Association of Certified Family Law Specialists Newsletter -- Spring 2009

What Effect Does Proposition 8 Have upon the Same-Sex Couples who Married Prior to its Enactment?

• Christopher M. Cockayne, Associate, Downey Brand LLP

I. Introduction

The fourteen poignant words of Proposition 8 appear fairly clear: “Only marriage between a man and a woman is valid or recognized in California.” But what about the thousands of same-sex couples who married in the interim? Are their marriages still valid or recognized? Certainly the court will have to decide.

On November 4, 2008, California voters enacted the ballot initiative known as Proposition 8. The following day, opponents to the initiative petitioned the Supreme Court of California to declare the proposition unconstitutional.[1] Two weeks later, the court granted the petition and agreed to hear two issues: (1) whether Proposition 8 is constitutional; and (2) assuming the proposition is constitutional, whether it is retroactive. This article attempts to briefly address the issue of retroactivity.

Due to the uncertainty surrounding these issues, it may turn out that advising same-sex couples to register as domestic partners (while concededly an inadequate substitute for marriage) may be the first and best option at present. By registering as domestic partners, same-sex couples who are already married—or who would like to marry—can ensure that they will continue to enjoy the protections of domestic partnership, irrespective of Proposition 8’s constitutionality or retroactive impact.

II. Factual Background

Proposition 8 comes as the result of prolonged moral debate and contentious litigation. In March of 2000, California voters passed Proposition 22, which added the same fourteen words contained in Proposition 8 to the Family Code.[2] Eight years later, the California Supreme Court addressed the constitutionality of these provisions in its landmark decision entitled In re Marriage Cases.[3]

In Marriage Cases, the court struck down the provisions of the Family Code that limited marriage to opposite-sex couples. The court held, among other things, that because the provisions draw distinctions between opposite- and same-sex couples, and exclude the latter from marrying, they are unconstitutional.[4] The court based its ruling solely on the California Constitution—without addressing any federal questions or claims.

In its decision, the court announced three tenets of modern California constitutional law. First, marriage is a fundamental civil right guaranteed to all individuals and couples.[5] Second, laws that create distinctions in the right to marry between same-sex couples and opposite-sex couples violate the California Constitution’s equal protection clause.[6] Third, sexual orientation is a suspect classification, which, thereby, dons the protective cloak of strict scrutiny analysis.[7]

In response to the Marriage Cases decision, opponents of same-sex marriage successfully qualified Proposition 8 to appear on the ballot in November of 2008. As previously stated, the proposition passed and became effective on November 5, 2008. Two weeks later, the California Supreme Court agreed to decide the constitutionality and retroactive impact of Proposition 8.

III. Retroactive Legislation

Retrospective or retroactive laws disturb past circumstances. They operate on matters that occurred, or on rights, obligations, and conditions that existed, prior to the time of their enactment.[8] “Such laws disturb feelings of security in past transactions.”[9] Consequently, courts presume initiatives and statutes operate only prospectively, unless express language or clear and unavoidable implication provides otherwise.[10]

This, however, does not automatically signify that all laws with retrospective impact are per se invalid. To the contrary, neither the state nor the Federal Constitution contains an outright prohibition of retroactive laws. Instead, retroactive laws become invalid when their operation or application violates constitutional principles.[11]

In the case of In re Marriage of Buol, the Supreme Court of California articulated a two-step analysis for determining the constitutionality of a retroactive initiative. First, the court must ascertain whether the electorate intended the initiative to apply retrospectively. If the electorate did not so intend, the analysis is complete, and the court will apply the initiative only prospectively, thus avoiding any constitutional inquiry. If, however, the electorate did intend retroactive application, the court moves to the second step of the analysis. There, the court must determine whether constitutional constraints prevent retroactive application.[12]

Given this two-part analysis, the article proceeds by addressing first the intent of Proposition 8, and second, whether it’s retroactive application is constitutional.

IV. Does Proposition 8 Apply Retroactively?

Legislation with retroactive impact is permissible only when legislative intent is clear and unavoidable.[13] The Supreme Court of California has consistently held that when a court interprets an initiative or ballot measure, it shall apply the same principles that govern statutory construction.[14] Pursuant to these rules, the court first looks to the plain language of the proposition, giving the words their ordinary meaning. If the language is ambiguous, the court refers to other indicia of the electorate’s intent.[15]

A. Does Proposition 8’s Text Provide for Retroactivity?

The plain language of Proposition 8 provides little guidance as to whether the voters intended its enactment to affect existing same-sex marriages. The proposition is silent on the issue; it contains no mention of retroactivity. Instead, the initiative’s language provides (in the present tense) that only opposite-sex marriages are “valid or recognized in California.”

