S.F. Sues State Over Bans on Gay Marriage

The city of San Francisco filed a lawsuit against the state Thursday, challenging laws that bar gay marriage on grounds that they violate language in the California Constitution that forbids discrimination.

Mayor Gavin Newsom ordered his staff last week to remove references to “bride” and “groom” from marriage licenses and to begin performing same-sex ceremonies, arguing that to do otherwise would violate the Constitution’s equal protection clause.

In filing Thursday’s suit, city officials hope to focus the legal dispute on the constitutional issue of discrimination.

Opponents of the city’s decision to issue marriage licenses to gay couples have tried to limit the case to a narrower issue: whether a mayor has the right to break state law.

“It goes to the heart of the question: Do we or do we not have the right to do this?” Newsom said at a midafternoon news conference. “It will force the debate and discussion. It was a good move.”

Asked why the city hadn’t pursued a lawsuit against the state to clarify the legal question before issuing the licenses, Newsom was frank: “We put a human face and a real story behind the theory of discrimination,” he said.

The legal filing instantly upped the ante in the city’s high-profile act of civil disobedience, requiring California Atty. Gen. Bill Lockyer to take a stand.

Although Newsom’s staff said Lockyer had been advised in advance of the city’s plan to begin marrying gays and lesbians, the state’s top law enforcement officer had remained silent on the issue, saying he had not been asked to weigh in.

On Thursday he issued a statement saying that he did “not personally support policies that give lesser legal rights and responsibilities to committed same-sex couples than those provided to heterosexual couples.”

“But the people of California have spoken,” Lockyer said. “State law prohibits the recognition of same-sex marriages. It is the duty of my office to defend that law against this challenge ... and allow the courts to determine whether the city has acted illegally.”

The state Family Code defines marriage as between “a man and a woman.”

Furthermore, four years ago voters approved Proposition 22, a ballot measure that amended the Family Code to state that no same-sex marriages granted out of state would be honored in California and that only marriages “between a man and a woman” were valid.

Gov. Arnold Schwarzenegger reiterated his objection to same-sex marriages and promised that Lockyer would defend state law.

“The people of California spoke on the issue of same-sex marriage when Prop. 22 was overwhelmingly passed in 2000,” the governor said in a statement.

Officials in the state Department of Health Services have said they would not accept the altered marriage license forms, but San Francisco officials Thursday said it remained unclear whether that would have a bearing on the forms’ validity.

Representatives of the Campaign for California Families are scheduled to appear before San Francisco Superior Court Judge Ronald Evans Quidachay this afternoon to seek an immediate halt to the marriages.

The Proposition 22 Legal Defense and Education Fund, represented by the Arizona-based Alliance Defense Fund, appeared Tuesday before San Francisco Superior Court Judge James L. Warren with a similar request, which was denied.

The group and the city were ordered back to court March 29 to argue the merits of the case, giving San Francisco a free hand to continue with the marriages. Already, nearly 3,000 couples have wed in the city.

In a separate hearing scheduled for this morning, the city will seek to have the cases consolidated before Judge Warren. The Alliance Defense Fund, meanwhile, has asked that the hearing be consolidated before Judge Quidachay.

Richard Ackerman, an attorney for the Campaign for California Families, said he doubted that Lockyer could fairly represent the state, since he had been aware of the city’s actions and had done “nothing to stop it.”

Mathew Staver, president of Florida-based Liberty Counsel, which is serving as lead legal counsel on the case, called the city’s suit “a blatant delay tactic” to derail the scheduled afternoon hearing and “put off the merits until later.”

“This case is fairly simple,” he said. “Can a mayor alter statewide marriage law? The clear answer is no.”

But University of Santa Clara law professor Gerald Uelmen, an expert on the California Constitution, said the lawsuit would help the city in its effort to have a court rule on the equal protection issue.

“It gets them closer,” he said. “Now the issue of the underlying constitutionality of the state law is directly presented. It certainly puts them in a better posture than defending a claim that they have impinged on state authority.”

Times staff writer Maura Dolan contributed to this report.