State’s High Court Voids S.F. Same-Sex Marriages

Los Angeles Times Staff Writer

The California Supreme Court ruled unanimously Thursday that San Francisco’s mayor overstepped his authority by issuing same-sex marriage licenses this spring. By a 5-2 vote, the court also declared the roughly 4,000 marriages of gay and lesbian couples that had been sanctioned by the city “void from their inception and a legal nullity.”

Opponents of gay marriage celebrated the opinion, which sharply criticized Mayor Gavin Newsom’s actions as “unauthorized and unlawful.” State law requires marriage to be between “a man and a woman.”

Meanwhile, many gay and lesbian couples -- scores of whom had flocked to San Francisco in February and March to wed under City Hall’s ornate rotunda -- responded with tears, protest marches around the state and renewed vows to fight in the Legislature and courts for marriage rights.

However emotional the day proved for the couples, it did not end California’s same-sex marriage debate. The core question of whether state marriage laws are unconstitutional is winding its way through San Francisco Superior Court and will almost certainly reach the state Supreme Court within two years.

Newsom’s decision to issue the licenses stoked a fierce debate -- in an election year -- over same-sex marriage. Similar cases challenging the constitutionality of heterosexual marriage laws will probably soon reach the high courts of at least seven other states. Meanwhile, voters in about a dozen states are poised to decide whether to adopt state constitutional amendments banning gay marriage, as Missouri did this month. Efforts promoted by President Bush to pass a comparable federal amendment died in Congress last month.

Against that backdrop, Thursday’s majority opinion by Chief Justice of California Ronald M. George pointedly opened by noting that the court was considering only the “important but relatively narrow legal issue” of whether San Francisco officials -- or any other officials across the state -- had the power to flout a state law because they believed it to be unconstitutional.

The city had argued that Newsom was entitled -- even obligated -- to issue the licenses because he believed that existing state law violated provisions of the state and federal constitutions that forbade discrimination. Although he might have been justified in doing that in a situation where “no reasonable official could believe the statute is constitutional,” the court ruled that was not the case here.

If the mayor’s actions were allowed to stand, George wrote, chaos could follow. If the thousands of elected and appointed officials in the state chose which laws to follow based on their personal judgment, “the enforcement of statutes would become haphazard, leading to confusion and chaos and thwarting the uniform statewide treatment that state statutes generally are intended to provide,” George wrote.

San Francisco, he said, could have instead denied a request for a same-sex license and advised that couple to challenge the denial in Superior Court.

Newsom, who had been elected just a little more than a month before, ordered the county clerk to create gender-neutral licenses and begin issuing them to gay men and lesbians Feb. 12.

What came next was unscripted. Hundreds of couples swarmed San Francisco’s City Hall to wed over Valentine’s Day weekend, many with children, parents and friends in tow.

Anti-gay groups had immediately challenged Newsom’s action in San Francisco Superior Court. Expecting an injunction to halt the experiment, emotional city workers volunteered their time to help, scrambling to declare as many couples as possible “spouses for life.”

But the injunction didn’t come. Two Superior Court judges ruled that no imminent harm was apparent. It was a full month later that the Supreme Court intervened to stop the proceedings. The high court agreed to consider only whether Newsom had overstepped his bounds, suggesting that the city file a separate action in Superior Court challenging the constitutionality of state marriage laws.

The city did so, and several similar suits were filed on behalf of gay couples denied marriage licenses in California -- a tactic similar to the one George suggested in this week’s decision.

Reacting to Thursday’s ruling, Newsom said he “respectfully disagreed.” His decision to issue the licenses “put a human face on discrimination” that will bolster the city’s position as it moves ahead with its Superior Court lawsuit, he said.

“I’m proud of those 4,000 couples who had the courage to make their way to San Francisco and stand up and say, ‘I do,’ ” he added. “There’s nothing any court decision or politician will ever do to take that moment away.... I’m not in any way discouraged. I’m frankly more resolved.”

The city’s actions were challenged before the high court by state Atty. Gen. Bill Lockyer and the Alliance Defense Fund, an Arizona-based Christian legal organization that opposes same-sex marriage.

On Thursday, Lockyer said he was “pleased that the court has reaffirmed the important legal principle that non-judicial elected officials do not have the authority to unilaterally declare a state law unconstitutional.”

