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Okay, so if you're a gay person or part of a same-sex married couple in California, what happens to you?

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.

Creative Commons License
This work by Meredith L. Patterson is licensed under a Creative Commons Attribution 3.0 United States License.

Comments

( 42 comments — Leave a comment )
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(Deleted comment)
maradydd
Nov. 7th, 2008 04:58 am (UTC)
You're very welcome. I'm pleased with those decisions too; the Justices really left no stone unturned. (Alas, the same cannot be said for Romer v. Evans, though in that case there weren't really a lot of stones that had to be turned over -- the Colorado amendment in question was blatantly unconstitutional prima facie.)
feyandstrange
Nov. 6th, 2008 09:53 am (UTC)
I'm also sort of curious about what would happen (as someone asked elsewhere) if the marriages are invalidated; what about the $89 fee to the state for that marriage license? There's another angle, but for a later attack.

CA allows intersex or trans folks to change their gender on their ID and birth certificate, thus changing their legal status. Since CA does allow gender changes, I expect that MF marriages will be legal, but MM or FF will not. But that's another interesting loophole: If a lesbian asks for her driver's license to go M instead of F so she can get married, is that fraud? Can she still get married? Is there any other problem with her deciding to claim to be male on her ID but otherwise living as female? This angle may piss off some of the transfolk, but most of them have run around the ID and marriage problems themselves, and understand that this affects many transfolks as well.

Bear in mind that the other side seem a little confused as to whether the intended Prop 8 to invalidate same-sex marriage "now and forever" (as the text of the prop said at one point, I believe) or merely any time after Nov 5.

And yes, now would be a lovely time to attack DOMA. Although I am personally hoping that a few particularly horrid old Supreme Court justices decide to retire or step down some time soon... I can dream. I can dream about them catching nasty diseases...

I'm pretty sure that the ACLU were already concerned even before the polls started slipping, and at that point they probably made some phone calls. There was at one point a personal plea (via email) from the ACLU's director (who is gay) asking that folks vote no on 8, which was an unusually personal message compared to what I'm used to seeing in their emails.
maradydd
Nov. 7th, 2008 05:16 am (UTC)
If a lesbian asks for her driver's license to go M instead of F so she can get married, is that fraud? Can she still get married?

Good question. I don't actually know the answer. I know that several of my trans* friends (and my girlfriend, actually) have driver's licenses stating the gender they identify as, but I don't know what it took to get that, as I don't like to pry about those kinds of things. (I did once get into a discussion with one of my trans* friends about the hurdles one has to jump in order to get surgery, but she brought it up and specifically said she didn't mind my picking her brain about it.)
(no subject) - feyandstrange - Nov. 7th, 2008 05:18 am (UTC) - Expand
(no subject) - maradydd - Nov. 7th, 2008 05:34 am (UTC) - Expand
(no subject) - (Anonymous) - Nov. 8th, 2008 05:01 am (UTC) - Expand
(no subject) - maradydd - Nov. 8th, 2008 08:45 am (UTC) - Expand
(no subject) - mantic_angel - Nov. 9th, 2008 11:30 pm (UTC) - Expand
solar_diablo
Nov. 6th, 2008 12:31 pm (UTC)
Surfed in from tdj's journal, and decided to add you, if that's cool.
spookyhandle
Nov. 6th, 2008 03:00 pm (UTC)
Ditto, actually.
ilcylic
Nov. 6th, 2008 01:27 pm (UTC)
*grr*

That is all.
(Deleted comment)
maradydd
Nov. 6th, 2008 05:07 pm (UTC)
You're quite welcome. Congratulations on your marriage, btw!
jered
Nov. 6th, 2008 02:12 pm (UTC)
I appreciate the analysis, but I'm concerned about the whole "revision" vs. "amendment" challenge. If the court invalidates the proposition, that would be the kind of hypocrisy and lack of respect for democracy generally reserved for Republicans, and seems like it would just fire them up more -- nobody like a court order that they have to be nice. It really seems like the best strategy overall would be to just wait 2 years, as depressing as that is.

