UC Davis' Vikram Amar analyzes the arguments for and against Prop 8
By VIKRAM DAVID AMAR
Friday, Nov. 21, 2008
- This week, the California Supreme Court decided to hear a case posing two important questions. The first is whether the voter-adopted state constitutional ban on gay marriage passed in the November election, Proposition 8, was validly enacted. The second is - assuming Proposition 8 was indeed validly enacted -- what is the status of the same-sex marriages that were entered into between the California Supreme Court same-sex marriage ruling last spring and the enactment of Prop. 8? (As readers will recall, the court had previously ruled in May 2008 that the then-existing statutory ban on same-sex marriage violated the state constitution.)
In a series of columns beginning with this one, I will take up these complex questions in detail.
A Brief Recap of Key Events
In its May ruling, the California Supreme Court by a 4-3 vote held under the state's constitution -- in particular, its equal protection clause -- that the right to marriage must be extended to gay and straight couples alike. (The California court's ruling was based on the state constitution only; no claim under, or question involving, the federal Constitution was raised or resolved.)
After the California Justices' May decision, opponents of gay marriage promptly gathered and submitted signatures to qualify an initiative measure (known today as Prop. 8) for the State ballot this fall. The initiative sought to alter the California constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized" in the State.
On November 4, 2008, a slim majority of California voters (about 52%) voted to adopt this change to the state constitution. Soon after the election, various proponents of same-sex marriage rights asked the California Supreme Court to stay (i.e., temporarily stop) the implementation of Prop. 8 (which would leave same-sex couples free to marry for the moment), and to grant review of a petition seeking to declare Prop. 8 null and void.
On Wednesday, November 19, the court voted by a 6-1 majority not to grant the stay -- which means that Prop. 8 does take effect for now. However, it also voted by a (different) 6-1 majority to grant review to hear on the merits the claims that Prop. 8 was not properly enacted and thus should not be recognized as legally valid. In addition, the Justices asked the parties to address the question of how same-sex marriages entered into before Prop. 8 was passed should be treated in the event Prop. 8 is upheld as valid.
Among the parties to these cases are opponents of Prop. 8, who argue both that the measure is invalid and that even if it is valid, it has no effect on existing marriages. Also included as litigants are proponents of Prop. 8, who argue that the initiative measure is valid. Moreover, at least some of the Prop. 8 proponents argue that the existing same-sex marriages are rescinded by the initiative's enactment.
In addition, the California Attorney General is in the litigation; he has signaled he will likely defend the validity of Prop. 8 but at the same time will argue that it should not be read to apply to any existing marriages in any way.
All parties are to file briefs in December 2008 and January 2009, so that the court can hear and decide the matter in the first half of next year.
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