Same-Sex Marriages
Set Stage for Further Legal Action
The Oakland Tribune
By Josh Richman
June 16, 2008Legal experts say California's same-sex
weddings could be fertile ground for a bumper crop of
lawsuits and government claims from coast to coast.
If California voters in November approve an amendment
banning same-sex marriages, the courts will have to decide
what to do about those already solemnized. And the
amendment aside, couples who marry here and then go
elsewhere could be on uncertain legal ground.
"The one thing we're sure of is that there will be a
lot of litigation," said Brad Sears, executive director of
the Charles R. Williams Institute on Sexual Orientation
Law and Public Policy, a think tank at the UCLA School of
Law.
Factors "weigh fairly strongly in favor of recognizing
marriages that occur between June and November" even if
the amendment passes and halts same-sex marriages
thereafter, he said.
California courts usually don't apply new laws or
constitutional amendments retroactively unless they're
explicitly worded to be retroactive, Sears said.
The courts would probably consider the third parties
affected by suddenly voiding thousands of marriages: a
child who gains a parent by such a marriage, for example,
or perhaps a bank that granted a mortgage to a married
couple.
Stanford Law School professor Jane Schacter, an expert
in constitutional law as well as in sexual orientation and
the law, said she thought "the marriages will not be
retroactively invalidated."
Marriages solemnized when San Advertisement Francisco
Mayor Gavin Newsom told city officials to issue licenses
to same-sex couples in 2004 were voided because they had
directly violated state law as it existed at that time.
Schacter said it's hard to believe California courts would
take the "extraordinary step" of voiding marriages that
were valid when performed.
The legal rights and benefits afforded to California's
same-sex married couples won't differ enormously from
those already afforded to domestic partnerships, except
for the abolition of what critics had called a "separate
but equal" system created by the different terms. There
are a few advantages; for example, same-sex couples can
now enter into a confidential marriage — one that's not a
matter of public record — while all domestic partnerships
had to be publicly listed.
Federal law, however, still doesn't recognize spousal
rights or benefits for same-sex couples whether the state
calls it marriage, domestic partnership or anything else.
As for couples from elsewhere, Schacter said, "in most
states couples who come to California to marry are going
to have an uphill battle getting those marriages
recognized."
There are exceptions. Massachusetts and California will
recognize each other's same-sex marriages, Sears said, and
New Jersey and New Hampshire likely will treat
California's as civil unions under their own laws. New
York state agencies have been instructed that same-sex
couples married elsewhere "should be afforded the same
recognition as any other legally performed union."
Sears said New Mexico has a similar legal backdrop to
New York's: no law or constitutional amendment barring
recognition; a state law defining marriage as between two
adults, not explicitly a man and a woman; and strong
language on recognizing marriages performed in other
states.
Most other states have laws or constitutional
amendments barring recognition of same-sex marriages,
Sears said.
But legal gray areas could exist there, too, he said.
For example, such a state might refuse to provide ongoing
benefits predicated on marriage, yet might be inclined to
allow one-time proceedings such as divorces.
There's also the question of "traveling cases," such as
if a same-sex couple married in California were in a car
accident and try to exercise marital legal rights while
passing through another state with different laws. Sears
said, "It seems unlikely your relationship is going to
flick on and off as you travel across the country."
And, Schacter said, "lurking around the background are
some possible federal constitutional challenges," perhaps
tackling the federal Defense of Marriage Act — which says
states need not honor other states' same-sex marriages —
either as a denial of equal protection or as a violation
of the "full faith and credit" clause requiring states to
honor one another's laws.
But Schacter noted same-sex-marriage advocates have
shied away from such challenges thus far. In fact, nine
major gay-rights groups issued a memo Tuesday urging
people not to pursue such suits, warning they could bring
about "bad" rulings that could stand for years to come.
They said it's better to keep the matter before state
courts and legislatures for now.
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