Stakes Raised in Fight on Gay Unions

California Atty. Gen. Bill Lockyer said Monday that he would go to the California Supreme Court this week and ask the justices to decide whether marriages between gays violate the state’s Constitution.

If the justices agree to hear the case, the rare move could bypass lower courts that are currently considering whether San Francisco officials can give marriage licenses to same-sex couples in defiance of state laws that limit marriage to “a man and a woman.”

San Francisco officials argue that the state law is at odds with the state Constitution’s ban on discrimination.

“The Supreme Court has the authority to stop a charter city’s violation of state law, and that immediate action by the highest state court is necessary because this is a matter of statewide concern and urgency,” Lockyer’s office said in a prepared statement.

Lockyer said the state would file its petition on Friday with the court, which has the final say in disputes over the meaning of the California Constitution. The court has no legal deadline for acting on such a petition and may direct a trial judge or the Court of Appeal to review the legal issues first, he noted.

Lockyer’s statement that the issue was one of “urgency” seemed at odds with his position as recently as Friday.

In response to a letter from Gov. Arnold Schwarzenegger on Friday demanding that he act “immediately” on the gay marriage issues, Lockyer had said that there was no public emergency involved in the marriages and that legal challenges already in the courts would be adequate to resolve the issue.

The case will almost certainly confront the justices with at least two constitutional issues. One was raised in Lockyer’s statement -- whether San Francisco officials have the right to go against state law by issuing marriage licenses to same-sex couples. The other is the issue city officials prefer to emphasize -- whether the constitution’s guarantee of equal protection trumps those laws.

Opponents of gay marriage have been hoping to get the case to the high court as quickly as possible. Six of the court’s justices are Republican; one is a Democrat. The court is generally considered by legal experts to be moderately conservative.

Two lawsuits against gay marriage and a separate suit by San Francisco challenging the constitutionality of the state’s marriage laws are now pending in San Francisco Superior Court. A hearing has been scheduled for March 29.

Before announcing his legal action, Lockyer said that he had expected California’s courts eventually would reject same-sex marriage and invalidate the licenses of the more than 3,000 gay couples who have been married here.

“He is confident the courts are going to rule the law is only marriages between a man and a woman are valid in the state of California,” said Hallye Jordan, Lockyer’s spokeswoman.

Lockyer predicted the demise of gay marriage in California while visiting Santa Clara County to give a speech. His remarks triggered immediate criticism from one of the gay rights groups that is defending the marriages in court.

“The state’s attorney general should understand better than anyone that local officials must abide by the state Constitution,” said Jon Davidson, a senior lawyer for Lambda Legal, which defends gay rights in court cases across the country.

Protecting constitutional rights is “a duty the attorney general shares, and we’re disappointed he seems unwilling to fulfill it,” Davidson said.

In other developments Monday, a group opposed to gay marriage moved to prevent San Francisco Superior Court Judge James L. Warren from hearing the group’s challenge of same-sex nuptials.

Each side in the legal dispute is permitted one challenge, which is automatically granted, to remove a judge.

Unless the state Supreme Court grants Lockyer’s petition to take over the case, the gay marriage dispute will probably be heard by San Francisco Superior Court Judge Ronald Quidachay, an appointee of former Gov. Jerry Brown and a strong advocate of diversity on the bench.

A spokesman for San Francisco City Atty. Dennis Herrera said the city has no objections to Quidachay.

The city previously had asked to have two lawsuits against gay marriage consolidated before Warren.

Warren had the first hearing on the marriages, but “now Judge Quidachay is equally up to speed on the case, and the city’s position is that it has no preference for one over the other,” said Matt Dorsey, Herrera’s spokesman.

Warren, an appointee of former Gov. Pete Wilson and the grandson of the late U.S. Supreme Court Chief Justice Earl Warren, had given the city until March 29 to argue why gays should be allowed to continue to marry. That remains the next scheduled hearing in the case.

Liberty Counsel, one of the groups challenging San Francisco’s gay marriages, had filed the motion to disqualify Warren.

A spokesman for the group declined to say why Warren was unacceptable, and the motion also failed to explain why Warren was deemed “prejudiced” to the group’s lawsuit.

Liberty Counsel and the Alliance Defense Fund, both legal advocacy groups that represent the rights of religious traditionalists, have filed suit against San Francisco to stop the marriages.

San Francisco brought the attorney general’s office into the case by filing its own suit challenging the constitutionality of California’s marriage laws.

Meanwhile, the city on Monday began requiring couples who want marriage licenses to make appointments. Only 56 appointments will be granted each day. The city was marrying several hundred gay couples a day.

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Times staff writer Lee Romney contributed to this report.