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Religious Tolerance logo

Same-sex marriage (SSM) & domestic partnerships in California

If Prop 8 is accepted by the
courts, what will be its effect?

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How would the constitutional amendment affect existing same-sex marriages?

About 36,000 gays, lesbians and bisexuals were married prior to the vote on Prop 8.

There are conflicting beliefs about the fate of their marriages:

  • Don't know: Lawrence C. Levine, a professor at the University of the Pacific McGeorge School of Law in Sacramento, CA was asked what would be the outcome if the Constitutional amendment passes. He said: "Anyone who tells you what will happen doesn't know what they are talking about." 2
  • Forcible divorce: Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, was involved in every stage of the lawsuit that ended up at the Supreme Court. He said: "The people will decide in November. If any same-sex 'marriage' licenses are issued before November, the passage of the constitutional amendment will make them invalid and invisible." 3 [Enclosing the word marriage in quotes is common among social and religious conservatives as an indication of their denigration of same-sex marriage.]
  • Marriages continue: Joan Hollinger, professor at the University of California, Berkeley, Boalt Hall School of Law says that if the amendment passes, there will be no more [new] same-sex marriages in the state as of 2008-NOV-05. However, she says that: "Constitutional scholars agree that the amendment cannot be effective retroactively, so anyone married before November [-04] would be protected." 2

Jennifer Rothman of Loyola commented that Prop. 8 is allowed to take force, it would create a "bizarre world" in California with some gay couples married and others deprived of the future right to tie the knot under Proposition 8. 4

One day after the amendment passed, gay-positive legal groups had filed three lawsuits attempting to overturn or stay application of Prop 8.

While the request for a stay was being considered by the court, same-sex couples would not be permitted to marry and have their marriages registered. However, if the stay is granted, marriages could resume while the matter was fought through the court system. The case might return to a trial court and could eventually land up in the California Supreme Court or even to the U.S. Supreme Court. That could take years.

Our opinion on the effect of Prop 8 on existing SSMs:

Nobody at this website has any academic background in constitutional law. But ignorance never slowed us down in the past when it comes to expressing our opinions. Since the three experts cited above completely disagree, we may even be right!

We have a hunch that existing SSMs will be allowed to continue in name if Prop 8 passes. That is same-sex couples  who were married before the date of the vote [2008-NOV-04] would have their marriages still registered with the state. However, new SSMs would be prohibited, unless the pro-marriage equality folks obtain a stay.

That said, we have reservations about the enforceability of rights within existing SSMs. If, for example, one spouse experienced a medical emergency, her/his spouse's access to them in hospital might be refused. A married spouse normally is guaranteed the right to visit their spouse, but the hospital might conceivably quote the revised constitution and deny that the marriage actually exists. In the same way, hundreds of rights guaranteed by the state could conceivably be denied these married couples.

References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Peter DelVecchio, "Analysis: Marriage might survive ban's passage," The Advocate, 2008-JUL-19, at: http://www.gay.com/
  2. Sue Rochman, "Summer of love, winter of struggle," The Advocate, 2008-JUL-01, Page 36.
  3. Mat Staver, "Staver cites California Supreme Court's 'Political Agenda' in rejecting stay," Americans for Truth about Homosexuality, 2008-JUN-05, at: http://americansfortruth.com/
  4. Justin McLachlan, "First prop. 9 lawsuit filed," 2008-NOV-05, at: http://justinmclachlan.com/

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Copyright © 2008 by Ontario Consultants on Religious Tolerance
Latest update and review: 2008-NOV-06
Author: B.A. Robinson

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