In cases in which the courts have held that a given proposition explicitly requires retroactive application, the electorate’s intent has been just that: explicit. For example, in Rosefield Packing Co. v. Superior Court,the terms of a 1933 amendment to the Code of Civil Procedure applied explicitly to “any action heretofore or hereafter commenced.”[16] Regarding the retroactive effect of this language, the Supreme Court of California held that this statutory text provides “no room for construction.”[17] The law “undoubtedly” applies retroactively.

Similarly, in Mobil Oil Corp. v. Rossi, the California Legislature recently added a new section to the Business and Professions Code, which reads: “Notwithstanding the terms of any franchise, no franchisor shall terminate, cancel, or fail to or refuse to renew any existing franchise without good cause.”[18] The Fourth District Court of Appeal held that the amendment’s language, in and of itself, calls for retroactive application. The court reasoned: “the deliberate use of the word ‘existing’ and the phrase ‘notwithstanding the terms of any franchise’ reflect the legislative intent the enactment have retroactive application.”[19] By explicitly addressing the effect that the new provision has upon “existing” agreements, the Legislature revealed its retroactive intent.

In contrast, if the language of a statute is silent as to its retroactive impact, the courts generally interpret the text to apply only prospectively. The Second District Court of Appeal reaffirmed this principle in Yoshioka v. Superior Court.[20] In this case, the petitioner challenged the retroactive application of Proposition 213, which passed in November 1996. The relevant language reads as follows: “[Proposition 213’s] provisions shall apply to all actions in which the initial trial has not commenced prior to January 1, 1997.”[21]

The petitioner opposed Proposition 213’s retroactive effect because his cause of action arose prior to the initiative’s enactment, yet was set for trial after the January 1st cut-off date. The court refused to give the proposition’s language explicit retroactive impact. “Since the initiative does not expressly state that it will apply retroactively, we must determine the electorate’s intent.”[22] The court’s conclusion is simple: no express language, no retroactive application.

This is significant. Even though Proposition 213’s text appears to apply, explicitly, to a particular group of lawsuits (those that are pending but are not yet at trial at the time the proposition became effective), the court refused to endow the language with that effect. Instead, because the proposition fails to specifically require retroactive application, the court found its language inconclusive.

Similar to Yoshioka, Proposition 8 is silent concerning retroactivity. In their Answer Brief of December 19, 2008, proponents of Proposition 8 argue that the correct interpretation of the initiative’s language is that it invalidates all existing same-sex marriages.[23] They contend that “Proposition 8’s brevity is matched by its clarity. … Its plain language encompasses both pre-existing and later-created same-sex (and polygamous) marriages. … With crystal clarity, it declares that [same-sex marriages] are not valid or recognized in California.”[24] In essence, the proponents argue that—despite the absence of explicit language regarding retroactivity—Proposition 8 is “not ambiguous”: all same-sex marriages are void and invalid.[25]

Opponents to Proposition 8 argue just the opposite, contending that because the proposition does not expressly provide for retroactive application, it has no effect upon existing same-sex marriages. Unlike the statutory language analyzed in Mobil Oil,which explicitly defines the statute’s effect upon “existing” contracts, the opponents argue that Proposition 8 makes no reference to existing same-sex marriages. Similarly, as opposed to the statutory language in Rosefield, which expressly applies to “any action heretofore or hereafter commenced,” Proposition 8 contains no language that delimits its retrospective or prospective effects. Therefore, the opponents argue, the proposition’s plain language does not rebut the presumption against retroactivity, and the court must apply the initiative only prospectively.

Because Proposition 8’s text is not explicitly retroactive, the court will most likely follow Yoshioka and find it inconclusive. As in Yoshioka—where the court refused to grant retroactive intent to statutory language merely because the text could have been interpreted as applying retroactively—Proposition 8’s text is subject to different interpretations. While it may certainly be interpreted as invalidating all existing same-sex marriages, the initiative’s text does not explicitly adopt this result. Therefore, in the absence of express retroactive language, the court will, most likely, find that Proposition 8’s text has only prospective impact.

