Poll: 3 of 5 in California Say Gay Marriages Before Proposition 8 Should Remain Legal?

The Survey USA poll of 500 Californians conducted November 19, 2008:

The Question: What should happen to gay couples who were legally married in California before the law changed? Should their marriage remain legal? Should their marriage be immediately annulled? Or, do you not know enough to say?

• 59% Remain Legal
• 34% Immediately Annulled
• 6% Do Not Know Enough
• 1% Not Sure

However, look at the cross-tabs of the poll and particularly the sample (which is small) of minority voters (majority of African-American and Latino voters opposed Proposition 8 whereas in the California election approved the measure) – Question 3 and page 2 of the Pdf.

This poll with an error margin of +/- 4.5% may be an outlier.

An earlier poll, however, conducted in San Diego on November 14, 2008 leads to similar results:

• 56%     Remain Legal
• 37%     Immediately Annulled
• 6%     Do Not Know Enough
• 1%     Not Sure

Regardless, the California Supreme Court will likely decide the issue sometime early next year since the disposition of these marriages should Proposition 8 be found constituional is at issue: “If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?”

What are the options before the court?

UCLA Law School Professor Eugene Volokh outlines:

1. One option is that they may remain valid, whether because the initiative is construed as not applying to existing marriages, or because the courts conclude such an interpretation is constitutionally mandated by the Contracts Clause (“No state shall … pass any … Law impairing the Obligation of Contracts ….”).
2. Another is that pre-initiative same-sex marriages will become domestic partnerships, which under California statutes give most of the rights of marriage.
3. A third option is that same-sex marriages will be eliminated altogether, and that married couples will remain domestic partners only if they had entered both into a marriage and into a domestic partnership.
4. Finally, it’s possible that the legislature will step in, specifically providing that any invalidated same-sex marriage will become a domestic partnership.

Flap bets 3 or 4 of the above should Propositon 8 be ruled consitutional – which I think it will. The new California Legislature is set to meet the first week of December and watch to see if such legisation is introduced.

Of course, the anti-proposition 8 folks could circulate an initiative, but it would leave the same sex married couples hanging until June 2010. Flap’s guess is that they would wait a ruling by the California Supreme Court due sometime late Spring or early summer next year before any such action.

Stay tuned…..

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