Speculation from legal scholars is cited in an interesting WaPo article today. The article surveys legal scholars on what might be the legal fallout if the anti-gay amendment passes here in November.
One possible outcome – all marriages would be banned.
“If the November measure were to pass, we would be entering unprecedented territory,” said David B. Cruz, an expert on constitutional law at the University of Southern California in Los Angeles. “We have never seen a constitutional amendment like this in California that would take away rights that people had already exercised.”
Should voters approve the measure, Cruz said, offering another potential outcome, it could inadvertently affect traditional marriages. That’s because the amendment would undo only part of the court’s decision — allowing gay couples to marry — but not the rest, which says that same-sex couples cannot be recognized differently than opposite-sex couples, he said.
“If you’ve got those two rules — that you can’t let them marry, but you can’t give different options to gay and straight couples — then one possible outcome, if the amendment were to pass, is that no one could get married in California,” Cruz said.
On whether gay marriages between now and November would remain intact, the WaPo piece cites its sources as saying
The language of the measure does not seem to suggest revoking marriages that take place between June and November, legal experts say. But such a move would depend on the courts’ interpretation of the proposed amendment.
Experts say that if the measure passes, the state may choose to recognize the marriages, creating a pocket of married same-sex couples. “It just means that people who didn’t take advantage of that window can’t get married until or unless that amendment was repealed down the road,” said Vikram Amar, a law professor at the University of California at Davis.