« A Simple Cost-Benefit Analysis for Elena Kagan | Main | Barack Obama and John Kerry »

Thursday, November 06, 2008

Prop 8 Retroactivity

I have to confess that the seeming passage of Prop 8 dampered the election for me.  I'm very happy about Obama's victory but it really is counterbalanced by a fair bit of depression about the fate of Prop 8.  California at its worst, alas.  I also think there is very little chance that any of the litigation to undo Prop 8 will succeed; indeed, it looks foolish to try to go back to the courts on this one (unless some showing of voter fraud or undercounting can be made, neither of which seems on the table).  Until we get another chance to have this battle as a constitutional amendment -- or the Supreme Court gets a very different constitution, we're stuck, I fear.

Still, I'm a bit more optimistic (than Eugene Volokh) that the same-sex marriages already performed will remain valid.  Eugene's argument for their invalidation is a simple textual one:

According to the text of the amendment, as soon as the amendment takes effect, only male-female marriages are valid or recognized. (Nor is there any language in the initiative summary, or the supporters' arguments, that purports to interpret this text as not applying to existing marriages.) Future marriages, preexisting marriages, in-state marriages, out-of-state marriages — all are valid and recognized only so long as they are between a man and a woman.

Still, he recognizes that text is not all there is to interpretation of direct democracy in California:

Note that this article reports that "[a]n attorney for advocates of the ban essentially agreed" that "the proposed amendment, like most laws, will be interpreted to prevent same-sex marriages in the future, and not affect those that were legal when they took place." And some court decisions have hinted that a court might also look to "various pre-election materials (newspaper articles and editorials, committee reports, interest-group articles, etc.)." AFL-CIO v. Deukmejian, 212 Cal. App. 3d 425, 436 n.4 (1989); see also Carlos v. Superior Court, 35 Cal. 3d 131, 144 n.12 (1983), overruled on other grounds by People v. Anderson, 43 Cal. 3d 1104 (1987); Goodman v. County of Riverside, 140 Cal. App. 3d 900, 906 & nn.3-5. But it seems to me that these sources can only be the most tenuous evidence of what the voters actually understood the amendment as meaning, or intended it to do. As People v. Castro, 38 Cal. 3d 301, 312 (1985), held, "opinions [which were not] distributed to the electorate by way of the voter's pamphlet" ought not be relied upon, because courts "can only speculate [about] the extent to which the voters were cognizant of them." Accord People ex rel. Lungren v. Superior Court, 48 Cal. App. 4th 1452, 1461 n.6 (1995), rev'd on other grounds, 14 Cal. 4th 294 (1996).

In light of my study of the interpretation of direct democracy, I see courts as much more likely to pursue the voters' intent, as difficult to discern as it may be.  I also would expect a court to rely much more heavily on canons like the canon against retroactivity, even when a measure of direct democracy is in play.  See Evangelatos v. Superior Court, 44 Cal.3d 1188 (1988).  It just isn't especially unusual to see California courts, when engaging in interpretation of direct democracy moving beyond the text, especially when the reading that applied the amendment retroactively is by no means necessary or perfectly clear.  As a practical matter, too, the California Supreme Court might not like getting rid of these marriages that they essentially blessed.   

A final consideration: Imagine that it were to come to light that Prop 8's proponents went out of their way to be ambiguous on the question of retroactivity because they were worried that such a claim would turn off some small group of voters who were comfortable with prospective effect but not retroactive effect.  In light of the razor-thin margin, would it be fair, then, to apply the Proposition retroactively?  I'd think not -- though, of course, I have no evidence of this strategy on the part of the proponents (or even some proponents trying to get votes).  The point is only that the text really won't resolve this easily, as Eugene thinks.

Posted by Ethan Leib on November 6, 2008 at 11:26 AM in Current Affairs | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Prop 8 Retroactivity:


Standing shouldn't be an issue. Why? Some of these newly-married couples are bound to desire to break-up. When one partner files for divorce the other will argue that the marriage simply isn't valid. Therefore, no divorce, no alimony, property split, etc. I also don't think that you can simply default from marriage to civil union.

