With same-sex marriage on hold, elderly and ailing couples face a lengthy appeals process

Derence Kernek and Ed Watson live together each day in fear that they won’t be able to pledge “till death do us part” before it’s too late.

Watson, 78, is in rapidly failing health, afflicted with Alzheimer’s disease, obesity, diabetes and hypertension.

A federal appeals court ruled last week that same-sex marriage will remain on hold in California until a judge’s ruling striking down Proposition 8 as unconstitutional makes its way through the higher courts — reviews expected to take a year or more.

“We don’t have the money to travel to a state where it’s legal,” said Kernek, 80, observing dejectedly that the travel would probably be too grueling for his partner of 40 years. “Besides, we wanted to do it in California, where our friends are, where we live. Now I don’t think we’ll be able to, not while Ed can still remember.”


The ticking clock on Watson’s awareness was one of a chronicle of arguments presented to the U.S. 9th Circuit Court of Appeals in an unsuccessful bid to convey the urgency of letting same-sex marriage resume during the protracted appeals process.

A 9th Circuit panel made up of Judges Stephen Reinhardt, Michael Daly Hawkins and N. Randy Smith denied the request Wednesday without explanation.

Proposition 8 proponents had argued that the voter initiative’s restriction of marriage to one man and one woman should remain in place pending the appeal. They said the stay was necessary to avert social chaos if, as they insist is likely, the courts decide that the voters of California had the right to outlaw same-sex marriage.

The Aug. 4 ruling by U.S. District Judge Vaughn R. Walker in San Francisco striking down Proposition 8 as unconstitutional buoyed hopes across the national lesbian, gay, bisexual and transgender communities that their rights to marry and raise families would eventually earn full legal recognition.

But for some, including Kernek and Watson, “eventually” could come too late.

In response to an online appeal by the Hollywood-based Courage Campaign for testimony to back the legal challenge of Proposition 8 and other gay-rights litigation, more than 3,000 couples came forward with their stories about why they believe marriage can’t wait.

“Life is not eternal — sometimes it is tragically short — and courts should not act as if it were otherwise,” said Chad Griffin, board president of the American Foundation for Equal Rights and a key strategist in the legal campaign to scuttle Proposition 8.

The anecdotes of fatal illness and faltering minds were intended to put human faces on gay- and lesbian-rights advocates’ arguments that continuing to prohibit same-sex marriage after Walker’s ruling inflicts irreparable harm on many.


The Proposition 8 opponents argued that Walker’s ruling recognized marriage as a fundamental right for all Americans, and their veteran lawyers, David Boies and Theodore B. Olson, cited case law dictating that a court should suspend a judge’s ruling only when the party seeking that stay shows that it is likely to win on appeal and be irreparably harmed in the meantime.

“Each day plaintiffs, and gay men and lesbians like them, are denied the right to marry — denied the full blessings of citizenship — is a day that never can be returned to them,” two same-sex couples who brought the successful lawsuit against Proposition 8 argued in their motion.

Those who will be harmed, Courage Campaign chairman Rick Jacobs argued in an accompanying letter to the court, are couples like Kernek and Watson and San Diego residents Jerry Peterson and Bob Smith, both in their 70s and longing to marry before the end of an appeals process that could outlive them. Shane Mayer and John Quintana, 28-year-olds from San Francisco, want to marry while Mayer’s cancer-stricken father can still take part, the friend-of-the-court letter testified.

Andrew Pugno, a lawyer for Proposition 8 backers, hailed the panel’s ruling as “a victory for Proposition 8 supporters and the initiative process as a whole.”


In his appeals court filings, Pugno had argued that the same-sex couples’ claim of urgency “rings hollow.” He pointed out that they waited six months after the initiative passed to bring their lawsuit and failed to challenge the stay when the 9th Circuit first decided last fall to keep the ban in place while the appeal was being expedited.

Pugno’s opponents say they didn’t make an issue of the stay when Walker imposed it or when the 9th Circuit agreed it should remain in place because the appeals court said the case would be fast-tracked, Jacobs said. But when the 9th Circuit on Jan. 4 asked the California Supreme Court to decide whether the Proposition 8 architects have the legal right to appeal Walker’s ruling, it became clear that the process would drag on until the end of this year, if not longer, Jacobs said.

That outlook is dispiriting for Kernek and Watson, who don’t like to contemplate their prospects for surviving the appeals process intact.

“I can’t even say how many times I’ve had to call 911 when he falls or gets into a position where I can’t lift him,” Kernek says of his partner.


The two retired to this gay-friendly desert oasis five years ago, after their eclectic college pursuits — horticulture, social work and engineering — took them from the Bay Area to Kansas City, then an Oregon farm that was their home and livelihood for a decade.

They registered as domestic partners when they arrived in California, and after the state legalized same-sex marriage three years ago, they thought they could make the ultimate commitment to each other when the time was right. The passage of Proposition 8 in November 2008 shocked them, as did Watson’s diagnosis of Alzheimer’s a few months later.

Kernek is more confused than bitter about the legal obstacles preventing them from taking vows before Watson’s memory recedes to a point of no return.

“Why is it important to anybody else who you are devoted to?” Kernek asks. “I just don’t see how who I love hurts anybody else’s marriage.”