedence over old wording in the case of any conflict.
I won’t say it’s impossible for the CA Supreme Court to do some kind of twisted reasoning to get there, but I really doubt they would.
As Bricker notes, there’s no winning federal argument against Prop 8 under current understanding of federal law. (Although unlike Bricker, I believe that the U.S. Constitution does contain a right for gay people to marry, at this point no federal court has so held, and it will be quite some time before one does.)
DOMA means that even those same-sex couples legally married in Massachusetts, Connecticut, California, and New York, are treated as unmarried in the eyes of federal law.
My understanding is that gay couples married under the laws as they existed will remain married. I’m not sure of a cite for this – it’s just what a pal of mine mentioned before he and his husband tied the knot last week. I’ll try to dig it up later.
Could an argument be made based upon the words “man” and “woman?”
Are their any legal definitions for those two words?
Will people be forced to prove that they are a man or a woman? Do they go by what’s on a birth certificate? Do they make blood tests mandatory for everyone? If they do blood tests, what happens when someone pops up as an XX male or XY female?
I’m sorry if this seems like a silly question, but I don’t know anything about how laws in respect to gender work and I really, really want to see this overturned. I’m seriously ashamed to be Californian today.
I think it is almost certain that marriages will be declared null and void. The law of California (much to my dismay I feel compelled to add) is now that marriage is defined as a relationship between a man and a woman. As to precedent, I would say the closest precedent is what happened after various states passed laws restricting the people of different races to marry. I don’t know for sure what happened after those laws passed, but strongly suspect that all marriages found in violation were annulled.
I don’t think these arguments are going to go anywhere. Besides, I can’t imagine that many same sex couples would get much satisfaction out of getting married by pretending to be of the opposite sex.
Politically I agree with you, but for what it’s worth, I don’t believe that there is any basis to challenge this in the court. As other posters have noted, there were challenges to Prop 187, but that was a clear (to me anyway) case of California law being preempted by settled federal law.
There is no settled federal law in favor of allowing same sex marriages.
If you want to see this overturned, then I say the best way to do so is through the political process. Let’s get it back on the ballot.
Sure, that’s how it is defined NOW, but that’s not how it was defined when these people got married. I don’t see a legal basis for refusing to honor legally-contracted marriages based on what amounts to a definitional change, be it found in the constitution or elsewhere.
My (gay, married) California attorney friend says “the AG says that the state will take the position that it does not apply to existing marriages but I am sure that there will be litigation for years to come. Since california passed domestic partnserhip legilsation it is not really of practical effect to us but its symbolic effect is pretty crushing.”
And I see no plausible federal Constitutional question that could possibly help. This is an amendment of a state constitution by a state populace, affecting rights and responsibilities within the state, and solely within the state. Equal protection and due process claims would presume the U.S. Supreme Court finding that (a) redefining (or more speicifically defining) “marriage” is tantamount to discrimination and (b) invidious sexual-orientation discrimination is insupportable, as they found invidious racial discrimination insupportable in Loving v. Virginia. So far the Court has not done so, or indeed done anything close to it.
A friend of a friend in California married her partner a few weeks ago. The FOAF is a domestic lawyer and even she doesn’t know exactly what will happened. Her guess is that the 18,000 or so same-sex marriages won’t be annulled, but obviously there will be no additional same-sex marriages. She admits that’s just a guess/hope.
That’s actually not something that ever occurred to me, but upon re-reading, I can see how it came off that way. I was thinking about a heterosexual couple where both partners are the same sex genetically, but not physically.
Say that a female has Androgen Insensitivity. She has XY chromosomes, just like her partner, but everything about her external physical appearance is female and she mentally believes that she’s female. Maybe add to that the fact that she wouldn’t be able to have children and there goes the whole breeding thing that this Prop’s backers were so adamant about protecting. Should she be allowed to marry her also XY partner?
I guess my basic questions are how does the state decide who is a “man” and who is a “woman” and how can this law be implemented without defining those terms?
