Natalie and Kim Bergman took their two daughters on the Rosie O'Donnell cruise in 2006, and while docked in Victoria, Canada, took advantage of the fact that the country allows same-sex couples to wed. When they returned home to Los Angeles, they considered themselves to be married.

But in the eyes of California officials, their wedding was legally meaningless.

That changed June 16, 2008 at 5 p.m. when the state Supreme Court's ruling overturning California's anti-gay marriage statutes went into effect. The decision specified that out-of-state same-sex marriages were now deemed valid by the state.

"Last June I called first over to the county clerk's office and said to the woman that we were married in Canada and could we still be married in California or did we need to get married in California. She said no, not only do you not need to get married but you can't get married because you are already legally married and you can't get married twice," recalled Kim Bergman.

Elated to finally have their marriage seen as legal, the Bergmans nonetheless felt uneasy about their newfound status, particularly with the looming battle over Proposition 8, the constitutional amendment banning same-sex marriage in California voters passed in the November election. During the fierce fight over Prop 8, the issue of what would happen to those LGBT couples who married out of state was largely ignored.

The ballot measure did not directly address the issue; nor did the legal challenges filed after Prop 8 passed by pro-gay groups, city officials, and state lawmakers include any couples that married outside of California. It left many same-sex couples that wed elsewhere confused about whether their marriages would be legal or invalid.

"I didn't know what was going to happen. I was worried we would be in this weird limbo," said San Francisco resident Lawrence S. Siracusa, who married his husband, Brent Hatcher, in Vancouver, British Columbia in September 2006. "I didn't realize there were no out-of-state marriage plaintiffs, which in retrospect would have been a good thing."

Because they had already gotten married somewhere else, those couples with out-of-state marriage licenses found themselves caught up in a Catch-22 situation. While their marriages were now valid under California law, there was no mechanism for them to register that fact like the 18,000 same-sex couples that received California marriage licenses last year.

"It was a double-edged sword. We were happy we were legally married but worried that our marriage has a very different status," said Kim Bergman. "I didn't trust it completely and I spoke to a second registrar and got the same info, no you can't get married. So we dropped it. I kind of knew it would end up where I am right now, having no idea if I am legally married.

"I am acting like I am, but unsure," she added.

Like the Bergmans, Siracusa and Hatcher also didn't remarry last year, as some couples with out-of-state marriages did.

"We couldn't do anything to get in under what a lot of people were doing by getting married before Prop 8," said Siracusa.

Alex Ingersoll and Martin Tannenbaum were equally unclear about how their marriage in Provincetown, Massachusetts last September would be treated back in California post-Prop 8.

"At first we did have conversations on whether we should cancel our plans in P-town and get married here. We had made our plans long in advance of the Supreme Court decision allowing marriages," said Ingersoll, president of the board at Congregation Sha'ar Zahav, the LGBT synagogue in San Francisco.

Due to their ties to New England – they own a home on Cape Cod and Tannenbaum served on the board of the Massachusetts agency that successfully fought to win same-sex marriage rights in that state – they went through with their out-of-state wedding.

Then the state Supreme Court issued its May 26 ruling, which upheld both the constitutionality of Prop 8 and the validity of those couples who married within California last year. But it did nothing to quell the legal anxiety of the countless couples with out-of-state marriages.

In a footnote buried on the second to last page of the 136-page 6-1 ruling, the justices wrote that, unlike with their 2008 decision, they did not have the authority to address whether same-sex couples "lawfully married in another jurisdiction" before Prop 8 passed, "but whose marriages were not formally recognized

NCLR Executive Director Kate Kendell. Photo: Jane Philomen Cleland

" by the state prior to the vote, "are entitled to have their marriages recognized in California at this time."

The problem, stated the justices, was that none of the couples involved in the cases had out-of-state marriages, and therefore, "in the absence of briefing by a party or parties whose rights would be affected by such a determination, we conclude it would be inappropriate to address that issue in these proceedings."

The day the court ruled, Ingersoll downloaded the decision and was shocked to find it did not cover the legal status of his out-of-state marriage.

"It was rather fascinating that the justices said we are not answering all the questions and here is one hole in our decision," he said. "We certainly know we are married. We feel we are married. But it is craziness this state hasn't decided whether or not they are going to grant us that status."

Attorneys specializing in family law, however, read the court's ruling to mean that the out-of-state marriages were indeed valid, since the justices did not say otherwise in their decision. But they have been flooded by phone calls from those couples confused about the legal status of their out-of-state marriages.

"We were shocked to realize, to discover that was the common interpretation on the street, that the court was saying by not ruling on these marriages that they are not valid," said Deborah Wald, a local family law attorney who chairs the National Center for Lesbian Rights' National Family Law Advisory Council. "It seemed so wrong to us we went into emergency mode to put together a strong legal document to explain why it was wrong."

Last month on the Web site of her law firm, the Wald Law Group, Wald posted a memo, written by members of the council and law professors, that explains why those couples that did not marry in California remain in legally recognized marriages.

"For all of the foregoing legal and practical reasons, the only reasonable, feasible, and constitutional interpretation of Proposition 8's effect on existing marriages is that California must continue to recognize and treat as valid all marriages between same-sex couples that were validly entered into outside of California prior to the passage of Proposition 8," conclude the attorneys in their memo.

