Some Thoughts on the Challenge to Prop 8

Timothy Kincaid

March 11th, 2009

Most pundits who listened to the California Supreme Court hearings challenging the constitutionality of Proposition 8 came away with the impression that the court would side with the defense on the proposition itself (i.e. let the marriage ban stand) but would refuse to invalidate the marriages of those same-sex couples who wed between June 16 and November 4, 2008.

However, such a split decision may give rise to more questions than it resolves:

Two Classes

By allowing some gay couples to remain married and denying other gay couples from getting married, there are then two groups of couples that are treated differently under the law for no functional reason. This could give rise to two classes of gays (those same-sex couples with recognition and those without) and the possibility of a challenge under the US Constitution’s equal protections clause.

Having two classes of gay couples is, according to some law scholars, a stronger arguement for equal protections than having all gay couples treated alike.

Foreign Marriages

Those foreign (non-Californian) same-sex couples who married elsewhere and moved to California present unique questions.

Presumably, those who married in, say, Massachusetts and then moved to California all within the four month window would be treated similarly to those who married within the state. And we assume that those who married elsewhere prior to June 15 and then whose marriage became legal within the state upon June 15 will be the same.

But what about those who married in Massachusetts on July 15, 2008 (within the marriage recognition window) but did not move here until after the election? Presumedly the State of California recognized their marriage on their wedding day, but is it recognized now? Does one have to have been in California during the recognition period to have a legally recognized marriage?

And what of those who spent time in the state during the window – say a three month residency – and then moved away? Suppose they return; were they married here at that time and now not married here now?

Or what of those who never spent time here but whose marriage would have been recognized had they done so? When they visit today, are they penalized to non-married status because they didn’t visit the state during a four month window last summer?

Federal Response

Currently there is a federal lawsuit challenging DOMA’s refusal to recognize state marriages in Massachusetts and Connecticut.

Their very valid argument is that states have always defined marriages and are specifically granted that right by the US Constitution and 200 years of interpretation. If the courts in Connecticut or the legislature in Vermont elect to define marriage as being between two men, the federal government is exceeding its authority to refuse recognition.

And, indeed, this is a convincing argument. State marriage laws differ greatly from state to state and the feds always leave it up to the states.

But should the federal courts overturn that portion of DOMA that denies recognition to same-sex state-authorized marriages, there is no argument that it should extend to other non-marriage arrangements. Nor, indeed, should it; the states define what is marriage and what is some other thing.

You then end up with a situation whereby the State of California has some same-sex couples with the thousand or so federal rights and protections and some with none of them. This further exacerbates the “two classes” argument.

In fact, though I did not hear any of our counsel argue this point, I believe it may be an adequate cause for the CA Supreme Court to refuse to let the “it’s only nomenclature” argument sway their thinking.


March 11th, 2009

This is getting good.
Big giant can o’ worms the State will open either way they decide.


March 12th, 2009

I have talked with a few people who understand law much better then me. Their feeling is prop H8 will be tossed aside. If the court rules that the voters can take away rights, this sets up way to power to a simple majority.

Therefore forcing the change of the way the State’s Constitution changed. It will take a revision, not an amendment to change the way it is changed. Which would be more work for the legislature to plan correctly. Each method the legislature would come up with will face a court challenge as there isn’t a clear method written in Califoria’s Constitution. As of now, there are two ways, revision or amendment. If the court upholds prop H8, this sets the rules for changing the complete constitution which has the strong posibilty of stripping away many other rights.

Once it is ruled that a simple majority, 50% + 1 can remove rights from a minority, changing the constitution after that precedent has been set, changing the constitution to make it harder to remove rights from another minority would violate the precedent already set.

I hope what I am saying makes sense. It took me a bit before I got what they were saying.

I know the AG tried to argue that prop H8 was an amendment, not a revision, but from all the people I have talked to say he was dead wrong.

I am hoping the court rules to toss prop H8 out and it is plain wrong, but to hear the argument from my friends gives me hope.


March 12th, 2009

I have repeatedly read and heard the phrase “… the sanctity of marriage …”.

In the Oxford Concise Dictionary, the word “sanctity” is defined as:

• noun (pl. sanctities) 1 holiness; saintliness.

These indicate that, while borrowed for other usages, the word is essentially a religious one . . . as is “marriage” in the minds of most opponents of same-sex “marriage”.

I am reminded that the Constitution of the United States of America gives:

“…Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”.

The laws of our land are somewhat schizophrenic, in that they do not always keep pace with logic and clarity. Many humorous and not-so-humorous examples can come to mind.

In this instance, it seems necessary to consider that “marriage”, where it is understood as an extension of ones’ personal religious views is logically protected by a Constitutionally-mandated blindness on the part of the U.S. Government. Not all religions, not even all sects of Christianity, view marriage as a sacrament or sacred activity.

I find a way out of the present tangle of religion and government by looking at the solution presented by New Zealand.

In New Zealand, “marriage”, like a bris, baptism or whatever religious ritual, does NOT of necessity exist in governmental law or parlance. Instead, they mandated a grandfathering of all marriages prior to their legislation into “Civil Partnerships” as far as the law was concerned. They systematically went through all their old marriage laws and merely substituted the words “Civil Partnership” wherever and whenever the word “marriage” occurred, then expanded the requiremnts to allow for said Civil Partnerships to include same-sex relationships. In New Zealand thought, if any legal Civil Partners wish to have a “marriage” ceremony, it is the purview of their private religious group to oversee such a private religious activity. . . and is in no way the place of the Government to pay it any attention whatsoever.

I think that we could take a page from the Kiwis on this matter.


March 12th, 2009

I believe the GLAD challenge could be the break-out ruling for future rights. Should GLAD win, and Mass. marriages be federally recognized for the three challenged reasons (IRS, Social Security, and married-name-on-passports), the outcome will be extendable to all federal rights, and to other states that recognize marriage (e.g., New York recognizes marriages from MA, CT, and foreign countries like Canada and Spain).

The GLAD case is very important, so support their efforts if you can.

Oh, and think about this: When that case goes to court, we will see the extent to which the Obama Justice Department defends (or does not defend) DOMA.


March 12th, 2009

Kaelan Housewright and Ali Shams, two “straight” college students in California have officially filed a ballot initiative in California to have the State change marriage to “domestic partnership” when dealing with the marriage issue in a civil setting.

So, if passed this would make straight and gay marriage equal under the law.

Here’s the official website for The Domestic Partnership Initiative:


Jason D

March 12th, 2009

It’s true, they’re in quite a pickle. They can’t split the difference without causing more chaos in the process.

Gabriel Arana

March 12th, 2009

The equal protection argument between already-married and not-married gay couples seems flimsy to me. Can anyone point me to the scholars making this argument?

Timothy Kincaid

March 12th, 2009


Click the link on “Two Classes” above. The article quoted David Cruz but I believe that he’s not alone.


March 12th, 2009

I never understood how they could come down with a ruling that both prop 8 & the 18,000 marriages stood either, but there you go. They’ll claim their “hands are tied” (which they’re not), but I’m pretty sure that’s how it’ll come down, because justice Kennard is firmly for holding up prop 8. Unless Corrigan or Chin defect to the other side.

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