Legal Commentary

I have to confess that the seeming passage of Prop 8 dampered the election for me.  I'm very happy about Obama's victory but it really is counterbalanced by a fair bit of depression about the fate of Prop 8.  California at its worst, alas.  I also think there is very little chance that any of the litigation to undo Prop 8 will succeed; indeed, it looks foolish to try to go back to the courts on this one (unless some showing of voter fraud or undercounting can be made, neither of which seems on the table).  Until we get another chance to have this battle as a constitutional amendment -- or the Supreme Court gets a very different constitution, we're stuck, I fear.

Still, I'm a bit more optimistic (than Eugene Volokh) that the same-sex marriages already performed will remain valid.  Eugene's argument for their invalidation is a simple textual one:

According to the text of the amendment, as soon as the amendment takes effect, only male-female marriages are valid or recognized. (Nor is there any language in the initiative summary, or the supporters' arguments, that purports to interpret this text as not applying to existing marriages.) Future marriages, preexisting marriages, in-state marriages, out-of-state marriages ? all are valid and recognized only so long as they are between a man and a woman.

Still, he recognizes that text is not all there is to interpretation of direct democracy in California:

Note that this article reports that "[a]n attorney for advocates of the ban essentially agreed" that "the proposed amendment, like most laws, will be interpreted to prevent same-sex marriages in the future, and not affect those that were legal when they took place." And some court decisions have hinted that a court might also look to "various pre-election materials (newspaper articles and editorials, committee reports, interest-group articles, etc.)." AFL-CIO v. Deukmejian, 212 Cal. App. 3d 425, 436 n.4 (1989); see also Carlos v. Superior Court, 35 Cal. 3d 131, 144 n.12 (1983), overruled on other grounds by People v. Anderson, 43 Cal. 3d 1104 (1987); Goodman v. County of Riverside, 140 Cal. App. 3d 900, 906 & nn.3-5. But it seems to me that these sources can only be the most tenuous evidence of what the voters actually understood the amendment as meaning, or intended it to do. As People v. Castro, 38 Cal. 3d 301, 312 (1985), held, "opinions [which were not] distributed to the electorate by way of the voter's pamphlet" ought not be relied upon, because courts "can only speculate [about] the extent to which the voters were cognizant of them." Accord People ex rel. Lungren v. Superior Court, 48 Cal. App. 4th 1452, 1461 n.6 (1995), rev'd on other grounds, 14 Cal. 4th 294 (1996).

In light of my study of the interpretation of direct democracy, I see courts as much more likely to pursue the voters' intent, as difficult to discern as it may be.  I also would expect a court to rely much more heavily on canons like the canon against retroactivity, even when a measure of direct democracy is in play.  See Evangelatos v. Superior Court, 44 Cal.3d 1188 (1988).  It just isn't especially unusual to see California courts, when engaging in interpretation of direct democracy moving beyond the text, especially when the reading that applied the amendment retroactively is by no means necessary or perfectly clear.  As a practical matter, too, the California Supreme Court might not like getting rid of these marriages that they essentially blessed.   

A final consideration: Imagine that it were to come to light that Prop 8's proponents went out of their way to be ambiguous on the question of retroactivity because they were worried that such a claim would turn off some small group of voters who were comfortable with prospective effect but not retroactive effect.  In light of the razor-thin margin, would it be fair, then, to apply the Proposition retroactively?  I'd think not -- though, of course, I have no evidence of this strategy on the part of the proponents (or even some proponents trying to get votes).  The point is only that the text really won't resolve this easily, as Eugene thinks.