B. What is the Effect of Proposition 8’s Present-Tense Verbiage?

Despite the initiative’s absence of express retroactive language, proponents of Proposition 8 contend that because the initiative is phrased in the present tense, it applies retroactively. Proposition 8 provides: “Only marriage between a man and a woman is valid or recognized in California.” It is well established that the electorate’s use of verb tense is significant in construing ballot initiatives.[26] The United States Supreme Court has held that “the undeviating use of the present tense strongly suggests [that] the harm sought to be addressed … lies in the present or the future, not in the past.”[27] If the electorate intends a proposition to apply retroactively, courts place the burden squarely upon them to ensure that the proposition’s text explicitly communicates this intention.[28]

Generally, courts consider statutory language phrased in the present tense to apply only prospectively. For example, in Bennett v. Procunier, the Fifth District Court of Appeal addressed the retroactive effect of an amendment to the Penal Code.[29] The amended subdivision reads as follows: “Time spent by a defendant in confinement in a diagnostic facility of the Department of Corrections pursuant to this section shall be credited on the term of imprisonment in state prison, if any, to which defendant is sentenced in the case.”[30] Prior to being amended, this section did not credit defendants for their time spent in a diagnostic facility.

The court held that the amendment’s text does not apply retroactively. The court reasoned that the text does not, expressly or implicitly, address retroactivity. “The final words of the new provision, inferentially at least by use of the present tense of the [phrase “is sentenced”], provide that change in the rule is [only] prospective”—not retrospective.[31] Without an express reference to retroactivity, the court correctly concludes that “There is nothing retroactive in the form of expression thus employed by the Legislature.”[32]

The California Supreme Court reached a similar result in In re Marriage of Bouquet. In Bouquet, the court interpreted the retroactive effect of an amendment to the former Family Law Act. The amendment was phrased in the present tense in a manner almost identical to Proposition 8: “The earnings … of a spouse … while [separated] are the separate property of the spouse.”[33] While the Legislature’s use of the present tense may be “significant,” the court concluded that the statutory text, standing alone, does not evince retroactive intent.[34] First, the text of the amendment fails to explicitly address retroactivity. Second, the Legislature’s use of present-tense phraseology is not enough to infer retroactive intent: “The language of the amendment does little to reveal the Legislature’s intent regarding the amendment’s prospective or retroactive application.”[35]

In addition, even when the Legislature or electorate has used past-tense phraseology, the courts are still, nevertheless, reluctant to find retroactive intent. As with present-tense verbiage, the use of past tense, alone, does not rebut the presumption against retroactivity. This principle was applied in Hughes v. Bd. of Architectural Examiners,wherein the California Supreme Court interpreted the retroactive impact of the following statutory language: “the fact that … the holder of a license has been guilty of [certain proscribed acts] constitutes a ground for disciplinary action.”[36] Despite the statute’s past-tense phraseology, the court narrowly interpreted the provision’s language. The court concluded that the past-tense verbiage (“has been guilty”) “renders it likely,” but not certain, that the Legislature intended these statutes to apply to past conduct.[37] As previously stated, the use of the past tense, alone, does not negative the presumption against retroactivity. Therefore, without express language addressing retroactivity, the court refused to conclude that the statute was explicitly retrospective.[38]

Under these cases, it appears that Proposition 8’s use of the present tense is of little consequence in determining the initiative’s retroactive effect. The precedent demands more than verb tense; the statutory text must explicitly call for retroactive application. Proposition 8 fails to meet this standard. Similar to the statutory language in Bennett and Bouquet, which describes the statutes’ application in the present tense (“is sentenced” and “are the spouse’s”), Proposition 8 employs present-tense phraseology without explicitly defining the proposition’s effect on existing same-sex marriages. Indeed, the proposition contains no mention of retroactivity. Furthermore, even if Proposition 8 were phrased in the past tense, similar to the statute in Hughes, it is likely that a court would, nevertheless, find it only applicable to future marriages.

To summarize, regardless of the verbiage in play in Proposition 8’s text, because the initiative does not explicitly provide for retroactive application, as discussed in the preceding section, the court will most likely find, as in Bouquet, that Proposition 8’s use of the present tense “does little to reveal the Legislature’s intent regarding the amendment’s prospective or retroactive application.” Consequently, the court must look to “other indicia” to glean the electorate’s intent regarding Proposition 8’s effect upon existing same-sex marriages.

