Further Thoughts on Proposition 8 and Retroactivity: A Response to Choper

California Journal of Politics and Policy, Vol. 1, No. 1, 2009

Posted: 15 Jun 2009

See all articles by Courtney G. Joslin

Courtney G. Joslin

University of California, Davis - School of Law

Date Written: May 1, 2009

Abstract

In a recent article, Professor Jesse Choper argued that, if held to be valid, Proposition 8 should not be applied retroactively. This conclusion, however, does not fully answer the question posed by the Court, which is: if valid, what effect does Proposition 8 have, if any, on the 18,000 marriages that were entered into before November 5, 2008. In order to answer the retroactivity question posed by the Court, one must consider another inquiry: what does it mean to apply Proposition 8 prospectively only‘ In this article, I argue that a prospective-only application of Proposition 8 would have no effect on the existing 18,000 marriages. Further, in response to an argument made by the interveners, I also urge that the fact that the putative spouse doctrine may extend some marriage-based rights for some limited period of time to persons who had a good faith belief that they were in a valid marriage does not in any way affect this conclusion.

Keywords: same-sex marriage, retroactivity

Suggested Citation

Joslin, Courtney G., Further Thoughts on Proposition 8 and Retroactivity: A Response to Choper (May 1, 2009). California Journal of Politics and Policy, Vol. 1, No. 1, 2009, Available at SSRN: https://ssrn.com/abstract=1417983

Courtney G. Joslin (Contact Author)

University of California, Davis - School of Law ( email )

400 Mrak Hall Drive
Davis, CA CA 95616
United States
(530) 752-8325 (Phone)

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
2,140
PlumX Metrics