On the Prop 8 decision

The court upheld the ban, as they should have. They didn’t invalidate the marriages  made before Prop 8 went into effect, which is an interesting position to take, but not unexpected. The biggest issue I see here is that now they have two separate “classes” of homosexual people in California – those who got married, and those who cannot – which will inevitably cause legal battles down the road.

The text of Prop 8 is as follows:

This initiative measure is submitted to the people in accordance with the provisions of Article II, Section 8, of the California Constitution.

This initiative measure expressly amends the California Constitution by adding a section thereto; therefore, new provisions proposed to be added are printed in italic type to indicate that they are new.

SECTION 1. Title This measure shall be known and may be cited as the “California Marriage Protection Act.”

SECTION 2. Section 7.5 is added to Article I of the California Constitution, to read:

SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.

The phrasing of this seems to invalidate the marriages made during that interim, and that to uphold the proposition they would have to cease to recognize the marriages made even before Prop 8 was passed. This, at least in my eyes, would be the correct and consistent legal interpretation. As it is, by upholding the propositon going forward but saying they will recognize the marriages already on the books, the California Supremes have set themselves up for a steady stream of litigation from both sides seeking to push the decision off the fence.

Edit: Here’s the full decision, PDF warning. I haven’t read the whole thing yet as it’s 185 (!) pages, but the gist of why they chose to go this route seems to be that since it did not explicitly apply retroactively, then they will not invalidate those made before the prop went into effect. Seems a rather weasely way to get past the issue, but, there you go.

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