C. Does Proposition 8’s “Other Indicia” Support Retroactivity?

When an initiative’s language does not explicitly address retroactivity, the courts refer to other indicia of the voters’ intent, particularly the information contained in the official ballot pamphlet. As the court sifts this extrinsic evidence, it must address “all pertinent factors” that may “illuminate” the electorate’s design, including: (1) the context; (2) the object in view; (3) the evils to be remedied; (4) the proposition’s history; and (5) the contemporaneous construction.[39] The court may only grant the proposition retroactive force when it finds “clear and unavoidable” retroactive intent in the “other indicia.”[40]

For example, in Jenkins v. County of Los Angeles, the Second District Court of Appeal applied a proposition retrospectively because the voter ballot pamphlet explicitly revealed the electorate’s intent.[41] The pamphlet provided that the initiative’s “provisions shall apply to all actions in which the initial trial has not commenced prior to January 1, 1997.”[42] As the court summarily concluded, this “is a clear indication of [retroactive] intent.”[43] The court supported its conclusion by noting that the retroactive application of a companion code provision had already been upheld by the courts.[44]

The Supreme Court of California reached a similar result in the case of Marriage of Bouquet, regarding an amendment to the code that made both spouses’ post-separation earnings their respective separate property.[45] The court first questioned whether the amendment’s context supported retroactive application. The court concluded that because the former law was “blatantly” discriminatory of husbands in divorce proceedings, and was (consequently) of “dubious constitutional stature,” it is reasonable to infer that the Legislature intended retroactive application so that the amended law could quickly repair the damage the former law caused.[46]

Second, and perhaps more compelling to the court, was the fact that the amendment’s history contained indicia of retroactive intent in that the assemblyman that drafted the amendment informed the Legislature that not only did he intend the statute to have retrospective impact, but that it should apply retroactively so as to replace the former law.[47] While the courts generally do not consider the personal motives of individual legislators, the court held that the assemblyman’s testimony and intent was relevant because it provided some evidence as to the Legislature’s understanding as a whole.[48] Because there was no conflicting indicia against which to balance the assemblyman’s testimony, the court concluded that the statute was retroactive.

In contrast, if the other indicia do not “clearly and unavoidably” evince retroactive intent, the presumption against retroactivity prevails, and the courts apply the law only prospectively. For example, in Russell v. Superior Court,the First District Court of Appeal held that Proposition 51 has only prospective effect, despite an explicit statement in the ballot pamphlet providing that “every asbestos case would take substantial losses” if the initiative passed.[49] In spite of the statement’s reference to prior cases, the court refused to apply the proposition retroactively, holding that “A passing reference in one ballot argument is not sufficient to demonstrate a clear [retroactive] intent.”[50] The court also supported its conclusion by noting that the proposition provided no remedy for those who would have been affected by retroactive application, suggesting that the voters intended only prospective impact.[51]

The California Supreme Court reached a similar result in Aetna Casualty & Surety Co. v. Industrial Accident Commission.[52] In this case, the court addressed the retrospective operation of an amendment to the Labor Code, which increased disability payments to injured laborers. After finding nothing on the face of the amendment that required retroactive application, the court addressed the respondent’s arguments concerning the statute’s context and other indicia. Respondents argued that the Legislature could not have intended to treat individuals differently based upon whether their claims arose before or after the amendment’s enactment. The court summarily rejected this position, reminding the parties that every change in the law brings about some difference in treatment.[53]

Respondents also argued that the statute’s context required retroactive application. More specifically, they insisted that the Legislature must have intended retroactive application because the amendment was motivated by recent political and economic events that applied to all disabled laborers, regardless of when they were injured. The court also rejected this argument, reasoning that there is nothing in the text of the amendment that indicates certain events motivated the law.[54] Further, there is no indication that the amendment was part of a larger statutory scheme that required retroactive application. Because the statute was silent regarding retroactivity, and the other indicia were insufficient, the court properly concluded that the statute must be applied only prospectively.

Proposition 8’s other indicia are, at best, conflicting. The proponents argue that the ballot pamphlet and the initiative’s policy and history reveal the electorate’s “unambiguous intent” to apply the measure retroactively.[55] They contend that because Proposition 8’s purpose has always been to amend the state constitution to contain an explicit prohibition of same-sex marriages, it is only logical that if it were enacted, the proposition would not recognize existing or future same-sex marriages.[56]

The proponents maintain that the text of the official voter pamphlet supports this position. Under the “Official Title and Summary,” the pamphlet provides the following: (1) Proposition 8 “Changes the California Constitution to eliminate the right of same-sex couples to marry in California”; and (2) Proposition 8 “Provides that only marriage between a man and a woman is valid or recognized in California.”[57] In their Answer Brief, the proponents interpret these statements to mean that “If Proposition 8 was intended only to [apply prospectively], the first statement would have been sufficient.”[58] In essence, they argue that because these statements may reference two separate periods of time, the court should interpret them as other indicia of retroactive intent.

