The Fight for Same-Sex Marriage
By Gerri L. Elder
On Nov. 4, California voters were presented with Proposition 8 on their ballots and they voted to pass it. The measure banned gay marriage in the state and put thousands of same-sex marriages in jeopardy.
Earlier in the year, on May 15, the California Supreme Court overturned the ban on gay marriage, clearing the way for same-sex couples to marry and enjoy the same rights under state law as heterosexual married couples starting June 16. This landmark decision made California the second state to issue marriage licenses to same-sex couples.
Proposition 8, titled "Eliminates Right of Same-Sex Couples to Marry Act," is an amendment to the California Constitution that adds a provision which states: "only marriage between a man and a woman is valid or recognized in California."
Although 52 percent of voters voted "yes" on Proposition 8, a legal battle is still to come. The Los Angeles Times reported that opponents of Proposition 8 have filed a legal challenge, claiming that the measure should be invalidated because it was not enacted under the proper procedures for changing the state's constitution.
Under Article 18 of the California Constitution, the document can only be changed by amendment or by revision. A revision must first be passed by two-thirds of the legislature before appearing on a voter ballot, but an amendment may be enacted by initiative with a majority vote.
Twice in recent years, California lawmakers have voted to legalize same-sex marriage. Both times the governor has vetoed it.
Under case law, Proposition 8 qualifies as a revision if it "substantially alters the basic governmental framework set forth in our constitution." Opponents argue that it does precisely that, by denying a specific group of people a fundamental right and by limiting the courts' constitutional role in providing equal protection and privacy guarantees.
However, the opponents of Proposition 8 may have an uphill battle. The court has historically taken a narrow view of what types of measures qualify as revisions of the constitution.
On the other hand, when deciding minority rights, the constitutional tradition has always favored legislation rather than a simple majority vote.
This will be a hard fought battle on both sides and the outcome will likely have a large impact on American culture.
If Proposition 8 is upheld, many people have questions about whether the approximately 18,000 same-sex marriages that have already been legalized will remain valid. While these people wouldn't be forced to divorce, their marriage licenses could possibly be nullified.
No one is clear on what will happen to marriages of the same-sex couples who have wed in California; however, the new laws don't generally apply retroactivity. This means the law entitles people to live their lives in accordance with current laws, and not within laws that may take effect in the future.
In some cases, courts have applied laws retroactively if that retroactivity is clearly spelled out in the text of the law or the intention of the voters. Proposition 8 makes no mention of retroactivity, but the voter information guide contained a statement that Proposition 8 applies to marriages "regardless of when or where performed." Critics argue that this statement was buried so deep in the proponents' rebuttal to the opponents' argument that it could not possibly support a finding of retroactivity.
Ultimately the court will decide the future of same-sex marriage in California, along with the fate of those same-sex marriages that have already been performed in the state.
More Articles on Same-Sex Marriage
Gay Divorce? Fine by New York (September 29, 2008)
Decisions for Gay Marriage and Divorce (September 29, 2008)
Rhode Island Supreme Court will Hear Divorce Case of Gay Couple Married in Massachuetts (September 26, 2008)
