The California supreme court appeared likely to conclude that San Francisco mayor Gavin Newsom abused his municipal powers by allowing the issuance of more than 4,000 marriage licenses to gay couples earlier this year. While the court hasn't yet ruled, during two hours of oral arguments Tuesday, several of the seven justices suggested that approving Newsom's actions would foment legal anarchy under which local officials could choose which laws to follow. "Wouldn't that be setting a problematic precedent?" asked Justice Joyce Kennard. "Presumably, other local officials would be free to say, 'I don't like that particular law,' be it a ban on guns" or another issue. That, she worried, would mean "no certainty of the rule of law."
The justices questioned opponents of Newsom's actions, including a lawyer representing California's attorney general, and attorneys for the city over how free elected officials are to interpret state law. Based on their comments, the court appeared inclined to decide that Newsom did not have authority to permit same-sex marriages, which the court halted in March. A ruling was expected within 90 days.
Deputy Attorney General Timothy Muscat found a receptive court when he described San Francisco's actions as a unilateral rewrite of state law that has "completely taken away" the legislature's power.
With that as an undercurrent, the court used the hearing to explore whether San Francisco officials had any authority to determine the constitutionality of state family law and to issue the licenses. Chief Deputy City Attorney Therese Stewart ticked off cases dating to 1896 that she said showed local officials properly refusing to enforce a state law after determining it unconstitutional. Among those cases were a municipal auditor who refused to pay a local commissioner's salary and a Golden Gate Bridge District official who refused to issue bonds. Stewart argued that the constitutional rights of individuals--in the city's view, the right of same-sex couples to marry--should trump "situations that are purely of local power or authority."
California laws clearly define marriage as a union between a man and woman. In 2000, voters also approved a statewide initiative requiring the state to recognize only marriages between opposite sexes.
The California supreme court halted San Francisco's gay marriages in March at the request of Attorney General Bill Lockyer and opponents of gay marriage. Gov. Arnold Schwarzenegger worried that Newsom's precedent, if allowed to stand, would encourage other local officials to subvert state law--for example, permitting assault weapons despite a California law prohibiting them.
That leaves the issue of what to do about the 4,000 gay and lesbian marriages already performed at San Francisco City Hall if the court rules that city officials overstepped their authority. "I have empathy for the situation these people are in, perhaps because of the doing of city officials," said Chief Justice Ronald George. Stewart responded that the best course would be to let the couples keep their licenses until lower courts decide the question of their validity. Lockyer and gay-marriage opponents urged the court to take the next step and invalidate the licenses. The court is unlikely to decide the validity issue. For now, the licenses carry great symbolic value and virtually no legal weight.
When Newsom sanctioned the marriages for same-sex couples in February, he cited the California constitution, which bans discrimination, and claimed he was duty-bound to follow this higher authority rather than the state laws against gay marriage. The justices, however, said they would entertain that constitutional challenge only if a lawsuit were to work its way to them through the lower courts. Gay activists took that invitation and sued in San Francisco County superior court. That lawsuit--brought by gay and lesbian couples denied marriage licenses--is not likely to reach the California supreme court for a year or two. It was a challenge by same-sex couples denied marriage licenses that prompted Massachusetts's highest court to allow the gay marriages that began there last week.
Justice Kathryn Werdegar suggested that the married couples should have a voice in the case currently before the California court. "Why is it not necessary or appropriate for this court to have before it the persons affected by any declaration of invalidity before deciding if [the licenses] are invalid?" she asked Jordan Lorence, a lawyer for the Arizona-based Christian law firm Alliance Defense Fund, who argued against the licenses. "I want to acknowledge the great emotions expressed by the couples," Lorence responded. "But this was essentially an act of disobedience.... There was the disclaimer that the clerk put onto the applications to the licenses saying, 'Hey, everyone, I want you to know, these things are of dubious validity."'