Yale Law Prof Says Prop 8 Will Invalidate CA Marriages

In the Sunday Los Angeles Times openly gay Yale Law School Professor Kenji Yoshino, the author of the brilliant Covering published a commentary entitled "Can California same-sex marriages be saved?" in which he argues that f the voters enact Proposition 8, the courts are likely to invalidate all same-sex marriages entered before November 4 and would definitely ban any attempted after Election Day.

The first argument would be that the constitutional amendment was not intended to apply retroactively to same-sex marriages. But it is hard to see how this case would be made. The proposed amendment does not say that "only a man and woman may get married in California," which might reasonably be construed to apply just to future marriages. It says that "only marriage between a man and a woman is valid or recognized in California." The language leaves room for other states to recognize the June-November marriages as valid, but it leaves no discernible discretion for any governmental body in California to continue extending marriage rights to the June-November crowd.

The second argument that might protect the existing same-sex marriages is that the retroactive application of the amendment would violate the federal Constitution. This is a more credible argument -- as every first-year law student knows, if a state constitution conflicts with the U.S. Constitution, the latter will trump the former as "the supreme law of the land." Moreover, Article I of the U.S. Constitution contains a provision that seems directly on point: "No state shall ... pass any ... ex post facto law." As "ex post facto" means "after the fact," this provision appears to prohibit states from legislating retroactively.

However, since the 1798 Supreme Court case of Calder vs. Bull, the ex post facto clause has generally been deemed to apply only to criminal laws. Thus, a state legislature cannot increase the punishment for a crime after it has been committed, but it remains free to impose retroactive civil disabilities. In the Calder case, for instance, the ex post facto clause did not bar the Connecticut Legislature from reopening an ostensibly final probate proceeding. In the centuries since then, the Supreme Court has on occasion stretched the definition of what constitutes an "essentially criminal" penalty, thereby extending the protections offered by the clause. But it is highly unlikely that any court would treat the annulment of same-sex marriages as a criminal punishment in civil dress.

One could still argue that other provisions of the U.S. Constitution prohibit California from applying the proposed amendment retroactively. The most likely candidates are the prohibition on state action that impairs the obligation of contracts (which falls under Article I), or the 14th Amendment's due-process clause, which has been understood to guarantee fundamental fairness under the law. But these arguments are also long shots. There is direct Supreme Court precedent holding that marriages do not fall under the protection of the contracts clause. Similarly, the argument that retroactive application of civil laws violates the due-process clause has been a repeat loser in the courts.

This is very saddening news.