Same-sex couples who marry before November have questioned whether their marriages will be valid if a ballot initiative amends the state constitution to limit marriage to one man and one woman.

“That is the question on the lips of so many people, and there is no easy answer,” said Jennifer Pizer, senior counsel for Lambda Legal’s Western Regional Office. “We honestly have not had a situation like this before. It certainly wouldn’t be a good thing if the initiative passes, because it will raise very difficult constitutional questions.”

Shannon Minter, legal director for the National Center of Lesbian Rights and lead attorney for the same-sex couples in the marriage cases, however, is confident, should the initiative pass, the marriages before November will remain valid.

“All of the existing precedent is on our side; so strongly on our side, I cannot imagine that the California Supreme Court would ever hold that someone’s marriage would be retroactively invalid,” Minter said. “I don’t believe our state Supreme Court would permit that to happen. It would be completely unprecedented and contrary to the basic principles of due process.”

The initiative does not include language that would make the law retroactive, and opponents of same-sex marriage would have trouble proving they have vested interest, or standing, to bring a case that would invalidate the marriages, Minter said. Opponents also wouldn’t have precedent to support their position, he said.

“Once you’re married, you’re married until one partner dies or there is a divorce – that’s the law,” Minter said. “The idea that some change in the law could be applied backward in time is so totally unheard of. That’s not the way the law works.”

Local legal experts have said a worst-case scenario, should voters pass the ban on same-sex marriage, is the marriages become invalid, and the new law threatens benefits for domestic partners, as was the case with a Michigan state constitutional amendment. Minter doesn’t believe that will happen, and said a worst-case scenario is the initiative passes, and same-sex couples will have to continue to fight.

“Our state Supreme Court is very principled, and I cannot imagine that our court would permit a person’s marital status to be stripped from them retroactively,” he said.

A call to ProtectMarriage.com for comment was not returned.

Though he was willing to speculate what could happen if the initiative passes, Minter is confident voters will reject the same-sex marriage ban.

“We’re going to beat the initiative, I’m confident of that,” Minter said. “The best-case scenario is we defeat the initiative and the issue is over – it is a complete, definitive victory.”

–Joseph Peña