Originally published on Advocate.com May 24 2004 11:00 PM ET
A California supreme court hearing this week on whether San Francisco mayor Gavin Newsom abused his powers by authorizing the issuance of 4,000 marriage licenses to gay couples will not address whether the unions are legal. Instead, the high court will hear arguments on Tuesday about how much leeway elected officials have to interpret the law—and on that question, experts predict Newsom will lose. Legal experts have said the justices are virtually certain to prevent the legal anarchy that could result if local officials are allowed 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 stated in a brief filed with the court.
The justices have declined to address the civil rights issues involved; those battles will have to percolate up through the state courts. Meanwhile, legislation to legalize same-sex marriages is stalled with lawmakers in Sacramento, the state capital. California law clearly defines marriage as being a union between a man and woman. In 2000 voters also approved a statewide initiative requiring the state to recognize only marriages between opposite-sex partners.
The state supreme court halted San Francisco's gay marriages in March at the request of Lockyer and same-sex marriage opponents. Gov. Arnold Schwarzenegger worried that Newsom's precedent, if allowed to stand, would encourage 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 performed at San Francisco's city hall. Lockyer and opponents of gay marriage are urging the court to invalidate them. Robert Tyler, an attorney for Alliance Defense Fund, which is opposing Newsom before the high court, said the marriage licenses "are not worth the paper they are written on" and 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. The center is representing Del Martin and Phyllis Lyon, a lesbian couple whose nuptials started the city'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 and virtually no legal weight. When Newsom sanctioned the marriages for gays and lesbians, he cited
California's 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 took that invitation and sued in San Francisco County superior court. That lawsuit—initiated by gay and lesbian couples denied marriage licenses—is not expected to reach the justices for a year or two. Tuesday's arguments are scheduled for two hours. A decision is expected within 90 days.