Prop 8 Update

From the court’s own website:

The California Supreme Court has announced that it will issue an opinion in three cases challenging the constitutionality of Proposition 8 at 10 a.m. on Tuesday, May 26, 2009.

I’ve previously blogged some analysis of the case. Like most other observers, I expect that the court will reject both the revision/amendment challenge and the fundamental rights challenge, but will not retroactively nullify the 18,000 marriages that took place before November (thus grandfathering in those marriages). That would be, in effect, a partial victory for both sides.

I guess we’ll find out one way or another this Tuesday.

32 comments for “Prop 8 Update

  1. manaen
    May 22, 2009 at 7:12 pm

    praying for marriage’s protection in this opinion

  2. Jeremy
    May 22, 2009 at 8:42 pm


    “praying for marriage’s protection” could mean dramatically different things, depending on which side of the issue you’re on (especially for the 18,000).

  3. May 22, 2009 at 8:44 pm

    And then there was Connecticut, Maine, New York, New Hampshire…

  4. Marc Bohn
    May 22, 2009 at 9:16 pm

    And Iowa…

  5. agnes
    May 22, 2009 at 9:41 pm

    The wording to Prop. 8 is “only marriage between a man and a woman is valid or recognized in California.” This seems to be an all or nothing proposition–either it’s valid and no same sex marriages are recognized, including those currently married, as they are not “only marriage between a man and a woman,” or it’s invalid. I don’t understand where the middle ground comes in.

  6. Mark B.
    May 22, 2009 at 10:51 pm

    I’d prefer that the court stick to things that it can in fact decide, like declaring that all mules are in fact horses.

  7. May 23, 2009 at 1:35 am


    The court pointed out that there was no clear indication that the proposition was meant to apply retroactively. And to have retroactive application usually requires a more clear statement on the issue.

    (In addition, removing a right already granted could raise constitutional takings issues; and would create a lot of legal nightmares. For instance, what do you do with community property that a married same-sex couple acquired during the interim period? How do you treat spousal benefits in employment? And so forth.)

    (Notably, there is nothing in any of the church’s statements that I’m aware of that talks about retroactivity.)

    Kenn Starr made the argument that it’s not really retroactive to deny same-sex couples any future recognition of their marriage, going forward. The court did not buy that argument at all.

  8. May 23, 2009 at 1:39 am

    Mark B.,

    Are you really suggesting that the court lacks the authority to rule on whether a proposition is a constitutional revision and therefore requires a more extensive adoption process?

    The court’s authority in this area is very well settled, and there’s a century of settled case law in California on it. No one with any knowledge of California constitutional law that I’m aware of, not even Ken Starr, is arguing that it is improper for the court to consider the revision/amendment argument in the first place.

  9. Ryan
    May 23, 2009 at 2:08 am

    You know, I volunteered a lot of time and effort to the Yes on 8 campaign, but I think it’s absolutely ridiculous for anyone to be pursuing the invalidation of those 18,000 marriages. It strikes me as nothing but vindictive.

    When I explain to all my gay and lesbian friends that my work for Prop 8 was not a manifestation of hatred for homosexuals, that position is undermined by the zealots who can’t just leave well enough alone.

  10. manaen
    May 23, 2009 at 2:09 am

    The first and last sentences of 1995’s “The Family: A Proclamation to the World” read:
    “We, the First Presidency and the Council of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints, solemnly proclaim that marriage between a man and a woman is ordained of God and that the family is central to the Creator’s plan for the eternal destiny of His children. […] We call upon responsible citizens and officers of government everywhere to promote those measures designed to maintain and strengthen the family as the fundamental unit of society.”
    What clearer direction could we have?
    Jeremy (#2), I believe this answers your implicit question regarding the 18k now acting as if they were married.
    The penultimate sentence of this Proclamation says:
    Further, we warn that the disintegration of the family will bring upon individuals, communities, and nations the calamities foretold by ancient and modern prophets.
    This is not a conditional warning that calalmities will come upon us unless we change course; it is a warning that the disintegration of the family is what *will* bring events foretold to occur. This is more than a debate about conjuring civil rights within society; it is about pulling the thread that will unravel society.

  11. Peter LLC
    May 23, 2009 at 2:47 am

    Thanks for the update, Kaimi.

