California Family Law Attorney Issues Statement as Proposition 8 Passes in the State

Los Angeles (PRWEB) November 5, 2008

As reported today by the Wall Street Journal California voters passed Proposition 8. According to California Family Law Attorney Veronika Melamed of the law offices of Feinberg & Waller, A.P.C., the measure amends the California Constitution to specify that only marriage between a man and a woman is valid and recognized in California. Now that the voters of California have passed Proposition 8, and amended the State’s Constitution, what does this mean for the state and for the approximately 18,000 same-sex marriages that have been solemnized since June 17, 2008? And, what can proponents of same-sex marriage do now?

The voters of California have chosen to amend the state’s Constitution to explicitly provide that, “Only marriage between a man and a woman is valid or recognized in California.” Coming in reaction to the state’s Supreme Court ruling allowing same-sex marriage in California, opponents of same-sex marriage sought assurance that no future court decisions would again grant same-sex marriage rights in California.

The California Supreme Court is delegated with the task of upholding the state’s Constitution and assessing whether the laws enacted by the Legislature and the voters comply with the Constitution. In carrying out this task, the Supreme Court’s decision in May 2008, granting same-sex couples the right to marry, was based on its interpretation of the California Constitution and whether Family Code Sections 300 and 308.5, defining marriage as, “between a man and a woman” comported with the Equal Protection Clause of the state’s Constitution.

In the course of its analysis, the California Supreme Court ruled that Family Code Sections 300 and 308.5 were in violation of the Equal Protection Clause of the Constitution, and that same-sex couples could marry in California. The Supreme Court’s decision was based solely on constitutional analysis, and centered on the fact that the prohibition against same-sex marriage was a law, and that it violated the Constitution. This, then, became the foundation for Proposition 8: unlike the state’s previous attempts to define marriage as being only between a man and a woman through the enactment of legislative provisions, such as with 2000’s Proposition 22 which added Family Code Section 308.5, this year opponents of same-sex marriage placed an initiative on the ballot to actually amend the California Constitution.

The difference is significant: while the Supreme Court may strike down laws for being in violation of the State’s Constitution in performing its job of enforcing the Constitution, the Supreme Court lacks the power to overrule a constitutional provision. By making Proposition 8 an amendment to the Constitution, the law ensures that the Supreme Court must enforce the provision, and must now ensure that other laws comply with this Constitutional provision.

And now the questions begin: with a Constitution that may now prohibit marriage between same-sex couples, through its definition of marriage as only between a man and a woman, what will happen to those same-sex marriages that were solemnized when marriage between same-sex couples was “legal?” And, if the public wants another change, what can be done to “undo” Proposition 8? The question of what happens to current same-sex marriages has no easy answer, nor is the passage of Proposition 8 the last California may hear on the topic of same-sex marriage.

One of the main issues that must be resolved in answering the question of what will happen to current same-sex marriages is whether the new constitutional amendment is retroactive in its application; that is, does it now invalidate the same-sex marriages that occurred following the Supreme Court’s ruling in May 2008? As reported in the Los Angeles Times, some constitutional scholars believe that the new amendment will only affect prospective same-sex marriage, leaving intact those same-sex couples that married before Proposition 8 passed. The experts base their opinions on judicial history where courts have traditionally made constitutional amendments retroactive only if they were explicitly written that way, resisting an abrogation of people’s rights and freedoms unless directly mandated to do so. In support of the argument that Proposition 8 is not intended to apply retroactively, scholars point out to the Los angeles times that nothing in the proposed language states that the constitutional amendment will be retroactive in its application. Furthering the argument against retroactive application is California Attorney General Jerry Brown’s statement issued through his office on August 4, 2008, that Proposition 8 will be prospective in its application, leaving intact the same-sex marriages entered into prior to its passage.

Others say that the retroactive application of Proposition 8 will depend on whether the Proposition was intended by the voters to be retroactive, and point to the language contained in the California Voter Guide which states that, “A ‘YES’ vote on this measure means: The California Constitution will specify that only marriage between a man and a woman is valid or recognized in California.” Those who believe that Proposition 8 will be retroactive in nature argue that the language in the California Voter Guide expressly states, and informs the voting public, that passage of the proposed amendment will affect the validity and recognition of same-sex marriage, and will apply regardless of when or where the marriages were performed. The implication in this interpretation of the Proposition goes beyond California’s borders: in addition to invalidating same-sex marriages performed in California, the State and its agencies and offices will be prohibited from recognizing or validating same-sex marriages performed in any other state or country, even if legal and recognized where performed.

Ironically, as both positions have legal validity, it will be up to the California Supreme Court – the same court whose ruling allowed same-sex marriage – to interpret whether Proposition 8 was intended to be retroactive or prospective. And until such time as this question is decided, same-sex married couples will be in a “legal limbo” waiting for third parties to determine their fate. If it is eventually determined that Proposition 8 was, in fact, retroactive, then same-sex couples will find their marriages to be of no legal effect in California, and they will be denied the rights and expectations they had enjoyed until Proposition 8 was passed. If, however, Proposition 8 is found to be prospective in its application, then there will be a group of same-sex couples who will continue to be married, most likely forfeiting that appellation only in the event that they should ever divorce.

What options are available to those who still oppose Proposition 8 , and what can be done about the constitutional language in the future? If the language proposed by Proposition 8 is part of the California Constitution, one of the alternatives for proponents of same-sex marriage is to change the Constitution. Proponents will need to draft language proposing a repeal of any newly-enacted amendment or an altogether new amendment to be included in the Constitution. They will then need to raise the requisite 694,354 signatures to have the amendment certified for the next electoral ballot. California will then go through the same battles and arguments as it did during this election, with the voters again determining whether the Constitution will be amended on the issue of same-sex marriage.

The other alternative is further legal battles. Opponents of Proposition 8 may argue to the courts that passage of the amendment is violative of the Equal Protection Clause of the U.S. Constitution, which prohibits any group from being treated differently than any other. Opponents may also argue that passage of Proposition 8 is violative of the U.S. Constitution’s Contracts Clause prohibiting states from enacting laws that impair contracts, and that marriage is, after all, nothing more than a contract. Both of these arguments will likely be undertaken in the federal courts, and may eventually end up being argued before the U.S. Supreme Court, if it chooses to hear these arguments.

For the full history of same-sex marriage in California go to the article Same sex Marriage in California at http://www.Feinbergwaller.com/CM/Custom/family-law-Publication.asp

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