S.F. Judge Won’t Halt Marriages

As the number of same-sex marriages climbed to more than 2,600 here Tuesday, a San Francisco Superior Court judge refused to order an immediate stop to the unions, instead allowing city officials until March 29 to return to court to argue the merits of their case.

Mayor Gavin Newsom last week ordered city officials to begin marrying gays and lesbians despite state statutes that limit marriage to “a man and a woman.” The mayor vowed Tuesday to continue performing the marriages until he was ordered to stop, raising the prospect that thousands more same-sex couples will hold marriage licenses by the time the legal battle returns to court.

“We are more resolved than ever,” Newsom said. “I took an oath literally to support the Constitution, and that’s what I’m doing. The issue here is simple: The state’s Constitution does not permit discrimination at all, anywhere, period. We are in full compliance with our state’s equal protection clause prohibiting discrimination in any form.”

Judge James L. Warren’s late-afternoon order came in response to a request by the Arizona-based Alliance Defense Fund for an immediate halt to the government-sanctioned marriages. Attorneys for the group -- which represents a California taxpayers organization that supported a 2000 ballot initiative against gay marriage -- argued that Newsom’s move to provide marriage licenses to gays and lesbians constituted “municipal anarchy.”

But after a three-hour hearing packed with media and couples who had tied the knot in recent days, Warren ruled that there was not enough evidence of harm to the plaintiffs to justify immediate action. Instead, he issued an order to the city to either “cease and desist ... solemnizing the same-sex marriages” or return to court to lay out the reasons why they should be allowed to continue.

Warren indicated that he may ultimately have to consider whether the state’s family code violates the equal protection clause of the California Constitution, as Newsom asserts.

Alliance Defense Fund attorney Robert Tyler, who argued the case, said his reading of the judge’s order was positive. “We are pleased with the decision,” he said. Warren “wouldn’t have done that if he hadn’t believed there was a violation of law.”

But attorneys for the city and five gay couples intervening in the case celebrated the ruling as an undisputed victory, since Warren was not considering the merits of the case but only whether to order the city to stop issuing the licenses.

“Every day that goes by that more couples get married, the more people can see that the sky isn’t falling and the harder it’s going to be to stop the tremendous momentum that Mayor Newsom’s courage has ignited,” said Shannon Minter, an attorney for the National Center for Lesbian Rights, which along with the American Civil Liberties Union and Lambda Legal is representing the gay couples.

The hearing came just hours after another San Francisco Superior Court judge ordered a separate challenger to the city’s same-sex marriages back to court Friday, ruling that the Campaign for California Families had not given the city adequate notice of its filing.

The organization had requested a stay similar to that of the Alliance Defense Fund.

USC law professor Erwin Chemerinsky said Tuesday’s court rulings bode well for the city. “In one sense,” the fact that two judges declined to issue an injunction Tuesday “is a victory for San Francisco,” said Chemerinsky. The judges’ refusal to immediately grant an injunction “shows that what San Francisco is doing is not patently invalid.”

However, Chemerinsky said the victory may be short-lived.

“This ultimately will have to be decided by the California Supreme Court,” which “ultimately may say all the marriage licenses” San Francisco granted to same-sex couples are invalid, he said. On the other hand, he said it is possible that the state’s highest court might be “more reluctant” to nullify the licenses after so many had been granted.

Gov. Arnold Schwarzenegger issued a statement Tuesday condemning the marriages and calling on the courts to act swiftly.

“I support all of California’s existing laws that provide domestic partnership benefits and protections,” he said. “However, Californians spoke on the issue of same-sex marriage when they overwhelmingly approved California’s law that defines marriage as being between a man and a woman. I support that law and encourage San Francisco officials to obey that law. The courts should act quickly to resolve this matter.”

Though gay marriage is under debate in the Massachusetts Legislature -- and that state’s high court has ruled that same-sex couples should not be denied the right to wed -- San Francisco is the only city in the country to have issued such licenses.

Intervening in the case on behalf of the city are Del Martin, 83, and Phyllis Lyon, 79, lesbians renowned in the gay rights movement, who became the first to wed Thursday. Martin sat quietly through most of Tuesday’s hearing as 14 attorneys lined the counsel seats.

Lawyers with the Alliance Defense Fund said they would take the case to the Court of Appeal today if the city continued to grant the licenses. Chief counsel Benjamin Bull also said he would explore taking the matter directly to the state Supreme Court, rather than waiting for the March 29 Superior Court hearing.

An attorney for the Campaign for California Families filed a writ with the California Court of Appeal’s 1st Appellate District on Tuesday afternoon, asking that court to put an immediate stop to the marriages.

“I’m appalled,” said Randy Thomasson, the group’s executive director. “We are seeing the rule of law in California get jerked around, disrespected and not obeyed. If we don’t respect the rule of law, then we are not a democracy. We’re a dictatorship.”

Both Thomasson’s group and the group that appeared before Warren argue that a 1978 amendment to the state Constitution specifically states that only appellate courts -- and not administrative agencies -- can determine the constitutionality of state statutes.

But San Francisco Chief Deputy City Atty. Therese Stewart, who argued the case before Warren on behalf of Newsom and City Clerk Nancy Alfaro, argued that the amendment applied only to state administrative agencies and not to local governments.

Thomasson’s group asserts that Newsom is violating eight family code statutes as well as Penal Code 359, which forbids knowingly solemnizing a marriage not sanctioned by state law.

Thomasson accused California Atty. Gen. Bill Lockyer of “not doing his job” by declining to interfere in the San Francisco case, and suggested he could be the target of legal action.

Tyler argued before Warren that the couples who are marrying could be harmed if the city were allowed to continue, since they could unwittingly give up domestic partner benefits for marriages that ultimately proved to be illegal. He also outlined a list of others -- from insurance companies to employers -- that could be harmed by the unions if gay couples began demanding benefits accorded to heterosexual spouses.

But Warren pointed out that the plaintiffs in this case did not represent any of those people or institutions.

“Where is the harm that the stay is trying to prevent?” the judge asked.

Arguing for the city, Stewart said that “the only injury [Tyler] can claim to his clients is a psychic one.” On the other hand, she stressed, “the inferior status granted to gays and lesbians” causes harm “every single day.”

At San Francisco City Hall, the rush to process same-sex marriages continued for a sixth day. Couples were brought in 25 at a time. All told, 172 licenses were processed Tuesday, bringing the total to more than 2,600 and netting the city more than $243,000 in fees.

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Times staff writers Arlene Martinez and Henry Weinstein contributed to this report.