  12. Blank
    May 23, 2009 at 8:48 am

    Well it was an LDS Bishop who ruined my marriage by committing adultery with my wife. To bad he wasn’t gay.

  13. ex-wife
    May 23, 2009 at 10:05 am

    It was an LDS Bishop who counseled my husband to marry me. Too bad my husband was gay.

  14. agnes
    May 23, 2009 at 11:28 am

    “Kenn Starr made the argument that it’s not really retroactive to deny same-sex couples any future recognition of their marriage, going forward.” Exactly. If the CA constitution states unequivocally that same-sex marriages are not “valid or recognized” then how can you make any sort of straight-faced argment that they (imagine that I know HTML and can bold things) **ARE** recognized at this particular moment–with the explicit language in the constitution–that they are not valid? No retroactivity implied. They were valid; now, not so much.

  15. Last Lemming
    May 23, 2009 at 12:33 pm

    By not invalidating the 18,000 same-sex marriages, the Court would be interpreting “marriage” as used in Prop 8 as an event rather than as an ongoing state. If I were a lawyer, I could probably dig up California law that is consistent with both usages. It’s a plausible interpretation that we should let slide.

  16. agnes
    May 23, 2009 at 1:02 pm

    The wording to Prop. 8 is not “only [a wedding ceremony] between a man and a woman is valid or recognized in California.” I’ts “Only a marriage….” Marriage is an ongoing state. That’s the whole point of divorce. One is married until divorced. We have a whole ‘nother word for the “wedding,” not used in the statute. “Marriage” as opposed to “wedding” is an ongoing state by every single possible interpretation. I don’t see how one (no current same sex marriage) can stand without the other (current same sex marriages invalidated.)

  17. May 23, 2009 at 2:12 pm


    There is a great deal of precedent and case law dealing with vested rights and retroactivity of statutes that is in the background of the debate here. That is a technical aspect that most laypeople, understandably, miss. To oversimplify what is a bit more complex issue, generally any ambiguity in a statute is resolved against retroactivity.

    As a side note, I share my thoughts regarding the possible outcomes of the Prop 8 decision here.

  18. Peter LLC
    May 23, 2009 at 2:33 pm

    It’s a plausible interpretation that we should let slide.

    I agree. Grandfather clauses can be odious, but they certainly don’t have to be; indeed, the church has benefited from them in other spheres.

    For example, in the country I call home, there are certain legal benefits for churches that are officially recognized by the government. While the church received its official recognition over fifty years ago, current law imposes additional requirements on religious groups seeking to receive recognition including a minimum number of members, which, at current growth rates, would take centuries for the church to achieve. Thousands of members are no doubt very pleased that the new legislation did not apply the same rules to all religious groups and revoke the recognition already granted to the church.

    I realize these are different issues, but my point is a minor one: allowing an old rule to continue to apply to certain situations even though it makes reason stare under current jurisprudence is not necessarily a bad thing.

  19. Mark B.
    May 23, 2009 at 7:34 pm


    No, this is an issue that seems appropriate for judicial decisionmaking, unlike some of the things that that court has decided in recent years. (Although, as you have written elsewhere, I think that the “revision” argument is a stretch, and I would expect that the court will toss it–which means, of course, that if I were a judge on the court, I would.)

  20. agnes
    May 23, 2009 at 9:49 pm

    Nate W. Does your argument imply that CA would also be required to recognize same-sex marriages in different states during the time that same-sex marriage was legal in CA?

  21. agnes
    May 23, 2009 at 9:54 pm

    I’ve come to my senses, and realize, that like Bush v. Gore, the Justices can do whatever they feel like. Sigh….

  22. manaen
    May 24, 2009 at 2:03 am

    FWIW, the PBS “Mormons and Prop 8” video linked in the Notes From All Over includes a comment by Kim McCall that BY was opposed to the Pledge of Allegiance. This is puzzling, given that Francis Bellamy wrote the Pledge in 1892, 15 years after BY’s death in 1877.

