Yesterday the California Supreme Court issued its decision in the Prop 8 case. The Court ruled that Proposition 8 was a valid amendment to the California Constitution but that it did not apply retroactively, leaving intact the 18,000 same-sex marriages which had been entered into before Prop 8 was adopted. What follows is a brief summary of the decision.
On May 15, 2008 the California Supreme Court ruled that state laws that prohibited same sex marriage violated Article I, Section 7 of the California Constitution, and over the course of the next several months several thousand gay and lesbian couples in the State were married. On November 4, 2008, the people of the State of California voted in a referendum to adopt Proposition 8, which added the following provision to the State Constitution: "Only marriage between a man and a woman is valid or recognized in California."
Proposition 8 was challenged on two grounds: First, opponents of the measure contended that this was not an "amendment" to the California Constitution but rather a "revision" of the Constitution, and that therefore it could not be adopted by means of a simple ballot initiative but rather had to originate as a proposal from the State Legislature. Second, opponents of Prop 8 argued that the measure did not have retroactive effect and that the same-sex marriages that had been performed between May and November were still valid.
The California Supreme Court ruled yesterday that Prop 8 was in fact an amendment and not a revision of the state constitution and that the proper procedures were followed for its adoption pursuant to California law. Opponents of Prop 8 had argued that changes to fundamental rights constitute constitutional "revisions" but the state supreme court cited abundant historical authority from California and other states in support of the idea that the addition or subtraction of an individual right is not the type of wholesale revision of state government that requires action by the legislature.
The Court also ruled that Prop 8 operated prospectively only – that it did not have retroactive effect to invalidate the marriages that had already been performed. The Court based its ruling on this point upon a common rule of statutory construction: statutes and other measures are presumed to have only prospective effect unless the law expressly states that they are to operate retroactively. The Court explained that retroactive laws are disfavored because they may be unconstitutional - laws that take away vested rights can be challenged under the Due Process Clause for having deprived someone of life, liberty, or property without due process of law. For example, the legislature may not enact a criminal law and give it retroactive effect to make it a crime to have engaged in behavior which was lawful when it was performed. Similarly, it may be a violation of the Due Process Clause for a zoning commission to prohibit all preexisting uses of a person's property. Accordingly, to avoid constitutional difficulty the courts usually interpret a new law as changing people's rights going forward from the date of enactment unless the law specifically provides that it is to apply retroactively.
Of course, this was not the usual case. This was not a statute changing the criminal law or a zoning law. Prop 8 is, rather, an amendment to the State Constitution declaring what the fundamental law of the State is, and it could be argued that the people of the State of California have greater power than the California Supreme Court in declaring what the fundamental law of the State is and that they may therefore overrule and treat as a nullity the decision of the California Supreme Court recognizing the right to same-sex marriage. Furthermore, Prop 8 states in broad and absolute terms that same-sex marriages "are not valid or recognized" in the State of California; taken literally, these words connote that all existing same-sex marriages are no longer valid or recognized.
On the other hand, it would have been a grave invasion of personal right to invalidate thousands of marriages – certainly a constitutional invasion of greater magnitude than one that prohibited preexisting uses of property. Assume for a moment that in accordance with canon law the legislature had enacted a statute or the people had adopted an initiative declaring that marriages between persons who are related within the fourth degree of consanguinity (third cousins, for example) "are not valid or recognized" in the State. In the absence of any language stating that the law should or should not have retroactive effect would you interpret that law as retroactively invalidating thousands of marriage – some decades old – within the State? Despite the clarity of the language of Prop 8, the Court's decision not to apply that language retroactively in the absence of specific instructions from the people of the State of California was probably correct.
{ 9 comments… read them below or add one }
The court's decision was expected and legally correct. The California Supreme Court overstepped its bounds when it judicially created same-sex marriage. Proposition 8 merely reinstated the will of the people. Yesterday's decision represents the restoration of democracy in California.
Having decided that Proposition 8 only "amended" the state constitution, it necessarily followed that the law should be applied only prospectively. To apply Proposition 8 retroactively might suggest that it constituted a "revision" to the constitution.
The battle may not be over yet. Rumor has it that David Boies and Ted Olson (!!??) may challenge yesterdays decision in the federal courts.
Do we not run into some equal protection questions by leaving 18k same-sex marriages intact and then telling others they cannot marry? Obviously there will be more to come.
Does it make any sense to look at case law from polygamy cases for guidance?
My opinion is not legally based BUT same sex couples should have the same rights as everyone else – period. Let them be miserable like the rest of us married folk
It would be interesting to see if the drafters of Prop 8 intentionally left the 18,000 marriages untouched to preempt any 14th/5th Amendment Due Process challenges. It's hard to believe such a well-organized team would have simply forgotten about them.
I think it's going to be a few decades before we'll see this at the Supreme Court. They won't have the votes until the base of four conservative justices is broken apart. On that day, I hope the Court remembers that the Due Process clause must not be used to destroy federalism, but rather to reign in the absurd outliers (i.e. Griswold v. Connecticut, Lawrence v. Texas, and Loving v. Virginia).
