S.F. launches legal challenge to state ban on same-sex marriage
February 21 2004 1:00 AM ET
The city of San Francisco, which has sanctioned more than 2,900 same-sex marriages in the past week, has sued the state of California, challenging its prohibitions of such marriages on constitutional grounds. The lawsuit, which seeks a judicial declaration on "the validity" of the state's marriage statutes, is designed to ensure that the courts will consider the legal argument at the heart of San Francisco mayor Gavin Newsom's decision to grant the disputed licenses, said city attorney Dennis Herrera. "The city and county of San Francisco is going on the offensive today to protect the mayor's action," Herrera said. A judge was scheduled Friday to consider one of two lawsuits from conservative groups seeking to halt the same-sex wedding spree, which began last Thursday. The city also is asking that those cases be consolidated into one case to be heard by superior court judge James Warren.
Newsom said Thursday that he doesn't regret having issued marriage licenses to same-sex couples before the city filed a legal challenge to the state's marriage laws, but he added that he's glad the question is now in the courts. "I think what we have done is affirm marriage here in San Francisco," Newsom said. "I feel affirmed as a married man by what's happened here in San Francisco." A lawyer for a group trying to halt the same-sex marriages described the city's move as a delaying tactic. "This is as much a maneuver to keep this in court and keep the issue alive as it is anything else," said Benjamin Bull, an attorney with the Alliance Defense Fund, which also filed a motion to consolidate the two lawsuits against the city but asked that superior court judge Ronald Quidachay hear the case.
Newsom has said that he was obliged to issue marriage licenses to same-sex couples to avoid violating the equal protection clause of the California constitution, a position opponents have attacked as irrelevant to whether his actions violate the state laws that define marriage as a union between a man and a woman. "The marriage certificates submitted to the Department of Health Services by the city and county of San Francisco fail to meet legal standards," Gov. Arnold Schwarzenegger said. "The attorney general has assured me that he will vigorously defend the constitutionality of the law in the case brought against the state by San Francisco." Attorney General Bill Lockyer said it was his duty to defend laws that say the state will recognize only marriages between a man and a woman as valid. "The issue of whether state statutes prohibiting same-sex marriages violate constitutional protections is emerging as one of the great legal and civil rights issues of our day, and the question must be answered by our courts," said Lockyer, who added that he supports extending benefits to same-sex couples through domestic partnerships and civil unions.
On Thursday, Newsom also repeated his invitation to President Bush to meet some of the same-sex couples who have married in the past week before deciding whether to back a proposed federal constitutional amendment banning gay marriage. "I challenge him to learn a little about the extraordinary partnerships that have now been recognized," Newsom said. Earlier this week Bush said he was troubled by the weddings but declined to say whether he was close to backing a federal constitutional ban. "I think the president is wrong on this," Newsom said.
A poll released Friday by the San Francisco-based Public Policy Institute of California suggested that support for same-sex marriage is rising in California--but a majority of residents still oppose it. Statewide, 44% of respondents support gay unions, up from 38% in 2000, according to the poll. There were clear partisan differences, with 57% of Democrats but just 23% of Republicans supporting the marriages. The institute polled 2,004 adults February 8-16. The poll's margin of error was plus or minus two percentage points.
The city, in its lawsuit, is asking Warren to declare unconstitutional the three sections of the California Family Code that define marriage as a union between a man and a woman. City officials are bringing the suit to counter efforts by the conservative groups to block the city from issuing any more marriage licenses to gay and lesbian couples, according to Jon Davidson, an attorney with the Lambda Legal
Defense and Education Fund. On Tuesday, Judge Warren gave the city the choice of ending the same-sex wedding parade or returning to court in late March to show why the process has
not been halted. The city said it would continue issuing such licenses until forced to stop, and by Thursday afternoon, 2,951 gay couples had been wed in the week since the city started sanctioning same-sex unions.