What happens now to gay marriage, in California and elsewhere?
by Kenji Yoshino for Slate:
On Tuesday, California voters passed Proposition 8, the amendment to the state constitution that eliminates the right of same-sex couples to marry, scuttling a California Supreme Court ruling in May that granted that right. The amendment's passage represents a serious setback to the right of gays and lesbians to marry.
But how serious? Prop 8's consequence can be best understood by examining its effects on three different groups: gay couples who seek to marry in California in the future, gay couples who entered into legal marriages in California before the amendment passed, and gay couples in other states who are wondering when same-sex marriage will be legalized where they live.
The effects of Prop 8 on gay couples who seek to marry in California in the future are clear. California will have a moratorium on same-sex marriage for the foreseeable future. Although a state constitutional challenge was filed today, the only plausible legal challenge to Prop 8 is a federal constitutional one. But gay-rights groups will be loath to bring such a challenge, as it could be reviewed by the U.S. Supreme Court, which is not viewed as a friendly audience. A more likely response would be another proposition to reverse this one, offered through California's relatively flexible referendum process. But that political remedy will likely be some years away, given the political and financial capital expended on this last fight.
The effects of Prop 8 on the more than 16,000 gay couples in California who got married after the state high court authorized them to do so is much less clear. California Attorney General Jerry Brown has opined that he believes those marriages will not get washed out by Prop 8. His position comports with the general intuition that retroactive legislation should not deprive people of vested rights like marriage.
However, that intuition will not necessarily be vindicated. As I have pointed out elsewhere, there is a surprising dearth of federal constitutional authority that would protect existing same-sex marriages from retroactive attempts to undo them. It may well be, as California constitutional-law professor Grace Blumberg of UCLA has argued, that the California Constitution would preclude the retroactive application of Prop 8. But as most experts agree, the outcome here is uncertain.
This is in part because a court might find that Prop 8 does not even constitute retroactive legislation. The amendment states that "only marriage between a man and a woman is valid or recognized in California." A court could find that the pre-election marriages remain in existence but that California cannot recognize their validity going forward. Under that interpretation, a California same-sex marriage that was valid before today could be recognized by another state but not in the Golden State itself. Indeed, a state like New York that recognizes out-of-state same-sex marriages—even though it doesn't yet grant same-sex marriages—might be required to recognize a pre-election California marriage because of a state court decision that ordered the recognition of same-sex and cross-sex marriages.
Finally, the effects of Prop 8 on the national movement for same-sex marriage are significant but not devastating. Before Tuesday, court opinions legalizing same-sex marriage in Massachusetts, California, and Connecticut suggested that the right was gaining traction. The passage today of constitutional bans on same-sex marriage not just in California but also in Arizona and Florida provides a counterpoint.
Nonetheless, generational and global trends both ultimately favor full marriage equality in this country. The situation here is similar to the two-steps-forward, one-step-back trajectory that led to the legalization of interracial marriage. To be sure, Prop 8 represents a large step back. But the nation's march toward marriage equality won't stop.
Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at the NYU School of Law.
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