My main complaint about the opinion is the holding that same sex couples married between the time In Re Marriage Cases was decided and the passage of Prop 8 will continue to be recognized as "married" by the State of California. The court reasoned, the proposition (i.e., “Only marriage between a man and a woman is valid or recognized in California”) did not contain "a provision explicitly stating that the measure is to have retroactive effect,"the "'plain language' of the measure" was insufficient because, in past decisions, the use of the present tense ("is valid and recognized") did "not clearly demonstrate that the measure is intended to apply retroactively," and it is not "very clear from extrinsic sources that . . . the voters must have intended a retroactive application."
The reasoning is flawed because the proposition was clearly not intended to create a limited class of gay couples that the state would recognize as "married" and another class that is not married, but enjoys the same legal rights though a civil union. The absurdity of the result compels a different holding. The opinion is very long, but spends little time addressing this issue. The cases the court cited in support,
(See, e.g., McClung v. Employment Dev. Dept. (2004) 34 Cal.4th 467, 471 [holding statute providing that “ ‘an employee . . . is personally liable for any harassment . . . perpetrated by the employee’ ” (italics added) does not apply retroactively to harassment committed before the enactment]; Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 842 (Myers) [holding statute providing that “ ‘there exists no statutory bar’ ” for claims of smokers “ ‘who have suffered or incurred injuries’ ” (italics added) does not apply retroactively to impose liability on tobacco company for sales occurring during period in which tobacco companies enjoyed statutory immunity].)both involved whether a party would be liable for conduct that they could not be held liable for at the time they engaged in the conduct. Here, the proposition does not attempt to impose any liability on a same sex couple, or change their substantive legal rights, but rather, merely states that California will not recognize the marriage as a "marriage," but a "civil union."