Legal News

?Please Don?t Divorce Us?: The Other Proposition 8 Debate

By Ashby Jones

In the big Proposition 8 debate that’s roiled California in the past year, one issue has been largely swept to the side: what becomes of those gay couples in California who married last year, when same-sex marriage was briefly legal?

Geoffrey Fowler takes a close look at the issue in an article in Thursday’s WSJ.

The backdrop: Within several weeks, the California Supreme Court is expected to rule on a petition to overturn Prop 8, the state’s voter-mandated gay marriage ban. Legal scholars and even many gay-marriage advocates predict the court will allow the ban to stay, partly out of respect for California’s voter initiative process. (Click here for an LB post on the March 5 oral arguments.)

But the court will also decide whether 18,000 same-sex couples who tied the knot last year can stay married. The issue is partly of the court’s own making. It ruled last May that gay marriage was legal — before Proposition 8 made it illegal in November. During that six-month window, a flood of same-sex couples tied the knot — legally.

Advocates who favor allowing the gay marriages to stand point to a California legal tradition of protecting what are called “vested rights.” The idea is that if somebody obeyed the law in exercising a right, any new law must be extremely clear in its intent to take away that right.

“When you want a law to apply retroactively, usually you have to be explicit about it,” says Vikram Amar, a professor at the University of California, Davis, School of Law.

The wording of Proposition 8 is concise: “Only marriage between a man and a woman is valid or recognized in California.” So interpreting the intent of that law depends, as Justice Carlos Moreno noted in court earlier this month, on “what ‘is’ means.”

During the March 5 hearing, Kenneth Starr argued during the hearing that the phrase “is recognized” in the present tense would extend the prohibition to existing marriages. Yet during the March 5 hearing, six of the seven justices asked questions of lawyers that seemed to challenge Starr’s logic.

The court could uphold the marriages on the grounds that they want to protect the institutional integrity of the court. “The people who got married relied in good faith on the court’s decision,” says David Masci, a fellow at the nonpartisan Pew Research Center’s Forum on Religion and Public Life.

Photo: AP

Full post as published by Law Blog - WSJ.com on March 19, 2009 (boomark / email).