The Gay & Lesbian Times spoke with lawyer Shari Levitan as the news of Prop 8 was just breaking on Wednesday, August 4th some of the information might be slightly different by the time it hits press. Shari A. Levitan chairs the firm’s New England Private Wealth Services Group. She is widely regarded as an authority on wealth and tax planning and business succession planning matters. She has extensive experience advising clients in the areas of bioethics issues related to estate planning issues involving children born through assisted reproductive technologies (ART), and planning for same-sex couples.

GLT: With the outcome of today’s trial, was it what you expected to happen?

SL: Yes, particularly as the same sex marriages which occurred before the enactment of Proposition 8 were allowed to stand. There is no rational basis, and the court’s ruling that Prop 8 violates the equal protection and due process clauses of the U.S. Constitution.

GLT: Where do you believe Prop 8 will go from here? What are the next steps you see happening and things taking place legally in regards to Prop 8?

SL: My understanding is that the proponents of Prop. 8 have ready and will file today a request for a stay in Judge Walker’s order so that additional marriages do not take place before the ultimate resolution of the constitutionality is decided.

GLT: Do you believe that Prop 8 will end up in the U.S. Supreme Court? Would it have in the case of either decision?

SL: Yes, and absolutely.

GLT: From a legal standpoint, is it legal to deny any person who is a citizen of this country their basic rights?

SL: That all depends on the notion of what basic rights are, and this was the crux of the litigation — was the proper standard applied to the review of Prop 8 in its enactment. There historically have been grounds for curtailing basic rights when the well being of the larger community requires it, but to do so requires careful scrutiny.

GLT: Why do you believe that the outcome today turned out this way?

SL: It’s simple - the law was a breach of the fundamental rights under the U.S. constitution that similarly situated people be treated the same under the U.S. constitution’s equal protection and due process clauses.

GLT: Those who are in support of Prop 8 have gathered funds from people from other states whom do not live here to insure that Prop 8 remains to insure that people who are of the same sex cannot get married, is that legal?

SL: I think so, and those who oppose Prop 8 have done the same.

GLT: What does the ruling mean for gays and lesbians in California?

SL: We need to see whether a stay issues, or whether couples can now resume marrying.

GLT: What are the current protections and benefits granted to heterosexuals under law who are married?

SL: Remember, this decision deals with CA law, and not U.S. law. DOMA, enacted in 1996, limits the term spouse to one man and one woman. My expectation is that if today’s ruling withstands scrutiny, and DOMA has not by then been repealed, it would fail constitutional scrutiny as well. Already the federal government has started to chip away at DOMA, as indicated in a recent joint income tax filing ruling for a couple in CA who is subject to community property rules. Previously, a joint return was not permitted.

GLT: Do you believe that Prop 8 will end up going to the 9th circuit before reaching the U.S Supreme Court? Why or why not?

SL: Probably yes, as the appellate process will sharpen the legal arguments, and give the U.S. Supreme Court time to figure out how it would deal with the subject.

GLT: How was the Prop 8 amendment stated then and how is it reflected now?

SL: Judge Walker’s order prohibits enforcement of Prop. 8 as unconstitutional and based on his order, couples may see marriage licenses immediately. Whether the appellate court will order a stay remains to be seen.

GLT: In your opinion, what is this case really about?

SL: Basic, fundamental rights - the right to marry the person you choose. And, according to Judge Walker, and consistent with our many years availability of marriage here in Massachusetts, the fact that the existing 18,000 marriages have not harmed the State of California .