Same-sex marriage (SSM) & domestic partnerships in California
If Prop 8 is accepted by the
courts, what will be its effect?
How would the constitutional amendment affect existing same-sex
About 36,000 gays, lesbians and bisexuals were married prior to the vote on
There are conflicting beliefs about the fate of their
- 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
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."
[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."
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.
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
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.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Peter DelVecchio, "Analysis: Marriage might survive ban's passage," The
Advocate, 2008-JUL-19, at:
- Sue Rochman, "Summer of love, winter of struggle," The Advocate,
2008-JUL-01, Page 36.
- Mat Staver, "Staver cites California Supreme Court's 'Political Agenda' in
rejecting stay," Americans for Truth about Homosexuality, 2008-JUN-05, at:
- Justin McLachlan, "First prop. 9 lawsuit filed," 2008-NOV-05, at:
Copyright © 2008 by Ontario Consultants on Religious
Latest update and review: 2008-NOV-06
Author: B.A. Robinson