GAYS DEFEND MARRIAGE

Imagine it is 1865. The 13th Amendment has just banned slavery in the United States. Yet the Attorney General announces that the 13th Amendment is not retroactive, and that anyone who had been a slave before 1865 is still be a slave; the 13th Amendment bans only new slaves.

Sound preposterous? Well, that’s precisely what California Attorney General Jerry Brown and his allies are trying to do with Proposition 8. That constitutional amendment, passed by voters in November, states that “Only marriage between a man and a woman is valid or recognized in California.” The constitution supersedes all laws; it sets the rules. Just like the abolition of slavery was retroactive, the definition of marriage as man-woman must be retroactive.

In early August, Brown told the San Francisco Chronicle, “I believe that marriages that have been entered into subsequent to the (May 15) Supreme Court opinion will be recognized by the California Supreme Court.” He noted that Prop. 8 is silent about retroactivity.

I would argue that the initiative didn’t have to mention the word “retroactivity.” As much as some people like to twist the language of constitutions to insert their own interpretation, proper constitutional analysis looks at the plain meaning. The initiative said same-sex marriages would not be “valid” - a term that implies such things would be invalid, which sounds like retroactivity to me. It also says “recognized,” which implies they may already exist, but they don’t get recognition. I disagree with Brown that the initiative is silent about retroactivity; I would argue that it loudly endorses retroactivity.

Brown also said, “I would think the court, in looking at the underlying equities, would most probably conclude that upholding the marriages performed in that interval (before the election) would be a just result.”

Even if there are clauses in the Constitution about “equities,” those clauses get just as much weight as Prop. 8, which is equally part of the Constitution. If anything, Prop. 8 should get more weight, since it was consciously amending the Constitution as written. The court must look at the text of the constitutional amendment, and determine whether it is retroactive, just as the antislavery amendment was retroactive. I can think of no other “just result.”

Opponents of retroactivity have argued that ex post facto laws are illegal (but this isn’t a law; it’s a constitutional amendment), and that it would be unfair to strip marital status from couples who really believed they were getting married. The problem with that last argument is that every single same-sex couple who married in California knew there would be a constitutional amendment on the November ballot defining marriage as between a man and a woman. Some “No on 8″ activists even tried to win points with the public by arguing that past gay marriages could be eviscerated if the initiative passed; they can’t expect us to believe them now if they say it’s clear the initiative isn’t retroactive.

If a sizable number of legally married same-sex couples continue to exist in California, many of the problems the Prop. 8 people wanted to avoid in the first place will still exist. Liberal teachers will still be able to tell their students that in California, some men are married to men - and they’ll be right. Business owners who refuse to refer to man’s legal spouse as a “husband” can be sued for discrimination. Same-sex married couples will be able to wave around their marriage licenses and dare anyone to treat them as less than married - a problem Prop. 8 was supposed to solve.

I’ve been told that many Prop. 8 supporters are resigned to losing this battle, and have therefore put little energy into making sure the constitutional amendment is retroactive. I think that’s a big mistake. I believe the law is on our side, and the consequences of a non-retroactive proposition are severe.