Posted by: Ernest Miller | Nov 7, 2008 12:16:16 PM

Let's make the following assumptions (and if any of them are wrong, I concede that there would likely be standing to challenge Bill's marriage): (1) California would apply a test similar to the Federal Article III test. (2) The *only* difference between marriage and domestic partnership is the name. (3) All existing same sex marriages, if invalid, will be "demoted" to domestic partnerships. If this is true, then I don't think a court would have occasion to adjudicate the issue even in the spousal privilege hypo that Bill has come up with. For even if Bill was "merely" a domestic partner, he would have the same spousal privilege as someone who was married. Thus adjudicating the validity of the marriage question would be nothing more than rendering an abstract, advisory opinion rather than resolving a concrete, de facto problem affecting the actual rights of individuals.

Posted by: Querulous | Nov 7, 2008 12:11:00 AM

Maybe I'm missing something but even assuming California courts adhere to federal-style standing requirements I would think people in a number of situations would have standing. For example, assume someone sues me and calls my (same-sex) husband to testify. He invokes a spousal privilege. Doesn't the plaintiff have Article III-style standing to argue that our marriage isn't valid and the court shouldn't recognize it or the privilege? Or maybe the proper way to put it is that the issue of the validity of our marriage would become an evidence law question the court would have to decide in order to hear the case. What am I missing? I'm sure there are other examplse as well -- like the one Howard suggests.

Posted by: Bill Araiza | Nov 6, 2008 11:36:47 PM

Ethan is correct about the standing issue in Calif state court. Several of the consolidated actions forming In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (2008), were initiated by plaintiffs who would fit the officious intermeddler category but nevertheless had standing under our generous state standing rules to bring an action for declaratory relief.

Remember that registered domestic partnerships should be unaffected by this proposition. For California, this dispute is about who can use symbol-laden word "marriage."

Posted by: David Levine | Nov 6, 2008 6:35:04 PM

David: Here is a recent student note citing to the basic sources Citing them "to" whom?

Posted by: Simon | Nov 6, 2008 6:19:00 PM

I don't think standing is a big issue. First, state courts do not labor under Art III restrictions (though I confess that I don't know state standing law). Second, all that has to happen even under Art III standards is that one state or local instrumentality has to refuse to recognize one of the same-sex marriages recently performed for a benefit that accrues to married couples. That doesn't seem like a stretch, even in the short term.

I like David Levine's distinction highlighting that a prospective refusal to give a benefit might not be considered "retroactive" for the purposes of the interpretive canon. But I remain optimistic. We'll see.

Posted by: Ethan Leib | Nov 6, 2008 5:36:22 PM

For a take on the issue in Ethan's last ¶, see Glen Staszewski, "The Bait-and-Switch in Direct Democracy," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896296. That dealt with the issue of whether Michigan's ban on same-sex marriages also prohibited marriage-lite. Proponents of the ban had insisted during the election that marriage-lite would not be banned, then switched the argument once passed.

Querulous is right about standing. And note what this means. If the State's view is that the marriages remain valid, it may be that there will not be a judicial determination of the validity of these marriages in the short-term, because if the state's view is that the marriage remains valid, there will be no state denial of benefits for the couple to challenge. We may have to wait a few years, until dissolution or child custody or perhaps probate issues require the court to consider the validity of a same-sex marriage.

One other possibility for standing: Suppose a private employer refused to provide family benefits to a same-sex married couple on the ground that the marriage is invalid. I think the employer would have standing to argue the invalidity of the marriage, either in seeking a declaration of no obligation to cover or in defending in a breach-of-contract suit brought by one of the married persons.

Posted by: Howard Wasserman | Nov 6, 2008 4:31:20 PM

There is quite a bit of California law on the retroactive effect of propositions. Here is a recent student note citing to the basic sources: Note, WHEN SILENCE MEANS EVERYTHING: THE APPLICATION OF PROPOSITION 64 TO PENDING ACTIONS, 58 Hastings L.J. 623(2007).

I don't think that the marriages will be annulled (as the Calif Supreme Court ordered the first time), but the issue will arise when someone in the group tries to take advantage of a state benefit, such as jointly filing a state income tax form. Will the State of California at that moment be forbidden from "recognizing" the marriage? While not entirely free from doubt, a "yes" answer arguably is not a retroactive application of Prop 8 under the governing state appellate opinions. There are lots of other permutations due to the "valid and recognized" language.

