The California supreme court has indicated that it's examining the legality of the marriages of the 4,000 same-sex couples who were wed in San Francisco in February and March before the court called a halt to the issuance of marriage licenses. On Wednesday the justices for the first time asked for a briefing on whether they should invalidate the same-sex marriages if they rule that Mayor Gavin Newsom did not have the authority to issue the marriage licenses. The justices, in a brief order, asked Newsom, California attorney general Bill Lockyer, and a conservative group opposed to gay marriage for their views. Since the marriages were halted, the high court has focused solely on whether Newsom had the authority to override state law and dole out marriage licenses to gay and lesbian couples earlier this year. But on Wednesday the justices asked Newsom, Lockyer, and the Alliance Defense Fund--the conservative group opposed to gay marriage--what the court should do regarding the existing marriages if it finds against Newsom.
The court could decide either that the marriages are valid, that they are automatically voided, or that they could be voided at some time in the future. Assuming a decision against Newsom, which many legal scholars predict, the court asked, "Would the marriages that have been performed and registered nonetheless be valid, would the marriages be voidable, or would the marriages be void?" Lockyer has already told the court in briefs that the marriages, which have left the newlyweds in a state of legal limbo, are invalid and that those married should get their $82 fees refunded. Robert Tyler, an attorney for the Alliance Defense Fund, which opposes Newsom in the litigation before the high court, said the court should nullify the marriages. "I've said from day one that these certificates are not worth the paper they are written on," Tyler said. "I believe the supreme court should find that they are completely void."
The court has already said it would not immediately decide whether the California constitution permits same-sex marriage, as Newsom and others claim. The justices said last month that they might decide that issue if a legal challenge works its way to them, first through the lower courts in a process
that could take years. So Newsom and several same-sex couples who were denied marriage licenses brought suit in the lower courts last month alleging that the state constitution allows same-sex marriage. Hearings on the merits of those challenges are pending. Dennis Herrera, San Francisco city attorney, said the justices should not rule on the validity of the marriages until a decision is reached on whether California's constitution allows gay marriages. "In our view, the court should not hold same-sex marriages void unless and until it concludes that...California can constitutionally discriminate against same-sex couples," Herrera said.