The California Supreme Court announced today that it will issue its opinion in the state constitutional challenge to Prop 8 on Tuesday. A lot has changed since the Court got the case, most importantly Iowa legalized gay marriage and so have a handful of other states in New England.
You’d think that wouldn’t affect the mind of California Supremes. But, they are a very hard to predict bunch and they are not the kind to limit what they consider.
I thought that maybe the advance of gay marriage in other states might sway the justices that I think aren’t in favor of striking down Prop 8 but originally ruled to legalize gay marriage to strike it. Maybe not, but I have another curious idea, which I’ll discuss below.
There are basically two questions before the Court. First, should the court strike Prop 8. For that, my final on the record prediction is, no, they won’t strike Prop 8, and I’m going to say the vote will be 5-2. Second, Prop 8 apply retroactively to the gay marriages that occurred between the earlier Cal Supreme case and Prop 8. They will say no, those marriages are valid 4-3, the same that ruled previously. There’s a chance this is 7-0 since the law on retroactivity is clear: it must be explicit in the law, and it’s not explicit.
Here’s a wrinkle, and I’m surprised I haven’t read this before or anywhere else. It’s probably out there, but just an idea.
The Supremes could rule that, even though Prop 8 is valid, is does not declare that gay marriage is against the fundamental public policy of the state. It just says that only marriage between a man and a woman shall be “recognized.”
Here’s the out: the U.S. Constitution generally requires that states recognize the marriages of other states. The exceptions are where fundamental public policy of the state conflicts. They might then say, hey, all of the gay marriages in Iowa, Vermont, Massachusetts, etc. must be recognized here because the U.S. Constitution language trumps the “recognized” language in Prop 8 and Prop 8 doesn’t unambiguously state the public policy of the state.
That would neuter Prop 8. Sure, people who can’t afford to go back east would still be impacted, but it would essentially moot the debate and would get the tourism lobby on the anti-8 side.
Just an idea. I’ll look and see if this has even been raised.
Of course it was raised before by Glenn Greewald, about a day after the election. I forgot about the issue of DOMA, which I can’t believe is constitutional. The California Supremes ruling on that would be weird, since I don’t see it raised by the Petitioners, Respondents, Intervenors, or several of the amici curiae whose briefs I looked at.
Does DOMA leave states with the option that the Supremes could invoke? I think so. Will update.
Yes. It leaves it up to the states. The Supremes could declare out of state marriages must be recognized, I guess.
It would be a miracle. In the original case, the Supremes said treating in state and out of state marriages differently would be difficult to square with the federal constitution. My only counter to that is that that case lays the equal protection groundwork of the Constitution and Prop 8 only carves out an exception limited to its provisions. As such, Prop 8 only says that, to the extent the state has such power, such marriages are not recognized. Since it cannot operate on out of state marriages or prevent the operation of the federal constitution from requiring such out of state marriages in California, except to the extent that it would change the public policy, which it does not do explicitly, then it simply prevents them in state.
I doubt this will be the outcome, but I think this issue has to be addressed. What about people who moved here from Massachusetts during the legal period? Is their marriage now void going forward? It seems hard to uncrack the egg here.