Lost in all the publicity about post-election No on 8 protests is the question of whether the 18,000 gay couples who tied the knot this year in California will see their marriages voided by the courts. Protecting these marriages is essential as a matter of humanity, of avoiding a bigger legal mess. Here are three suggestions for how to respond:
1. Show some decency, same-sex marriage opponents.
The Yes on 8 folks — the opponents of same-sex marriage — would be wise not to challenge these marriages in court. It would be both the decent and the politically wise thing to do. By not challenging the marriages, the Yes on 8 crowd could demonstrate that its opposition to gay unions is really about their desire to protect marriage — and not, as many of us suspect, about hatred of gay people. If the Yes on 8 backers go ahead and force the voiding of these marriages, that action likely would boomerang against their cause. I’m hearing from some conservatives who favor allowing the existing marriages to stand, but, given the current thinking on the right (and the anger about No on 8 protests targeting churches), I doubt these cooler heads will prevail.
2. Show some guts, politicians.
Some of the state’s best lawyers are working on protecting these couples and repealing Prop 8. But the courts take time. The legislature and the governor — who played coy during the Prop 8 campaign instead of showing leadership in defending legally married gay couples — need to move immediately to give every specific protection to the existing marriages that they possibly can. It’s unclear what form this could take, but clear statements that the initiative not be applied retroactively would be a good first step. Such officials might point out the legal mess that voiding such marriages would create.
3. Be prepared for legal defeat, supporters of same-sex marriage.
If the marriages are voided, these couples will need help in very pragmatic ways. Some dissolved domestic partnerships to get married. State lawmakers and the governor need to move a legislative package that automatically would turn these voided marriages into domestic partnerships — unless the couples specifically opt out. The state also should come up with money that could be used to defray legal bills that result from the voiding of marriages. A whole host of contracts and legal arrangements — involving adoption of children, property records, wills and estates, etc. — could be affected by the voiding of the marriages. At the very least, gay married couples should be made financially whole if their marriages are voided.