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

[whorfin]

@TJVM

I see three basic options for existing same-sex marriages:

1. They’re retroactively invalidated, and the persons are treated as though they were never married. This is what I assume people mean by “annulled.”
2. They are not retroactively invalidated, but are deemed terminated when the amendment takes effect. Basically, all same-sex married couples receive an involuntary divorce.
3. They are allowed to continue, even though no new same-sex marriages can be formed.

or, 4) (As i’ve seen on some law prof blogs)

—The marriages aren’t invalidated, but they’re not recognized by California.
i) as noted, the CA constitution says a vested right can’t be removed without compensation.
ii) The decision giving marriages rested (in part) on the conclusion that there were some legal rights people get through marriage, but not through domestic partnership
iii) Hence, CA can’t take away the status of marriage-involuntary divorce is catastrophically intrusive (among other things-let’s say the couple has property together and kids-you’d effectively have to assign those to one/both–perhaps as complicated as a divorce property settlement), shifting to DP takes away rights.

iv) But Prop. 8 says no marriage other than between M and F will be recognized in CA.

Conclusion: The marriages will still exist, but CA won’t recognize them. States such as MA/CT (with gay marriage) or NY (where the GOV has (properly, IMHO) chosen to apply the ‘place of celebration’ rule-if a marriage was legal when created, it’s recognized in NY) would recognize the marriages.

that would be weird, but it’s perhaps less scary than involuntary divorce.

5. (comedy option, but I’d love to see it)–
   Cal. Supreme court’s ruling was that anti-discrimination required gay marriage if you give straight marriage

Prop. 8 doesn’t seem to attack the anti-discrimination provision, instead providing that CA cannot recognize or consider gay marriage to be valid.
A court could interpret this to leave anti-discrimination in the constitution as to marriages. I think that’s more or less reasonable from the text of the amendment doesn’t purport to remove it–just to ban CA from recognizing those marriages). I’m also wary of interpreting such an amendment anything but narrowly-to avoid taking away any right the amendment isn’t absolutely clear it takes away.

courts are frequently “constitutionally avoidant”-they read lawsuits/laws in ways that don’t bring up constitutional questions/risk unconstitutionality unless it’s clear that’s what the law is trying to do.

They could do this here:
1)Cal. constitution (anti-discrimination) says you can’t have straight marriage without allowing gay marriage.
2) Cal. Constitution (prop 8) says you can’t have gay marriage.

Can these things be inconsistent without overruling anti-discrimination? Sure.

Just hold that Ca can’t offer ANY marriage. It’s not a crazy interpretation, and I’d laugh for weeks if the prop 8. supporters discover that their actions, not gay marriage lead to the death of marriage in CA

–and yes, it’d never happen-but it’d never happen because a court would rule on it, then stay the ruling pending the next time the law can be changed-to allow gay marriage.

[whorfin]

@TJVM

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.

And this does happen in states with “defense of marriage acts”. the federal DOMA explicitly allows states to not recognize gay marriages if they don’t want to. But that does lead to the odd conclusion that people can be legally married when in CT, and treated as strangers in FL.

[Jodi]

@alphaboi867

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.

This may be a nitpick, but the very idea of “annulment” – a legal concept – is the precedent. I think what you’re saying is there isn’t precedent for mass anullments and that’s certainly true, but ISTM no great step to go from individual annulments (some historically granted involuntarily, over the objections of the parties, on grounds like incest or minority) to annulments of a class. It’s not like the entire concept of retroactively voiding a marriage – as if it never existed – is brand new. That’s exactly what an anullment is.

[whorfin]

@Jodi

This may be a nitpick, but the very idea of “annulment” – a legal concept – is the precedent. I think what you’re saying is there isn’t precedent for mass anullments and that’s certainly true, but ISTM no great step to go from individual annulments (some historically granted involuntarily, over the objections of the parties, on grounds like incest or minority) to annulments of a class. It’s not like the entire concept of retroactively voiding a marriage – as if it never existed – is brand new. That’s exactly what an anullment is.

Ah, but you forget that historically, you get an annullment because a marriage shouldn’t have been valid in the first place., (i.e. one party was drunk, or underage) or the legal procedure to get married wasn’t complied with (say, it didn’t happen before someone allowed to create legal marriages, or historically, (when consumation was a requirement-as it may still be somewhere), that didn’t happen.).

this is something different. These marriages were UNQUESTIONABLY valid when celebrated. CA state law allowed them, the parties both agreed, fulfilled all legal requirements for marriage, etc, etc.

Getting rid of them is not traditional annulment-there is no claim that they were invalid when celebrated.

A closer analogy (which I don’t know of any historical precedent for)is: say the age of marriage is 16. I marry a 16-year old. Next year, the legislature changes the legal age for marriage to 18. Nobody disputes my marriage was totally legal when created–but should it now go away totally?

[Jodi]

@whorfin

Ah, but you forget that historically, you get an annullment because a marriage shouldn’t have been valid in the first place., (i.e. one party was drunk, or underage) or the legal procedure to get married wasn’t complied with (say, it didn’t happen before someone allowed to create legal marriages, or historically, (when consumation was a requirement-as it may still be somewhere), that didn’t happen.).

this is something different. These marriages were UNQUESTIONABLY valid when celebrated. CA state law allowed them, the parties both agreed, fulfilled all legal requirements for marriage, etc, etc.

