After two separate hearings, superior court judges allowed the city of San Francisco to continue to issue marriage licenses to same-sex couples and allowed the more than 2,400 same-sex marriages performed there in the past six days to stand until at least Friday.
In the first of two judicial actions--because different antigay plaintiffs had filed two separate cases that were heard Tuesday by two different judges--San Francisco County superior court judge Ronald Quidachay said Tuesday morning that he was not prepared to rule on a lawsuit to block the city's ongoing spree of same-sex weddings. Quidachay delayed action until a second hearing, scheduled for Friday, February 20.
The second judge, James Warren, said Tuesday afternoon that San Francisco appears to be violating state law by issuing marriage licenses to same-sex couples, but he declined to order an immediate halt to the weddings, and Mayor Gavin Newsom--who had ordered the city to begin issuing the licenses in defiance of the antigay Proposition 22, approved by voters in 2000--said through a spokesperson that the city would continue performing weddings until a judge orders them to stop.
Not including marriages performed Tuesday, 2,464 licenses had been issued since Thursday, according to the city. Nearly all those couples were also married in City Hall after receiving their licenses and had their marriage officially registered with the city. Hundreds of volunteers assisted overworked city officials--working during what should have been a three-day weekend--to process the paperwork, maintain order among the hundreds of people waiting in line, and to perform the marriages.
Mayor Newsom has argued that the equal protection clause of the California constitution makes denying marriage licenses to gay couples illegal, invalidating both Proposition 22 and preexisting state laws limiting access to marriage to opposite-sex couples. "What trumps any proposition is the California constitution," said city attorney Dennis Herrera, adding that his office "will be fully prepared to win" the case.
Whatever the outcome of Tuesday's court cases, the final judicial decision on the matter is expected to come later from the California supreme court, as both sides have promised to appeal.
Courts in San Francisco were closed for Lincoln's birthday on Thursday, when the city began marrying same-sex couples. On Friday, a conservative group asked Judge Warren to stop the weddings immediately and to void all the same-sex marriages performed in the city so far. Instead, the judge told the city on Tuesday afternoon that it could either stop the weddings or return to his court on Monday, March 29, to explain its legal position.
"We are extremely happy and gratified that a stay was not issued," Herrerra said.
"We will continue to issue marriage licenses until the court rules we can no longer do so," spokeswoman Darlene Chiu said in the mayor's office shortly after Warren's ruling.
The Proposition 22 Legal Defense and Education Fund had asked the San Francisco superior court judge to issue an order commanding the city to stop issuing the licenses or show cause explaining why he would not. Judge Warren did issue the order requested--after arguing for a while about the punctuation in the group's proposed order--but he made his order nonbinding, which allows the city to continue to marry same-sex couples in defiance of the judge's warning that the licenses appear to be illegal.
Judge Warren's decision was "not 100% of what we were looking for," acknowledged Robert Tyler, a lawyer for the Alliance Defense Fund, which argued the case on behalf of the Proposition 22 group. Still, Tyler said he was pleased. "The judge would not issue a cease and desist order unless the judge made a determination that the mayor is in violation."
Gov. Arnold Schwarzenegger also urged city officials to stop the same-sex weddings.
"I support all of California's existing laws that provide domestic-partnership benefits and protections," Schwarzenegger said in a statement. "However, Californians spoke on the issue of same-sex marriage when they overwhelmingly approved California's law that defines marriage as being between a man and a woman. I support that law and encourage San Francisco officials to obey that law. The courts should act quickly to resolve this matter."
Predictably, Tyler said his group would appeal to a higher court if San Francisco keeps at it. "If they begin issuing marriage licenses tomorrow morning, we will file tomorrow morning," said Tyler. He suggested that the city has bought itself an expensive and ill-advised legal battle and that his firm would seek punitive damages and legal fees.
Earlier on Tuesday, in a heavily crowded courtroom across the street from City Hall, where hundreds have lined up for the marriage certificates since Thursday, Judge Quidachay told lawyers for the Campaign for California Families that they had not given the city enough notice to obtain an emergency injunction.
"The court itself is not prepared to hear the matter," Quidachay said. Campaign for California Families, a conservative group, said state law explicitly defines marriage as "a personal relation arising out of a civil contract between a man and a woman." In addition, the group is arguing that San Francisco's actions also violate Proposition 22, the ballot measure approved by California voters in 2000 that sought to strengthen that language by saying the state will recognize only marriages between a man and woman as valid.
"If the mayor can't read the law, we're hoping a judge can read it for him," said Randy Thomasson, president of the Campaign for California Families.
In both court cases, opponents of equal access to marriage are seeking to nullify the marriages that have already occurred and been officially recognized by the city and to block the city from continuing to grant the "gender-neutral" licenses that were first issued last week under an order from Newsom. The newly elected mayor's decision to permit gay marriages, while still legally unsettled, has intensified the national debate over whether same-sex couples should be allowed to marry.
After issuing a record number of more than 750 wedding licenses on Monday, San Francisco officials scaled back the size of their operation on Tuesday as city staffers who had been recruited to help handle the flood of newlyweds returned to their regular jobs. City assessor Mabel Teng estimated that 30 to 50 gay couples would be married Tuesday.