The future of gay couples married in the meantime

More than 3,500 gay couples have now been married in the United States, and numbers are rising fast - two dozen in New York last Friday, 26 in New Mexico Feb. 20, over 200 per day in San Francisco since Feb. 12, and more to come in Massachusetts after the state Supreme Judicial Court's May 17 deadline.

These weddings are the subject of fierce state and federal legal battles: New Mexico's attorney general found her state's licenses "invalid under state law" the day they were performed; on Friday both California's Supreme Court and New York's attorney general declined to do the same. Iowa and 13 other states now seek to amend their Constitutions to ban gay unions. The Massachusetts legislature will reconvene March 11 to consider proposed amendments; last week President Bush announced his support for a federal ban.

But these things take time. The Massachusetts ban could not go before voters until November 2006. A federal amendment would need to pass first in Congress then by legislatures in at least 38 states; after the president's announcement last Tuesday, both Senate majority leader Bill Frist (R. of Tennesse) and House majority leader Tom DeLay (R. of Texas) said they would be moving slowly and deliberately. In the meantime, thousands of same-sex couples are vowing to love, honor, comfort, and keep each other as long as they both shall live.

Today they - along with lawmakers, legal and constitutional scholars, and citizens nationwide - are asking: What will happen to these marriages if gay unions are made unconstitutional at the state or federal level?

Nobody really knows.

"There's no precedent for any of this," says New York Law School professor Arthur Leonard. "It's basically been a premise of our Constitution that amendments" - apart from the ill-fated 18th, which for 13 years mandated Prohibition - "are not added for the purpose of denying people rights. They've always guaranteed people rights. So we're in uncharted territory here."

Still, legal experts can't help speculating. Though constitutional amendments of the kinds being proposed in Boston and Washington are without precedent, state marriage law has shifted many times over the years as state legislatures have raised the age of consent from 14 to 18, forbidden first cousins to wed, banned interracial marriage, and repealed that ban.

"Marriage law changes, but it's always been held that people validly married when the law was broader are still married when the qualifications to marry are narrowed," says Duke University law professor William Reppy. Cousins married before those bans were not unwed in their aftermath, nor were young or interracial couples.

What that suggests for same-sex couples married in the coming months, Dr. Reppy says, is that though their unions may not be recognized across state lines, and the 1996 Defense of Marriage Act means they would not have been at the federal level in any case, "there could not be a retroactive unmarrying of these people."

Others disagree. Some of the proposed amendments considered by the Massachusetts legislature last month included provisions to retroactively turn same-sex marriages into civil unions with the same state benefits. Others would have outlawed such unions, making no provisions for couples married in the meantime.

But even were a same-sex marriage ban to retroactively cancel these unions, experts say the measure would be largely symbolic for questions of child custody and property ownership. Florida is now the only state that prohibits gays from adopting, and gay couples (or any two unmarried people) can own property jointly in every state.

Still, such a ban, says Lynne Gold-Bikin, former chair of the American Bar Association's family law section, would prevent couples from seeking the federal marriage benefits afforded heterosexual couples - social security, the ability to make medical decisions for one another, and the right to inherit as spouses - unless the amendment made provisions for the creation of civil unions that included those benefits. Civil unions in Vermont do not include the nearly 1,400 federal protections.

"You know, the devil always is in the details," Ms. Gold-Bikin says. "It depends on what they call a civil union."