Justices Wary of S.F. Gay Unions

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Times Staff Writer

The California Supreme Court appeared ready Tuesday to declare that San Francisco Mayor Gavin Newsom lacked the legal authority to permit 4,000 gay couples to marry earlier this year.

During a two-hour hearing, several members of the state high court suggested that city officials should have filed a lawsuit challenging the constitutionality of California marriage laws before permitting same-sex couples to marry.

But three of the seven justices expressed concerns that invalidating the nuptials might be unfair because the gay couples involved had no chance to participate in the legal arguments.


Other members of the court contended that San Francisco was to blame for any discomfort the couples might endure.

“Of course, it is the city that has created this mess,” said Justice Marvin R. Baxter.

The court appeared particularly concerned that a ruling for San Francisco might encourage officials in other cities to ignore gun controls, zoning ordinances or other laws they believe to be unconstitutional.

If the state passed a law permitting gay marriage, “would mayors throughout the state be free to disregard it?” asked Justice Ming W. Chin.

Because of the wide interest in the legal challenges, the court permitted a cable television station to air the hearing live and arranged a viewing room for those who could not get a seat in the courtroom.

With the Supreme Court’s courtroom filled, about 100 people were directed to an overflow room. Court employees watched the hearing from a court boardroom and about three dozen people went to a nearby state office building to observe.

Those watching outside the court hissed when a lawyer for the state argued that the marriage licenses were never real and cheered when Justice Kathryn Mickle Werdegar raised questions about fairness for the couples.


San Francisco married 4,000 same-sex couples from Feb. 12 to March 11, when the state high court intervened and called a halt to the weddings. The court agreed to consider legal arguments by Atty. Gen. Bill Lockyer and conservative groups that Newsom had no authority to disregard state laws that define marriage as heterosexual.

Newsom contended that the marriage laws were unconstitutional and that he had a right to disregard them. In a speech to the Sacramento Press Club on Tuesday, he conceded that the court was likely to rule against him this summer, but he expressed confidence that the justices would ultimately declare the marriage laws unconstitutional in a separate case that has not yet reached them.

Although a recent poll showed that a strong majority of San Franciscans approve of the job Newsom is doing, he told the Press Club: “It would be a remarkable thing if I get elected mayor again,” especially if the court rules against him. He said some of his early political supporters are “probably not going to be with me next time. I’m an easy target.”

Chief Deputy City Atty. Therese M. Stewart, arguing for Newsom, told the state high court that several legal precedents convinced the mayor that the state’s marriage laws were unconstitutional. If a mayor acts in good faith and with court rulings to bolster his or her case, the mayor can refuse to enforce a law, she argued.

Even if a public official can refuse to enforce a law believed to be unconstitutional, San Francisco went further, suggested Justice Janice R. Brown. The city did not merely ignore the state’s marriage laws, it rewrote them, Brown said.

Brown said it appeared that the city had “eliminated the role of both the courts and the Legislature.”


Other justices questioned how to deal with city officials who believe that the laws they are supposed to enforce are unconstitutional. Justice Joyce L. Kennard questioned whether the circumstances warranted the mayor’s disregard of state marriage laws.

“What was the emergency?” Kennard asked. “What about the irreparable harm?”

The California Legislature has passed a new domestic partners law that will give registered gay couples many of the rights of married couples when it takes effect in January. Doesn’t that law “dilute any argument that the mayor had to act immediately?” Kennard asked.

Stewart replied that the new law “doesn’t come close to making the rights equal.” Registered gay couples won’t be able to file joint tax returns and will still be denied some employment rights that turn on marriage, she said.

“It’s separate, not equal,” Stewart added.

Deputy Atty. Gen. Timothy M. Muscat and Jordan Lorence, who argued for the Alliance Defense Fund, a conservative group, contended that Mayor Newsom had violated state law in various ways.

A state constitutional provision prohibits state agencies or agents from disobeying a state law without a ruling by a court, they said. They also contended that Newsom violated the doctrine of separation of powers by usurping the role of the courts and the Legislature. They argued that only the state, not a city, established state marriage laws.

Gays in California will never be permitted to marry “if the voters have a say in this,” Lorence told the court.


Muscat said the city’s same-gender marriage licenses have “no legal effect whatsoever.”

“They simply have no legal bearing under the California Family Code,” Muscat said. “They simply have never existed.”

But Justice Werdegar repeatedly questioned the fairness of invalidating marriage licenses without giving the affected couples a chance to address the legal issues.

At the same time, Werdegar expressed uncertainty about the value of the licenses should the court declare that San Francisco acted illegally.

“If the mayor had no authority, would it not follow that the marriages were invalid?” she said.

Werdegar, more than any other justice, seemed concerned about the practical effects of the court’s ruling, which will be made within 90 days.

She noted that a trial court in San Francisco is reviewing the constitutionality of the state’s marriage laws. The case will get to the state high court in a year or two. Should the California Supreme Court eventually decide that the marriage laws are unconstitutional because they exclude gays, any gay marriages that the court might now declare invalid would become more muddled.


“Would these marriages spring back to life or would the couples have to be remarried?” Werdegar wondered.

If the state changes the law to permit same-sex nuptials, “that wouldn’t revive the marriages,” said Chief Justice Ronald M. George.

“I have empathy for the situation these people are in -- perhaps because of the doings of city officials,” George said. But if the court does not decide the validity of the licenses, the couples and their employers might be left in “legal limbo,” he said.

George also declared that San Francisco did not display legal fairness when it changed marriage licenses to permit gays to wed without any public notice or hearing. He said it was “somewhat inconsistent” for the city to argue that invalidating same-sex marriage licenses would deprive the married gay couples of procedural fairness.

After the hearing, opponents of gay marriage expressed confidence that the court would rule that Newsom had exceeded his authority.

“We feel extraordinarily good about how the arguments went,” said Benjamin Bull, chief counsel for the Alliance Defense Fund.


Kate Kendell, executive director of the National Center for Lesbian Rights, said, “It’s obvious that the court has concerns about the mayor’s authority.” But she said she was encouraged that the court was “keenly aware” of the significance of the equal protection challenge pending in San Francisco Superior Court.

A similar challenge has made it possible for gays to marry in Massachusetts.

“What happened today says nothing about the ultimate decision or analysis on the constitutional question,” Kendell said.

Stuart Gaffney, 41, and John Lewis, 45, a gay couple who have been together for 17 years and married on Feb. 12, said after the hearing that they did not share the court’s concerns that they would be in legal limbo unless the validity of the licenses was immediately decided.

“In a sense, we have been in limbo for our entire relationship,” said Gaffney, a project director at UC San Francisco. “It’s only since Feb. 12 that we feel some certainty....”


Times staff writers Lee Romney in San Francisco and Carl Ingram in Sacramento contributed to this report.