A lot of people have been worried about what would happen to those gay and lesbian couples in California who got married since June if Prop 8 actually passes on Tuesday. According to law professor Kenji Yoshino, who we've had on the show before and who is a very smart guy, it doesn't look good. I'm going to try to bring him on the show between now and Tuesday to elaborate on this:
Supporters of same-sex marriage have expressed hope that existing marriages would be protected by due process rights or the Contracts Clause of the U.S. Constitution.
But after researching the issue, New York University law professor Kenji Yoshino, who favors same-sex marriage, concluded that the U.S. Constitution would offer few protections to existing gay marriages if Proposition 8 passed.
"My hope going into this was that I would find a smoking gun case that would say those marriages would be protected," Yoshino said. "I kept looking and looking and looking, and when I couldn't find one, I was astonished."
He said the U.S. Supreme Court has repeatedly rejected due-process challenges to retroactive legislation. The Contracts Clause, which prevents states from passing laws that impair contracts, would also offer little protection because the court has ruled that "marriage is not a contract" protected by the clause, he said.