Legal issue affects timings of gay weddings

By LISA LEFF, Associated Press Writer

Saturday, June 7, 2008

(06-07) 11:25 PDT San Francisco (AP) --
Drew Snyder and William Ballentine had a commitment ceremony with
all the trimmings four years ago, the closest they could get to a
wedding at the time.
Now that California's highest court has held that two men may be
legally married starting later this month, friends want to know when
the Los Angeles couple plan to take their relationship to the next
level.
The answer: Not any time soon.
The problem is a citizen referendum on the November ballot that
would overturn the state Supreme Court's landmark decision that denying
gay couples the right to wed was discriminatory. It means same-sex
couples face the uncertainty of whether they would still be legally wed
if the ballot measure were to pass.
No thanks, say Ballentine and Snyder. Better to wait until after the
election, when they will know whether voters have allowed gay marriages
to go ahead.
"If they were to say no and we hadn't gotten married, we could live
with that," said Ballentine, a 31-year-old mortgage banker. "If we did
get married and that happened, it would add insult to injury."
"Why go through it all and have that disappointment?" agreed Snyder, 37, a real estate agent.
The ballot initiative, known as the California Marriage Protection
Act, would amend the state constitution to "provide that only marriage
between a man and a woman is valid or recognized in California." Its
language was taken directly from a gay marriage ban enacted by voters
in 2000, one of two the Supreme Court majority found unconstitutional
and struck down in its May 17 decision.
The phrase "valid or recognized" is what worries some same-sex
marriage supporters. The question is how, if the amendment passes, the
state would treat marriage licenses issued between June 16 — when the
high court's ruling takes effect at 5 p.m. — and Election Day.
Shannon Minter, who successfully argued the case as legal director
of the National Center for Lesbian Rights, said licenses that thousands
of same-sex couples are expected to seek during the five-month window
would not be rendered void automatically.
Rather, it would be up to the measure's sponsors or another party to
seek to have them nullified through additional litigation, according to
Minter. He doubts the courts would go for it.
"There is no precedent for taking away someone's married status
retroactively. It just has never been done before, and the practical
consequences would be unimaginably devastating," Minter said.
Nevertheless, it could take years of legal wrangling before couples know their unions are secure.
Glen Lavy, senior counsel with the Alliance Defense Fund, a
Christian legal firm that argued for upholding California's one man-one
woman marriage laws, said that if his firm didn't try to have the
initiative apply to existing marriages, it's only a matter of time
before someone else did.
"It is inevitable that when the marriage amendment passes in
November there will be a cloud on the validity of any same-sex marriage
license that is issued," he said.
Such gloomy forecasts have Karen Bowen, 48, and Beth Gerstein, 47,
mothers of two who live in Berkeley, thinking long and hard about
getting married. They have been together nearly 20 years and were among
the 4,000 who joyfully wed at San Francisco City Hall in early 2004
after Mayor Gavin Newsom decided to challenge state law by extending
marriage licenses to same-sex couples.
"It seemed really clear to us it was a political statement. It wasn't going to last," said Bowen.
Six months later, when the Supreme Court voided all the unions
sanctioned by the city, "it was still very painful," she added. "It
will be even worse were we to have these dashed hopes, to get married
without it really counting."
Gerstein and Bowen do intend to tie the knot some time before November.
"I want for our kids to know we are part of a movement that I think
of as historic," Gerstein said. "Even if it doesn't work out, I'll get
married as many times as it takes because we should be able to get
married."
Douglas Kmiec, a Pepperdine University constitutional law professor
who filed a brief urging the Supreme Court to reserve marriage for a
man and a woman, agrees that what will become of the same-sex marriages
sanctioned in the coming months "is open to debate" if the amendment
passes.
Kmiec predicts the outcome eventually will be decided in favor of
gay couples by the Supreme Court. Just this past week, the court
refused to grant a request to delay the issuance of marriage licenses.
"If they were concerned about the validity of those public acts,
they would have been more inclined to put matters on hold," Kmiec said.
"They fully realize people are going to be relying on these public
licenses, changing their plans and planning their futures in relation
to this authority."