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Wednesday, May 27, 2009

The Legal Black Hole of the Prop 8 Ruling

As most know, yesterday the California Supreme Court ruled that California's Constitutional amendment to ban gay marriage is Constitutional.

The California Supreme Court today upheld Proposition 8’s ban on same-sex marriage but also ruled that gay couples who wed before the election will continue to be married under state law.

The decision virtually ensures another fight at the ballot box over marriage rights for gays. Gay rights activists said they may ask voters to repeal the marriage ban as early as next year, and opponents have pledged to fight any such effort. Proposition 8 passed with 52% of the vote.

Now, by upholding Prop 8 but also upholding all gay marriages prior to Prop 8, we will inevitably have a series of Constitutional arguments. The first argument is the equal protection argument under the 14th amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

By upholding a ban on gay marriage but also upholding prior gay marriages, the state of California certainly appears to have violated the 14th amendment. After all, future gay couples wouldn't be treated equally under the law as those that got married when it was allowed.

In fact, high powered attorneys wasted no time in making this argument.

Former Bush administration solicitor general Theodore Olson is part of a team that has filed suit in federal court in California seeking to overturn Proposition 8 and re-establish the right of same-sex couples to marry.

The suit argues that the state's marriage ban, upheld Tuesday by the California Supreme Court, violates the federal constitutional right for same-sex couples to marry. The complaint was filed Friday, and Olson and co-counsel David Boies -- who argued against Olson in the Bush v. Gore case -- will hold a news conference in Los Angeles Wednesday to explain the case. The conference will feature the two same-sex couples on whose behalf Olson filed suit.

The suit also asks the U.S. District Court for the Northern District of California to issue an injunction that would stop enforcement of Proposition 8 and allow same-sex couples to marry while the case is being decided.

"I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions," Olson told me Tuesday night. "I thought their cause was just."

So, clearly, this ruling will face significant Constitutional challenges. Now, one potential counter to the argument that this ruling violates the 14th amendment might be the concept of ex post facto.

An ex post facto law (from the Latin for "after the fact") or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or it may aggravate a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted. Conversely, a form of ex post facto law commonly known as an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with life-long imprisonment) retroactively.

Ex post facto laws are specifically prohibited under the Constitution. In other words, one cannot be punished for something that is now illegal but was legal at the time of the offense. Normally, ex post facto concerns criminal violations of law. So, such an argument would likely find a slightly different interpretation.

Either way, the ruling yesterday by the California Supreme Court is certain to ignite a series of significant constitutional battles.

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