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Bans on gay unions could be challenged

May 26, 2008|David G. Savage | Times Staff Writer

WASHINGTON — Despite the barriers that many states have erected against same-sex marriage, lawyers in the conservative movement worry that the California ruling has exposed a vulnerability in their united front and could trigger a series of legal challenges in the federal courts.

"This is a huge win for the other side. It has swung open the door to litigation all across the country," said Jay Sekulow, chief counsel for the American Center for Law & Justice in Washington. "Since California doesn't have a residency requirement, you could have people from Georgia and Virginia and Montana go to California, get married and return home and ask for their marriage to be honored. The state will say 'no,' and they will go to federal court saying it is a denial of 'full faith and credit.' "

He is referring to the clause in the U.S. Constitution that ensures rulings and legal agreements made in one state are honored in others. It says, "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state."

But it also includes a clause that has puzzled many legal experts. It says that Congress "may . . . prescribe the manner" for doing this. It is not clear whether this means Congress may prevent one state's legal agreements -- such as a marriage contract -- from being honored in another state.

Sekulow and other foes of same-sex marriage expect to win most of those legal challenges, but not necessarily all. "It only takes one judge somewhere to strike down the state's law," he said. "The reality is there will be a 'full faith and credit' challenge that will go up through the federal courts."

He and others say that a crucial legal battle over same-sex marriage may arise from a seemingly minor dispute over property or the terms of a will.

Mathew Staver, founder and chairman of Liberty Counsel in Orlando, Fla., agrees that a legal challenge is headed toward the Supreme Court, unless -- perhaps -- the California Supreme Court's decision is overturned by the state's voters in November.

"Because of the sheer size of California and the lack of residency requirement, this will have a big impact," he said. "It means, inevitably, that the federal [Defense of Marriage Act] will go before the Supreme Court."


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