Gay-Marriage Ban Sets Up Host of Battles - WSJ.com

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Gay-Marriage Ban Sets Up Host of Battles - WSJ.com


Gay-Marriage Ban Sets Up Host of Battles
California's Proposition 8 Is Challenged in State Court; What Happens to Previously Wed Couples?By ASHBY JONES
Voters on Tuesday approved Proposition 8, which adds to the state constitution the following sentence: "only marriage between a man and a woman is valid or recognized in California."

While the wording is simple, the situation quickly became complicated. For example, what happens to those same-sex couples who married before the ruling? Legal challenges filed Wednesday raised other questions: Was the referendum process itself lawful? Does the new language conflict with other parts of the state constitution? Separately, should Proposition 8 opponents have filed challenges saying the proposition violated the U.S. Constitution?

David Cruz, a constitutional-law expert at the University of Southern California, has some answers.

WSJ: Please explain the grounds upon which Proposition 8 is being challenged in court.

Mr. Cruz: The lawsuits challenge the procedure by which the referendum was passed. Under California law, there are two categories of changes that can be made to the state constitution: amendments and revisions. Amendments are more minor changes; revisions are larger in effect. This is important because each has its own process for taking effect, essentially different ways they go before the voters. An amendment can go in the form of a ballot initiative, which requires a certain number of signatures to make its way on. Constitutional revisions, however, have to have a two-thirds blessing from each house of the state legislature to make the ballot.

Now, the problem, at least from the point of view of Proposition 8 supporters, is that the legislature had previously indicated a willingness to support same-sex marriage. So the proposition's supporters were unwilling to treat this bill as a revision and send it to the legislature, opting instead to treat it as an amendment. So the Proposition 8 opponents are arguing that this change actually constitutes a revision, not an amendment, and therefore needed to go through the legislature.

WSJ: Were any other issues raised in the suits?

Mr. Cruz: Yes. A same-sex couple that was married before the election made another argument. Remember, the California Supreme Court in May ruled that bans on same-sex marriage were not allowed under the state's constitution. (That ruling prompted Proposition 8.) Now, in that ruling, the Supreme Court essentially said two things: that same-sex couples had a fundamental right to marry and that the underlying law violated the state's equal protection clause.

The suit filed Wednesday argues that while Proposition 8 squarely addressed the marriage half of the Supreme Court's ruling, it didn't address the equal-protection half. In other words, the couple argues that the state constitution is now in conflict with itself -- part of it says that same-sex marriage is flatly illegal, and the Supreme Court has interpreted another part to say that a ban on same-sex marriage violates the state's equal protection clause.

WSJ: And a constitution can't be in conflict with itself?

Mr. Cruz: Right. There's a common principle in constitutional jurisprudence called "harmonization," which says that no part of a constitution can conflict with any other.

WSJ: Provided that the state Supreme Court rejects all these arguments and the constitutional amendment is allowed, you still have this issue as to what happens to the marriages that took place before Proposition 8 was passed, right?

Mr. Cruz: On that question the state Supreme Court would likely look at what the intent of the voters was in passing the law.

WSJ: How would the court determine that? By asking voters?

Mr. Cruz: It would likely look at the language of the proposition itself, in addition to the title, official ballot literature, and to the advertisements that were run during the campaign. Supporters of Proposition 8 point to language on the ballot that explained that voters would be defining marriage as between a man and woman, "regardless of when or where performed." That seems to argue for invalidating the earlier marriages. But the attorney general, Jerry Brown, will likely raise the official title of the proposition, which mentions the elimination of the "right of same-sex couples to marry." Here, there's no mention of the earlier marriages, and it seems to indicate that it's the right to get married going forward that's being taken away.

Write to Ashby Jones at ashby.jones@wsj.com