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May 21, 2004

California supreme court to weigh gay marriage vs. mayoral powers

In the debate over gay marriage, all eyes are shifting from Massachusetts to California. That state's supreme court will hear oral arguments on Tuesday, May 25, regarding whether San Francisco mayor Gavin Newsom misused his power when he allowed the issuance of 4,000 marriage licenses to gay and lesbian couples earlier this year.

The highly charged hearing will have everything and yet nothing to do with same-sex marriage, since the justices already declined to address the civil rights issues involved. Those battles will have to percolate up through the state courts.

Tuesday's arguments will be focused on how much leeway elected officials have to interpret the law--and on that question experts predict that Newsom will lose. The justices are virtually certain, experts say, to prevent the legal anarchy that could result if local officials are empowered to choose which laws to follow. "The prospect of local government officials unilaterally defying state laws with which they disagree is untenable and inconsistent with the precepts of our legal system," California attorney general Bill Lockyer said in a brief filed with the court.

California law clearly defines marriage as a union between a man and woman. In 2000 voters also approved a statewide initiative requiring the state to recognize only opposite-sex marriages.

The California supreme court ordered San Francisco to stop issuing marriage licenses to same-sex couples in March at the request of Lockyer and opponents of gay marriage. Gov. Arnold Schwarzenegger expressed concern 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 question of what to do about the gay and lesbian marriages already performed at San Francisco City Hall. Lockyer and the marriage opponents are urging the court to take the next step and invalidate them.

Robert Tyler, an attorney for the Alliance Defense Fund, which is opposing Newsom before the high court, says the marriage licenses "are not worth the paper that they are written on" and has urged the justices to declare them "completely void."

Gay rights groups say the court need not go that far. "They don't need to reach any conclusion on this. That is not the issue before them," said Shannon Minter, an attorney with the National Center for Lesbian Rights, which is representing Del Martin and Phyllis Lyon, a lesbian couple whose nuptials kicked off San Francisco's wedding march on February 12.

San Francisco city attorney Dennis Herrera said the justices should refrain from addressing that issue unless or until the court concludes that "California can constitutionally discriminate against same-sex couples."

In the likely event the justices remain silent on the matter of the gay marriages already performed, it would neither validate nor invalidate them. For now, they carry great symbolic value but virtually no legal weight.

When Newsom sanctioned the marriages for same-sex couples, 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 his constitutional challenge only if a lawsuit worked its way to them through the lower courts. Gays accepted that invitation and sued in San Francisco County superior court. That lawsuit--brought by gay and lesbian couples denied marriage licenses in San Francisco--is not expected to reach the justices for at least 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 on May 17. Tuesday's arguments before the California high court are scheduled to last two hours. A decision is expected within 90 days.

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