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California gay-marriage ban creates uncertainty
(Agencies)
Updated: 2008-11-07 09:32

With many gay newlyweds worried about what the amendment does to their vows, California Attorney General Jerry Brown said he believes those marriages are still valid. But he is also preparing to defend that position in court.

Members of the gay and lessbian community listen to speakers during a Proposition 8 opposition rally in San Diego. Thousands of gay rights supporters took to the streets of Hollywood outraged that California had voted to ban same-sex marriages. [Agencies]

"I wish I could be comforted by Attorney General Brown's statement that it has no retroactivity," said Loyola Law School professor Bill Araiza, who married his same-sex partner October 29. "But it's in flux and I just don't know."

The amendment does not explicitly say whether it applies to those already married. Legal experts said unless there is explicit language, laws are not normally applied retroactively.

"Otherwise a Pandora's Box of chaos is opened," said Stanford University law school professor Jane Schacter. Still, Schacter cautioned that the question of retroactivity "is not a slam dunk."

An employer, for instance, could deny medical benefits to an employee's same-sex spouse. The worker could then sue the employer, giving rise to a case that could determine the validity of the 18,000 marriages.

Supporters of the ban said they will not seek to invalidate the marriages already performed and will leave any legal challenges to others.

A 2003 California law already gives gays registered as domestic partners nearly all the state rights and responsibilities of married couples when it comes to such things as taxes, estate planning and medical decisions. That law is still in effect.

Only Massachusetts allows same-sex marriages, while Connecticut is expected to begin sanctioning them this month. Several states allow civil unions.

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