Spring Break
Same-sex couples work to block Prop. 8 in California
Howard Mintz
Issue date: 11/7/08 Section: News
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And the fate of gay marriage in this torn state is as murky as ever.
"It's very hard to predict what the court will do," Erwin Chemerinsky, dean of the University of California-Irvine Law School, said. "This is an issue where there isn't enough law to make a prediction."
Before the final votes on Prop. 8 were even tallied Wednesday, civil rights groups and San Francisco city officials filed two separate legal challenges in the California Supreme Court, asking the justices to block the state's latest ban on same-sex marriages. The salvos are expected to set in motion another protracted legal tussle over gay marriage that could eventually spill into other courts, including, at some point, the U.S. Supreme Court.
The civil rights challenge was filed on behalf of six same-sex couples who now want to marry, including San Jose partners Brad Jacklin and Dustin Hergert, who say they no longer have the right because of the passage of Prop. 8. The arguments in the state Supreme Court do not address the status of the estimated 18,000 same-sex couples who've married in recent months, a separate legal question that is expected to surface in other court cases.
Attorney General Jerry Brown has said he will defend those existing marriages, but Prop. 8 supporters question the validity of such unions because the ballot measure bars legal recognition of gay marriages. Most legal experts say courts frown on taking away established rights, but Loyola law Professor Jennifer Rothman noted that it would create a "bizarre world" in California with some gay couples married and others deprived of the future right to tie the knot under Prop. 8.
Still, the consensus is that existing marriages will remain legal.
"It's very unlikely with the state supporting it these marriages are going to be invalidated," Rothman said.
But in the meantime, the broader attack on Prop. 8 returns to the state Supreme Court, which legalized gay marriage in May by striking down the state's prior ban on same-sex weddings. The Supreme Court found the ban unconstitutional, but Prop. 8 was designed to trump the 4-3 ruling by amending the state constitution to confine marriage to heterosexual couples.
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