Opinion: Proposition 8: What happens to the married couples?

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Kenneth Starr was challenged by one justice after another on his contention that Proposition 8 not only bans future same-sex marriages, but also undoes the marriages of gay and lesbian couples performed in the few months before the initiative passed.

Justice Carol Corrigan asked whether people don’t have a right to expect to be able to rely on the law at the time when they were married? That’s when Starr replied with the no-fault divorce argument, since obviously many couples who expected to have a hard time divorcing suddenly saw a change in rules.

But both Justice Joyce Kennard and Chief Justice Ronald George questioned whether voters saw Proposition 8 as retroactive. George asked why a retroactivity clause wasn’t built into the initiative, if that was the intention.

Watching Starr, it can be hard to imagine that the man perhaps best known for going so aggressively after--and writing so graphically about--the Clinton-Lewinsky affair had been nominated for the U.S. Supreme Court when Justice William Brennan retired in 1990, but saw his nomination fall in the face of crticism by conservatives that he might be too liberal. Instead, President George H.W. Bush named David Souter--who regularly sides with the court’s liberals.