Bench Memos

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Predictable Arrogance


That seems the best explanation for the unseemly haste with which the California Supreme Court, by the same 4-3 vote by which it cast aside one of the most basic principles of Western civilization and one of the most basic facts of human nature, has now denied the petition for a stay of its ruling until the November election, when the voters of the state have a chance to reassert that fact and that principle that persons of the same sex do not marry.  This means that as of Tuesday morning, June 17, county clerks in California will begin to issue marriage licenses for “Partner A” and “Partner B” rather than for “husband” and “wife.”

As Ed Whelan has remarked, this refusal of the court to stay its hand was entirely predictable; the justices seem intent (with the collusion of state attorney general Jerry Brown) on making gay marriage a fait accompli by November, in hopes that the people of California will be too nice to undo a policy in place for several months.

One issue that judges would face if the voters pass the “California Marriage Protection Act,” as the initiative constitutional amendment is called, is whether it invalidates the same-sex marriages that are performed between now and its effective date.  The LA Times article linked above suggests as many as 20,000 such unions may occur by November.  So what would become of those?

A legal rule that says laws should be interpreted retroactively only if they explicitly state they are retroactive “weighs in favor of this court continuing to recognize the marriages,” [UCLA law professor Brad] Sears said.

I’m not familiar with California precedent and practice regarding this rule, but to paraphrase Bill Clinton, it may come to depend on what the meaning of the word “is” is.  Only this time such legal parsing is not simply a dodge but a real issue.  The entirety of the text the initiative would insert in the California constitution is this: “Only marriage between a man and a woman is valid or recognized in California.”  If the text said “shall be valid or recognized,” it might be said to be clearly prospective in its effect.  But the plain present tense “is” suggests a universal application, retrospective as well as prospective.

Suppose the initiative passes, and a Massachusetts gay couple married July 2008 moves next year to California.  Under this amendment’s terms, their out-of-state marriage would not be “valid or recognized.”  Why then would the marriage of a gay couple, in the same month in San Francisco, be “valid or recognized” next year?

This being the California Supreme Court, we cannot expect questions of legal reasoning to be dispositive of the case.  And politically the retroactivity issue is a double-edged sword.  To the extent that voters believe the amendment would have a retrospective application, some will be drawn more strongly to vote for it.  Others who would consider voting in favor of it might be repelled, on the other hand, by the prospect that marriages concluded between now and November would be nullified.  The outcome this fall could turn in part on whether the first group or the second is larger.


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