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Legal analysis of Prop 8 ruling

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California’s Supreme Court ruled Tuesday that the state’s voter-passed ban on gay marriage will stand, but will not be applied retroactively to couples already married. Here’s our look inside the ruling:

The court had two questions to consider. Should Proposition 8 Stand? And if it does, what happens to those who are already married?

In a March hearing, the legal team led by the National Center for Lesbian Rights argued that Proposition 8 was a constitutional REVISION – not an amendment – and as such, should have required a two-thirds vote of the legislature before going to voters. The California Attorney General’s office went a different route – telling the court that marriage is an inalienable right, and should not have been subject to the amendment process at all.

On the ‘Revision’ argument, the court found that Proposition 8 only took away the word “marriage” and not the rights OF marriage, most of which are still protected by the state’s Domestic Partner and adoption laws. Judging by the constitutional definition of “revision,” the majority wrote that Proposition 8 therefore “does not have a substantial effect on the governmental plan or framework of California.”

On the argument that marriage is an inalienable right, the court used a similar logic – ruling that the “inalienable rights” of marriage are still afforded to gay couples, they’re just not called “marriage.”

As for what happens to the couples already married, the court wrote that neither the ballot language nor the materials sent to voters contained a clear retroactivity clause. The justices ruled that applying Proposition 8 retroactively – without ‘clear intent’ of the voters – would be in violation of the state’s due process laws.

–Tim Curran, Aaron McQuade

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Written by OutQ News staff

May 27, 2009 at 9:06 AM

Posted in Uncategorized

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