Calif. Battle Over Gay Marriage Raises Novel Legal Questions

By Ashley Surdin
Washington Post Staff Writer
Sunday, June 8, 2008

LOS ANGELES -- Two things are certain in California's mounting legal showdown over same-sex marriage: Gay couples will wed this month, and, come November, voters will decide whether the state's constitution should exclude them from such unions.

If the vote is yes, the only certainty will be confusion.

On Monday, a ballot measure allowing voters to define marriage as a union "between a man and a woman" was certified for the Nov. 4 election. Two days later, the California Supreme Court refused to rehear the same-sex marriage case or delay its decision legalizing such marriages, effective June 16.

The developments -- victories for both sides of the debate -- have engendered questions, most notably this: If California voters ban same-sex marriage in November, what happens to the thousands of couples expected to wed between the middle of this month and then?

It's a question no one can answer, say legal experts, who can only make predictions as California barrels down this untraveled legal path.

"If the November measure were to pass, we would be entering unprecedented territory," said David B. Cruz, an expert on constitutional law at the University of Southern California in Los Angeles. "We have never seen a constitutional amendment like this in California that would take away rights that people had already exercised."

The language of the measure does not seem to suggest revoking marriages that take place between June and November, legal experts say. But such a move would depend on the courts' interpretation of the proposed amendment.

Experts say that if the measure passes, the state may choose to recognize the marriages, creating a pocket of married same-sex couples. "It just means that people who didn't take advantage of that window can't get married until or unless that amendment was repealed down the road," said Vikram Amar, a law professor at the University of California at Davis.

Hence the hurry with which couples are booking appointments with wedding vendors and county clerks. San Francisco city officials expect as many as 500 couples to marry per day, for days on end. In Los Angeles County, the clerk's phone is ringing off the hook.

Alternatively, under the amendment, the state may be compelled to recognize married same-sex couples as domestic partners or even forcibly divorce them.

Voiding such marriages would create a slew of other headaches for couples who purchased property, signed contracts or took out insurance policies together, said Bill Araiza, a professor at Loyola Law School in Los Angeles. "These are problems that I'm foreseeing in just 10 seconds, so you can imagine that a court really thinking about this would be loath to open up this can of worms to interpret this initiative as retroactive," Araiza said.

No one knows how many same-sex couples plan to marry in the months before the November election. About 51,000 couples, half the gay couples in California, are projected to wed over the next three years, according to the Williams Institute, which focuses on sexual orientation law and policy, at the University of California at Los Angeles. Most of those will marry this year.

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