Having ruled that Proposition 8 unreasonably and unconstitutionally deprived gay and lesbian couples of the right to marry, U.S. District Chief Judge Vaughn R. Walker should take the natural next step of allowing such marriages to go forward while the case wends its way upward on appeal.
True, this would create another period of uncertainty over the fate of those marriages, the same uncertainty that confronted same-sex couples in 2008 after the California Supreme Court recognized their right to marry even as Proposition 8 threatened to take it away. After the marriage ban was approved by voters, the court ruled that the weddings performed while they were legal — an estimated 18,000 of them — should continue to be recognized by the state.
In Walker's historic ruling last week, he found that same-sex marriage is a federal constitutional right and thus cannot be abridged by Proposition 8, which passed as an amendment to the state Constitution. Now he's trying to decide whether to stay the ruling until supporters of the marriage ban can appeal to a higher court.
Why should Walker subject the state to a new round of marital uncertainty? Because constitutional rights trump that concern. Once Walker handed down his ruling, gay and lesbian weddings became constitutionally protected, at least until a higher court decides otherwise. His ruling should go forward in the absence of any compelling reason to delay.
What would qualify as a compelling reason? Tangible harm to others would give the court reason to pause, and supporters of Proposition 8 argue that such harm would occur because same-sex marriages would weaken the institution of marriage. Or the state could have a strong interest in halting the process if there would be enormous government costs in gearing up for weddings that could later be undone by a higher court. But as Walker's opinion makes clear, proponents of Proposition 8 "presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage."
In the same paragraph, Walker found that "the process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to integrate same-sex couples into marriage." Indeed, on Friday, Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown endorsed immediate resumption of same-sex weddings, saying that state and county governments already had worked out the logistics.
The only foreseeable harm in resuming same-sex weddings might be to the gay and lesbian couples who choose to wed during a period of legal uncertainty. Should a higher court overturn Walker's ruling and also declare the marriages invalid, those couples could suffer tremendous grief in addition to the loss of their family status. But same-sex couples are aware of that risk, just another in the long-running movement toward equal rights. Many have already married under a legal cloud, and many more are willing to take the chance. It's their right to choose this tenuous path until the day American society recognizes their full and permanent right to wed.