Calif. Supreme Court Looks into Gay Marriages

Calif. Supreme Court Weighs Gay Marriages
by Mark Worrall
365Gay.com Newscenter
San Francisco Bureau

Posted: May 25, 2004 5:01 p.m. ET

(San Francisco, California) The California Supreme Court began deliberations Tuesday on the future of same-sex marriages conducted in San Francisco this year.

At issue is whether Mayor Gavin Newsom acted illegally when he began issuing marriage licenses to same-sex couples in February. (story)

The seven justices heard oral arguments from both sides. Lawyers for the city said the mayor was only following the California Constitution which guarantees equality and take precedence over state law which does not permit same-sex marriage.

Chief Deputy City Attorney Therese Stewart cited cases dating to 1896 which she said showed local officials have properly refused to enforce a state law after determining it unconstitutional.

But, Deputy Attorney General Timothy Muscat arguing for the state, accused Newsom of usurping Legislature's power.

"Don't cities make these kinds of preliminary constitutional determinations all the time with respect to the issuance of, say, parade licenses or news rack ordinances?" asked Justice Carlos Moreno.

"Certainly not to this degree, your honor," responded Muscat. He described San Francisco's actions as a unilateral rewrite of state law that has "completely taken away" the Legislature's power.

Justice Joyce Kennard suggested that if the court endorsed Newsom's actions it could encourage a legal anarchy under which local officials could choose which laws to follow.

"Wouldn't that be setting a problematic precedent?" asked Kennard. "Presumably, other local officials would be free to say ... I don't like that particular law, be it a ban on guns" or another issue.

That, she worried, would mean "no certainty of the rule of law."

The Arizona-based Alliance Defense Fund which is representing a conservative Christian political action group said the court should annul the marriages already performed in San Francisco, prompting Justice Kathryn Werdegar to ask whether the 4,000 who were married should be represented in the arguments.

"I want to acknowledge the great emotions expressed by the couples," ADF lawyer Jordan Lorence responded. "But this was essentially an act of disobedience. ... There was the disclaimer that the clerk put onto the applications to the licenses saying 'Hey, everyone, I want you to know, these things are of dubious validity."

"I have empathy for the situation these people are in, perhaps because of the doing of city officials," said Chief Justice Ronald George.

City attorney Stewart responded that the best course would be to let the couple keep the licenses until lower courts decide the question of their validity.

While today's arguments were limited to the legality of Newsome's actions, the issue of the constitutionality of same-sex marriage is still working its way through the lower courts and is not expected to reach the high court for at least a year.

LGBT civil rights groups supported the city's position but did not present arguments today. Among those monitoring the case was Lambda Legal's senior counsel Jon Davidson.

"There are thousands of real, living and breathing couples who know first-hand how important the protections of marriage are, but the court has not yet heard from them, said Davidson.

"Before ruling on the validity of those couples' marriages, the court must hear from the families who are affected and whose lives they are discussing. Those families will be irreparably harmed if their marriages are invalidated, and will suffer an even greater harm to their dignity if that happens without them even being heard from."

One of those couples is Del Martin and Phyllis Lyon, the first same-sex couple to be married in San Francisco.

"We are anguished that the court may invalidate our marriage without allowing us even to be heard in the case,” said Martin.

“We are eighty-three and seventy-nine years old, respectively, and we have been together more than fifty years. We do not deserve the indignity of finally being able to marry, only to have this precious right stripped away from us without even a semblance of due process.”

A ruling on today's hearing is expected within 90 days.

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