If Prop. 8 passes, what about those who wed?

Bob Egelko, Chronicle Staff Writer

Saturday, November 1, 2008

(10-31) 17:52 PDT SAN FRANCISCO -- When Californians vote on Proposition 8, they'll decide whether same-sex partners' right to marry will still exist as of 12:01 a.m. Wednesday. What's less clear is the impact on as many as 16,000 gay and lesbian couples who have wed since June.

Some legal commentators say Prop. 8, if passed Tuesday, would retroactively invalidate all same-sex marriages performed in the state since a state Supreme Court ruling legalizing such weddings took effect. Others say the court established rights that can't be taken away, even if the law changes.

The answer could come from the same court that overturned California's previous law defining marriage as the union of a man and a woman. Or it could come from a higher-ranking tribunal in Washington, D.C.

Craig Wetherbee and John Melena of Modesto weren't thinking that far ahead when they arrived at San Francisco City Hall last week for a wedding they had originally planned for next March, the seventh anniversary of their relationship.

"We'd rather do it now, when we can," Melena, 26, said as other like-minded couples lined up at the city clerk's office for marriage licenses.

Important piece of paper
Domestic partners for five years, they considered themselves married long before the state made it legal, said Wetherbee, 31. Even if Prop. 8 passes, he said, "I'll have my piece of paper on the wall."

If California voters approve Prop. 8, the legal weight of that piece of paper, and of thousands of others, will be up to the courts to decide.

About 16,000 same-sex couples will have married since mid-June, according to the UCLA law school's Williams Institute for Sexual Orientation Law and Public Policy. Nearly a third of the weddings will have taken place in the past two months.

In San Francisco, the clerk's office says 971 same-sex couples made appointments to get licenses in the two weeks before the election. That's about twice the rate during any period since the last two weeks of June, when 1,071 couples applied.

The initiative that could undo those weddings is a proposed state constitutional amendment declaring that "only marriage between a man and a woman is valid or recognized in California."

Prop. 8 does not explicitly state that it would be applied retroactively to overturn existing same-sex marriages. But its language - saying only opposite-sex marriage can be recognized in California - indicates that it was meant to deny recognition to all same-sex marriages, including those that were legal before the election.

That interpretation gains support from the Yes on 8 ballot arguments, which say the measure would allow the state to recognize only male-female marriages, "regardless of when or where performed."

Still, many legal observers have predicted that pre-Prop. 8 marriages would be upheld by the same state Supreme Court justices who authorized those marriages. That view is shared by Attorney General Jerry Brown, whose office would represent the state in any lawsuit over the ballot measure.

"I would think that the court, in looking at the underlying equities, would most probably conclude that upholding the marriages performed in that interval (before the election) would be a just result," Brown said in August.

Stanford law Professor Jane Schacter said the issue isn't clear-cut, but she thinks the court would be reluctant to revoke the right to marry after the fact. The main reason, she said, is that newlywed couples often rely on their marital status to take actions they might otherwise put off - adopting or having children, borrowing money, buying a home.

"We want to say to couples that when you marry, you can rely on being married," she said.

UC Berkeley law Professor Jesse Choper said the court might well conclude that retroactively nullifying a marriage would violate a couple's right to due process of law or violate the constitutional ban on interference with contracts.

Even the chief lawyer for the Yes on 8 campaign declined to predict that the court would overturn existing marriages.

"I don't think the law is clear on that," said attorney Andrew Pugno of Sacramento. He said Brown's position and the state court's evident sympathy toward same-sex marriage might sway the outcome.

Court blamed for confusion
Campaign spokesman Chip White declined to say whether sponsors of the measure would ask the courts to invalidate marriages. However, he said that any confusion about the status of existing marriages is the state Supreme Court's fault for refusing to delay the effect of its ruling until after the election, and "the courts will have to grapple with it."

One law professor who strongly supports same-sex marriages believes Prop. 8 would invalidate all such marriages in California.

"There is a disturbing degree of complacency that many (gay and lesbian) people seem to have about the security of their marriages," said Kenji Yoshino, who teaches constitutional law at New York University. Although it would be unjust to nullify the weddings of couples who have waited years for the chance to marry, he said, "just because something seems deeply unfair doesn't mean it's unconstitutional."

Yoshino said federal courts have ruled that the constitutional prohibition against government interference with contracts doesn't apply to marriage. He also said the U.S. Supreme Court ruled in 1994 that in a noncriminal case, a state needed little justification to retroactively repeal individual rights that were in effect for a relatively brief period.

And although the California Supreme Court might be inclined to uphold the marriages, Yoshino said, any such ruling would probably be based on the U.S. Constitution, on which the nation's high court has the last word.

Prepared for either outcome
At City Hall, Wetherbee, filling out his license application, said he hopes the state's voters leave his marriage intact. But at least as far as his relationship with Melena is concerned, he said, it doesn't really matter if Prop. 8 passes and rewrites the law retroactively.

Down the hallway, Karen Peper and Sue Gerrity, who flew in from Farmington Hills, Mich., to gain California's legal blessing for their 17-year relationship, said they were prepared for whatever verdict the voters and the courts render.

In Michigan, which recognizes neither domestic partnership nor marriage for same-sex couples, "people ask me if I'm married," said Peper, a 52-year-old psychologist. "I'll say yes, regardless of Prop. 8."



E-mail Bob Egelko at begelko@sfchronicle.com.

This article appeared on page A - 1 of the San Francisco Chronicle