Delaying Gay Marriages After Prop. 8 Was Overturned Is Unconstitutional, Couples Say

SAN FRANCISCO (CN) - Delaying marriages will further violate same-sex couples' constitutional rights, say attorneys for the two couples who successfully challenged Proposition 8, California's voter-approved ban on gay marriages. Proponents had filed a motion urging Chief U.S. District Judge Vaughn Walker to defer allowing same-sex couples to marry until the case makes it way through the appeals process. Walker, who ruled last week that Prop. 8 was unconstitutional, is expected to rule on the motion this week.

"Whether plaintiffs marry immediately or at a time of their choosing could not be less relevant; this court's ruling establishes that Proposition 8 is an unconstitutional barrier to the exercise of their constitutional right to marry, and that finding alone establishes the irreparable harm plaintiffs would suffer if proponents' extraordinary request for relief were granted," the response says.

Though Walker ruled Proposition 8 unconstitutional last week, the case still has a long way to go before its resolution, as proponents are expected to appeal to the 9th Circuit. Meanwhile, Walker could decide that marriage licenses for same-sex couples should be issued immediately, leading to some speculation that those marriages would be invalidated if the ruling were to be overturned by the higher courts.

"The rule in family law is that a marriage remains valid if it was valid on the date it was executed," Professor Julie Nice of the University of San Francisco said in an interview. While marriages performed before a final ruling on the case could evoke the same disappointment of 2004 - when San Francisco sanctioned gay marriage before the California Supreme Court recognized same-sex marriage as a right - Nice said it is unlikely.

Nice, who specializes in Constitutional and sex discrimination law, outlined "two historic examples," the first being marriages authorized by San Francisco Mayor Gavin Newsom in 2004 that were voided because Newsom did not have the authority to grant same-sex marriage licenses. The second example is what Nice called the "window marriages" - marriages performed during the time between when California Supreme Court ruled that the same-sex marriage ban was unconstitutional and when Prop. 8 passed.

Those marriages were not invalidated, Nice explained, because they were legal at the time they occurred.

"I fully expect that if Walker allows same-sex marriages, they would be treated like the window marriages, and not like the mayor marriages," Nice said.

In their response, opponents of Prop. 8 claim "Proponents simply repeat in their stay motion the various unsubstantiated, unfounded, and illogical arguments this court first rejected at summary judgment, and then rejected again after a full-blown trial."

Nice seemed to agree, noting that attorneys for proponents of the gay marriage ban "only argued the religious and moral disapproval argument and didn't really try the case toward a Constitutional law litigation strategy."

If the Supreme Court decides to hear the case and upholds Walker's ruling, Nice said the decision would be "a nationwide judgment call," in that other states that have already banned gay marriage would be required to comply.

"If the U.S. Supreme Court ruled that same-sex marriage cannot be banned, it would be almost identical to Loving v. Virginia," Nice said, likening the current same-sex marriage case to the historic Supreme Court case ending all race-based marriage restrictions.

While Nice said the proponents' folly of "trying their case in the court of public opinion" rather than focusing their trial efforts on legal argument may hurt their chances of winning on appeal, public opinion will nonetheless play a considerable part in gaining equality for same-sex couples.

"At the end of the day, convincing society will decide the case," Nice said.

Follow @MariaDinzeo

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