Short(ish), possibly accurate answers to some legal questions about Prop 8.
Q1. What happens to the 18,000 same-sex couples who married in the interim?
A. Nobody knows.
The language of Prop 8 does not make clear whether it applies retroactively. California Attorney General Jerry Brown has taken the position that it does not apply retroactively. However, some Prop 8 advocates have said that they will sue to have it applied retroactively, in effect nullifying the 18,000 marriages that took place before the election.
There are rules against applying criminal laws retroactively, but Prop 8 is not a criminal law and so there is no bar against retroactive application there. Plus, it’s not clear conceptually that this would even be a true retroactive application. If California, going forward, simply refused to give any prospective legal effect to previously contracted California marriages, this could be argued to simply be a normal prospective application of the statute.
Thus, retroactivity is going to be a mess. At least one prominent legal scholar has suggested that, if the proposition is found to apply retroactively, that the legislature should pass a special statute converting same-sex marriages into registered domestic partnerships, in order to minimize confusion about issues like property distribution.
The church has not made any statements that I’m aware of about retroactivity.
Q2. Will Prop 8 hold up in court?
There are currently several lawsuits to overturn the proposition. They all look like longshots.
The best argument that gay rights advocates have is that the proposition made too big of changes in the constitution to be passed the way it did. In a nutshell, little changes to the constitution can be done by simple majority vote, but big changes — revisions, as they are called — require a more complicated process.
It’s not a bad argument, and it may actually succeed. On the down side, the existing precedent is extremely spotty. (One case, from 1990, involving a much broader voter initiative. That’s it.) I’d say the odds are against this. (But then, I thought the odds were against Marriage Cases, too.)
There are also arguments that the amendment is inconsistent with the constitutional body. This is a really unusual legal argument — in effect, it’s an argument that part of the constitution is itself unconstitutional. It’s an argument that can be made in theory — see this article by Jason Mazzone for one example — but I highly doubt a court would buy it.
Q3. Will the church lose their tax status over Prop 8?
Several organizations are pushing for the church to lose its 501(c)(3) status over its actions on Prop 8. It’s become a popular refrain at protests, too, with protesters chanting “tax that cult.”
Ironically, church leaders suggested that one reason to support Prop 8 was that unless it was passed, the church’s tax status might be in danger. That was an extremely speculative idea — there’s nothing in existing law to suggest that result; anything of the sort would require a major extension of Bob Jones in a way that hasn’t ever happened. (How many churches have lost tax status over Bob Jones and social policies in the past 25 years? Oh. None.) A group of 60 prominent law professors said outright that gay marriage would not affect church’s tax status.
On the other hand, there is ample precedent for religious organizations losing tax exemptions for excessive political activity. And so it is the church’s involvement in the election itself which does potentially threaten its tax status, in a way that gay marriage and Bob Jones never did.
However, the standard is such that it’s unlikely the church will be found in violation. The relevant standard is that
no organization, including a church, may qualify for IRC section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying).
The relevant question then is whether a substantial part of the church’s activities were lobbying. How do we know what substantial is? Ask the IRS:
Whether an organization’s attempts to influence legislation, i.e., lobbying, constitute a substantial part of its overall activities is determined on the basis of all the pertinent facts and circumstances in each case. The IRS considers a variety of factors, including the time devoted (by both compensated and volunteer workers) and the expenditures devoted by the organization to the activity, when determining whether the lobbying activity is substantial.
Under the substantial part test, an organization that conducts excessive lobbying in any taxable year may lose its tax-exempt status, resulting in all of its income being subject to tax.
Wow, that was helpful. I’m not a tax attorney, and that standard is clear as mud. The people I’ve talked to about tax law issues have said that it’s unlikely that the church’s level of involvement in Prop 8 would be viewed as a substantial part of its overall activities.
Note that more radical related ideas — e.g., that the church could be subject to hate speech lawsuits over Prop 8 — are just crazy talk.
Q4. What now?
First, note that Prop 8 does not affect registered domestic partnerships. It also does not affect antidiscrimination laws (Unruh) which prohibit discrimination on the basis of sexual orientation. It very likely does not even affect the Marriage Cases ruling that sexual orientation is a protected category (except as to the specific application to marriage).
Remember, Marriage Cases had a negligible legal effect in California anyway. Same sex couples already had all legal rights under state law, if they had a registered domestic partnership.
Federal law does not recognize same-sex marriage. Whether or not a state labels a union marriage or not, the couple still does not receive federal tax benefits or other federal benefits.
Advocates like Evan Wolfson like to point out that there are roughly 1200 differences (depending on how you count) between marriage and civil union / domestic partnership. The kicker is that those differences are all federal. And California can’t do anything about that, Marriage Cases or not.
As I explained to an audience of mostly attorneys, a week and a half ago:
Registered domestic partner gives all of the legal rights as marriage, on a state level. Marriage is restricted by federal law, so on a federal level, marriage will be man/woman, regardless of what a state says.
Thus, either Prop 8 passes, in which case same-sex couples can have a registered domestic partnership with all of the state-law benefits of marriage, but receive no federal benefits. Or, it fails, in which case married same-sex couples have all of the state-law benefits of marriage, but receive no federal benefits because of DOMA.
Either way, the legal effect is exactly the same.
(There are a few very very small differences in law — they get a footnote in Marriage Cases — but even advocates concede that they don’t really matter.)
California law really does treat registered domestic partners the same as married couples. Cal Fam Code 297.5 provides:
Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.
Thus Medicaid, taxes, pensions, probate rights, and so on, are all equivalent at the state level. And California’s actions can’t change the way federal law treats these areas — regardless of whether California allows marriage, it doesn’t change DOMA. The remaining legal inequities are not at the state law level. They are the effect of DOMA, and as long as DOMA is on the books, they will remain, regardless of whether Cal (or Massachusetts, Connecticut, etc) recognize marriage at the state level.
So, once the dust settles, how does this change things?