Apologies if this has been answered in one of the many threads but I couldn’t find it.
Scenario: Judge Walker struck down Prop 8. He did not put a stay on his ruling and either the 9th Circuit doesn’t impose one or there is a gap allowing at least some couples to marry.
Eventually the U.S. Supreme Court overrules Judge Walker and Prop 8 is again the law of the land. No more gay marriages.
Question: Legally is it pretty much an open-and-shut given that the interim marriages remain valid? Open and shut that they’re voided? Or completely an open issue.
Not looking for personal debate on how it should be or whether there are fringe clever legal maneuvers that might come into play. Just curious what the legal consensus would be, if there is one.
AFAIK, the Prop 8 supporters can’t touch the existing 18,000 “interim” marriages of 2008, of which, mine is one. Those licenses were issued during a time in which SSM was explicitly legal in California.
I believe that any “interim” marriages that might have happened later this week if the appellate court didn’t extend the stay would be in jeopardy if the appellate court rules that Prop 8 is valid. (Of course, it’s not looking too likely that the Prop 8 supporters will even be able to demonstrate that they have legal standing in the matter, much less be able to put forth a viable challenge to Judge Walker’s ruling.) The basis for this would be much the same as how the marriages that were done in 2004 or so were voided - at that time, and now, the city of San Francisco does not have the legal right or ability to issue any kind of marriage licenses.
If Prop 8 were to be upheld, it would then be ruled that the state had no legal right or ability to issue same-sex marriage licenses during the time after Prop 8 was voted in by the public, and that all SSM licenses issued after Prop 8 was passed would be nullified.
Yes, it is currently moot. It is a hypothetical question. If there hadn’t been a stay, and if marriages had been allowed during appeal and if the recent Prop 8 ruling were overturned is there a general legal consensus on what would happen to those marriages?
I disagree with gotpasswords – I think marriages legally made under a later-overturned legal regime would stay legal. But I can’t say I’m 100% on that. I don’t see the marriages performed before the California Supreme Court’s original ruling as analagous, but I have to admit that’s more a gut idea than the product of analysis.
I agree, both as to the likely result and the uncertainty.
It seems to me that if you get a marriage license from an entity that is validly issuing them, you have a liberty and/or property interest in your marriage. (That interest doesn’t vest if you get a sham Newsome-style license where the authority of the issuer is doubtful or clearly not present.)
So to divest you of that interest it would seem the state would have to make a more compelling case than has yet been articulated against same-sex marriage.
I’m certainly willing to be educated on the issue.
IIRC, there were in fact two same-sex marriages in Illinois at a very early date – 1890s? 1920s? 1960s? They were in fact voided by the legislature in the course of making any subsequent same-sex marriages illegal. I’m doing this from very hazy memory, and could be wrong – does anyone have any further information on this alleged fact?
Voiding a previously-legal marriage is a much bigger deal than just saying “the law under which you got married was enver legal”.
By proposing a law or amendment that prohibits a marriage in the future, there’s the implicit message that anything in the past that was allowed was in fact valid (else why need a new law to stop any further such marriages?).
Retroactively voiding legal marriages would open a whole can of worms - certainly someone would suffer financial loss - what’s the currrent value of a lifetime of spousal medical benefits, for example? A law that retroactively deprives someone of what they were entitled to opens some serious cans of worms in the recompensation department, even if it is legal. California is broke enough already.
Because the current Prop8 is under dispute in the courts, any marriages that might have been made under it would have no claim - the marrying couple would know there was a risk of the right to marry disappearing, and hence the right would have never existed. This is why in such cases where the decision has significant results, the judge will suspend the ruling if necessary to give the appeal court time to issue its own stay until it hears the course.