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S.F. Wins Round 1 in Marriage Battle

Times Staff Writers

The legal war over gay marriage in California saw its first battle Friday, with San Francisco Mayor Gavin Newsom winning a tactical victory that could allow thousands of gay couples to wed by the end of the holiday weekend.

Newsom’s victory came when a Superior Court judge denied a request by a conservative group for an injunction that would have stopped San Francisco officials from granting marriage licenses to same-sex couples.

The group had argued that the city’s actions showed “complete and blatant disregard” for California law, which defines marriage as “a personal relation arising out of a civil contract between a man and a woman.”

“There’s a great deal of emotional energy involved in whether same-sex marriage should be allowed,” said Judge James L. Warren. The request for a court order to block the marriages “requires careful and thoughtful consideration,” he said as he scheduled another hearing for Tuesday.

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In response, San Francisco officials announced they would keep their City Hall offices open throughout the weekend to continue providing marriage licenses to gay couples who have begun flocking to the city from near and far. More than 500 same-sex weddings were performed Friday, officials said, amid indications that the pace could intensify over the next several days.

Pamela Cooke, 42, and partner Nancy Felixson, 50, were among Friday’s newlyweds. Cooke proposed at their home in Los Angeles at 9:20 Friday morning. When Felixson accepted, the two scrambled for a flight to San Francisco, pausing only long enough to grab a couple of bouquets of chrysanthemums and lilies, which they held for four hours as they stood in line waiting to be officially married.

“Now we’re not second-class citizens; now we can have a loving relationship like every other married couple we know,” Felixson said.

“The Earth has not stopped spinning today because we got married,” Cooke added.

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Opponents of gay marriage decried the city’s actions.

“The issue is not whether gay marriage is right or wrong. At issue is a state law, passed by California voters,” said Robert Tyler, an attorney with the Alliance Defense Fund, based in Arizona, one of the organizations seeking to stop San Francisco’s actions.

“A municipality has the responsibility to apply the rule of law,” Tyler said.

The actions of Newsom and Nancy Alfaro, the county clerk who is in charge of issuing the licenses, were nothing short of “municipal anarchy,” and a “political stunt,” he said.

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Whether San Francisco’s gay marriages will eventually be considered valid may not be known for years, legal experts said.

Many observers doubt the California Supreme Court will uphold same-sex marriages. But Newsom’s actions guarantee that by the time the issue reaches the court -- as lawyers on both sides predict it will -- the justices will be ruling not on gay marriage in the abstract, but on real-life couples, a potential tactical advantage for gay-rights advocates.

“Practically, or psychologically, for the court there is a difference” in looking at the issue in the abstract -- whether same-sex marriages should be allowed in the future -- “compared to the reality of ‘are you going to take away marriage licenses’ ” from specific couples, said USC law professor Erwin Chemerinsky. “For a swing justice on the California Supreme Court, it could matter,” he said.

In addition, he said, “If we have had a lot of gay marriages with no ill effects, then it becomes much harder for the opponents to say, ‘Look at all these horrible evils’ ” that same-sex marriages would cause.

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When Newsom directed the city clerk’s office to start issuing marriage licenses to gay couples earlier this week, he said in a formal letter that he was basing his action on the state Constitution’s declaration that a “person may not be ... denied equal protection of the laws.”

California courts have interpreted that provision “to apply to lesbians and gay men and have suggested that laws that treat homosexuals differently from heterosexuals are suspect,” the mayor wrote.

A similar argument persuaded the Supreme Judicial Court in Massachusetts last month to issue a ruling saying the state must allow gay couples to marry.

Several differences between California and Massachusetts could make the legal case here harder for gay-rights advocates, legal experts said.

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In Massachusetts, state law did not include any definition of who could marry, giving judges more flexibility. But California is one of 40 states that have laws defining marriage as being between a man and a woman.

In addition, 61% of California voters approved a ballot initiative in March 2000 that reinforced the rejection of same-sex marriages.

Proposition 22 added language to the California Family Code stating that “only marriage between a man and a woman is valid or recognized in California.”

Moreover, the state Supreme Court, all but one of whose members were appointed by Republican governors, has a reputation for being more conservative than the Massachusetts court.

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On the other hand, California law already provides greater legal protections to gay individuals and couples than most other states or the federal government, said Brad Sears, who runs a program on sexual orientation law at UCLA Law School -- the first such program in the country.

California has enacted two domestic partnership laws in recent years giving gay couples many of the rights that married couples enjoy. The second of the two laws, adopted last year, says as a matter of state policy that stable unions among gay couples are a benefit to society.

That declaration could complicate the case for opponents of gay marriage. Someone going to court to invalidate marriage licenses issued in San Francisco would have to provide judges some reason why the state should be allowed to restrict marriages to heterosexual couples despite the state Constitution’s equal rights guarantee, Sears said.

By declaring stable unions a good thing, “the state has taken away any credible argument” against same-sex marriage, he said.

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The argument on the other side is that San Francisco’s actions clearly flout the will of the state’s voters.

When Proposition 22 was approved, “the people of California reaffirmed that marriage was properly limited to a man and woman,” said Douglas Kmiec, a constitutional law professor at Pepperdine University in Malibu. What San Francisco officials are doing is “a lawless act,” he said.

In court Friday, lawyers for the Alliance Defense Fund made that argument. But San Francisco Chief Deputy City Atty. Therese Stewart said the group had not shown that its members would suffer any “irreparable harm” if the weddings went ahead, one of the key requirements for obtaining an injunction.

“They haven’t shown that the sky is going to fall,” Stewart said. But she noted that the courts eventually could declare the marriages invalid. With that in mind, San Francisco officials included language on the licenses warning that people entering into same-sex marriages “should get legal advice, and that the courts will be the ultimate arbiter,” she said.

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Jon Davidson, senior counsel for Lambda Legal’s Western regional office in Los Angeles, said Friday that the “long lines outside [San Francisco] city offices all day today show that lesbian and gay couples need the protections marriage provides.”

Davidson’s group, along with the American Civil Liberties Union and the National Center for Lesbian Rights, is assisting the San Francisco city attorney’s office in defending the city’s actions.

Outside the courthouse Friday, City Atty. Dennis Herrera said, “There is no doubt the city of San Francisco will move forward to protect the rights of all its citizens.

“I look forward to every couple who have had the opportunity to solemnize their marriage having a very, very happy Valentine’s Day.”

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Times staff writer Nicholas Riccardi contributed to this report.


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