Preventing San Francisco from performing same-sex weddings would "undermine this system of government," according to the city's lawyers. Lawyers for the city also planned to tell the California supreme court on Friday that nothing in the state constitution requires local officials to obey
laws they believe are unconstitutional. That argument forms the core of the legal briefs that were to be submitted in response to efforts by the state attorney general and a traditional marriage group to invalidate the nearly 3,600 same-sex marriages that have been sanctioned in San Francisco during the past three weeks. "Their rush to force immediate obeisance to discriminatory marriage laws asks
this court to ignore our decentralized, federalist constitutional democracy," the city maintains in its answer to a civil suit brought against the county clerk who has issued the disputed licenses. "Barring local governments from taking independent actions to conform their conduct to the state and federal constitutions would undermine this system of government."
The two parties seeking to shut down San Francisco's unprecedented wedding spree, Attorney General Bill Lockyer and the Proposition 22 Legal Defense and Education Fund, have maintained that an existing section of the state constitution specifically prohibits "administrative agencies" of the state from declaring laws unconstitutional on their own. "The state's agents at the local level simply cannot refuse to enforce state law," Lockyer wrote in the February 27 petition he filed requesting the appellate court's immediate intervention. The city, however, is arguing that the provision applies only to state government agencies and does not exist "for the purpose of compelling an unwilling local government to deny the fundamental constitutional rights of some of its citizens to marry."
The city also wants the supreme court to decline to take up the legal challenges to the clerk's actions, preferring for the cases to first work their way up through lower courts. In their brief, the city's lawyers say they want a full trial at which they can call expert witnesses who can testify "that relegating
same-sex relationships to inferior, second-class status severely stigmatizes gay men, lesbians, and their families."
Lawyers for the Proposition 22 group said they also plan to file a brief with the supreme court on Friday to bolster their position that California's marriage laws are constitutional, contrary to San Francisco's claims. Citing unpublished research by a Stanford University professor, the groups will tell the court that it must uphold the state's definition of marriage as a union between a man and a woman because in Scandinavia, "where same-sex marriage or de facto same-sex marriage has become well-accepted, the institution of marriage is virtually dead."
Between 60 and 80 gay and lesbian couples a day have wed in San Francisco since the county clerk, in an attempt to spare people from standing in the long lines that followed the city's initial actions, began allowing couples to get their licenses by appointment only last week. County clerk Nancy Alfaro said Thursday that her office already has appointments booked two months in advance for gay and lesbian couples eager to obtain marriage licenses.