Posted by Eugene Volokh:
What Will Happen to California Same-Sex Marriages?
http://volokh.com/archives/archive_2008_11_02-2008_11_08.shtml#1225907782
California voters seem to have enacted Prop. 8, a constitutional
amendment that states, "Only marriage between a man and a woman is
valid or recognized in California." What happens to all the same-sex
marriages that have already taken place? (Let's assume for now that
the amendment is upheld as constitutional, at least as to future
marriages -- something that I think is quite likely.) Here's an
updated version of my thinking on the subject from earlier this year.
(I should note that I voted against Prop. 8.)
1. One option is that they may remain valid, whether because the
initiative is construed as not applying to existing marriages, or
because the courts conclude such an interpretation is constitutionally
mandated by the Contracts Clause ("No state shall ... pass any ... Law
impairing the Obligation of Contracts ....").
I highly doubt that this will happen. According to the text of the
amendment, as soon as the amendment takes effect, only male-female
marriages are valid or recognized. (Nor is there any language in the
initiative summary, or the supporters' arguments, that purports to
interpret this text as not applying to existing marriages.) Future
marriages, preexisting marriages, in-state marriages, out-of-state
marriages -- all are valid and recognized only so long as they are
between a man and a woman. And the Contracts Clause likely won't
affect it, since it's been held not to apply to marriage contracts
(see Maynard v. Hill, 125 U.S. 190 (1888); Home Bldg. & Loan Ass'n v.
Blaisdell, 290 U.S. 398 (1934)), which is why statutes authorizing
divorces have been allowed even as to marriages that had been entered
into when divorces were not available.
Note that [1]this article reports that "[a]n attorney for advocates of
the ban essentially agreed" that "the proposed amendment, like most
laws, will be interpreted to prevent same-sex marriages in the future,
and not affect those that were legal when they took place." And some
court decisions have hinted that a court might also look to "various
pre-election materials (newspaper articles and editorials, committee
reports, interest-group articles, etc.)." AFL-CIO v. Deukmejian, 212
Cal. App. 3d 425, 436 n.4 (1989); see also Carlos v. Superior Court,
35 Cal. 3d 131, 144 n.12 (1983), overruled on other grounds by People
v. Anderson, 43 Cal. 3d 1104 (1987); Goodman v. County of Riverside,
140 Cal. App. 3d 900, 906 & nn.3-5. But it seems to m that these
sources can only be the most tenuous evidence of what the voters
actually understood the amendment as meaning, or intended it to do. As
People v. Castro, 38 Cal. 3d 301, 312 (1985), held, "opinions [which
were not] distributed to the electorate by way of the voter's
pamphlet" ought not be relied upon, because courts "can only speculate
[about] the extent to which the voters were cognizant of them." Accord
People ex rel. Lungren v. Superior Court, 48 Cal. App. 4th 1452, 1461
n.6 (1995), rev'd on other grounds, 14 Cal. 4th 294 (1996).
2. Another is that pre-initiative same-sex marriages will become
domestic partnerships, which under California statutes give most of
the rights of marriage. The proposed initiative doesn't purport to bar
such domestic partnerships, and it would make sense to treat such
invalidated marriages as domestic partnerships, since this is the
result that seems most likely to effectuate as much of the married
couples' intentions as possible. In a sense, this would be similar to
what courts do when they invalidate legislation on constitutional
grounds, including in the same-sex marriage case itself: Since the
legislation can't be literally applied, they tend to try to find the
solution that the legislature would likely have preferred had it
anticipated the court decision.
In the same-sex marriage case, for instance, the court had to
implement its equality decision by choosing between treating same-sex
marriages as "marriages," and concluding that under state law no
marriages could be labeled "marriages." (Recall that even the
right-to-marry part of the court's decision left open the possibility
that a legislature could simply not use the label "marriage" for any
relationship.) The court chose to treat same-sex marriages as
marriages, reasoning that "it is readily apparent that extending the
designation of marriage to same-sex couples clearly is more consistent
with the probable legislative intent than withholding that designation
from both opposite-sex couples and same-sex couples in favor of some
other, uniform designation." The actual legislative intent of the
legislators plus the voters couldn't be perfectly implemented because
of the court's constitutional ruling, but the court tried to implement
it as closely as possible. One could argue that courts should do the
same as to private same-sex marriage decisions invalidated by a state
constitutional amendment.
On the other hand, I suppose there might be some same-sex married
couples who might take a "marriage or nothing" view, so as to them
changing the marriage to a domestic partnership might not reach the
result they prefer; maybe there would even be so many that the
judgment about what is "more consistent with the probable [individual]
intent" becomes unclear. More importantly, there are specific
statutory provisions dictating what it takes to create a domestic
partnership. A court might well conclude that, unless these
formalities are complied with, the domestic partnership can't be said
to exist, even if a different set of formalities required for a
marriage -- a now-invalidated marriage -- have been complied with.
Given this, I'm not sure how likely a court would be to take this
approach; I'd love to hear those who know more about California
judicial practices in similar scenarios might be (though note that no
scenario has been quite like this one). Note also that the backers of
the initiative might well make statements in the ballot pamphlet
endorsing this solution -- since such statements might give the
initiative more support without deeply offending its advocates -- and
those statements might influence the judges deciding how to implement
the initiative once it's enacted.
3. A third option is that same-sex marriages will be eliminated
altogether, and that married couples will remain domestic partners
only if they had entered both into a marriage and into a domestic
partnership (on a belt-and-suspenders theory) -- though I've never
heard of that happening, and it's not clear to me whether existing
California marriage and domestic partnership law would allow this. My
sense is that it should be interpreted to allow this (since this is
hardly the same as marrying one person but then becoming domestic
partner with another, which is not allowed), but I'm not positive.
4. Finally, it's possible that the legislature will step in,
specifically providing that any invalidated same-sex marriage will
become a domestic partnership. I think that would be good, because it
would minimize disruption and best effectuate people's preferences,
and I see no reason why it would be unconstitutional. (Someone
suggested that it might violate the Ex Post Facto Clause, but that has
been interpreted as applying only to criminal laws.)
References
1. http://www.signonsandiego.com/news/state/20080517-9999-1n17samesex.html
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