Calif. court looks at gay marriage licenses

Justices halted unions two months ago


SAN FRANCISCO -- Justices of the California Supreme Court appeared torn yesterday about whether to invalidate more than 4,000 marriage licenses issued here to same-sex couples in February and March.

But in their first public hearing on the matter since ordering a halt to the gay marriages on March 11, some of the seven justices hinted that Mayor Gavin Newsom of San Francisco had overstepped his authority in directing the county clerk to issue the licenses.

California state law defines marriage as between a man and woman, but Newsom argued that the law violates both the state and United States constitutions.

Yesterday the judges heard two hours of arguments in a courtroom here about the legality of Newsom's actions and the validity of the licenses; the larger constitutional questions are the subject of a lawsuit being considered by a lower court.

Couples not represented

Justice Kathryn Mickle Werdegar wondered aloud how the licenses could remain valid if the court ruled that Newsom had abused his power in issuing them.

Several judges, including Werdegar, also expressed concerns about throwing out the licenses without first hearing from the married same-sex couples, who were not represented.

Chief Justice Ronald M. George said, "I have empathy for the situation that these people are in, perhaps, you know, because of the doing of the city officials."

Therese M. Stewart, a San Francisco deputy city attorney, told the judges that allowing the licenses to remain in effect until the constitutional questions were resolved would not amount to "civilization coming to an end."

Less disruptive path

She also suggested that a decision to invalidate the licenses would be a slap in the face of gays and lesbians.

But Justice Marvin R. Baxter said he was not satisfied that Newsom could not have taken a less disruptive path, such as filing a lawsuit, to challenge the state's ban on same-sex marriage.

"It's the city that created this mess," Baxter said, "and I still haven't heard an adequate explanation as to why the city did not get a judicial determination of the correctness of its position before putting all these people in the precarious position that they are now in."

Jordan Lorence, a lawyer for the Arizona-based Alliance Defense Fund, a Christian group opposed to same-sex marriage, told the judges that Newsom had engaged in "an act of disobedience" and that city officials accepted that the licenses were of "dubious validity."

He pointed to a disclaimer printed on marriage license applications by the county clerk, which said "marriage of lesbian and gay couples may not be recognized as valid by any jurisdiction other than San Francisco."

Some of the judges suggested that the mayor's actions, if allowed to stand, might invite defiance of state laws by other local officials.

George asked Stewart whether her office would take the same stance in defense of a sheriff or police chief who refused to enforce state gun-control laws out of a belief that they violated the Second Amendment.

"In any of those other scenarios, wouldn't your same approach justify that type of disregard for the state statute?" George asked.

Judicial authority

"Generally, the answer is yes," Stewart said, adding, however, that in Newsom's case there "was sound judicial authority for the position the mayor and the county clerk took."

Deputy Attorney General Timothy M. Muscat, whose office petitioned the court to intervene against the city, said Newsom had tried to sidestep the legal process.

"We appreciate the argument they made that they have constitutional concerns about this statute," Muscat said. "But we believe that it's ultimately a question of judicial power and judicial authority. That authority properly rests within the judicial system."

Lawyers on both sides said the judges' questions indicated that they were inclined to rule against Newsom but had probably not reached consensus about the status of the licenses.

A ruling is due within 90 days.

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