Well, no, they weren’t, at least not according to the constitutional amendment, which says all marriage, no matter where or when contracted, must be between a man or a woman. I realize there is an element of bending the space-time continuum here, but the they are in fact saying, today, that not only is your/my/their gay marriage not valid today; it never was.

It’s not just that an element has been changed (16 to 18), it’s that the definition of the essential term has been changed (clarified, I’m sure they would say). If we start defining the direction in which things travel when dropped, due through the attraction of gravity, as “up”, then nothing ever fell “down”, ever. It always fell up, because that’s what “up” means.

[whorfin]

@Jodi

Well, no, they weren’t, at least not according to the constitutional amendment, which says all marriage, no matter where or when contracted, must be between a man or a woman. I realize there is an element of bending the space-time continuum here, but the they are in fact saying, today, that not only is your/my/their gay marriage not valid today; it never was.

It’s not just that an element has been changed (16 to 18), it’s that the definition of the essential term has been changed (clarified, I’m sure they would say). If we start defining the direction in which things travel when dropped, due through the attraction of gravity, as “up”, then nothing ever fell “down”, ever. It always fell up, because that’s what “up” means.

This just isn’t true. Just because we redefine what is now a legal marriage, and apply it retroactively (as opposed to only applying it to new marriages), what we’ve done is said that a marriage that was once legal is now not legal. I don’t see how that could possibly mean that it was never legal. (apart from anything else, it’s simply not true)

On November 1, 2008, Adam and Steve were LEGALLY MARRIED IN CALIFORNIA. If Adam drops dead without a will, Steve is the heir. If Adam goes into a coma, Steve gets to make medical decisions. That just isn’t in question. There was no constitutional amendment on November 1.
I don’t think there’s a difference between redefining marriage between a man and woman, and between 18 year olds.

In each, we’re defining a category of “couples legally entitled to marry”. In each, couple X is in that category before the law change, and isn’t afterwards. In each, if we said “on november 1, this couple could marry”, that would be true. If we said “on november 1, this couple could not marry”, that would be false.

The fact that on november 5, neither couple can marry does not change the fact that on november 1, they could.

Under your theory, if I was the father of a gay man who died on Nov. 1 (with no other relatives), and his husband inherited his estate, I could sue, claiming that legally, that marriage never existed, and I would (under the law for unmarried individuals), have a right to his inheritance.

that doesn’t make sense.

If I was an employer, and gave benefits to a married couple, under your theory, if their marriage was no longer recognized, I should get back all the benefits I paid.

It just doesn’t work that way. Things that were legal on Nov 1 don’t stop being legal on Nov. 1 because of something we did on Nov. 5. They may not have legal effect on Nov. 5, (if the law applies retroactively)-but it doesn’t mean that the past never existed.

[Gfactor]

This is turning into a debate and it looks like all of the factual answers have been given. I’ll move it from General Questions to Great Debates.

Gfactor
General Questions Moderator

[Cliffy]

@Jodi

but the they are in fact saying, today, that not only is your/my/their gay marriage not valid today; it never was.

I don’t believe this is factually true. Moreover, it’s not within the power of the California Constitution, or any legal organ, to redefine as a matter of fact what the law was at some previous time. As such, I believe whorfin has the right of it, and the existence of marriages void ab initio in other contexts isn’t relevant here, as these marriages were legal when solemnized.

As to the larger question, it seems that the California Constitution’s requirement that a vested right cannot be removed without compensation seems to be decisive here. I don’t know California law, but assuming it construes its Constitution as does the federal government and other states, you would expect it would try to read the two provisions together. This can be done if you recognize Prop 8 as prospective, not retroactive. Moreover, to hold otherwise is to state that Prop 8 overruled the vested rights provision sub silentio, and courts never recognize sub silentio repeals if there is any conceivable way around it.

–Cliffy

[whorfin]

@Cliffy

I don’t believe this is factually true. Moreover, it’s not within the power of the California Constitution, or any legal organ, to redefine as a matter of fact what the law was at some previous time. As such, I believe whorfin has the right of it, and the existence of marriages void ab initio in other contexts isn’t relevant here, as these marriages were legal when solemnized.

As to the larger question, it seems that the California Constitution’s requirement that a vested right cannot be removed without compensation seems to be decisive here. I don’t know California law, but assuming it construes its Constitution as does the federal government and other states, you would expect it would try to read the two provisions together. This can be done if you recognize Prop 8 as prospective, not retroactive. Moreover, to hold otherwise is to state that Prop 8 overruled the vested rights provision sub silentio, and courts never recognize sub silentio repeals if there is any conceivable way around it.

