Some Thoughts on the Challenge to Prop 8

[ccharles000]

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?

http://www.boxturtlebulletin.com/2009/03/11/9694#comments

[pepperbear]

1. link doesn't work, and the homepage is offline too n/t

[ccharles000]

3. it works for me

[ddeclue]

2. OK DU Constitutional Lawyers: Whatever happened to Loving v. Virginia?

Why can't this decision be used to over turn these laws?