California Supreme Court to Tackle Gay “Marriage” Issue

Hearing will decide on whether San Francisco Mayor Gavin Newsom misused his authority in issuing 4,000 gay “marriage” licenses
( [email protected] ) May 25, 2004 10:05 AM EDT

The California Supreme Court will hear today, May 25, 2004, on whether San Francisco Mayor Gavin Newsom abused his authority by issuing “marriage” licenses to some 4,000 gay couples earlier this year. While a final ruling to the case is not expected for 90 days, the hearing will be the first of several in which the future of Newsom and the status of the gay “marriage” licenses will be determined.

While Massachusetts became the first State to sanction same-sex “marriage” on May 17, the battle peaked much earlier on the West Coast; Mayor Newsom, along with several gay San Francisco couples, began a closed-door operation to legalize same-sex “marriage” in 2003, and in February of 2004, opened the doors of city hall to gay couples. By mid March when the attorney general Bill Lockyer halted the illegal operations, some 4,037 licenses had already been issued.

The gay couples – many of who came from out of state and out of country – have asked that the “marriage” licenses be recognized in their own cities. However, a bill passed in 2000, entitled Proposition 22, ensures that marriage is between one man and one woman only in California.

The main question that will be issued at the court today, is whether San Francisco officials, mainly Newsom, had the power to implement their own decision that the state law protecting traditional marriage was “discriminatory.”

Also in the California Constitution is a declaration that any "administrative agency" powerless to defy a state statute "unless an appellate court has made a determination that such statute is unconstitutional” – Article III Section 3.5.

Therefore, the debate will center over whether the San Francisco authorities fall under the term “administrative agency.”

In a recent briefing, the city attorney Dennis Herrera insisted the purpose of Article III Section 3.5 was for state agencies and not local agencies. He suggested that the state marriage restrictions are unconstitutional, and therefore, the defiant acts of the city "evince not disrespect for but the highest allegiance to the rule of law of our constitutional democracy."

On the contrary, the city’s challengers, state Attorney General Bill Lockyer and the Alliance Defense Fund, declared that the "administrative agency" provision encompasses local officials, including mayors and city clerks, exercising purely ministerial powers to implement statewide statutes, like the marriage laws.

They added that if the courts go along with San Francisco's defiance, local officials throughout California may create "a patchwork of disparate rights and obligations," based on their personal beliefs on such issues as abortion, environmental protection and gun control.

Thirty California legislators and the Pacific Justice Institute will join the prosecution, and argue in a friend-of-the-court brief that counties are administrative agencies and state subdivisions.

Meanwhile, gay rights organizations have prepared stacks of “declarations” from homosexuals, on why they should be married.

"No one writes love songs about being domestic partners," says Molly McKay of Oakland, who wed Davina Kotulski on Feb.l2.

"We just want to live and love like everyone else because we are like everyone else," says Davis resident Ellen Pontac, who married Shelly Bailes in San Francisco on Feb. 12.

Pontac argued that she and Bailes had been a couple for over three decades, and that they want "the security that no matter where we go, we will be recognized as each other's spouses for life," with the right to inherit from each other and make medical and burial decisions without fear of interference.

Lockyer, on the other hand, said the “marriages” do not exist because "the very definition of marriage does not include these partnerships."

Therefore, he called on the Supreme Court to clarify its view on the issue, and encouraged same-sex couples who “wed” to get their money back.

The Alliance Defense Fund also stated, "there is no 'interest' in an invalid license, regardless of how emotionally charged the facts may be."

The ADF contended on behalf of two of their plaintiffs, Barbara Lewis and Edward Mei, that gay couples have no more a right to maintain their “marriage” license than would a “twelve year old or a potted plant.”

The third plaintiff, the Rev. Charles McIlhenney, added that the same-sex “marriages” would harm his ministry since his “job as a pastor fundamentally to minister to the families in my congregations.”

“That won't be possible,” said McIlhenny, pastor at First Orthodox Presbyterian Church in San Francisco and Castro Valley, with the "lack of stability in who a man/husband/father is and the same with the wife."

The arguments, scheduled to begin at 9:00am, will last two hours. The cases are Lockyer v. San Francisco, S122923; Lewis v. Alfaro, S122865.