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“Nonetheless, it is crucial that we accurately identify the actual effect of Proposition 8 on same-sex couples’ state constitutional rights … it is only the designation of marriage - albeit significant - that has been removed by this initiative process.”

Q: Are the estimated 18,000 gay marriages performed between June 16 and Nov. 5, 2008 still valid?

Yes. Proposition 8, which says, “Only marriage between a man and a woman is valid or recognized in California,” obviously “does not contain a retroactivity provision, that is, a provision explicitly stating that the measure is to have a retroactive effect.”

“Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state.”

Q: Doesn’t the plain language of Proposition 8 make it clear that it affected both pre-existing and future same-sex marriages?

No. Although a sentence in the Voter Information Guide said Proposition 8 would apply to marriages “regardless of when or where performed,” that is “insufficient to demonstrate, clearly and unambiguously, that the voters must have intended a retroactive application.”

Moreover, interpreting Proposition 8 to apply retroactively “would create a serious conflict between the new constitutional provision and the protections afforded by the state due process clause” to same-sex couples who legally married last year.

Q: Proposition 8 disallows same-sex marriage in California, but does it also mean California will not recognize out-of-state same-sex marriages?

Yes. “It is clear that the section added to the California Constitution by Proposition 8 … applies both to marriages performed in California and to those performed in other jurisdictions.”

Excerpt from Justice Moreno’s dissenting opinion:

Today’s ruling “not only allows same-sex couples to be stripped of the right to marry that this court recognized … it places at risk the state constitutional rights of all disfavored minorities. It weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority. I therefore dissent.”