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Q&A: Answering your questions about the Prop. 8 decision [Updated]

May 26, 2009 |  3:45 pm

Prop8q&A Times reporter Rong-Gong Lin II is answering reader questions about Proposition 8. Ask a question by submitting a comment below.

Updated at 3:45 p.m.:

The voters aren’t able to decide that murder is OK, right? Or to reinstate slavery? So why can they take away the right for same-sex couples to marry?

California’s Constitution gives its voters broad authority to change state law, and they could, if they wanted, repeal all of the state’s anti-murder criminal laws, the same way they decriminalized marijuana use for medicinal purposes, UC Davis law professor Vikram D. Amar wrote in an e-mail. But voters would not be able to reinstate slavery because that is forbidden by the U.S. Constitution. “We really have two backdrop safety nets: the U.S. Constitution, and the (general) common sense of the people not to do anything TOO stupid or mean, Prop. 8 notwithstanding,” Amar wrote in an e-mail.

Do civil unions provide ALL of the same rights as a married couple or not?

California law already grants domestic partners virtually all of the legal benefits married couples enjoy under state law. But the federal government does not recognize same-sex marriage. This means that married couples of the same sex cannot file joint federal income tax returns or receive federal spousal benefits, including those from the Social Security Administration or the Department of Veterans Affairs. A U.S. citizen who marries a foreigner of the same sex in California will not be allowed to sponsor the spouse to immigrate here.

Does today’s decision take away the rights of married same-sex couples?

No. The justices interpreted Proposition 8 to mean that future unions of same-sex couples cannot be called marriage in California. It does not rescind “ ‘the core set of basic substantive legal rights and attributes traditionally associated with marriage,’ such as the right to establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within that family.”

Can the California Supreme Court be appealed to reconsider its opinion?

No. The justices were explicit today that further reconsideration of same-sex marriage needs to be done at the ballot box.

Why did one Supreme Court justice seek to overturn Proposition 8?

Justice Carlos R. Moreno, the court’s sole Democrat, wrote that the majority decision today “places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”

If I was married in Canada before Proposition 8 was passed, am I still married under this new decision?

The court did not address whether California will continue to recognize same-sex marriages conducted legally in Massachusetts, Canada or other parts of the world where it is legal. From the court’s ruling: “We have no occasion in this case to determine whether same-sex couples who were lawfully married in another jurisdiction prior to the adoption of Proposition 8, but whose marriages were not formally recognized in California prior to that date, are entitled to have their marriages recognized in California at this time.  None of the petitioners before us in these cases falls within this category, and in the absence of briefing by a party or parties whose rights would be affected by such a determination, we conclude it would be inappropriate to address that issue in these proceedings.”

Will California recognize future gay marriages from other states and countries such as Canada where they are legal?

No. Proposition 8 says, “Only marriage between a man and a woman is valid or recognized in California.” It is unclear whether out-of-state same-sex marriages officiated before Proposition 8 was passed will continue to be recognized as marriages.

Can gay Californian couples legally marry in Massachusetts or Canada?

Gay Californian couples can be married in other states or countries where it is legal to do so. But their marriages are not recognized by California agencies. California same-sex couples, however, can register as domestic partners, which give them many of the legal benefits marriage provides.

How can the California Supreme Court rule that gay marriage is legal and then turn around and uphold Proposition 8?

The California Supreme Court in 2008 ruled that the state Constitution protects a fundamental "right to marry" that extends to same-sex couples. But today, the justices upheld the right of California’s voters to amend the state Constitution to specifically prohibit same-sex couples from marrying.

My husband and I got married in Canada in 2007. When we tried to remarry in California last fall, we were turned away by the county clerk who told us that since we were already married and our marriage was recognized by the state of California, we could not get married again (even though it was to each other). Will our marriage still be recognized in California?

The Times' Maura Dolan answers this question: "The court declined to determine whether same-sex marriages performed outside of California -- and not formally recognized by the state prior to the election -- would be legal in California. The court said it did not hear arguments on that question and wrote that 'it would be inappropriate to address' it today."

I am still waiting for an answer to the basic question of how a law can be found to be unconstitutional and then becomes otherwise by putting it in the Constitution.

The California Supreme Court wrote that the California Constitution "explicitly recognizes the right of the people to amend their state Constitution through the initiative process." That means that, generally, the state's voters have a right to change the Constitution if they disagree with a ruling of the California Supreme Court.

Are they ruling that the definition of the word marriage, between a man and a woman, is not discriminatory? Or are they overturning their decision from last year?

Actually, opponents of Proposition 8 asked the California Supreme Court to overturn the ballot measure on the argument that banning same-sex marriage changed the tenets of the state Constitution and therefore amounted to a revision, which can only be placed on the ballot by a two-thirds vote of the Legislature. Proposition 8 reached the ballot after a signature drive.

In today’s ruling, the court ruled that Proposition 8 "adds but a single, simple section to the Constitution," and therefore was a constitutional amendment and not a revision. "The act of limiting access to the designation of marriage to opposite-sex couples does not have a substantial or, indeed, even a minimal effect on the government plan or framework of California that existed prior to the amendment."

What would the process be to limit the ability of the voters to amend the Constitution at the ballot box?

Such a measure would require amending the state Constitution.

What did the court say about Atty. Gen. Jerry Brown’s argument that Proposition 8 was invalid because “inalienable rights” are not subject to “abrogation” by constitutional amendment?

The court rejected Brown's argument. It ruled that Brown’s argument “rests inaccurately upon an overstatement of the effect of Proposition 8" on the right of privacy and guarantees of due process and equal protection. The court said that “Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term ‘marriage,’ but not to any of the other of ‘the core set of basic substantive legal rights and attributes traditionally associated with marriage,’ such as the right to establish an officially recognized and protected family relationship with the person of one’s choice and to raise children within that family.”

What did the court say about the arguments of some that it’s too easy to amend the California constitution?

The court said it is constitutionally bound to uphold the initiative process in the state Constitution. “It is not a proper function of this court to curtail that process.... If the process for amending the Constitution is to be restricted — perhaps in the manner it was explicitly limited in an earlier version of our state Constitution, or as limited in the present-day constitutions of some of our sister states — this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.”


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