The California supreme court is scheduled to issue a nervously awaited ruling Thursday on whether San Francisco mayor Gavin Newsom exceeded his authority by allowing gay and lesbian couples to get married in the city beginning in February.
Legal experts--and even the mayor himself--assume the court will say that Newsom's actions violated state laws defining marriage as a union between a man and a woman. What's less clear is how the seven justices will treat the thousands of same-sex marriages that were sanctioned before the court intervened in March.
"It appears quite obvious the court is going to rule against the mayor," said Kate Kendell, executive director of the National Center for Lesbian Rights. "We think that's unfortunate and it's wrong, but of course the more human question is what to do with 4,037 marriage licenses that belong to couples in
relationships and with families."
Gay rights advocates say the most they can hope for is that the justices will say nothing--at least for now--about the validity of the licenses same-sex couples received at San Francisco City Hall between February 12 and March 11, the day the court issued an injunction halting the unprecedented wedding spree.
The city and several legal groups sued the state the same day, alleging that California's marriage laws as currently written are an unconstitutional abridgment of the civil rights of gays and lesbians. Those cases, which echo arguments that led to the legalization of gay marriage in Massachusetts on May 17, are scheduled to be heard later this year in San Francisco County superior court.
Thursday's opinion, which will come six months to the day after the first licenses were issued, will not address the core constitutional question because the supreme court said it isn't ready to consider the matter. "Tomorrow's ruling is important, but it will not resolve whether same-sex couples have the right to marry and be treated equally under our state constitution," said Jennifer Pizer, a lawyer with Lambda Legal, a gay rights advocacy group. "We have 58 counties and 478 cities in California. Couples in all of them need the protections marriage provides."
Lawyers for the state and a Christian legal organization that filed the pair of cases challenging the mayor's decision have asked the court to nullify the disputed marriage licenses if it finds that Newsom's action was unlawful. They maintain that letting the marriages stand would not only create confusion in other jurisdictions but would encourage residents to disregard any laws with which they disagree.
"The question in this case is whether elected public officials have to uphold and enforce the law as written or whether they can apply the law according to their own personal whims," said Benjamin Bull, the Alliance Defense Fund's chief counsel. "If it's the latter, our uniform system of laws would be reduced to a patchwork of disparate rights and obligations based upon the beliefs of local officials."
Kendell agreed that leaving the licenses in legal limbo until the supreme court gets the cases now percolating through lower courts "will result in some uncertainty." But she maintained that situation "would be much less catastrophic" than the pain that families would feel if the marriages were declared void.
"Many of the couples that I am close to who got married are lawyers," Kendell said. "They understand intellectually that their marriage was under a cloud. And yet they have made it very clear to me that if their license is found invalid, it will be devastating. It's another reminder of how marginalized our
relationships are under the law."