Source: San Diego Union Tribune, Associated Press via Boston Herald
SACRAMENTO -- Gay and lesbian couples who get married in the next several months aren't likely to have their licenses invalidated if voters approve a constitutional ban on same-sex marriage in November, according to legal experts.
They said the proposed amendment, like most laws, will be interpreted to prevent same-sex marriages in the future, and not affect those that were legal when they took place.
“Our assumption is that laws are prospective,” John Sims, a professor at McGeorge School of Law in Sacramento, told San Diego Union Tribune.
The historic ruling Thursday by the state Supreme Court striking down laws banning same-sex marriage is expected to prompt thousands of couples to get married in California starting about a month from now, when the ruling becomes final.
The Republican-dominated court’s decision, which cited a 1948 California Supreme Court decision that overturned a ban on interracial marriages, said there was no justifiable reason why the state should bar marriage by gay and lesbian couples.
Courtney Joslin, who teaches family law at University of California, Davis, told the Union Tribune that what counts is whether marriages were valid when they were entered into, not what happens with the law later.
“There are strong arguments for retaining those marriages,” she said
A right-wing legal activist group and other supporters of a proposed constitutional amendment to authorize discrimination against gay and lesbian couples seems to be worried about the same thing, Associated Press reports.
Alliance Defense Fund said it would ask California’s Supreme Court to postpone putting its Thursday decision into effect until after the fall election when it hopes to have its proposed amendment on the ballot.
Opponents of marriage equality claim to have turned in more than enough signatures to place a constitutional measure on the November ballot banning same-sex marriage. The secretary of state's office is expected to announce next month whether the amendment qualifies for the ballot.
The amendment is worded exactly the same as Proposition 22, which was passed by 61 percent of the voters in 2000, but thrown out Thursday by the state Supreme Court, along with a 1977 statute passed by the Legislature.
The measure reads: “Only marriage between a man and a woman is valid or recognized in California.
The difference is Proposition 22 was a statutory initiative that doesn't have the legal protections of a constitutional amendment.
Suzanne Goldberg, a professor at Columbia Law School, said that passage of the constitutional amendment in November would create a “legal, political and social mess.”
“It is untenable to have a situation where some gay couples are married and others are forbidden from ever doing that,” said Goldberg, one of several law professors interviewed yesterday by the Union Tribune.
Andrew Pugno, attorney for Protectmarriage.com, which is sponsoring the constitutional amendment agreed the potential of having different definitions of marriage would create problems.
For that reason, his group will join ADF in asking the state Supreme Court to delay implementing its ruling until after the November 4 vote.
“It is in no one's interest to redefine marriage for four months only to have that definition changed back,” he said.
Gay rights advocates agreed that marriages in the coming months likely will stand even if the ban is approved, but they acknowledged that there is uncertainty.
“There's never been a situation like this before,” said Geoff Kors, executive director of Equality California, which opposes the discrimination amendment.
Gay rights groups plan to raise about $15 million to defeat the ban, while social conservatives are hoping they can collect around $10 million to pass the measure. They predicted that the court’s decision would help their cause by energizing voters.
Though Proposition 22 passed in a landslide eight years ago, polls show that support for same-sex marriage has grown, but still falls short of a majority.
A constitutional amendment carries more legal weight than a statutory initiative, but backers of marriage equality are likely to challenge the ban on the grounds that it violates the U.S. Constitution and the basic principles of the California Constitution.
“You could say that this cuts a hole in the core promises of the state constitution,” said Goldberg.
Full article: Same-sex unions made now likely to stay valid | San Diego Union Tribune
Not so fast: Calif. group wants gay nuptials put on hold - BostonHerald.com