Gay marriage fight not over
California proposition faces court challenges
SAN JOSE, Calif. – For same-sex couples, the roller coaster ride for the right to marry shifted Wednesday from the rough and tumble of a political campaign back to the California Supreme Court.
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,” said Erwin Chemerinsky, dean of the University of California-Irvine Law School. “This is an issue where there isn’t enough law to make a prediction.”
Before the final votes on Proposition 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 Proposition 8, which passed Tuesday with 52 percent of the vote. 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.
Attorney General Jerry Brown has said he will defend existing marriages, but Proposition 8 supporters question the validity of such unions because the ballot measure bars legal recognition of gay marriages.
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.
Proposition 8 supporters vow to defend the law in court, saying the legal challenge is an attempt to undermine the will of the voters. They view the measure as no different than past voter changes to the constitution, such as restoration of the death penalty.
“I don’t think they are going to get very far,” said Andrew Pugno, lead attorney for the Proposition 8 campaign.