Lois Weithorn has posted an article to SSRN titled, "Can A Subsequent Change in Law Void a Marriage That Was Valid at its Inception? Considering the Legal Effect of Proposition 8 on California's Existing Same-Sex Marriages," which will be published in the forthcoming Volume 60 of the Hastings Law Journal. Here is the abstract:
On May 15, 2008, the California Supreme Court held that California's prohibition of same-sex marriage violated the equal protection and due process clauses of the California constitution. The court's holdings removed state restrictions as to the gender of a person's chosen marital partner. Opponents of same-sex marriage placed a voter initiative, ultimately identified as Proposition 8, on the November 4, 2008 ballot. Their goal was to insert into the state constitution the language of the recently-stricken California Family Code section 308.5 ("Only marriage between a man and a woman is valid or recognized in California"). They hoped that by placing this language in the state constitution, they could shelter the provision from future judicial determinations of unconstitutionality. Beginning June 16, 2008, consistent with the California Supreme Court's May 15 order, county clerks throughout California issued marriage licenses to, and solemnized and certified marriages of, same-sex couples. Proposition 8 passed with 52.3% of the vote. In response to its passage, California officials ceased authorizing same-sex marriages. Lawsuits challenging the validity of Proposition 8 were filed almost immediately after the election. Shortly thereafter, the California Supreme Court agreed to review the challenges to Proposition 8. The court indicated that it would consider the three questions. The first two questions focus on the constitutionality of Proposition 8. The third question addresses the status of the approximately 18,000 same-sex marriages that were validated by the state of California between June 16 and November 4, 2008. The third question reads: "If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before adoption of Proposition 8?" If the California Supreme Court determines that Proposition 8 is unconstitutional, it will not need to reach the third question. If Proposition 8 is sustained, however, the importance of the court's decision in response this question cannot be overstated. This Article examines the current litigation with respect to the legal effect of Proposition 8 on California's existing same-sex marriages, if the Proposition is held to be valid. This Article reviews the legal backdrop against which the battle over the rights of same-sex couples to marry has taken place in California and around the nation. It applies the strong and well-established presumption against retroactive application of changes in statutory and constitutional law to determine what legal effect, if any, Proposition 8 can have on California's existing same-sex marriages. It concludes that the nonretroactivity presumption is not rebutted in the instant case. In addition, it emphatically rejects the assertion of Proposition 8's proponents that a withdrawal of California's legal recognition from its existing same-sex marriages (commencing the day after Proposition 8's passage) constitutes a prospective application of the measure. In particular, the institution of marriage has been extolled throughout the generations as fostering committed, long term family relationships that derive their power and meaning from their enduring nature, subject to termination only at the initiation of the parties themselves. The investment in and reliance upon the inviolability of marriages make possible - according to the California Supreme Court - "the central role that marriage plays as a stabilizing force in American society." The proponents of Proposition 8 allege that they seek to protect and preserve marriage. Yet, if they succeed in persuading the state to cast aside an entire class of marriages that were valid prior to Proposition 8's passage, these proponents will have undermined and weakened the very institution they purport to protect. Such state action would contradict the message California seeks to convey in encouraging the "commitment toward permanence" within marriage when distinguishing marriage from other more temporary relational interests. It would erode Californians' trust that the state - the theoretical third partner in every marriage - can be relied upon to uphold its commitment to and investment in all of those marital relationships that it has created. Indeed, the disruptive consequences of such action would extend beyond the same-sex couples affected most directly, but would also reverberate in their families, their communities and in society at large. Even where a presumption against retroactive application is not rebutted in a particular case, a measure cannot be applied retroactively if doing so would violate the constitutional rights of the affected individuals. I set forth two independent grounds rendering the proposed retrospective application of Proposition 8 unconstitutional: impairment of vested property rights of the marital partners without due process; and impermissible state intrusion into the rights to liberty and marital privacy of already-married couples. Retroactive application of Proposition 8 clearly violates the California Constitution on both of these grounds. In particular, once a couple enters into a valid marriage in the United States, that marriage occupies a privileged position among the multitude of human relationships. Under both the federal and California constitutions, the intact marital relationship receives the highest level of protection from state interference. When a marital relationship is validly formed - as were California's existing same-sex marriages - the fundamental right of privacy attaches, insulating the relationship from state interference in all but the narrowest and most limited circumstances. State-initiated and state-coerced voiding or termination of a legally-valid marriage is, without question, the most drastic form of state intrusion in a marriage imaginable and, in this case, certainly does not survive the strict scrutiny review to which such state action must be subjected. The Article concludes that the remedies urged by Proposition 8's supporters in order to avoid constitutional problems are wholly inadequate to cure the constitutional defects of such application. This Article concludes that Proposition 8 cannot have any legal effect on California's existing same-sex marriages.
Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1350579