Can a Subsequent Change in Law Void a Marriage that Was Valid at Its Inception? Considering the Legal Effect of Proposition 8 on California's Existing Same-Sex Marriages

Authors

Lois A. Weithorn

Abstract

On May 15, 2008, the California Supreme Court held that California's prohibition of same-sex marriage violated the equal protection and due process clauses of the California Constitution. One month later, pursuant to that court's authority, county clerks throughout California began certifying marriages of same-sex couples. Opponents of same-sex marriage placed a voter initiative- ultimately known as Proposition 8-on the November 4, 2008 ballot. Proposition 8 passed with 52.3% of the vote, thereby placing in the California Constitution the language, "Only marriage between a man and a woman is valid or recognized in California." In response to its passage, California officials ceased authorizing same-sex marriages, and lawsuits challenging the validity of Proposition 8 were filed. This Article addresses one of the three questions that the California Supreme Court agreed to hear in response to the legal challenges to Proposition 8: "[W]hat is [the Proposition's] effect, if any, on the marriages of same-sex couples performed before adoption of Proposition 8?" This Article examines the legal effect of Proposition 8 on the approximately 18,000 same-sex marriages that were validated by the State of California between June 16 and November 4, 2008.

Recommended Citation

Lois A. Weithorn, Can a Subsequent Change in Law Void a Marriage that Was Valid at Its Inception? Considering the Legal Effect of Proposition 8 on California's Existing Same-Sex Marriages, 60 Hastings L.J. 1063 (2009).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol60/iss5/3