LA Times: Let same-sex couples wed while the Prop. 8 ruling is appealed
Aug 10, 2010 at 05:30 pm
Posted on latimes.com:
"Having ruled that Proposition 8 unreasonably and unconstitutionally deprived gay and lesbian couples of the right to marry, U.S. District Chief Judge Vaughn R. Walker should take the natural next step of allowing such marriages to go forward while the case wends its way upward on appeal.
"True, this would create another period of uncertainty over the fate of those marriages, the same uncertainty that confronted same-sex couples in 2008 after the California Supreme Court recognized their right to marry even as Proposition 8 threatened to take it away. After the marriage ban was approved by voters, the court ruled that the weddings performed while they were legal — an estimated 18,000 of them — should continue to be recognized by the state.
"In Walker's historic ruling last week, he found that the freedom to marry is a federal constitutional right and thus cannot be abridged by Proposition 8, which passed as an amendment to the state Constitution. Now he's trying to decide whether to stay the ruling until supporters of the marriage ban can appeal to a higher court.
"Why should Walker subject the state to a new round of marital uncertainty? Because constitutional rights trump that concern. Once Walker handed down his ruling, gay and lesbian weddings became constitutionally protected, at least until a higher court decides otherwise. His ruling should go forward in the absence of any compelling reason to delay.
"What would qualify as a compelling reason? Tangible harm to others would give the court reason to pause, and supporters of Proposition 8 argue that such harm would occur because marriage equality would weaken the institution of marriage. Or the state could have a strong interest in halting the process if there would be enormous government costs in gearing up for weddings that could later be undone by a higher court. But as Walker's opinion makes clear, proponents of Proposition 8 'presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage.'
"In the same paragraph, Walker found that 'the process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to integrate same-sex couples into marriage.' Indeed, on Friday, Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown endorsed immediate resumption of weddings of same-sex couples, saying that state and county governments already had worked out the logistics."
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