But, as he has since the controversy erupted, he voiced his personal support for same-sex marriage. “I did not pick this fight,” he said repeatedly. “I’d rather sue polluters and Microsoft and energy gougers than [prosecute] this dispute. But it’s my duty.”

Alliance Defense Fund senior counsel Jordan Lorence was less equivocal, saying the justices had “restored the rule of law in California.”

“The invalidating of the marriage licenses sends a very strong rebuke to the mayor that what he did was defy the law,” Lorence said. “They said we cannot allow local officials to pick and choose which laws they follow.”

Stanford law professor Pamela Karlan said the ruling contained no real surprises but was in places “very pointed.”

“It’s not a gentle opinion: ‘You thought you were doing the right thing, but you weren’t,’ ” she said. “It’s: ‘How could you think that this was appropriate for you to do?’

“There’s some indication of sympathy for the couples, but there’s a lot of desire to say, ‘Well, the laws on the books are pretty clear. Officials should follow the law as it’s written, and if they think it’s unconstitutional, there are processes for getting a judicial decision,’ ” she said.

What had been less clear was how the court would handle the licenses already issued. The decision to nullify them came six months to the day after the first ones were granted.

George wrote in the majority opinion that it “would not be prudent” to leave the licenses in limbo until the constitutional issue was decided, because it would cause confusion for insurers and employers, as well as the couples, who might “make fundamental changes in their lives or otherwise proceed on the basis of erroneous expectations, creating potentially irreparable harm.”

The court also ordered city officials to notify the couples that their marriages were “void,” give them an opportunity to seek refunds of license fees and erase the unions from public records.

Justices Joyce L. Kennard and Kathryn Mickle Werdegar wrote separate dissents. While Werdegar expressed concerns that the couples had not had the opportunity to be heard in the court proceeding, Kennard reasoned that the gravity of the commitment made by the couples warranted waiting until the ultimate decision on gay marriage was rendered.

“Until that constitutional issue is finally resolved ... it is premature and unwise to assert, as the majority essentially does, that the thousands of same-sex weddings performed in San Francisco were empty and meaningless ceremonies in the eyes of the law,” she wrote.

“Individuals in loving same-sex relationships have waited years, sometimes several decades, for a chance to wed, yearning to obtain the public validation that only marriage can give,” she said. “In recognition of that, this court should proceed most cautiously in resolving the ultimate question of the validity of same-sex marriages ... even though those marriages were performed ... without proper authority and in violation of state law.”

Opponents of gay rights hoped that Thursday’s ruling hinted at an ultimate defeat for the city in front of the justices.

“The high court had no choice but to follow the plain and clear reading of the law that marriage is only for a male and female, a husband and wife,” said Randy Thomasson, executive director of the Campaign for California Families, one of the groups that initially challenged Newsom’s actions in Superior Court but whose lawsuit was stayed when the Supreme Court agreed to hear the issue.

But Kate Kendall, executive director of the Center for Lesbian Rights, expressed confidence that the justices were “approaching the ultimate case with great objectivity.”

“They really took great pains to make clear that the ruling was not addressing the merits of the constitutional claim,” she said.

Although many of the couples were well aware that they were participating in a tenuous legal experiment -- disclaimers on the licenses said so -- they were nevertheless saddened by Thursday’s ruling.

“I know they’re not making a judgment on the constitutionality of same-sex marriage, but they are saying there are no same-sex marriages,” said Karen Carrington, 24, who married Joy O’Donnell, 33, the first day they could do so. “To me that meant: OK, I’m back to being half a person, not quite a citizen, not quite an American.”

Carrington and O’Donnell were among about two dozen gay and lesbian couples who turned out on the Supreme Court steps in San Francisco to read the ruling.

“I found myself crying, which I didn’t expect,” O’Donnell said. “Then I felt outraged. Now I feel committed to do so much more on this issue.”

Lockyer suggested that Newsom had done the couples a disservice by giving them false hope, but those who gathered to mourn the loss of their licenses felt otherwise. Newsom, said 38-year-old Patrick Connors, helped him and his partner, Robert DeKoch, “realize what our constitutional rights are.”

By evening, hundreds had gathered at marches and rallies across the state to vow a continued fight. In West Hollywood, Mikko Alanne, 31, and his partner, Ari Solomon, 28, said they were not surprised by the decision. Alanne held a placard with the couple’s Feb. 13 marriage license taped on it. The sign read, “Gavin Newsom’s Still Our Hero.”