Further, the proponents contend that information contained in the voter pamphlet also reveals retroactive intent. The section entitled “Rebuttal to Argument against Proposition 8” notifies voters that: “Your YES vote on Proposition 8 means that only marriage between a man and a woman will be valid or recognized in California, regardless of when or where performed.”[59] Proponents argue that the electorate’s intentional use of the phrase “regardless of when performed”communicates precisely what the body politic intended: retroactive impact. They argue that this is further supported by the manner in which the electorate describes the amendment’s effect as “reaffirming” and “restoring” the traditional definition of marriage.[60] The proponents argue that the use of the Latin prefix “re,” or “to do again,” refers directly to the proposition’s retroactive impact. The prefix, when added to a terminative verb, directly corresponds with the idea of (Re)troactivity in that both concern an action following a previous decision.

In contrast, the opponents to Proposition 8 argue that the initiative’s other indicia support only prospective application. As in Aetna (wherein the court supported its holding against retroactivity by finding that the new statute was not part of a larger retroactive scheme) Proposition 8 is also not a piece of legislation integral to a broad statutory plan that clearly requires retroactive application. Further, Proposition 8 is the first amendment to the California Constitution of its kind. Unlike the legislation in Jenkins, which possessed a retroactive companion provision that had already been upheld by the courts, Proposition 8 stands alone. According to proponents, similar constitution amendments, which the courts have already applied retroactively, do not support its alleged retroactive application.

The opponents to Proposition 8 may also argue that the initiative’s history supports only prospective application. As in Bouquet—a case in which the court was persuaded by the opinion of the statute’s drafter—the author of Proposition 8’s title and summary, Attorney General Edmund Brown, has also publicly voiced his opinion concerning Proposition 8’s retroactive effect. During an interview with the San Francisco Chronicle on August 5, 2008, the Attorney General explicitly stated that existing same-sex “marriages … will be recognized by the California Supreme Court.”[61] Shortly after the election, Brown reaffirmed his position through an official news release: “Attorney General Brown continues to believe that [existing] same-sex marriages remain valid and will be upheld by the court.”[62] To opponents of Proposition 8, these statements provide some evidence as to what voters knew, and possibly intended, concerning retroactivity.

When courts face the formidable task of deciphering the intent of the California electorate—a vast body of millions of citizens—statements like the Attorney General’s offer insight into the information voters may have relied upon in casting their votes. The opponents may argue that, just as the assemblyman’s statements in Bouquet, Brown’s statements, while concededly not dispositive, are “quite relevant to the extent [they] evidence the understanding of the [electorate] as a whole.”[63] As the state’s attorney general and drafter of the proposition’s title and summary, the opponents may contend that it is reasonable for voters to look to—and rely upon—Brown’s interpretation of the initiative’s retroactive impact.

Last, opponents argue that nothing in the extrinsic ballot materials unambiguously supports retroactivity. While the opponents concede that the ballot pamphlet contains one reference to the proposition’s effect on all marriages, “regardless of when performed,” they argue that this single phrase is not enough to rebut the presumption against retroactivity. Unlike the voter pamphlet language in Jenkins, which explicitly provided that the amendment “shall apply to all actions … prior to January 1, 1997,” the phrase in Proposition 8’s voter pamphlet is not expressive. Instead, just as the passing reference to “every asbestos case” contained in the voter pamphlet analyzed in Russell, the above-mentioned phrase is “not sufficient to demonstrate a clear intent” that the initiative apply retroactively.

The court is likely to find that Proposition 8’s other indicia are insufficient to support retroactive intent. Although the voter pamphlet does contain the aforementioned reference to all marriages, “regardless of when performed,” the probative value of this sentence is counterbalanced by the fact that it does not expressly reference existing same-sex marriages and, further, by its remote placement in the voter pamphlet on the final page of rebuttal arguments. In addition, Attorney General Brown publicly voiced his opinion that the initiative is not retroactive. In sum, because the other indicia do not clearly and unavoidably require retroactive application, the court would be justified in granting Proposition 8 only prospective effect.

V. Is Retroactive Application of Proposition 8 Constitutional?

In the event the court concludes that Proposition 8 is retroactive, it remains for the court to determine whether retroactivity is constitutional. Retroactive propositions are unconstitutional if: (1) they are ex post facto laws (retrospective criminal statutes);[64] (2) they deprive a person of a vested right without due process of law; or (3) they impair the obligation of contract.[65] Because Proposition 8 creates neither a criminal statute nor a civil statute that imposes criminal or punitive penalties, the prohibition against ex post facto laws is inapplicable. The remaining questions are whether Proposition 8 curtails a vested right or impairs the obligation of contract.

