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Same-sex Marriages Set Stage for Further Legal Action

Publication Date: 
June 16, 2008
The Oakland Tribune
Josh Richman

Jane Schacter is quoted in this story about the California Supreme Court's decision to uphold gay marriage and about the ongoing legal challenges to gay marriage in California and throughout the nation:

Legal experts say California's same-sex weddings could be fertile ground for a bumper crop of lawsuits and government claims from coast to coast.

If California voters in November approve an amendment banning same-sex marriages, the courts will have to decide what to do about those already solemnized. And the amendment aside, couples who marry here and then go elsewhere could be on uncertain legal ground.

Stanford Law School professor Jane Schacter, an expert in constitutional law as well as in sexual orientation and the law, said she thought "the marriages will not be retroactively invalidated."


Federal law, however, still doesn't recognize spousal rights or benefits for same-sex couples whether the state calls it marriage, domestic partnership or anything else.

As for couples from elsewhere, Schacter said, "in most states couples who come to California to marry are going to have an uphill battle getting those marriages recognized."


And, Schacter said, "lurking around the background are some possible federal constitutional challenges," perhaps tackling the federal Defense of Marriage Act — which says states need not honor other states' same-sex marriages — either as a denial of equal protection or as a violation of the "full faith and credit" clause requiring states to honor one another's laws.

But Schacter noted same-sex-marriage advocates have shied away from such challenges thus far. In fact, nine major gay-rights groups issued a memo Tuesday urging people not to pursue such suits, warning they could bring about "bad" rulings that could stand for years to come. They said it's better to keep the matter before state courts and legislatures for now.