  23. May 24, 2009 at 9:54 pm


    That’s an excellent question, and gets to why marriage law is a somewhat complex issue. The short answer is no–because recognition of foreign marriages doesn’t create a vested right in the same way that the state’s solemnizing a marriage itself does. In the former case, the state is not the right-granting entity as it is in the latter case–it is just recognizing those marriages that others performed out of comity with other states. In other words, you have a property right in your marriage status only in the state in which it was granted. Other states may ignore it at will, subject to the rules of comity and to the extent that full faith and credit binds the states.

    As to your second post, when, as in this case, the judiciary is given a scenario in which there is no clear answer prescribed by law, they take law, logic, experience, prudence, policy concerns and tradition into account in crafting judicial rules about what the law dictates in particular cases. That’s why we have judges and especially why we have state and federal supreme courts. If all human situations fit into a law created by the legislature ex ante we wouldn’t need a judiciary at all. However, life is messy, and that’s why we have a third branch of government.

  24. May 25, 2009 at 12:11 pm

    Hi, I just found you through FeministMormanHousewives, through a google alert on relationships – my interest and specialty. I’m not Mormon, though years back I made friends with a Mormon singing group, friends enough to know how being a good person is encouraged in your Church.

    I hear a lot of smart people here, and a lot of intellectual knowledge – but I thought this was a ‘progressive’ site – and I’m not sure how you’re handling this same sex marriage issue – I hear some fairly ‘liberal” voices here – but not sure where the blog itself stands – not enough to comment on your stance – but only on my own.

    I am always completely confused by how any religion – how any close connection to God, no matter what the rules, dogma, story, laws (I have many, many orthodox Jewish friends, also) – can, at bottom, chose an interpretation of traditional thought, even if written in a holy book – over the obvious message (to me) that if God created something – it is holy – and that, as humans, there is no way we could presume to understand what God means by something. That would apply to any creature on this earth. I cannot understand the idea that any person could think they are better than any other person, because that would seem the antithesis of any concept of God at all. (I apologize in advance – not sure if I can use the word God here…please feel free to edit if need be). I would be interested in your deeper answer to this, as opposed to any answer based on laws or what is written or traditional….Thank you for this site…Sarah

  25. palerobber
    May 26, 2009 at 5:50 pm

    Ryan (#9),

    your position on the 18,000 existing marriages seems at odds with the arguments promoted by Yes On 8 during the campaign.

    for example, from the official Yes on 8 website:
    “…because public schools are already required to teach the role of marriage in society as part of the curriculum, schools will now be required to teach students that gay marriage is the same as traditional marriage, starting with kindergarteners.”

    by that same logic, won’t schools now still be required to teach kindergartners about these 18,000 gay married couples?

    during the campaign Yes on 8 certainly argued persuasively about the impact these marriages would have on “the role of marriage in society.” surely kindergarten teachers will now face lawsuits if they, as a matter of religious conscience, refuse to teach about this momentus, unprecedented development in the instituion of marriage, no?

  26. May 26, 2009 at 6:21 pm

    “I hear a lot of smart people here, and a lot of intellectual knowledge – but I thought this was a ‘progressive’ site – and I’m not sure how you’re handling this same sex marriage issue – I hear some fairly ‘liberal’ voices here – but not sure where the blog itself stands”

    Not all group blogs take stands, Sarah. FMH’s bloggers are somewhat more homogeneous in their outlook on this issue, which may have misled you.

