Congratulations on Your Marriage… Being Overturned?

In May, 2008, the California Supreme Court held that same-sex couples have a right to marry in California.  Since that time, thousands of same-sex couples have married in the state.  Yet, now that Proposition 8 — which eliminates the right of same-sex couples to marry in California — passed in early November, what happens to those same-sex couples who have married since May, 2008? 

So far, the Court has declined to comment on whether Prop 8 would be retroactive, stating that “pre-election construction by courts in disfavored and there is enough uncertainty about the measure’s meaning that proponents and opponents are free to argue what they think it will mean.” 

Others are more outspoken.  According to Joan Hollinger, a professor at U.C. Berkeley’s Boalt Hall School of Law, “The amendment cannot be effective retroactively, so anyone married before November would be protected.”  California Attorney General Jerry Brown echoes this sentiment, declaring:  “I would think the court, in looking at the underlying equities, would most probably conclude that upholding the marriages performed in that interval (before the election) would be a just result.” 

However, not everyone agrees on the issue of retroactivity.  Brad Dacus of the Pacific Justice Institute, for one, asserts “It is clearly far too early . . . for the attorney general or for anyone to be pronouncing how the courts will be interpreting the amendment.” 

I agree with those who think that Prop 8 would not be retroactively applied.  First, most legislation is effective from the date of passage.  Second, the U.S. Constitution’s ex-post facto laws and protections against government interference with private contract pose obstacles. 

However, not applying Prop 8 retroactively would cause new problems too.  For instance, how would the law accommodate the small class of same-sex couples who have married between May and November?  It seems unlikely that those couples would be afforded exactly the same rights as married opposite-sex couples if the California Constitution explicitly forbids same-sex marriage; yet, domestic partnership law would not be adequate.