The future of gay marriage in California.

The law, lawyers, and the court.
Nov. 5 2008 7:09 PM

Left at the Altar

What happens now to gay marriage, in California and elsewhere?

Also in Slate, Farhad Manjoo asked whether Barack Obama helped push California's gay-marriage ban over the top.  

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.

TODAY IN SLATE

Politics

Don’t Worry, Obama Isn’t Sending U.S. Troops to Fight ISIS

But the next president might. 

IOS 8 Comes Out Today. Do Not Put It on Your iPhone 4S.

Why Greenland’s “Dark Snow” Should Worry You

How Much Should You Loathe NFL Commissioner Roger Goodell?

Here are the facts.

Three Talented Actresses in Three Terrible New Shows

Science

The Human Need to Find Connections in Everything

It’s the source of creativity and delusions. It can harm us more than it helps us.

Foreigners

More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

The Ungodly Horror of Having a Bug Crawl Into Your Ear and Scratch Away at Your Eardrum

My Father Was James Brown. I Watched Him Beat My Mother. Then I Married Someone Like Him.

  News & Politics
Politics
Sept. 17 2014 5:21 PM Don’t Worry, Obama Isn’t Sending U.S. Troops to Fight ISIS But the next president might. 
  Business
Business Insider
Sept. 17 2014 1:36 PM Nate Silver Versus Princeton Professor: Who Has the Right Models?
  Life
Gentleman Scholar
Sept. 17 2014 5:10 PM Should Men Still Open Doors for Women? Or is it ungentlemanly to do so at all?  
  Double X
The XX Factor
Sept. 17 2014 4:36 PM Is Nonfiction the Patriarch of Literary Genres?
  Slate Plus
Slate Fare
Sept. 17 2014 9:37 AM Is Slate Too Liberal?  A members-only open thread.
  Arts
Brow Beat
Sept. 17 2014 5:31 PM Did You Catch Walter White’s Blink-and-You’ll-Miss-It Cameo in Godzilla?
  Technology
Future Tense
Sept. 17 2014 5:26 PM If Fixing Global Warming Is Free, What’s the Holdup?
  Health & Science
Jurisprudence
Sept. 17 2014 4:49 PM Schooling the Supreme Court on Rap Music Is it art or a true threat of violence?
  Sports
Sports Nut
Sept. 17 2014 3:51 PM NFL Jerk Watch: Roger Goodell How much should you loathe the pro football commissioner?