Family Law

California Voters Approve Proposition 8: Same-Sex Marriage Made Illegal

By Christopher Vaughn-Martel

Election Day, November 5, 2008: Proposition 8, which limits marriage in California to heterosexual couples, passed Tuesday with 52 per cent support, only 4 months after the California Supreme Court legalized same-sex marriage last earlier this year.

It is entirely unclear what legal effect the amendment will have for the more than 18,000 same-sex couples who have married in the state since June. Going forward, however, it is clear that same-sex couples will be unable to obtain a marriage license in the state of California.

As many commentators have suggested, the Amendment is singularly unique, as it is perhaps the first time that a minority group's fundamental rights have been stripped away by the vote of the majority.

Legal Challenge. Three lawsuits have already been filed in the state of California to challenge the constitutionality of stripping a minority of rights by popular vote. While these legal challenges are not likely to be successful in the California Supreme Court, which is bound to interpret the Constitution as written, one or all of these cases may end up before the United State Supreme Court.

Looking Forward. Should the United States Supreme Court grant review of one of these cases on appeal, one likely outcome is that the Court would refuse to recognize a constitutional right to marry a person of the same sex. This would allow all state definitions of marriage to stand as currently written. Another outcome, and certainly one favored by the plaintiff couples, is for the Court to recognize a constitutional right to choose one's marriage partner, irrespective of gender.

Any such case would draw upon the reasoning and precedent of decisions like Loving v. Virginia (US) and Lawrence v. Texas(US), as well as the persuasive sentiment expressed in Goodridge v. Dep't of Public Health (MA), Perez v. Sharp (CA) and the 2008 California marriage cases. Such a fundamental constitutional right to choose to marry a person regardless of their gender, once recognized, would have the effect of overturning the myriad state constitutional bans and amendments limiting marriage to opposite-sex couples. Such a decision would certainly render the Federal Defense of Marriage Act as unconstitutional.

Full post as published by Massachusetts Gay and Lesbian Legal Briefs on November 06, 2008 (boomark / email).