–Cliffy

I agree. Though I note (As in my above post) that there’s another way to read Prop. 8 and the anti-discrimination provision together, and from the text of prop 8, it may have a valid claim to be the best reading of the two (which is of course a seperate question from whether I think a court would read it that way which I doubt)

[alphaboi867]

@Cliffy

…As to the larger question, it seems that the California Constitution’s requirement that a vested right cannot be removed without compensation seems to be decisive here. I don’t know California law, but assuming it construes its Constitution as does the federal government and other states, you would expect it would try to read the two provisions together. This can be done if you recognize Prop 8 as prospective, not retroactive. Moreover, to hold otherwise is to state that Prop 8 overruled the vested rights provision sub silentio, and courts never recognize sub silentio repeals if there is any conceivable way around it.

–Cliffy

Are you saying that existing marriages will remain recognized, that the state will need to compensate same-sex couples financially, or something else?

[Gfactor]

@Cliffy

As to the larger question, it seems that the California Constitution’s requirement that a vested right cannot be removed without compensation seems to be decisive here.

Nitpick: The only provision I can find that talks about that sort of thing is this one:

SEC. 19. (a) **Private property **may be taken or damaged for a public
use and only when just compensation, ascertained by a jury unless
waived, has first been paid to, or into court for, the owner. The
Legislature may provide for possession by the condemnor following
commencement of eminent domain proceedings upon deposit in court
and prompt release to the owner of money determined by the court
to be the probable amount of just compensation.

(Emphasis added.) WAIS Document Retrieval

The annotations list two cases that use the phrase “vested rights,” both of which deal with regulatory takings of real estate. I don’t think the case is that easy based solely on the takings clause. That said, I agree with the state attorney general and the legal scholars quoted in the article I linked to, and you, about the likely outcome.

[whorfin]

@alphaboi867

Are you saying that existing marriages will remain recognized, that the state will need to compensate same-sex couples financially, or something else?

Well, first of all, it’ll get litigated for years. So it’ll be a long time before we know what the legal status of existing same-sex marriages are in CA.

I see two real options:

1. as Cliffy notes, the law is interpreted to only apply to marriages after Nov. 5, 2008. Now existing same sex marriages will be marriages like any other in CA. This has the virtue of being supported by the CA att’y general, and of making the most sense for all those people who think they’re married. I more or less suspect this will be how the courts come out .

2. The marriages still exist, but CA doesn’t recognize them. This has the virtue of not requiring a very odd interpretation of Prop. 8’s language–as 1) requires the state “recognizing” already existing same-sex marriages, which goes against the proposition’s language.

I don’t think this will be involuntary divorce-I think it’ll be the same status as if you had a CT same-sex marriage, and moved to California.
–The state you’re in will think of the two of you as strangers, legally
–But states that recognize legal same-sex marriages will consider you to be married.
----it is just a weird twist that the state that’s now treating you as strangers is also the state you got married in.

I don’t see involuntary divorce (or conversion into domestic partnerships–happening, both because it’s such a dramatic change-and would tie up the courts for decades figuring out the legal rights between the formerly-married couples, and as Cliffy notes, doing that would require either holding that Prop. 8 overruled the constitutional requirement of compensation (as he says, not going to happen), or would allow 18,000 lawsuits for the constitutionally-required compensation, and figuring out how much the many rights associated with marriage are worth (a terrifying prospect for any state attorney general, treasurer, or governor).

Bottom line, if you want to be sure of a job for the next decade, become a CA domestic-relations lawyer. This is going to keep them busy for a while.

[alphaboi867]

@whorfin

…1) as Cliffy notes, the law is interpreted to only apply to marriages after Nov. 5, 2008. Now existing same sex marriages will be marriages like any other in CA. This has the virtue of being supported by the CA att’y general, and of making the most sense for all those people who think they’re married. I more or less suspect this will be how the courts come out…

Then what’s the cutoff date/time for marriages? The vote count hasn’t been certified by the Secretary of State yet, has it? What about couples who marry after the election, but before vote is certified?

[whorfin]

Forgot to add- most states treat marriages and domestic partnerships as completely different things-so if the marriages went away, I doubt there will be automatic conversion to partnerships.

This is especially true as if people in that situation wanted a domestic partnership, they could just go register. It’s no different than when SSM was legalized in CA-there were partnerships, then marriage, but people with domestic partnerships weren’t automatically married

[whorfin]

@alphaboi867

Then what’s the cutoff date/time for marriages? The vote count hasn’t been certified by the Secretary of State yet, has it? What about couples who marry after the election, but before vote is certified?

Well, LA has stopped issuing marriage licenses to same-sex couples now. So I’d guess the time of the election-but as you note, the other possibility is the time the vote is certified.

Many laws include a specific date they are to take effect (other than the time they are approved)-in many states, it’s Jan 1, but I can’t see any such provision in the text of Prop. 8.

[Oakminster]

@Bricker

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.

Could it not be argued that the bolded portion is intended to be a rule of evidence? Congress can require that public acts, records, and judicial proceding be proved by certified copies signed between 3:00-4:00 PM in blue ink before 10 witnesses and a video camera if they so chose, but anything so proved must be given full faith and credit? I don’t think the intent there is to say Congress has to allow full faith and credit, unless they really don’t wanna…

[astro]

From slate
Left at the Altar
What happens now to gay marriage, in California and elsewhere?