What happens to California’s approximately 16,000 legally married gay and lesbian couples should Proposition 8 pass? Thousands of good people will be wounded seriously — not only are their unions potentially torn asunder, they learn how little regard their fellow citzenry has for them and their lives. And in a legal sense, the sky will fall.
If voters next week approve the initiative to ban gay nuptials, legal analysts on both sides of the measure predict that a period of “legal chaos” will ensue, with the legality of same-sex marriages performed between June and November suddenly in doubt.
… Glen Lavy, senior counsel to the Alliance Defense Fund, which is advising proponents of the measure, complained that “what we are going to have is legal chaos.” He faulted the state high court for not suspending implementation of its gay marriage ruling until after the election. “Until it is litigated, every same-sex couple with a marriage license is going to be hanging in limbo,” said Lavy, whose group opposes gay marriage. He said the state high court might rule that couples would retain certain benefits of marriage — such as community property designations for assets acquired during the time the marriage was legal — but would not receive similar benefits in the future.
Supporters of same-sex marriage have expressed hope that existing marriages would be protected by due process rights or the Contracts Clause of the U.S. Constitution.
But after researching the issue, New York University law professor Kenji Yoshino, who favors same-sex marriage, concluded that the U.S. Constitution would offer few protections to existing gay marriages if Proposition 8 passed.
“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, which prevents states from passing laws that impair contracts, would also offer little protection because the court has ruled that “marriage is not a contract” protected by the clause, he said.
Scholars who believe that the law would uphold existing marriages 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.
UCLA law professor Grace Blumberg agreed, noting that an analogous situation might be cousin marriages. “California allows first cousins to marry and other states don’t,” she said. “Can California then change its law retroactively to destroy those marriages?”
via LA Times: Gay married couples face legal limbo if Prop. 8 passes