S.F. Gets a Week to Make Case for Gay Marriage

The California Supreme Court refused to immediately halt this city’s same-sex marriages on Friday but decided that it would swiftly consider whether to review the legal challenges to those nuptials.

The state’s highest court gave San Francisco seven days to present arguments to the judges why they should not immediately order the city to stop marrying gay couples and invalidate the 3,400 licenses already issued.

The city also plans to ask the court to determine whether the state Constitution protects same-sex unions.

Under state law, marriage is defined as between “a man and a woman.” The city argues that the California Constitution, however, protects against discrimination and, therefore, allows the same-sex marriages.

The court issued two orders in the gay marriage dispute Friday afternoon after state Atty. Gen. Bill Lockyer filed a lengthy petition asking the court to intervene immediately.

His petition argued that the marriage licenses violated state law and had caused conflict and uncertainty within various government agencies.

One of those conflicts involved the Social Security Administration, which Friday ordered its offices nationwide not to accept San Francisco marriage licenses as proof of identification for newlyweds seeking name-change requests on Social Security cards.

In his petition, Lockyer had asked the state high court to decide the constitutional questions immediately.

“Peaceful civil disobedience may have its place in an open society, but there are usually consequences for such disobedience,” Lockyer said.

He said San Francisco had refused to respond to a directive issued by the California Department of Health Services to stop issuing licenses other than those approved by the state.

The city changed the wording on the standard marriage licenses Feb. 12 to accommodate same-sex couples.

Lockyer, asked at a news conference in Anaheim why he had not acted earlier, said his petition had been contemplated for “many, many” days.

“Some politicians have opinions in 10 seconds,” Lockyer said, “but when you do legal work, you like to have it right before you go to court. We wanted to act thoughtfully and judiciously .”

Gov. Arnold Schwarzenegger sent a strongly worded letter last week to Lockyer ordering him to take immediate action to stop the marriages.

The attorney general responded that he was already anticipating going to court and that the governor did not have the authority to order him to act.

Lockyer, a liberal Democrat who has support from backers of gay marriage, described San Francisco Mayor Gavin Newsom’s decision to marry gays as a “principled stand,” but added, “There’s a way they could have done it without all the drama,” by going to court first.

Instead, San Francisco’s decision to issue same-sex marriage licenses has “created a situation of extreme public significance,” Lockyer said.

“The recognition of marital status carries with it too many legal consequences to be determined on a county-by-county basis in each of California’s 58 jurisdictions.”

The state Supreme Court directed San Francisco to respond both to Lockyer’s petition and to a more narrow request filed with the court Wednesday by a group opposed to gay marriage.

“What the court is saying is, we want to take another look at both sides of the issue before we decide whether or not to hear the case,” said Lynn Holton, a spokeswoman for the court.

Santa Clara University law professor Gerald Uelmen, an expert on the state high court, said the judges’ orders Friday “suggest that if they are going to hear the case, they are going to rule very quickly.”

“And it also may suggest that there are a number of justices who are leaning toward hearing it,” he said.

The court has asked for written arguments in the past on emergency petitions that have bypassed lower courts. But it is rare for the court to grant such petitions and intervene before lower courts have ruled. The court generally prefers to review a case only after a full factual record has been developed. Judges in San Francisco Superior Court have postponed a hearing on the marriages until March 29.

But retired state Supreme Court Justice Edward A. Panelli said a factual record in the same-sex marriage case was not particularly important because the key question to resolve was constitutional.

“This is strictly a legal, constitutional issue that they will ultimately have to decide,” said Panelli, who predicts that the high court will intervene.

San Francisco contends that the California Constitution’s equal protection clause makes state marriage laws unconstitutional. The high court has the final say in interpreting the state Constitution.

“Since it is such a pressing issue, why wait two years to decide it?” said Panelli, who remembered the court granting one or two such petitions during his eight-year tenure. “I feel pretty confident they will.”

The fact that the court did not summarily reject the petitions Friday also “obviously indicates some interest in hearing what the parties have to say,” Panelli said.

Benjamin Bull, general counsel for one of the groups that also asked the state high court to intervene, said he was encouraged by the court’s orders.

“Most extraordinary writ applications are rejected out of hand,” Bull said. “When they ask for responsive briefings and set a certain date, it means they are probably going to rule on it.”

He said he was pleased that the court was moving quickly. “We were celebrating in our office when we saw that order,” Bull said.

But Matt Dorsey, a spokesman for San Francisco City Atty. Dennis Herrera, said the city was pleased that the court did not agree to the petitioners’ request for an immediate halt to the marriages.

“By inviting opposition briefs from the city attorney next week, the Supreme Court has already tacitly rejected pleas that same-sex marriages in San Francisco be halted immediately,” Dorsey said.

Lockyer said the controversy had prompted the Social Security Administration to ask the state to help it determine whether marriage licenses issued in San Francisco were valid. Married couples present their licenses to the federal agency when asking for name changes.

The new Social Security ID directive applies to all marriage licenses -- not just the same-sex ones -- issued in the city since Feb. 12. The move drew strong criticism from Mayor Newsom.

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Times staff writer David Haldane and Associated Press contributed to this report.