As I was thinking about California’s Proposition 8, I began to wonder, as many people have, what happens to the same sex people who are already married. I haven’t read the entire text of the proposition because I automatically knew I was voting against it. So, when reading these comments keep that in mind. Another thing to keep in mind is that I am not an attorney let alone a Constitutional authority. I hope that those attorneys or Constitutional scholars who read this will correct any misconceptions that I have.
My main argument concerning the Anti-marriage proposition (make no mistake it is anti-marriage) revolves around the U.S. Constitution's Article 1 Section 9, C.3 (which) states:
'No Bill of Attainder or ex post facto Law shall be passed,' and Section 10 says: 'No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law. . .
Since California courts have already ruled on same sex marriage, it would seem on the face of it that imposing a law that now prohibits it would be after the fact, i.e. Ex post facto. Of course if the law does not apply to those who are already married then it would not be ex post facto. I have no idea what the law says specifically. Help me here if you can.
If the now legal same sex marriages are not affected with the passage of Prop 8, the proposition has already failed to some extent. The state would then be creating dual class citizens which applies only to same sex people seeking marriage. In this case there would not be equal treatment under the law. To my way of thinking, it then becomes a civil rights issue and will go back to the courts.
Ex post facto and Criminal versus Civil law: Whether or not a violation of Prop 8 is a criminal offense or a civil offense is important in applying ex post facto.
In 1798 in the Calder v. Bull case the supreme court determined that ex post facto applied to criminal cases and not civil cases.
http://www.cato.org/...
Calder v. Bull: Origins of the Distinction between
Civil and Criminal Ex Post Facto Laws
The Supreme Court first held that the constitutional prohibition against ex post facto laws applied only to criminal laws in the landmark opinion of Calder v. Bull (1798). The issue in the case, which arose from the Supreme Court of Connecticut, was whether the act of the Connecticut legislature to set aside a decree of a probate court (which had the effect of divesting the appellants of certain property) was an ex post facto law.
This would mean that the ex post facto law could not be be used as a defense to refute Proposition 8 unless criminal penalties were imposed for its violation. Again I do not know the specifics of the proposition; thus, I do not know if it applies.
To understand the consequences of Prop 8 the distinction between Criminal and Civil law must be understood.
I checked several definitions and these seemed to be the clearest.
http://www.co.klamath.or.us/DistrictAttorney/criminal_law_vs__civil_law.htm
There are two broad categories of law with which you might be familiar.
Criminal law addresses the need to investigate crimes, prosecute defendants, and hold offenders accountable, usually through penitentiary, jail or probationary sentences. Common criminal law issues would be driving under the influence of intoxicants, a gun-point robbery of a convenience store, homicide, and rape. The District Attorney prosecutes criminal cases in court, and must prove the guilt of accused defendants beyond a reasonable doubt.
Civil law addresses situations in which people have been harmed, and an economic award might help remedy the situation. Examples of civil law cases include divorce, disputes involving property ownership, and contractual disputes. Private attorneys generally handle both sides of a dispute involving civil law, and the issues in civil court most often need to be proven only by a preponderance of the evidence.
Regardless of which definition is used, it is hard to see how same sex marriage fits in any way within criminal law. It is also difficult to see how same sex marriage is an act
"in which people have been harmed." No harm, no foul.
Now, even if same sex marriage fell into the civil law category some form of penalty must be imposed. If it is annulment of the marriage then it would seem that civil rights have been violated. If there is a fine for being married then once the fine is paid the two would still be married and the power of the law to prevent same sex marriage would have failed. The same would apply if same sex people married anyway. Can they be forced to get a divorce or an annulment.
When people violate civil laws and refuse to either pay fines or make restitution, it then becomes a violation of criminal law. That means that the couple could be put in jail. It also means that those who aided and abetted the crime could be put in jail. That would be a lot of government officials. Would that include judges and priests and pastors who performed the ceremonies? Now, since ex post facto laws apply to criminal laws, it seems to me that ex post facto then becomes a defense and the marriage cannot be overturned nor can punishment be imposed. Once again Prop 8 would have failed. I do not know if going from civil to criminal activates ex post facto laws or whether it would not apply.
So, besides being simply wrong because same sex marriage, harms no one, is a violation of civil rights, and is a law made to punish a specific group, Prop 8 appears to me to be a violation of the intent of both civil law and criminal law as well as anti marriage.
Would the courts sit idly by and watch it? So even if Prop 8 passes, the battle has just begun - again. How many times do you think the Mormon Church will want to spend $25,000,000. Every year? I would hope that if it passes, the California State Supreme would overturn the law. It should.
If it doesn’t, imagine that any proposition that was put on the ballot and passed had to be put into law and enforced. Indentured servitude could return. Any race, ethnic or religious group could be enslaved. Interracial marriage could be outlawed. That’s how absurd Prop 8 is.