The majority of pundits and lawyers are speculating that the CA Supreme Court will decide to uphold Proposition 8, which bans same-gender marriage in California, but also uphold as valid the 18,000 same-gender marriages granted before Proposition 8 was passed in November 2008. I do not agree with this analysis.
I find it difficult to comprehend that the same court that overturned Proposition 22 allowing for 18,000 same-gender marriages, would reverse course a year later and at the same time establish a third class of couples in California. When the court made its decision last year to overturn the ban on same-gender marriage they applied the constitutional principle of equal protection to their decision. To change that principle, would require a revision to the Constitution, not a simple amendment. Because the Legislature did not place the proposition on the ballot as a constitutional revision, requiring a 2/3 vote of the legislature, Prop 8 should be deemed invalid.
But even if the court were to somehow determine that Prop 8 is valid, if the court were to maintain the validity of the 18,000 marriages performed before its passage they would in effect create a new class of domestic couples. Heterosexual couples would continue to have the right to marry, same-gender couples post Prop 8 could not be married, and the same-gender marriages performed before the passage Prop 8 would continue to be married in the eyes of California law.
For this to occur, the court would have to ignore the equal protection provisions of the California Constitution. I just do not see that happening. I also cannot see the court invalidating the 18,000 marriages granted because of their previous decision.
For my part, I think the right to marriage equality will be upheld by the California Supreme Court when its decision is announced on Tuesday. I believe the court will invalidate Proposition 8 because it is a revision to the State Constitution and not an amendment.