Lawrence v. Texas was decided correctly. The government has no business in preventing consenting homosexuals from doing what they want. The main problem is taking these outlier cases and extending them. It's not far-fetched to imagine an argument for creating a fundamental right of prostitution … If people have the "right of privacy" to have sexual relations in their home, shouldn't consenting adults be permitted to make contracts for sex — assuming it is not done in public and no one is harmed? If the "fundamental right" is privacy in the bedroom, then the anti-prostitution laws are not narrowly tailored to defeat the evils of destroying marriages, spreading disease, etc. Certainly, you can craft a law that allows prostitution for unmarried individuals if proper STD testing is conducted.
Poof. There go the anti-prostitution laws in 40-some states. That is the danger in extending holdings from these outlier laws to mainstream laws. That's how Griswold v. Connecticut (overruling an no-contraceptive law) ended anti-abortion laws. Our parents tell us not to do something just because everyone else is doing it, but the widespread implementation of such a law is quite probative of whether we are dealing with a "fundamental right."
We need to separate what moral views we have from what we believe is the proper role of the judiciary in a democracy built on federalism.
Should civil rights really be up for a vote? What if someone challenged your right to marry the person of your choosing? Would you think that was right? There are approximately 1400 rights and privileges awarded by government to married persons. How is it not discrimination that some couples are not allowed to marry?
Rayy,
The right to marry has trsaditionally been accorded to individuals not couples. My daughter and I, as a couple, do not, nor should we, have the right to marry each other. But assuming that we meet certain minimum requirements (such as age, no existing marriage, etc) we are each free to marry another person of the opposite sex. Traditionally marriage has been between one man and one woman. Certainly the people should have the right to vote on whether that definitionshould be changed.
Quidpro,
I had not heard that Boies and Olson were thinking of challenging this decision in the federal courts. In any even I can't think of any federal grounds for appeal. This decision was wholly a matter of the interpretation of California law – whether Prop 8 was an "amendment" or a "revision" under the California Constitution and whether Prop 8 should be amended retroactively or only prospectively. There is no "federal question" for the federal courts to decide.
Dave,
I don't think that leaving the 18,000 marriages intact violates the rights of other gays and lesbians who wish to marry. You would have to argue that it violates the U.S. Constitution to amend a state constitution prospectively. If it were the reverse – if gay marriage were legal but a group of people were barred from this privilege – then there would be a significant problem under Equal Protection. But if gay marriage in itself is not a fundamental right I don't think that the Supreme Court would find the differential treatment introduced by Prop 8 to be "arbitrary and capricious."
Grk Goddess,
I agree completely. This is why I think that the arguments that if gay marriage is recognized people will marry to obtain health care or social security benefits is without merit. Heterosexual couples could do that now, but the legal implications of marriage are so farreaching – the sharing of property and sometimes rights to custody or visitation of children – that few people enter into such marriages of convenience. Divorce is hell.
Mrasor,
I agree with you as well. I think that the key portion of the ruling in Lawrence is that morality, in and of itself, is not sufficient to prevent people from entering into loving relationships. If the government wants to control sexuality it must do so for some reason other than religious doctrine or moral teaching. It must point to some concrete, distinct harm that results from the behavior. Most of us would agree that prostitution is unlawful not simply because we view it as wrong but because it causes harm. We ban prostitution to prevent the exploitation of girls and women and to limit the transmission of sexual diseases. If at some future date there emerges substantial credible social science evidence that prostitution is not harmful then under the reasoning of Lawrence the laws against prostitution could be declared unconstitutional, but in light of the pathetic state of most prostitutes I doubt that such evidence will be forthcoming.
Rayy,
In the normal case, you are right, civil rights should not be up for a vote. When the legislature enacts a statute or the people of a state adopt a statute by way of referendum these laws are subject to examination under both the state and federal constitution. But Prop 8 was not simply a statute, it was an amendment to the State Constitution itself. As such, it overrules any contrary interpretation of the State Constitution by the California Supreme Court. Prop 8 may be in violation of the federal constitution if we find that same-sex marriage is a fundamental right, but there is nothing unconstitutional about the people of a state amending their own constitution by a majority vote. It may not be wise to allow amendment of the state constitution by majority vote, but this procedure in and of itself does not interfere with any rights under the Due Process Clause, the First Amendment, or Equal Protection.
I was hoping that you would answer the polygamy case law question.
Some of the rulings were screwball, but I am not sure where else you could find similar case law.
Prof. Huhn,
Regarding prostitution, you are correct. The secondary effects are clearly enough to constitute a compelling cause for regulation. My point is, a fair argument can be made that an outright ban is not narrowly tailored — that SOME prostitution does not offend the state's interests. You can force prostitutes to take a class explaining how they are entering an exploitative industry. You can require STD testing. If a state bans prostitution outright, rather than applying a more complex plan of regulation, it is unnecessarily burdening the right to bedroom privacy created in Griswold and Lawrence.
Of course, I am making these arguments to show how slippery the slope might be. I don't actually want to see prostitution legalized.