Does Prop 8 Cancel Out Recent Marriages? About 11,000 same sex couples have legally married in California over the last few months. Are these marriages in danger of being nullified if Prop 8 passes? UC Berkeley law professor Jesse Choper offers an answer.


Does Prop 8 Cancel Out Recent Marriages?

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All right, Alex, any sense now of which side is actually going to win on this vote?


It's getting a lot tougher to tell. Now, for quite some time, opponents of Proposition 8...

CHADWICK: Which are the...

COHEN: Supporters of gay marriage.


COHEN: They were leading. They were ahead in the polls by double digits, but it seems like this new focus on education in kids that the Yes on 8 focus have been taking might actually have some traction. A poll done last week shows almost even odds of Proposition 8 passing.

CHADWICK: Haven't a number of gay couples already gotten married in California? What happens?

COHEN: Well, it's a big number. It's 11,000 couples who've already tied the knot since May of this year, and that's when the California Supreme Court ruled these marriages are legal. So what could happen to these marriages? To find out, we are calling on Jesse Choper. He's a professor of public law at the University of California Berkeley. Professor Choper, thank you for joining us. And tell us, if voters do approve Proposition 8, would the marriages that have already taken place before the election still be legally valid?

Professor JESSE CHOPER (School of Law, University of California-Berkeley): Well, there's no absolutely certain or confident answer to that question. But I can say with - I can give you some pretty good idea of what the argument on behalf of the gay rights people is going to be. That if Proposition 8, assuming it's enacted, should not be retroactively applied to those people who legally entered into marriages between the time of the supreme court decision and the effective date of Proposition 8.

COHEN: There is some timing involved in all of this. If the measure passes, when will it go into effect?

Prof. CHOPER: Very quickly, within a day or so after it's certified. Any time between the certification of Proposition 8, if it's passed, and the time it takes effect, whether it be two days or six or seven weeks, all right? Those people are in a different category.

COHEN: And in that interim time, could same-sex couples legally be able to get married?

Prof. CHOPER: Yeah, that's what I say. They're in a different category. I think that is much hazier. They had full knowledge of the fact that it was not - that a marriage in California was valid only when it was between a man and a woman. I wouldn't say that they're totally out of luck, but I would say that the argument that they would have is not as strong as the one that's going to be made by those who entered into the marriage when it was perfectly lawful.

COHEN: This is causing a lot of anxiety for a lot of same-sex couples. I've heard a number of stories of people, you know, who are planning on getting married in December now rushing to get married because they're not sure what's going to happen. Couldn't you argue that the California Supreme Court could have eliminated a lot of this angst by just delaying the date of their ruling until after this election?

Prof. CHOPER: Well, they may have eliminated some angst, but it also is true that they may well have given the benefit of their interpretation of the Constitution to - I think it's more than 10,000 couples got married. So angst is a partner of accomplishment, some of the time.

COHEN: If No on 8 prevails...

Prof. CHOPER: Yes.

COHEN: And same-sex marriage continues to be legal, according to the Supreme Court ruling, what happens to those who oppose gay marriage? What legally might they be able to do?

Prof. CHOPER: Well, they only have - there are two choices. One is to take another shot at a constitutional amendment by putting it on a ballot. The other alternative is to hope and strategize for the Supreme Court of California to change its mind.

COHEN: Jesse Choper is a professor of public law at the University of California, Berkeley. Thank you so much, professor.

Prof. CHOPER: Bye-bye.

COHEN: There's more to come on Day to Day.

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