The move to invalidate legal marriages, and why its a load of honky

A recent scheme by the supporters of Proposition 8 has them working to nullify the more than 18,000 marriages that took place between May and November of 2008, when gay marriage was legal.

The problem with this, I believe, is that it gives a middle finger to the U.S. Constitution, because Article 1, Section 10 of the document reads:

No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

I point to the text "ex post facto law" because that's exactly what the Yes on Prop 8 people are trying to do through Mr. Starr's brief. An ex post facto law, according to the Law.com Dictionary, "refers to laws adopted after an act is committed making it illegal although it was legal when done, or increasing the penalty for a crime after it is committed."

For reference, article nine does the same thing for the Federal government.

Now, look at the whole Proposition 8 controversy in its most basic form:

For five months, people were allowed to do something in accordance with the definition of the law, and 18,000 couples did so. The state even issued papers saying it was recognized. Then, on November 5, voters in the state of California changed the law to make said action illegal. End of story.

But look at it from another perspective:

The state of Nebraska had a law that allowed for the surrender of children at "safe havens," such as a hospital. But there was a loophole in the law that was intended for infants.

People were abandoning teenagers, adolescents, and every kind of child except for infants. As the USA Today article points out, none of the parents abandoning non-infant children would be prosecuted for any reason. Normally, this would have followed with prosecution for child endangerment or abandonment, but due to the Nebraska law no one could do so.

Now, the state has set an age limit. But it doesn't mean the parents who abandoned their children previously will be prosecuted.

Now, move to California. The law was constructed to erase the right. Aside from Article 1, Section 10 of the U.S. Constitution, Proposition 8's text includes nothing about removing can't revoke the rights you gave to people before you changed the law, just like you can't prosecute the parents who dumped their unruly teenagers at safe havens.

Technically, if you look at it, I can give you the reason the Supreme Court would give should they invalidate the proposition - no law can retroactively take rights away and punish those people. Proposition 8, by definition according to briefs filed with the state Supreme Court, was intended to work retroactively.

The amendment is in violation of the U.S. Constitution by this logic. If it only sought to remove the right, it might not have been a violation of the anything. Since it does, the Constitutional footing for the amendment is shaky at best.

The people can err when it comes to regular initiatives and laws, because the Constitutions of both the state and the country are there to correct it. When it comes to erring in a constitutional amendment, the national constitution is there to correct it.