Prop 8 postmortem, Part 2: Dissecting the Present
Attorney General Jerry Brown has gone on record that he will uphold all same-sex marriages already performed. If you were married yesterday, you're still married today. City halls in at least some towns have stopped offering marriage licenses to same-sex couples as of today. I'm not sure whether, if you could talk someone into giving you one tomorrow, it would still count.
An interesting wrinkle: what happens if you paid for your marriage license already, but haven't actually gone and picked it up yet? When L. and I got married, we paid for the license online a week ahead of time, then had our ceremony at San Francisco City Hall and had it signed and dated there. San Francisco, at least, says that if Prop 8 passes, even if the results aren't determined till after November 5th, it will (probably) be effective retroactive to November 5th. So I hope everyone who was planning on entering into a same-sex marriage did so before today.
Now for the near future. feyandstrange shares the news that the ACLU has filed for an immediate stay of enforcement on Prop 8 (similar to what happened when San Francisco banned handguns). If the court grants the stay, then it's business as usual and you can go get your marriage license as long as all other qualifications are met (e.g., you're not already married, you're not marrying a minor, &c). The filing also requests that, if Prop 8 is determined to have passed, the Court render it null and void on the grounds that it "attempted to effect a revision of the Constitution without complying with the constitutionally mandated procedures for enactment of a revision set forth in Article XVII of the California Constitution".
So, this could go one of several ways, depending on whether the Court grants the stay and whether Prop 8 actually received a majority of votes. I think it's likely that they will grant the stay, given that two of the petitioners in the ACLU filing are a couple who have been planning to get married for a while, but one of them has a parent who has been too ill to travel for their wedding. I'm not a lawyer, but that strikes me as cause for immediate injunctive relief.
The worst-case scenario is the one where the Court grants neither the stay of enforcement nor the petition to nullify Prop 8 if it passes. That could happen. If it does, then we have to go to federal court to get this reversed, and that's going to be harder. Addressing this in federal court will either mean getting SCOTUS to consider same-sex couples a suspect class -- which thus far they've been unwilling to do -- or coming up with an argument that doesn't rely on the Equal Protection clause. The Full Faith and Credit clause won't work, because the Defense of Marriage Act specifically provides that states need not recognise same-sex marriages performed in other states (though this is a fine opportunity for a couple who's moved from Massachusetts or Connecticut to California to mount that argument against DOMA). I had this vague, crack-addled idea about using the Commerce Clause with respect to couples who traveled to California to get married, went back home, and found their California marriages invalidated, but if Brown doesn't invalidate existing marriages, then that point is moot. It's going to take hard work and a lot of research to get this before SCOTUS, if it comes to that.
That said, working this from the state angle first gives us the opportunity to stall for time; it will take several months at minimum for this to go through the courts, and while I don't think it's likely that we'll see a change in the makeup of the SCOTUS any time soon, we can still use that time to think of how to address this if it does have to go to federal court.
As a side note, one aspect of this filing that I find kind of shitty: the respondents named in the petition are the State Registrar of Vital Statistics, his Deputy Director who handles the forms for marriage licenses and certificates, and the Attorney General, all in their official capacities. The petitioners are asking that the respondents be held responsible for court and attorneys' fees. I hope this means that the Department of Public Health and the Attorney General's office have to shell out, because this is so not these people's fault personally.
rebbyribs (and my parents, incidentally) ask, "How does the State of California determine the sex (or gender?) of a couple getting married? If Prop 8 is applied, do intersex people lose the right to marry?" This is probably based on what's on whatever form of ID you present when you apply for your marriage license. Intersexed persons generally get put into one bucket or the other at birth (and the issue of whether this is at all fair or right is a whole 'nother can of worms); those who end up identifying as the gender other than the one on their birth certificate have to go through the same giant hassle that transfolk do.
Anyway. For the next few days, keep reading the news, hold your head high, and don't give up the ship. The ACLU knew this was a possibility; nobody puts together a 64-page brief in one day, especially when there are eight different groups of counsel in three different cities involved. (If I'm wrong on that, then holy shit these people are machines.) Now is a great time to learn more about your legal process, how it works, and your rights as a citizen, and to educate your friends and family. We've spent the last several months of our lives passionately involved in the electoral process, which is a central aspect of American citizenship. We have the opportunity now to move that fire and momentum into the judicial process and just keep the train a'rollin'.
We're making history here, folks. Today, Prop 8 feels like a defeat. In ten years, it will be a footnote.
This work by Meredith L. Patterson is licensed under a Creative Commons Attribution 3.0 United States License.