I think I see this as more than an issue of just gay marriage. Also, I’m grasping at straws and looking anywhere for an argument to overturn it or offer the people who voted for it to vote for it to be repealed. I think that if it effects people other than those that it was meant to effect/punish, then people might start looking at it differently. Then again, anyone who voted for this would probably think someone with Androgen Insensitivity is a freak and doesn’t deserve equality either. /VENT
California has a law allowing transgendered people to legally change their sex after they’ve had sexual reasignment surgery, doesn’t it? Couldn’t the legislature in theory pass a law “simplifying” the legal process to the point where it consists of filling out a form at the DMV?
If California decides to maintain recognition of the already legally married same sex couples, but won’t allow the same for other same-sex couples from now on, couldn’t a legal argument be made based on that, somehow? Picking and choosing who gets a certain set of rights and who doesn’t seems… well, fucked up to me.
I am very disappointed in the three states that voted to ban same-sex marriage last night. Vote for a black president: one step forward. Ban gay marriage: one step back. Heck, maybe even two. Why does the US seem to be regressing?
Well, if you look at the big picture, it’s not regression. Remember, those gay couples who can’t get married today couldn’t even physically express their love for one another five years ago [in some states].
Would someone mind giving me the rationale for why a constitutional amendment requires a mere 50.1% majority? Why even bother with “normal” propositions, if the requirements are pretty much the same to change the actual state constitution?
I see three basic options for existing same-sex marriages:
They’re retroactively invalidated, and the persons are treated as though they were never married. This is what I assume people mean by “annulled.”
They are not retroactively invalidated, but are deemed terminated when the amendment takes effect. Basically, all same-sex married couples receive an involuntary divorce.
They are allowed to continue, even though no new same-sex marriages can be formed.
Personally, I think option 2 is the most logical. Retroactive invalidation doesn’t make sense to me, because there was nothing (legally) wrong with the marriages when they were formed, nor at any point up until the amendment becomes effective. Allowing existing same-sex marriages to remain in place would, I think, be a refusal to give full effect to the amendment – it doesn’t just say that same-sex persons can’t get married, it says that same-sex marriages are not “valid or recognized.”
I note that this approach may create some odd legal problems. Typically a marriage is ended through a divorce proceeding that divides up property rights, custody for children, and so forth. If people are deemed to be automatically “divorced” en masse, couples may find themselves in a position where it is unclear who owns the property that was formerly their community property. IMO, it would be wise for the California legislature, if possible, to quickly enact a law providing that marriages invalidated by Proposition 8 are immediately converted into domestic partnerships.
It looks like this challenge is based on the fact that the California constitution actually has two mechanisms for change. An initiative can be used for “amendments,” but fundamental changes to the constitution are considered “revisions” and have to be enacted differently (I think through some kind of constitutional convention). This blog post by UCLA law professor Eugene Volokh gives a good overview of the issue (and expresses the view that that such a challenge is unlikely to succeed).
There is no precedent in Anglo-American legal history for either 1 or 2. Nobody’s ever tried to dissolve existing marriages like that. Even the Nuremberg Laws allowed pre-existing Jewish/Ayran couples to remain married.
The Multnomah County, Oregon marriages were voided. However, the basis for this was the assertion that they were not legal because the procedure by which the determination was made to solemnize those marriages was not legally sound. When we later married in Massachusetts, we inquired about whether to list our Oregon marriage. We were directed not to because “if the court voided it, it never happened.”
I haven’t heard of that kind of dissolution, either, but I also haven’t heard of any prior situation like this – where a type of marriage becomes temporarily legal for a short period of time, and then becomes illegal again. A novel situation might lead to a novel legal decision.
Also, this type of involuntary dissolution might happen in another context. If a same-sex couple get married in a state that permits it, and then later move to a state that does not, they would (as far as I can tell) find themselves suddenly “unmarried” without any divorce proceeding. As with the “mass involuntary divorce” scenario I describe above, this might create some odd legal issues.
