A Reader's Reaction to:
Should Proposition 8 Be Held to be Retroactive? by Jesse H. Choper.

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.

Recommended Citation

Joslin, Courtney G. (2009) "Further Thoughts on Proposition 8 and Retroactivity: A Response to Choper," California Journal of Politics and Policy: Vol. 1 : Iss. 1, Article 20.
DOI: 10.2202/1944-4370.1025
Available at: http://www.bepress.com/cjpp/vol1/iss1/20