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Prop. 8 Decision Upholds California Gay Marriage Amendment: What Next?

By Javier Lavagnino, Esq. on May 26, 2009 | Last updated on March 21, 2019

The California Supreme Court today upheld Proposition 8, the voter-approved constitutional amendment limiting marriages to those occuring between a man and a woman. Despite the legal setback for gay marriage advocates, gay couples who were married before the election (reportedly as many as 18,000) got good news in the opinion because the court found that the amendment did not apply to them.

The court's conclusion, in its own words, was as follows:

"Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the "inalienable rights" theory proffered by the Attorney General. We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid. "

Acknowledging that although the "designation of 'marriage'" is very important to both sides in the debate, the court went to great lengths to emphasize the breadth of constitutional protections that remain for same-sex couples despite Prop 8. Still, considering that this is likely to be small consolation to gay marriage proponents, there's probably quite a few people wondering, "what next"?

Well, the California Supreme Court is most likely the end of the line as far as legal challenges to Prop 8 go. Instead, as noted by the court itself, future changes in the constitution and laws with respect to gay marriage will probably have to be aimed at the ballot box as opposed to courtrooms.

Lastly, because the court found that the language of Proposition 8 was not targeted at eliminating pre-existing gay marriages, there might be some wondering whether separate legal measures could be taken to invalidate existing gay couples' marriages. Although it would arguably be possible to do so, the court appeared to be skeptical about the legality of having previously existing, legally valid marriages suddenly wiped out, even if it were explicitly intended to do so by voters.

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