Should Proposition 8 Be Held to be Retroactive?

The legal challenges to Proposition 8 all involve matters of state law on which the California Supreme Court alone is the final authority.But even if the court agrees with interveners and upholds the validity of Proposition 8, there is a separate question of its effect on the 18,000 couples who have already been married.On this issue, the California Supreme Court must first determine if the voters intended the proposition to apply retroactively.This essay urges that it should not be construed as being retroactive and, in doing so, explores two possible challenges under the U.S. Constitution if the court were to interpret Proposition 8 so as to invalidate the 18,000 marriages.