State High Court Seeks Briefs on Validity of Gay Marriages

The California Supreme Court is considering whether to nullify more than 4,000 marriage licenses that San Francisco granted to gay couples earlier this year.

In an order issued Wednesday, the state high court asked lawyers for the city, the state and anti-gay marriage groups to present written arguments on whether the court should declare the marriages valid or void if it rules that San Francisco exceeded its authority in marrying same-sex couples.

The court is expected to decide within the next few months whether San Francisco flouted state law when it began issuing marriage licenses to gay couples Feb. 12. The city stopped granting the licenses March 11 in response to a court order.

Mayor Gavin Newsom ordered the gender-neutral licenses because he said the state Constitution’s equal protection clause supercedes state laws that define marriage as heterosexual.

Legal analysts said Wednesday’s order indicates that the court is likely to rule against San Francisco.

“If they were upholding the marriages, this question wouldn’t arise, so it suggests that they are not going to uphold them,” said UC Berkeley emeritus law professor Stephen Barnett.

University of Santa Clara law professor Gerald F. Uelmen agreed. The order suggests the city is going to lose the case, and the court may not want to leave “in limbo” the status of the licenses already granted, he said.

The court issued its one-page order after meeting in closed session during its weekly conference. The order asks for briefs on whether the court should determine the validity of the marriages and whether San Francisco should be ordered to refund license fees should the court decide the marriages are invalid.

The order said the court had received comments on the status of the marriages from those who have intervened in the case and wanted to give the primary litigants a chance to weigh in.

San Francisco City Atty. Dennis Herrera said the order gave no indication of how the court was leaning. “We are convinced that marriage licenses issued to same-sex partners here in San Francisco are valid, and will remain legally valid, even if the court decides against on the question of mayoral authority,” he said.

Therese M. Stewart, chief deputy city attorney, said San Francisco did not address the question of validity because the city does not want the court to rule on that issue until the constitutionality of the state’s marriage laws is resolved.

That constitutional question is now being heard in San Francisco Superior Court and will probably not reach the state high court until next year. The state Supreme Court declined to rule directly on the marriage laws until lower courts reviewed them.

“I think our silence speaks volumes,” Stewart said. “Leave it alone.”

She said it would be unfair to rescind the marriage licenses of gay couples while the legality of the state’s marriage laws remains unresolved.

“People would prefer uncertainty to certain inequality,” Stewart said.

Benjamin Bull, chief counsel of the Alliance Defense Fund, which opposes the marriages, said he was heartened by the order.

“Obviously the court is troubled by thousands of potentially counterfeit marriage licenses floating around and the impact they will have on other states and in California,” he said.

Bull surmised that the court has decided that the city acted illegally, and the justices “are basically in cleanup mode now.”

“They stopped the spillage,” Bull said. “Now they are trying figure out what to do with the mud that has already hit the concrete.”

A spokeswoman for state Atty. Gen. Bill Lockyer, whose office has challenged the marriages, declined to comment on the order except to say the state will respond as requested.