Lockyer says Newson violated separation of powers

BY admin

March 27 2004 12:00 AM ET

San Francisco city officials overstepped their bounds by issuing marriage licenses to same-sex couples, assuming for themselves "more power than the governor or the supreme court or the legislature," according to California attorney general Bill Lockyer.

In a brief submitted Thursday at the request of the California supreme court, Lockyer rejected San Francisco's argument that local officials were obligated to grant licenses because the state constitution forbids discrimination. State law "controls every aspect of marriage, leaving nothing to the discretion of local government," Lockyer argued, adding that only the judiciary can determine a law's constitutionality. "The foundation of our constitutional structure consists of a separation of powers and a system of checks and balances," the brief read. "Respondents purport to be defenders of the constitution, yet they ignore these most fundamental concepts."

The state supreme court is considering whether San Francisco mayor Gavin Newsom had the authority to direct his administration to sanction the marriages of gay and lesbian couples even though the state's Family Code defines marriage as a union between a man and woman.

San Francisco city attorney Dennis Herrera's staff, in papers submitted to the supreme court last week, said California case law is replete with examples of public officials, including previous attorneys general, refusing to enforce laws on constitutional grounds. They also pointed to other state supreme courts, most recently the one in Massachusetts, that already have held that denying gay couples the right to wed is unconstitutional. "San Francisco's officials honored the law; they did not ignore it," Herrera
said.

Two weeks ago justices unanimously ordered city officials to stop granting marriage licenses to same-sex couples until they consider the case. Thursday was the deadline for the state and a Christian legal group seeking to invalidate the nearly 4,000 same-sex marriages sanctioned in San Francisco to file legal arguments with the high court, which has said it will hold a hearing as early as May on whether the city overstepped its bounds.

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