The University of Southern California Gould School of Law professor explains what's next legally after the passage of Proposition 8.

BY CHRISTOPHER LISOTTA

FRONTIERS: What does this mean for the thousands of couples that got married since the Supreme Court decision?

DAVID CRUZ: No one knows. Right now the same-sex couples that married since the Supreme Court decision became final are facing severe legal uncertainty. We have never before seen a constitutional change that seeks to take away a right that has been exercised by people, and we don't have anything analogous to this to judge how the courts are going to interpret Prop. 8. There are really two alternatives. One, Proposition 8 means from today on, or from whenever it is certified on, going forward California will not accept as legally married any same-sex couple even if they had a pre-existing marriage. The other possibility is that the measure could be interpreted as saying: going forward from here no new same-sex couples, but the existing marriages that were entered into this summer will remain valid.

Are there lawsuits to be made on the No on 8 side saying this Proposition is in itself a violation of the California State Constitution?

There are a couple possibilities. Lambda Legal, the American Civil Liberties Union and the National Center for Lesbian Rights have today filed a lawsuit in the State Supreme Court seeking to get Prop. 8 declared invalid. The argument is that because Prop. 8 is deeper than a mere amendment it counts as a revision to the Constitution. The problem is that revisions can't be passed by this initiative process that (the Yes on 8 campaign) used. Revision would have to start in the legislature, and the legislature would have to approve it by a two-thirds vote, and only then could it go to the voters for their decision, up or down.

If that was the case why was it put on the ballot in the first place? Didn't Prop. 8 have to pass some scrutiny to even go in front of the voters?

Proposition 8 had to largely pass procedural scrutiny for the validation of the signatures they got. It is routine for the courts to let measures go before the voters and not pass judgment on potential constitutional problems on them even if they might have a good argument, because it is entirely possible that the voters could disapprove the measure. Then the courts never have to say anything on the issue, and they can leave more undecided. It has happened in the past that measures that did go before the voters and were approved subsequently got invalidated by the Court. The big decision in this case came under Governor Deukmejian, and the Court invalidated key portions of a law designed to restrict criminal defendant's constitutional rights.

From a legal perspective how dangerous is this? Will it have legal precedence in other states?

Legally speaking whether or not California allows same-sex couples to get married is only going to be a persuasive force in other states. In the recent decision in the Connecticut Supreme Court finding that their Constitution protects same-sex couples' right to marry, their court relied on the California Supreme Court marriage decision. It quoted passages. It was persuasive. But there is nothing that makes it binding on them.

From a 1 to a 10, with 1 being no legal impact and 10 being cataclysmic, where does this fall?

If Prop. 8 isn't overturned on one ground or another, it would probably be somewhere in the upper half. I can't be more precise than that because there are a lot of things that have to be taken into account. The fact that Prop. 8 passed could take some of the steam out of a movement to modify the U.S. Constitution to ban marriage of same-sex couples, or alternatively it could embolden those proponents and extend their grasp even further. Prop. 8's passage could lead other state supreme courts to be hesitant about following Massachusetts and California and Connecticut's lead, worrying that they too might get slapped down by voters. Or it could dramatize for those courts the possibility that they need to protect vulnerable social minorities because you can't count on the political process to do that. People do think this might slow down political momentum, though, so on that front this could delay the day the New Jersey or New York legislatures choose to open their marriage laws to same-sex couples, even without a court ordering them to do that.