  27. msg
    May 27, 2009 at 12:26 am

    Sarah–People are complex, all of us. While I may be quite liberal on some issues I’m quite conservative on others. The older I get, the more time I have had to consider and observe life around me and that may mean I change my mind.
    I have known liberals with cold hearts and conservatives with
    incredibly huge compassionate hearts–and vice versa. People are complex beings. We struggle with things. Do you think that Mormons don’t ever have gay children? And when they do, do you think they love them less? I can assure you Sarah, that most of us LDS are kind compassionate people who are sensitive to the sufferings of others and you can bet that includes the President of our Church and our leaders, on down to nearly everyone in our church who believe that marriage should be only betweeen a man and a woman. We believe what we do for certain reasons that unless you are LDS, you don’t have the knowledge and experience to know why we believe what we do and so you can’t judge us correctly. I don’t know anyone in my Church who ‘hates’
    gays. Anyone who understands the Gospel would agree with that. But it doesn’t necessarily follow that because I love everyone that I think everyone should have the right to marry.
    I’m not God. I don’t write the rules, He does. I may not like them, I may not understand them but when He speaks, through a prophet, yes a prophet– like Abraham, Moses–I have a choice–I follow God or I don’t. I don’t profess to know more than God does. I would not think it my place to tell Him to change. I don’t think I’m “holy” just because I’m one of his creations. Only He is holy. And because of that, I defer to Him. And that’s why Orthodox Jews defer to Him and any others who do so. And it doesn’t mean they or we think we are better than others. Very few of us would consider ourselves “holy”. God created us and we’re all imperfect with weaknesses, faults and sins. None of us are “holy” yet. None of us have the right to dismiss traditional laws or writings, like the scriptures because they came from God.
    It may not be popular or politically correct Sarah, and we may be painted as bigots and
    demonized. But it is only because you don’t understand how we can be decent people, as you are, and disagree with you on this issue. Being a liberal Mormon, does not mean we think it’s okay to go against God. If it meant that, I can assure you that most of us would consider ourselves to be conservatives in a heartbeat. Remember this Sarah–people usually have more in common than they have that’s different.

  28. manaen
    May 27, 2009 at 1:18 pm

    27. msg, well spoken — amen!

  29. Sasha
    May 29, 2009 at 2:32 am

    This may be a wrong place for this discussion but I have a question regarding the pro-8 position (of which I am supporter).

    As an LDS, I understand all the reasons for our involvement and support of Prop 8.
    My question is this: If you take the doctrinal foundation out of the discussion (since it would be irrelevant to a nonbeliever), how would you reason with someone who raises the issue of “equal rights”?
    Forget the usual – “traditional families”, “re-defining marriage for everyone”, “domestic partners have same legal rights under California Family Code” -these are cliches from “Prop 8 for Dummies” and have no real substance in a fair discussion.

    Some of the arguments for Prop 8 out there are:

    “A church could face legal action for refusing to perform same-sex marriage”. I don’t like this argument because it seems too far-fetched. That’s why we have separation of church and state.

    “School teachers will be able to teach about homosexual marriage without parents’ advance notice”. Well, if it’s legal in the state, what exactly is the point of this argument? What about evolution? It’s OK to teach our children that they are evolved primates!? If the parents wish to indoctrinate their children differently, that’s what they are for.

    “Adoption agencies would be required to place children in same-sex homes”. Are there studies indicating that children of homosexual couples are at greater risk of abuse, delinquency, issues in adulthood, etc? Nothing that I have ever heard.

    Again, I am a firm supporter of Prop 8. I just want to get some practical ideas for a constructive response to accusations of bigotry and refusing a minority their constitutional rights. But while I know it’s right for me because of personal religious convictions, how does it make it right in a secular society?

  30. msg
    May 29, 2009 at 11:44 pm

    Sasha–I wondered the same thing too because for the secular world it just looks like discrimination against a certain group of people and we all know that’s not just. We all believe in civil rights for everyone.
    I happened to tune into a BYU TV program that was a devotional at BYU by a guest speaker who was not LDS and was from the east coast–NJ, and connected to Princeton I believe.
    I want to say a Law professor if I recall correctly. I was amazed at his secular argument against same-sex marriage–he even
    mentioned that Aristotle had given reasons why society shouldn’t allow it.
    If you go to the BYU TV website, in their archives of programs under devotionals at BYU , 2008 or 2009, you can look it up and they’ll have the transcript of it. I meant to print it out but never got around to it. I may try again because it was really the best explanation for that question that I have come across. I had that question too–I think every LDS person
    would ask that because we are against discrimination.

  31. Kenji
    May 30, 2009 at 1:55 am

    Let’s pause to remember that, before 1890, God’s law was not exactly “marriage = 1 man + 1 woman.” It was more like “marriage = 1 man + 1 or more women.”

    Would it be wrong to wonder whether God’s law will change yet again?

  32. Steve Fischer
    May 30, 2009 at 3:44 pm

    Kenji (#31),

    I don’t think the LDS people ever viewed marriage as anything but a union of a man and a woman. Under LDS polygamy, a man could enter into several of these unions, but each union was distinct from all others.

    Maybe I’m being a little too nitpicky in response to an apparently facetious/cynical post, but hey, I’m a nerd.

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