Metropolitan News-Enterprise


Friday, August 13, 2004


Page 1


Justices Void Same-Sex Marriages, Say Mayor Exceeded Authority


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday voided the nearly 4,000 same-sex marriages sanctioned in San Francisco this year and ruled unanimously that the mayor overstepped his authority by issuing licenses to gay and lesbian couples.

The court said the city illegally issued the certificates and performed the ceremonies, since state law defines marriage as a union between a man and woman.

“[A]lthough 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,” Chief Justice Ronald M. George wrote for the court.

Allowing local officials to ignore laws they believe to be unconstitutional, in the absence of a judicial determination, would cause “confusion and chaos” and would thwart “the uniform statewide treatment that state statutes generally are intended to provide,” George wrote.

The chief justice noted that many laws are controversial and raise constitutional questions. Local officials left to their own devices might, for example, conclude that gun control laws violate the Second Amendment or that land use restrictions violate the Takings Clause of the Fifth Amendment.

“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 January1, 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 officia—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 because they improperly amend or repeal the provisions of the voter-enacted initiative measure commonly known as Proposition 22....”

Newsom Defiant

San Francisco Mayor Gavin Newsom’s actions, George said, were “fundamentally inconsistent with our political system’s commitment to John Adams’ vision of a government where official action is determined not by the opinion of an individual officeholder—but by the rule of law.”

Newsom was defiant at a news conference, where he appeared with city officials, many of them gay and lesbian, the Associated Press reported. Newsom said his “heart was heavy” over the voided marriages but vowed to carry on the city’s constitutional challenge.

“There is nothing that any court decision or politician can do that will take that [wedding] moment away,” he said. “I’m proud of those 4,000 couples.”

Backers of same-sex marriage had said prior to yesterday that they expected the court to rule that the Newsom administration had acted illegally, but that they hoped to avoid a ruling that would nullify the marriages while the constitutionality of the state’s ban on same-sex marriage is litigated in the lower courts.

Majority Opinion

George emphasized that the court was not prejudging that issue. But the court voted 5-2 to void the marriages, with Justices Joyce L. Kennard and Kathryn M. Werdegar dissenting.

“In light of the clear terms of Family Code section 300 defining marriage as a ‘personal relationship arising out of a civil contract between a man and a woman’ and the legislative history of this provision demonstrating that the purpose of this limitation was to ‘prohibit persons of the same sex from entering lawful marriage’...we believe it plainly follows that all same-sex marriages authorized, solemnized, or registered by the city officials must be considered void and of no legal effect from their inception.”

Kennard, citing the Massachusetts high court ruling that same-sex marriage is a right under that state’s constitution, wrote in dissent:

Until that constitutional issue has been finally resolved under the California Constitution, 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.”

Reaction to the ruling was swift and predictable.

Attorneys Richard D. Ackerman and Scott D. Lively of the Temecula-based Pro-Family Law Center called the ruling “awesome.” They initiated one of the earliest challenges to the issuance of marriage licenses in San Francisco and represented a number of state legislators who filed an amicus brief in the Supreme Court.

 “California remains a state governed by law, not by the political whims of a rogue mayor,” they said in a statement. But they predicted that “left-wing  legislators will openly defy the Supreme Court.”

State Sen. Sheila Kuehl, D-Santa Monica, criticized the court for voiding the marriages, saying no harm has come to the state in the several months since the ceremonies—which the high court halted in March—took place.

California has a legal presumption that a marriage is valid and that legal or procedural impediments are not sufficient, in ever case, to invalidate the marriage,” she said in a statement. Kuehl, the state’s first openly gay lawmaker and a former law professor, said the justices “should have delayed the decision on the validity of the marriages and allowed the constitutional issues to be fully aired.”

Assemblyman Paul Koretz, D-West Hollywood, an active proponent of gay rights, issued a statement praising Newsom for his courage. “History will prove him right,” the lawmaker said.

“Regardless of legal technicalities, gay and lesbian couples and their children deserve the legal protections granted by civil marriage,” he added. “These couples are married in the eyes of their families, in the eyes of their community, and in the eyes of millions of Californians. Everyday that state officials deny these couples and their children equal protection under the law is a gross injustice.”

Attorney General Bill Lockyer, a prospective Democratic candidate for governor who sued to invalidate the licenses while seeking to maintain his base of support among party liberals, said in  a statement that 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.”

He also said he was committed to defending all of the state’s laws, including the domestic partnership legislation referred to by George. He noted that the Alliance Defense Fund, which was aligned with the state in yesterday’s case, has mounted a thus-far-unsuccessful challenge to that law.

The case is Lockyer v. City and County of San Francisco, 04 S.O.S. 4322.


Copyright 2004, Metropolitan News Company