From where I sit, also, it seems like the No On 8 campaign was horribly, horribly managed. (I did donate money to them, all the same.) They were massively outclassed in terms of both organization and quality, and I think this reflects a failing of the progressive community.
maradydd
Nov. 6th, 2008 05:14 pm (UTC)
that would be the kind of hypocrisy and lack of respect for democracy generally reserved for Republicans

I'm sure it will fire up the Prop 8 supporters even more, but evaluating whether an initiative amendment is actually an amendment or a revision does fall under the scope of CA Supreme Court judicial review. In 2007, the Court conducted a review of Prop 35 as part of Professional Engineers in California Government v. Kempton et al to decide whether Prop 35 constituted an improper revision. In Engineers, the Court found that 35 was proper; I'm doing some more research to understand their standard of review.
(no subject) - (Anonymous) - Nov. 6th, 2008 08:51 pm (UTC) - Expand
fionnghal
Nov. 6th, 2008 04:22 pm (UTC)
California sometimes makes me think that Alexander Hamilton was right when he thought there was such a thing as "Too much Democracy". It should be much harder to pass this sort of thing.
maradydd
Nov. 6th, 2008 04:32 pm (UTC)
"Democracy is the theory that the common people know what they want, and deserve to get it good and hard." -- H.L. Mencken
(no subject) - (Anonymous) - Nov. 6th, 2008 09:55 pm (UTC) - Expand
(no subject) - maradydd - Nov. 6th, 2008 09:58 pm (UTC) - Expand
gramina
Nov. 6th, 2008 04:37 pm (UTC)
Thank you so much for this post, both for the information and for the attitude. Just what I needed.
caramida
Nov. 6th, 2008 04:52 pm (UTC)
Thank you for your very clear and cogent posts explaining the law behind the Prop 8 opposition. I very much enjoyed them, and look forward to reading more from you.
liandriel
Nov. 6th, 2008 05:33 pm (UTC)
Sent by tdj. Do you mind if I add you?
maradydd
Nov. 6th, 2008 05:35 pm (UTC)
Feel free.
dv_girl
Nov. 6th, 2008 05:45 pm (UTC)
Just a side note on trans* people. There are some of us who had the misfortune of being born in some backwater cesspool state like Oklahoma who cannot even get our birth certificates amended, so we live in limbo even if we've had surgery and had all our other documents changed. It also makes foreign travel difficult. :/
(Anonymous)
Nov. 6th, 2008 06:10 pm (UTC)
We're making history here, folks. Today, Prop 8 feels like a defeat. In ten years, it will be a footnote.

Damn straight. (Uh... pun actually not intended. Heh.)

Thank you so much for this post and the last. You've clarified things for me a lot.
liannanshith
Nov. 6th, 2008 07:09 pm (UTC)
First off, kudos.

Secondly, as far as I know you're not a lawyer,
one thing that I haven't quite figured out is how the Federal Government handles determinations over one's sex for immigration needs. I presume that they'll honor the state's marriage certificate and requirements (IDs of those present at the time) but it gets ever more so confusing given what I've heard the USCIS department pull off.

I would just hate to find out that I suddenly have no rights to marriage and immigration.

It's just another level of where things get fuzzier after what rebbyribs asked.
liannanshith
Nov. 6th, 2008 07:10 pm (UTC)
I ended up here through gentlegamer's journal, through a comment you made. Although, at this point, she's forwarded to your further writings on the matter.
(no subject) - maradydd - Nov. 6th, 2008 10:17 pm (UTC) - Expand
kenshi
Nov. 6th, 2008 07:30 pm (UTC)
I don't have a dog in this hunt, so I'm not particularly partisan about it one way or another, but doesn't the argument that a constitutional amendment is unconstitutional strike you as a bit of a stretch? I was under the impression that the CA state constitution is explicitly allowed by law to be amended by referendum.
maradydd
Nov. 6th, 2008 09:44 pm (UTC)
It is allowed to be amended by referendum, but it can't be revised by referendum, and the distinction is the degree to which the constitution is modified. The argument is not that Prop 8 is "unconstitutional", but that adopting it would require modifications to or change the meaning of other parts of the constitution, thus making it a revision. There's a different, more stringent process for revisions.
(no subject) - (Anonymous) - Nov. 6th, 2008 10:04 pm (UTC) - Expand
(no subject) - maradydd - Nov. 6th, 2008 10:30 pm (UTC) - Expand
(no subject) - kenshi - Nov. 6th, 2008 11:05 pm (UTC) - Expand
thewronghands
Nov. 6th, 2008 07:57 pm (UTC)
Good for you for gathering all this info together and presenting it coherently. Bravo, voice of reason during uncertain times.
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