A. Does Retroactive Application of Proposition 8 Violate the Contracts Clause?

Article I, Section 10, of the United States Constitution and the parallel provision contained in article 1, section 9 of the California Constitution forbid the state from enacting a law that retroactively impairs the obligation of contracts. This prohibition, commonly referred to as the “contracts clause,” limits the state’s ability to impair its own contracts with other parties and/or contracts strictly between private parties.[66] The California Supreme Court has explained that, because the California Constitution merely iterates the federal contracts clause, the courts must use federal analysis to determine whether a statute violates California’s contracts clause.[67]

In his Answer Brief filed December 19, 2008, California Attorney General Edmund Brown argues that the court should not apply Proposition 8 retroactively because it violates the contracts clause.[68] He reasons that because “California law recognizes ‘that [m]arriage is a personal relation arising out of a civil contract,’” the court cannot apply Proposition 8 retrospectively because it would impair the obligations of existing same-sex marriages.[69] Despite the ease and allure of the Attorney General’s argument, it is likely unavailing.

Both the United States Supreme Court and the California courts have repeatedly held that marital rights and obligations are not “contracts” protected by the contracts clause.[70] While it is true that both federal and state law consider marriage a fundamental right,[71] and that California law also deems marriage a “contract under which each of the parties undertook the obligations of mutual respect, fidelity and support,”[72] it is fairly clear that the marital “contract” is not protected by the contracts clause. The court may, however, find that retroactive application of Proposition 8 violates the due process clause.

B. Do Same-Sex Spouses Possess Vested Rights?

Article 1, section 7 of the California Constitution and the 14th Amendment of the Federal Constitution guarantee that no state shall deprive a person of “life, liberty, or property without due process of law.” Retroactive legislation runs afoul of this guarantee when it dispossesses, interferes with, or impairs an individual’s enjoyment of a vested right without due process.[73] The phrase vested right acquires different meanings in different contexts.[74]

Within the framework of property law, the California Supreme Court generally employs the word vested to describe “property rights that are not subject to a condition precedent.”[75] Thus, to qualify as vested, the individual must possess more than a hypothetical need, desire, or expectation for, or in, the property interest.[76] The person must, instead, hold a valid, actual claim of entitlement to the property.

In other contexts, the determination as to whether a given right, interest, expectation, or benefit is or is not vested ultimately rests upon principles of equity.[77] The California Supreme Court explained that “a vested right … implies an interest which it is proper for the state to recognize and protect, and of which the individual may not be deprived arbitrarily without injustice.”[78] While essentially circuitous, this definition affords guidance. The notion it communicates is that of a present, actual right that is proper (as determined by notions of fairness and justice) for the courts to protect.[79]

An individual does not possess a vested right in a mere expectancy or in particular remedies or procedures for which an adequate alternative remedy exists.[80] In Davis v. Commission on Judicial Qualifications, the Second District Court of Appeal reaffirmed this principle.[81] Several years after taking disability retirement from the bench, the former Judge Davis sought reinstatement. After being denied by the Judicial Commission, Davis pursued relief in the courts, claiming that he possessed a “property right” or, at a minimum, a “reasonable expectation” that the Commission would certify him to return as a judge if they were able to find him no longer incapacitated.[82]

The court rejected this argument, holding that Davis’s “right” or “expectation” is not vested. The court reasoned that the applicable code sections contain no language that “even faintly suggests that [Davis] has any right to insist that the Commission take any action.”[83] Rather, the statutory language grants Davis nothing more than a mere expectancy, a mere potential claim of entitlement: “The Commission … in its discretion, and from time to time, may require any judge who [has retired due to incapacity] to undergo medical examination.”[84] The court declared this nonobligatory language insufficient, reaffirming the principle that the due process clause protects rights that an individual presently possesses in specific benefits.

In addition, the court will not recognize a right as “vested” if the possessor has unreasonably relied upon the right’s existence. For example, in Lockyer v. City and County of San Francisco, the California Supreme Court declared all same-sex marriages performed in February of 2004—when only marriage between a man and a woman was permitted in the state— unlawful and void.[85] The court did not even question whether the same-sex couples’ “right to marry” was vested, or constitutionally protected, because the court determined that the marriages were unlawful ab initio.[86] Because public officials acted unlawfully in issuing the marriage licenses to the same-sex couples, the court revoked the licenses—and all associated rights—without questioning constitutional limitations.

In contrast, in cases in which the courts have held that a given right is vested, the property right or interest existed lawfully, presently and without condition. The case of Marriage of Buol provides an example.[87] There, the Supreme Court of California—determining the retroactive impact of an amendment to the civil code—held that the respondent-wife, Esther, possessed a vested separate property interest in the marital home.[88] The court determined that the interest was vested because: (1) Esther and her husband had an oral agreement that the home was Esther’s separate property; and (2) at all relevant times, proof of an oral agreement was all that the law required (under then-existing provisions of the Civil Code) to protect Esther’s vested interest.[89] In short, Esther’s right was vested because she possessed the property lawfully and unconditionally.