In addition to raising federal legal problems were the state not to recognize the out-of-state marriages, the memo states that, "California family law strongly supports treating in-state and out-of-state marriages equally and also strongly supports protecting the stability and certainty of existing marriages regardless of where they were performed."

NCLR Executive Director Kate Kendell said her organization's understanding of the court decision comes to the same conclusion regarding those couples with out-of-state marriages living in California prior to Prop 8's passage: Kendell said they should be recognized as married couples.

"Any marriage performed anywhere before the passage of Prop 8, if that couple lives in California they are married," she said.

Due to that logic, Kendell said there was no reason to include any couples with out-of-state marriages as plaintiffs in the lawsuits contesting Prop 8. All the couples involved in the legal cases had not gotten married.

"The plaintiffs in the case were denied the right to marry. The couples that got married prior to passage of Prop 8, irrespective of where they got married, were married and had no claim they were injured by the passage of Prop 8," she said.

One catch

There is one catch. Due to the court ruling upholding Prop 8, the couples who married out of state after November 4 are legally entitled to all the rights and benefits the state bestows on married couples; they just cannot be classified as married.

"It won't be recognized as a marriage," said Wald. "If you read the California Supreme Court's decision, what they say is same-sex couples in California are constitutionally entitled as a matter of legal protection to all the rights and privileges of marriage. All Prop 8 did was deny us the use of the nomenclature."

Kendell agreed that post-Prop 8 any couple that marries out of state, whether they reside in California, relocate here, or are in the state visiting, will not be considered married.

 "They are not recognized as married but they are protected by the rights and benefits and protections that California accords couples who have that status from other states. However, because of Prop 8 those couples will not be recognized as married under California law," said Kendell. "They will call themselves married but the state will not call them married."

Bill aims to clear up confusion

Enough confusion remains on the legal status of the out-of-state marriages that openly gay state Senator Mark Leno (D-San Francisco) has introduced a bill aimed at clarifying the situation. Leno rewrote Senate Bill 54, which initially had to do with health care reform, in order to address the ambiguities same-sex couples already married, or who plan to marry elsewhere, face in terms of ensuring they are protected under California law.

The bill would clarify that same-sex couples that married outside of California before Prop 8 went into effect on November 5, 2008 are recognized as married spouses. It would also confirm that same-sex couples who married outside California after November 5, 2008, or plan to do so in the future, must receive the same rights, protections, benefits, obligations and responsibilities afforded to opposite-sex spouses, with the sole exception of the designation of "marriage."

"The Supreme Court decision left some ambiguity as to the status of many married out-of-state same-sex couples. We believe this bill merely implements the will of the Supreme Court," Leno told the Bay Area Reporter this week. "The majority opinion said that they were just carving out a narrow exemption to equal protection under the law. That narrow exemption was the word 'marriage.'"

"They were very clear that no same-sex couple lost any rights or privileges because of the passage of Prop 8," added Leno. "I view it as implementing the court decision and filing in the blank where they were silent on out-of-state marriages."

The legislation is sponsored by Equality California, the statewide LGBT lobbying group, and is co-authored by the three other members of the LGBT Legislative Caucus: Senator Christine Kehoe (D-San Diego); and Assemblymen Tom Ammiano (D-San Francisco) and John A. PŽrez (D-Los Angeles).

Gay legal advocates opted for the legislative route in hopes of avoiding a drawn out legal challenge. It took four years for the initial same-sex marriage cases to make their way through the courts; for the couples stuck in limbo that would be too long of a wait.

"If Leno's legislation were to be passed, or there was some recognition by state policy makers that this very common sense application of the law is what they will abide by, that ends the trauma and anxiety and uncertainty and questioning that so many couples who got married out of state have to endure almost everyday," said Kendell. "To have the question rectified quickly that this of course is how the law should apply is vastly preferable to a lawsuit where a couple suffers an injury and is then forced to fight it out in court."

Leno's bill will have its first hearing today (Thursday, July 9) before the Assembly Judiciary Committee. Leno said this week he believes he has the votes to pass the bill out of the Legislature, but would not venture to guess if Governor Arnold Schwarzenegger would sign it into law.

Andrew Pugno, the author of Prop 8, did not return a call seeking comment this week.

Karen England, executive director of the anti-gay Capitol Resource Institute, denounced Leno's bill as an attempt to "undercut" Prop 8.

"The November 2008 election wasn't simply about a name, though the 'marriage' designation is important. Voters chose to confer the legal responsibilities and duties of marriage on man-woman unions only. By granting the full legal description of marriage to same-sex unions, even without the name, the legislature would flout the meaning of Prop 8," wrote England in an e-mail sent out last week.

No matter what happens with SB 54, the issue is likely to land in a courtroom, whether through a legal challenge from Prop 8's backers should the bill become law, or in the form of a lawsuit filed by a same-sex married couple who has been denied rights because their marriage took place across state lines.

"We are not looking for a fight here," said Wald. "My hope is we won't have to bring that case because no one will be denied a benefit because they were married out of state. The day that happens, then we will go to court with it."