Saturday, December 20, 2008

The Prop. 8 Drama Isn't Over

As opponents of Proposition 8 fight a last-ditch battle to overturn the results (on the grounds that the amendment is actually a "revision" to the California constitution, which would require a 2/3 majority to pass), proponents are trying to press their own advantage further: seeking to nullify the gay and lesbian marriages that already occurred under California law. Their argument is that the text of the amendment prohibits recognition of all marriages that aren't between one man and one woman, and that this necessarily applies retroactively.

Let's put aside a moment the fact that these people are assholes (I know it's hard, but let's try). My understanding (probably incorrect) was that the state is constitutionally precluded from nullifying previously created contracts. See, e.g., Dartmouth College v. Woodward, 17 U.S 518 (1819); Fletcher v. Peck, 10 U.S. 87 (1810). In Fletcher, that included a repealing a corrupt state grant of land, so the prohibition is pretty broad in scope. The marriage contracts entered into between the court's decision and Proposition 8 were valid under California law at the time, hence, I have difficulty understanding how the state could retroactively annul them without running afoul of some very old contracts clause precedents.

4 comments:

PG said...

Those cases are all pre-Civil War and of course also in a more Lochner vein of thinking about contract than we have today. The 13th Amendment nullified the previously-created contract between the person who kidnapped the slave from Africa and the person who bought the slave in Savannah by saying that neither of them could be the owner of the slave. The passage of minimum wage, maximum hour and other working condition laws also would have nullified previously-created contracts in which workers had agreed to lower wages and more hours.

I imagine there's something about a generally applicable rule that distinguishes the kinds of acts of legislatures that were at issue in Dartmouth College and Fletcher -- acts that singled out specific entities -- from the 13th Amendment and state laws regulating labor conditions. The conventional wisdom about the Contract Clause of the U.S. Constitution is that it was to prevent states from continuing to grant "private relief," bills relieving particular persons of their obligation to pay their debts.

I think your argument would run into particular difficulty in California if the marriages are just converted into a domestic partnership, as that keeps the contractual obligations between the two parties pretty much identical.

Transplanted Lawyer said...

Also query as to whether marriage is a "contract," or more accurately, merely a contract. As PG points out, other relationships that appear purely contractual on their face -- like employment -- actually are quite complex and involve the government rather than just the putatively two private parties.

California Family Code 300(a) defines marriage as "...a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary." The relationship "arising out of" a contract suggests that there is something more to it than the contract.

(I'm a big proponent of abolishing the "between a man and a woman," by the way. But we SSM advocates lost the election.)

The Gaucho Politico said...

I expect that the proponents of a OMOW standard are going to argue that these contracts are analogous to illegal contracts that should be voided on grounds that they run counter to established public policy.

The goal of the OMOW groups is to strip the contracts of any meaning or force of law. Otherwise the same sex couples will continue to receive the rights and benefits of the contract. The entire point of prop 8 was to establish that gays are not entitled to the same rights as everyone else. For this reason i doubt that they will settle for a simple reduction in the name of the contract. they do not want to allow even de facto marriage.

PG said...

TGP,

The goal of the OMOW groups is to strip the contracts of any meaning or force of law. Otherwise the same sex couples will continue to receive the rights and benefits of the contract. The entire point of prop 8 was to establish that gays are not entitled to the same rights as everyone else. For this reason i doubt that they will settle for a simple reduction in the name of the contract. they do not want to allow even de facto marriage.

I'm uncertain that the Prop. 8 folks will want to overplay their hand. They won this round, but if they then say that the same-sex marriage partners shouldn't be allowed to be allowed to convert their marriage to a domestic partnership, they risk looking too overtly hateful. The Yes on 8 folks made a big deal of saying that the measure would do nothing to upset domestic partnerships, which give pretty much all of the in-state benefits (and demerits) of marriage to same-sex and elderly couples.

The line those people (including Rick Warren) are walking is that they aren't going to prohibit *contracts* between same-sex couples, but that marriage is more than a contract and therefore the state can refuse to grant recognition of relationships that the state says don't qualify as marriage. I don't think Californians are so anti-gay that they're ready to get rid of the domestic partnership system that arose through the democratic legislative process and seems to have been fairly unproblematic for the average straight Californian (though it's created significant tax complications for the gay Californians who get them).