Legal News

California?s Prop. 8 Passes; Will ?Legal Chaos? Ensue?

By Ashby Jones

Associated Press

Supporters of Yes on Prop. 8 stand in front of city hall during a Yes on Prop. 8 rally, Sunday, Nov. 2, 2008 in Los Angeles. Photo: AP

Voters in California seem to have spoken clearly: under the state’s constitution, marriage shall exist only between a man and a woman. One result that’s far from clear, however: what happens to all those same-sex couples who rushed to wed prior to the election?

It’s hard to say, reports the LA Times — but a “legal chaos” could follow. Seven legal scholars recently interviewed by the Times were largely divided over which side the law favors. “There is no clear answer,” said Erwin Chemerinsky, dean of UC Irvine Law School. “This is ultimately going to have to be litigated by the courts.”

“Until it is litigated, every same-sex couple with a marriage license is going to be hanging in limbo,” added Glen Lavy, senior counsel to the Alliance Defense Fund, which opposes gay marriage.

Would these marriages be protected by due process rights or the Constitution’s Contracts Clause, which prevents states from passing laws that impair contracts? Possibly not, says NYU law professor, Kenji Yoshino. “My hope going into this was that I would find a smoking gun case that would say those marriages would be protected,” Yoshino said. “I kept looking and looking and looking, and when I couldn’t find one, I was astonished.”

He said the U.S. Supreme Court has repeatedly rejected due-process challenges to retroactive legislation. The Contracts Clause would also offer little protection because the Court has ruled that “marriage is not a contract” protected by the clause, he said.

Still, other scholars cite a long tradition of courts making constitutional amendments retroactive only if the authors clearly intended them to be so. “I would think both under federal and state constitutional principles you can’t have a retroactive application that would result in a removal of what had been recognized and protected as a fundamental right,” said UC Berkeley family law professor Joan Holloway.

Full post as published by Law Blog - WSJ.com on November 05, 2008 (boomark / email).