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Overturning of Prop. 8 affects individuals, states

By Kristen Taketa

July 1, 2013 1:15 a.m.

It was hard for them to tell their 5-year-old son about Proposition 8.

UCLA alumnus Larry Riesenbach married his husband, Tim Ky, shortly before Proposition 8 was approved by California voters, banning same-sex marriage. The law that said same-sex couples should not be allowed to wed still caused their family emotional pain, Riesenbach said.

The couple fought the same-sex marriage ban by going to locally organized rallies, holding family fundraisers, and sitting at a table at their local farmer’s market on the weekends to talk to people about Prop. 8.

Wednesday morning, Riesenbach and Ky took off work so they could be home together when the Supreme Court’s ruling on Prop. 8 came out.

When the couple learned Prop. 8 was sent back to the state and they would be recognized by the federal government, they held each other and Riesenbach said he started to cry.

“It’s really nice to be able to tell (our son) … our family is no different,” Ky said. “The law of the land has recognized us as a family unit, without any qualifications or differences.”

On Wednesday, the Supreme Court sent a case concerning Prop. 8, which banned same-sex marriage in California, back to the state. The court said that proponents of Prop. 8 had no authority to defend it in court because state officials were responsible for doing so.

But state officials refused to defend it in court and, two days later, the Ninth Circuit Court of Appeals lifted the stay on an injunction that told state officials to stop enforcing Prop. 8.

That same day, the state’s Department of Public Health ordered state counties to begin issuing marriage licenses to same-sex couples and California had its first same-sex marriage in five years.

After the historic announcements last week, members of the lesbian, gay, bisexual and transgender community celebrated across the country. Some gathered outside the Supreme Court and at the steps of the Sacramento Capitol Building. Others rejoiced with their partners in their homes.

Wendy Motch, associate director of program operations at UCLA Recreation, woke up early Wednesday morning to find out what the Supreme Court decided.

She said she cried tears of joy when she learned she could marry her partner of five years.

“I had an overwhelming feeling of, ‘It’s about time,’” Motch said.

While many celebrated, however, some questioned the way Prop. 8 was overturned.

UCLA law professor Eugene Volokh said Prop. 8 was an “unusual” case, since the voter-approved measure was nullified because state officials themselves were opposed to the measure and refused to defend it in on appeal.

The California governor, president pro tempore of the senate, speaker of the assembly and attorney general have all voiced support for same-sex marriage.

“In future cases if there is some initiative … that the state government refuses to defend, then in that case it could be invalidated without any real possibility for higher courts to consider the issue,” Volokh said.

The lifting of the stay was a move that angered supporters of Prop. 8, who said the vote of the people had been unfairly invalidated.

“The resumption of same-sex marriage this day has been obtained by illegitimate means,” said Andy Pugno, general counsel for the Coalition, which defended Prop. 8. “If our opponents rejoice in achieving their goal in a dishonorable fashion, they should be ashamed.”

On Saturday, supporters of Prop. 8 challenged the resumption of same-sex marriage in California and asked the Supreme Court to overrule the Ninth Circuit Court of Appeals’ lifting of the stay.

The Alliance Defending Freedom, which sent an emergency application to the Supreme Court Saturday, said that the appeals court was required to wait 25 days until the Supreme Court issued its official, certified copy of its decision before taking action.

On Sunday, however, Supreme Court Justice Anthony Kennedy rejected the request without comment.

Since the Supreme Court ruled that only California officials could defend Prop. 8 in court, the state’s action can only be challenged if there is enough political backlash from the people, Volokh said.

But he added such an event seems to not have happened. Popular opinion in California has shifted toward supporting same-sex marriage in the past five years, according to recent polls.

The Supreme Court also struck down a part of the 1996 Defense of Marriage Act last week that denied federal recognition and benefits to same-sex marriages. The Court affirmed that married same-sex couples are entitled to the same federal rights and benefits as other married couples.

The decision grants federal recognition to married same-sex couples, but it does not force all states to legalize gay marriage.

The ruling, however, might make it difficult for the 37 states that do not allow same-sex marriage to continue doing so, said Brad Sears, executive director of the UCLA Williams Institute.

On their way to West Hollywood to celebrate the Supreme Court decisions on Wednesday, Riesenbach and Ky said that, though they are happy about the outcomes of the court rulings this past week, they will not stop their activism.

“We really need to celebrate these victories and pick up the fight again to make sure the remaining 37 states have full marriage equality for all,” Riesenbach said.

Contributing reports by Amanda Schallert, Bruin senior staff.

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