Posted by: David Levine | Nov 6, 2008 3:34:12 PM

Jerry Brown, the state AG, has taken the view that marriages performed in the last 5 months are still valid. So that's California's official position. Therefore, the marriages are valid, until they are invalidated by a court. But how could a court invalidate them? Who would have standing to complain about the validity or invalidity of other people's marriages? Let's say I think my neighbor was married before he married his current wife and never obtained a valid divorce. I of course wouldn't have standing to go to court to have his current marriage invalidated. Only the improperly jilted spouse would. Here, there is no jilted spouse, just officious intermedlers. No standing -- no challenges in court; Jerry Brown's interpretation prevails.

What's wrong with this analysis?

Second, on the merits, I think there has to be something to the contracts clause argument. Imagine if the legislature and/or voters abolished divorce tomorrow, and also invalidated the marriages of all divorced and remarried people. That just can't be possible. And if that can't be possible, the only reason that gay marriages can be invalidated is the thought that they are somehow more tenuous or less normal. And that sentiment is what the Marriage Cases single out as constitutionally illegitimate.

In sum, I think there are three arguments here: (1) no one has standing; that argument strikes me as bullet-proof; (2) the contracts clause, which requires more research; and (3) the avoidance canon -- voiding gay marriages might well run afoul of the equal protection sentiment behind the Marriage Cases and therefore the initiative has to be interpreted narrowly, to only apply prospectively.

Posted by: Querulous | Nov 6, 2008 2:09:50 PM

Is there not a straight line running through Roemer and Lawrence that points directly to all these state enactments in the last few years being held to violate equal protection? Any particular reason to think that the court won't pull the trigger on this (call me a cynic if you will) now that the liberal bloc isn't constrained by the threat of a voter backlash preventing a Democratic President appointing replacements for JPS and RBG?

Posted by: Simon | Nov 6, 2008 1:52:12 PM

I recall reading other commentators who discounted Rob's Contracts Clause argument. It might have been Kenji Yoshino or Eugene Volokh or both (!), though I can't say for sure (and I can't comment on how correct they may or may not be). I do, however, remember a nineteenth century case (maybe Loan Ass'n v. Topeka?) that said in dicta something to the effect that it's obvious that a law that said A was no longer married to B but was instead married to C would violate the Constitution. Who knows whether an argument from that long-ago time and doctrinal world would carry weight today, but presumably it has echoes in modern law's presumption against retroactive laws.

Posted by: Bill Araiza | Nov 6, 2008 1:39:18 PM

If applied retroactively, would Prop 8 violate the Federal Contracts Clause (i.e., "No State shall . . pass any . . . Law impairing the obligations of contracts")? I don't know much about the clause (it's a fairly obscure provision), but I could imagine an argument going something like this: Marriage is a contract; it imposes various obligations on the contracting parties (e.g., if A and B marry, A is entitled to X% of B's property, and vice versa); the state "impairs" those obligations when it nullifies the contract.
Of course, a state must be allowed to amend its regulations, even in ways that affect the value of contracts (e.g., when a state changes its rules regarding the division of marital property), but at some point it would presumably cross the line between constitutional exercise of the police powers and unconstitutional impairment of the obligations of contract, no?

Posted by: Rob Mikos | Nov 6, 2008 12:58:00 PM

Terminating a previously recognized marriage seems pretty messed up, but the language of the amendment sees broad. If an amendment said:

"No slaveholding is valid or recognized in California"

Wouldn't it be clear that prior slave owners were not grandfathered in? Of course, slave owners are a far less sympathetic class than gay married couples (to put it *extremely* mildly), but as a matter of linguistic construction, either amendment would seem to have retroactive effect.

Notwithstanding this linguistic construction, perhaps external evidence would show that voters did not believe they were enacting a retroactive rule. I am not personally familiar with what weight this external evidence would receive under California law, so I'll stay silent on that. (Perhaps when I get around to reading your "Interpreting Statutes Passed Through Referendums" article I will form an opinion.)

Posted by: andy | Nov 6, 2008 12:23:25 PM

The comments to this entry are closed.