Under Buol, it appears that same-sex spouses may possess numerous property and liberty rights. California’s community property system presumes that all property acquired during marriage is community property,[90] and each spouse’s respective interest in the property is “present, existing, and equal”—or, in other words, vested.[91] Further, because the status of property as community or separate “is normally determined at the time of its acquisition,”[92] the spouses’ rights in community property also vest at the moment the property is acquired.[93]

In addition to property rights, both the California and federal courts recognize that the right to marry is a “fundamental right” protected by the due process clause.[94] As previously stated, the California Supreme Court has also established that the right to marry includes the individual’s right to marry the person of his or her choice, irrespective of sexual orientation.[95] In fact, the court describes marriage as “the most socially productive and individually fulfilling relationship” that a person can experience in his or her lifetime.

Therefore, married individuals—including those in same-sex marriages—possess both marital property rights (and/or expectations) and fundamental liberty rights. Though it may be impossible to delimit the vast array of rights and benefits (and accompanying responsibilities) one may accrue during marriage, a list may include: (1) a one-half interest in all community property arising out of the marriage; (2) a reasonable expectation that the State of California does now, and will continue to, honor the marriage; (3) a reasonable expectation that all government and private entities will continue to recognize the marriage for purposes such as health and life insurance, employment benefits, tax filings, and so forth; and (4) a reasonable expectation that the laws of California will continue to afford the married spouses all of the benefits and presumptions related to marital status (for example, in adoption, support, or custody proceedings).

Proponents of Proposition 8 may argue that, although same-sex spouses undoubtedly possess some marital rights, these rights are not “vested” because the couples unreasonably relied upon the validity of their marriages. Similar to the same-sex couples in Lockyer, whose marriage licenses were unlawfully issued, same sex-couples who married prior to Proposition 8’s enactment were fully aware that the validity of their marriages would be questioned. The proponents may argue that the lack of precedence for the Marriage Cases decision casts doubt upon the legitimacy of reliance upon it. Further, the movement towards overturning the court through the initiative process was well underway when the marriages were performed.

In contrast, opponents argue that, because same-sex couples entered into marriages that were lawful at the time of formation, they possess vested property and liberty rights. Unlike the marriage licenses issued in Lockyer, the same-sex spouses involved in the current dispute received valid licenses from government officials who were acting in accord with the Marriage Cases decision. Further, unlike the claimant in Davis, who based his “reasonable expectations” on nonobligatory statutory language, existing same-sex spouses, the opponents argue, base their expectations and reliance upon fundamental liberties afforded them by the Supreme Court of California.

The court is likely to find that existing same-sex spouses possess vested rights. Their marriages were valid at the time of formation, and they reasonably relied upon precedent of the California Supreme Court in exercising their right to marry.

C. Does Retroactive Application of Proposition 8 Unconstitutionally Deprive Same-Sex Spouses of Vested Rights?

A retrospective statute impairing or dispossessing vested rights “is very generally considered, in this country, as founded on unconstitutional principles, and consequently inoperative and void.”[96] Courts disfavor retroactive legislation because such laws undermine a person’s confidence in and reliance upon past transactions.[97] Backward-looking laws also seem fundamentally unfair: they change the rules of the game after the game has commenced.[98]

The California Supreme Court has established that, while disfavored, retroactive legislation is not absolutely proscribed.[99] Consequently, courts may impair vested rights “with due process of law” when the court determines that “retroactivity is necessary to subserve a sufficientlyimportant state interest.”[100] Courts also consider numerous other factors when implementing this test: (1) the extent of reliance upon the former law; (2) the legitimacy of that reliance; and (3) the extent to which the retroactive application of the new law would disrupt actions taken in reliance upon the former law.[101]

In cases in which the courts have applied these factors—and determined that impairment of vested rights is constitutional—the state’s interest has been of indisputable significance, and, in many cases, the former law is unjust. For example, in Marriage of Bouquet, the Supreme Court of California granted retroactive effect to a law that made both spouses’ post-separation earnings their respective separate property.[102] Prior to the amendment, only the wife’s post-separation earnings were separate property; the husband’s were community. The court determined that the state’s interest—the equitable distribution of the community estate—qualified as “sufficiently important.”[103] Moreover, the court noted that the former law’s “rank injustice” and “dubious constitutional stature” inspired the amendment. Because of the inequity created under the former law, the amendment was necessary to ensure fair distribution of the community estate.

