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Proposition 8 Overturned, Now What?

By Tanya Roth, Esq. | Last updated on

The Beatles said it best; the legal journey to decide the fate of Proposition 8, California's ban on gay marriage, will be nothing if not a long and winding road. Today, there is a signpost in that road. U.S. District Court Chief Judge Vaughn Walker handed down his decision in the first federal court challenge to the constitutionality of the law. Despite the court's holding that the law does violate the constitution, not much will change today for same sex couples in the Golden State who wish to marry. Even before the decision was announced, supporters of California's ban on same sex marriage petitioned Judge Walker for a stay on his decision if he found, as he did, that the law should be overturned.

Judge Walker's opinion, according to the San Francisco Chronicle, was based at least in part, on the recent historical affect of gay marriage in California. After the California Supreme Court allowed same sex marriages take place, none of the societal harms predicted by the opponents of gay marriage occurred, according to the court. "California is able to issue marriage licenses to same-sex couples," Judge Walker wrote, "as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result."

But do not look for rice and white roses for same sex couples anytime in the very near future. According to the San Jose Mercury News, a motion to stay (temporarily halt) the decision was already filed by the proponents of Proposition 8, who will also immediately seek an appeal with the 9th Circuit Court of Appeals. Currently, the Mercury News reports Judge Walker has already refused to allow same sex marriages in the state to take place during the on-going legal process, citing the uncertainly that will result until the law is settled. This will include the next part of the process, the appeals, so in practice, nothing will change immediately for same sex couples in the state of California.

Notwithstanding the decision of a federal judge in California, there are already five states that allow same sex couples to marry: Massachusetts, Connecticut, Vermont, New Hampshire, Iowa and the District of Columbia. Massachusetts was the first, passing its law in 2003. California actually followed next, but the right was rescinded with the passage of Proposition 8 in 2008, with 52% of the vote. Only a decision of the U.S. Supreme Court could broadly affect all the citizens of the various states. An appeal to the Supreme Court is all but assured.

The testimony in the case before the Northern California District Court traveled over many areas of life; witnesses from fields including sociology, politics and marriage opined on the effect the law would or would not have on the social fabric of the state. Despite the decision from the court today, Californians will still have to wait to see what the long term effects of allowing gay marriage would truly have on the lives of not only those who then marry, but on all citizens.

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