An estimated 18,000 same-sex couples who wed in California last year have some good news with a bitter twist: Their marriages are valid, but also legal anachronisms that the state would not sanction if they wanted to exchange vows today.
The door to gay marriage in California — opened by a California Supreme Court ruling last spring and closed by voters in November — stayed shut under a 6-1 ruling Tuesday by the high court. The justices refused to nullify marriages that took place before the ban was approved, but for the couples involved, relief was mixed with a sense of being marginalized.
"I feel very uncomfortable being in a special class of citizens," said Sharon Papo, who married Amber Weiss on June 17, the first day gay marriage became legal in the state.
Newlyweds such as Randy Nadeau, 43, and Will Lawson, 47, didn't know how to react.
"We're celebrating. We made it. But we're sad for everyone else," said Nadeau, who wed his partner of 17 years two days before voters passed Proposition 8 in November. "In general, we're just embarrassed that the gay capital of the U.S. couldn't get it together."
Court: It's constitutional
Rejecting a series of legal challenges to the gay marriage ban, the state's highest court ruled that stripping gays and lesbians of the right to wed was a legal exercise of the virtually unfettered initiative power the California Constitution grants its citizens.
But the court also unanimously held that it would be unfair and unnecessarily disruptive to dissolve marriages conducted during the brief five months when same-sex marriage was legal in California.
Applying Proposition 8 retroactively would have the effect of "throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives," the court said.
With marriage remaining off-limits to same-sex couples for the foreseeable future, gay rights leaders decried the ruling as an empty victory. Demonstrators wept and yelled, "Shame on you!" and at least 150 people were arrested for blocking an intersection during a post-ruling demonstration.
In the Castro District, the hub of San Francisco's gay community, the large rainbow flag that waves in Harvey Milk Plaza was lowered to half-mast and replaced with a black mourning stripe at the top.
"It is hard to imagine the court would have permitted any other group to be stripped of equality and excluded from marriage," said Shannon Minter, who challenged Proposition 8 as legal director of the National Center for Lesbian Rights. "Five years from now, people will see this decision as an example of the court's historical blind spot."
Activists said they would take the issue back to voters as early as next year.
Repeal attempt?
Attempting to repeal a constitutional ban on same-sex marriage at the ballot box "has never happened in this country, but we are going to do that in California," said Geoffrey Kors, executive director of Equality California. He added that gay marriage proponents would need to ramp up their efforts quickly to submit ballot language to the state by September.
A federal lawsuit challenging the ban was filed Friday in San Francisco. Prominent lawyers Theodore B. Olson and David Boies filed it on behalf of two gay men and two gay women, arguing that Proposition 8 violates the U.S. constitutional guarantee of equal protection and due process.
Olson said he hopes the case, which seeks a preliminary injunction against the measure until the case is resolved, will wind up before the U.S. Supreme Court. He is a former U.S. solicitor general who served in high-level Justice Department jobs in the Reagan and George W. Bush administrations.
Proposition 8 proponents said they wouldn't challenge the existing gay marriages that were protected by the state high court.
"We see it as really a minor point in ultimately the will of the people being upheld," said Andy Pugno, general council for the Yes on 8 campaign who argued the case with former Whitewater prosecutor Kenneth Starr.
The state Supreme Court ruled 4-3 last May that it was unconstitutional to deny gay couples the right to wed. For a while, that put California — the nation's most populous state — back in its familiar position in the vanguard of social change; at the time, Massachusetts was the only other state to allow gay marriage.
In what gay activists called their "Summer of Love," same-sex couples rushed to get married in California for fear the voters would take away the right at the ballot box. In November, Proposition 8 passed with 52 percent of the vote, effectively trumping the court's May decision.
Over the past several months — as the fight went on in California — Iowa, Maine, Vermont and Connecticut legalized gay marriage.
In California, gay rights activists argued that the ban was improperly put to voters and amounted to a revision — which required legislative approval — not an amendment. The justices disagreed.
Domestic partnerships still legal
The court said that while the ban denies gay couples the right to use the term "marriage," it does not fundamentally disturb their basic right to "establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws." Domestic partnerships between same-sex couples remain legal in California.
In their 136-page majority ruling, the justices said it not their job to address whether the ban is wise public policy, but to decide whether it is constitutionally valid, while "setting aside our own personal beliefs and values."
Justice Carlos Moreno, who had been under consideration as President Barack Obama's nominee to the U.S. Supreme Court, was the lone dissenter.
He said denying same-sex couples the right to wed "strikes at the core of the promise of equality that underlies our California Constitution." He said it represents a "drastic and far-reaching change."
Legal scholars were divided over the justices' decision to let existing gay marriages stand.
University of California, Davis law professor Vikram Amar said it's not uncommon for the law to treat people differently, citing such examples as ever-changing tax codes and presidential term limits, which were imposed while Harry Truman was in office but didn't apply to him.
"We change the rules and apply them to different people going forward," Amar said.
But Douglas Kmiec, a Pepperdine University law professor, said "when you set up artificial distinctions between similarly situated people, you are asking for trouble."