In contrast, the courts will not apply a statute retroactively if doing so would only minimally serve a state interest and would come at exceptional cost to the individual. Consider Marriage of Buol, discussed above in the preceding section. There, the California Supreme Court held that a new statute that requires a spouse to produce a written agreement to prove that property taken in joint tenancy form belongs to only one of the spouses as separate property, may not constitutionally be applied retroactively.[104]

While the state interest in Buol was identical to that in Bouquet (the equitable distribution of community property), the court distinguished Bouquet on two grounds. First, the law in Buol was not necessary to the state’s interest.[105] The law concerned only joint tenancies and separate property, neither of which qualifies as community property. Second, the legislation in Buol cured no “rank injustice” created by a former law.[106] The court concluded that because there is no significantinterest served by retroactivity, applying the law to existing agreements is unconstitutional.

Proponents of Proposition 8 argue that the court should void existing same-sex marriages so as to effectuate the state’s interest in the “public good” and “pursuance of public policy.”[107] In their Answer Brief, the proponents assert that “a person’s interest in the status of marriage, however it be classified, is subject to the reserve [police] power of the state.”[108] Proponents reason that just as the state may constitutionally prohibit polygamous or consanguineous marriages, or, similarly, restrict minors from marrying, so too may the state (through the initiative process in this particular case) prohibit same-sex marriages.

Proponents may also argue that, similar to the state’s interest in Bouquet (the equal distribution of community property), public welfare and promotion of sound public policy is a significant, if not compelling, state interest. The well-being of the state is an intrinsic good and, according to the “Arguments in Favor of Proposition 8” contained in the official voter pamphlet, traditional heterosexual marital unit is “an essential institution of our society”[109] Proponents argue that retroactive application of Proposition 8 is necessary to protect the state’s public welfare and to restore marriage to its “rightful” position.

In contrast, the parties opposing retroactivity argue that the court should apply the measure only prospectively so as to avoid disrupting settled expectations of individuals who acted in reliance on the court’s decision in Marriage Cases.[110] Newly married, same-sex couples, they argue, have undoubtedly made “life-altering decisions,” including “estate-planning, child-rearing, and property ownership.”[111] If Proposition 8 were applied retroactively, it would unconstitutionally deprive individuals of these vested rights.

Opponents may also argue that retroactivity is not necessary to effectuate the state’s interest. As in Buol, wherein the court discovered that the newly enacted amendment was not actually advancing the state’s alleged interest, the proponents of Proposition 8 have failed to establish why applying the measure only prospectively would prevent the state from advancing the “public welfare.” They have provided no evidence as to how existing same-sex marriages threaten society or the public good. Alternatively, in their assumption that existing same-sex marriages do have some negative effect upon the public welfare, proponents have failed to establish how this burden outweighs the costs of retroactive application.

The opponents to Proposition 8 may also argue that, similar to the statute in Buol, the California electorate did not enact the proposition to cure “rank injustice” created by a former law. Its enactment was actually quite the opposite: to return California marriage law to the exact position it occupied when the court declared it unconstitutional in Marriage Cases. If anything, the opponents may argue that Proposition 8 works to create—and not to cure—a “rank injustice.”

The court is likely to find that Proponents of the initiative have not established why the state’s interest in the “public good” and “pursuance of public policy” requires the court to invalidate existing same-sex marriages. While there is truth in the proponents’ contention that a person’s interest in the status of marriage is subject to the state’s police powers, these “powers” are not without limit. In Marriage Cases, the Supreme Court of California explained that, “if civil marriage were an institution whose only role was to serve the interests of society,” the state would have plenary authority to establish or abolish marriage.[112] The right to marry, however, is a “fundamental right of free men and women” that is protected from abrogation or elimination by the state.[113] By applying the principles set forth in Buol and Marriage Cases, it is likely that the court will find that Proposition 8, through retroactive application to existing same-sex marriages, constitutes an unlawful deprivation of vested rights.

VI. Conclusion

On May 15, 2008, the Supreme Court of California declared that all individuals have the right to marry the person of their choice, irrespective of sexual orientation. The voters of California eliminated this right less than six months later by enacting Proposition 8. The California Supreme Court must now determine what effect, if any, the proposition has upon the thousands of same-sex couples who married prior to its enactment. This article has addressed the issues related to Proposition 8’s potential retroactivity and demonstrated that because the initiative does not contain explicit retroactive language—and would, through retroactive application to existing same-sex couples, constitute an unlawful deprivation of vested rights—the court would be justified in applying Proposition 8 only prospectively. Due to the uncertainty surrounding these issues, however, advising same-sex couples to register as domestic partners may be the best option at present.