In San Francisco’s predominately gay Castro neighborhood, Jeanne Fong and Jennifer Lin, both dressed in strapless wedding dresses, led a crowd of 500 marchers to City Hall. One held a sign that read, “You Revoked Our License,” and on the back, “But You Can’t Revoke Our Family.”

Brad Rolfe, 37, and his partner, Michael Mahoney, 39, wore T-shirts to protest the language in the court decision. Rolfe had “Null” on the front of his shirt, and Mahoney had “Void” on the front, with the back of their shirts reading, “Recently Singled, Courtesy of California Supreme Court.”

Times special correspondent Robert Hollis and staff writer William Wan contributed to this report.




`Officials ... Exceeded Their Authority’

The following are excerpts from Chief Justice Ronald M. George’s opinion for the California Supreme Court in Lockyer vs. City and County of San Francisco. The full texts of the majority and dissenting opinions in the case are available at

We assumed jurisdiction in these original writ proceedings to address an important but relatively narrow legal issue -- whether a local executive official who is charged with the ministerial duty of enforcing a state statute exceeds his or her authority when, without any court having determined that the statute is unconstitutional, the official deliberately declines to enforce the statute because he or she determines or is of the opinion that the statute is unconstitutional.

In the present case, this legal issue arises out of the refusal of local officials in the City and County of San Francisco to enforce the provisions of California’s marriage statutes that limit the granting of a marriage license and marriage certificate only to a couple comprised of a man and a woman.

The same legal issue and the same applicable legal principles could come into play, however, in a multitude of situations. For example, we would face the same legal issue if the statute in question were among those that restrict the possession or require the registration of assault weapons, and a local official, charged with the ministerial duty of enforcing those statutes, refused to apply their provisions because of the official’s view that they violate the 2nd Amendment of the federal Constitution. In like manner, the same legal issue would be presented if the statute were one of the environmental measures that impose restrictions upon a property owner’s ability to obtain a building permit for a development that interferes with the public’s access to the California coastline, and a local official, charged with the ministerial duty of issuing building permits, refused to apply the statutory limitations because of his or her belief that they effect an uncompensated “taking” of property in violation of the just compensation clause of the state or federal Constitution.

Indeed, another example might illustrate the point even more clearly: the same legal issue would arise if the statute at the center of the controversy were the recently enacted provision (operative Jan. 1, 2005) that imposes a ministerial duty upon local officials to accord the same rights and benefits to registered domestic partners as are granted to spouses ... and a local official -- perhaps an officeholder in a locale where domestic partnership rights are unpopular -- adopted a policy of refusing to recognize or accord to registered domestic partners the equal treatment mandated by statute, based solely upon the official’s view (unsupported by any judicial determination) that the statutory provisions granting such rights to registered domestic partners are unconstitutional ....

As these various examples demonstrate, although the present proceeding may be viewed by some as presenting primarily a question of the substantive legal rights of same-sex couples, in actuality the legal issue before us implicates the interest of all individuals in ensuring that public officials execute their official duties in a manner that respects the limits of the authority granted to them as officeholders. In short, the legal question at issue -- the scope of the authority entrusted to our public officials -- involves the determination of a fundamental question that lies at the heart of our political system: the role of the rule of law in a society that justly prides itself on being “a government of laws, and not of men” (or women).

As indicated above, that issue -- phrased in the narrow terms presented by this case -- is whether a local executive official, charged with the ministerial duty of enforcing a statute, has the authority to disregard the terms of the statute in the absence of a judicial determination that it is unconstitutional, based solely upon the official’s opinion that the governing statute is unconstitutional. As we shall see, it is well established, both in California and elsewhere, that -- subject to a few narrow exceptions that clearly are inapplicable here -- a local executive official does not possess such authority.


Accordingly, for the reasons that follow, we agree with petitioners that local officials in San Francisco exceeded their authority by taking official action in violation of applicable statutory provisions....

To avoid any misunderstanding, we emphasize that the substantive question of the constitutional validity of California’s statutory provisions limiting marriage to a union between a man and a woman is not before our court in this proceeding, and our decision in this case is not intended, and should not be interpreted, to reflect any view on that issue .... Should the applicable statutes be judicially determined to be unconstitutional in the future, same-sex couples then would be free to obtain valid marriage licenses and enter into valid marriages.