California Hearing Addresses Validity of S.F. Gay “Marriage” Licenses and Authority of Mayor Newsom

The licenses simply have no legal bearing under the California Family Code. They simply have never existed"
( [email protected] ) May 26, 2004 09:07 AM EDT

SAN FRANCISCO -- Attorneys for the state of California and the Arizona-based Alliance Defense Fund faced off with the liberal lawyers of the defiant city of San Francisco in the state Supreme Court on Tuesday, May 25. Throughout the 2-hour hearing, the justices and attorneys debated on whether Mayor Gavin Newsom abused his authority by opening city hall to homosexual couples and evaluated the validity of the “marriage” licenses handed out to gay couples earlier in the year.

"They simply have no authority," Timothy Muscat, associate attorney general for the state of California, told the seven justices. "The only authority ... that they possess derives from the California family code, and that is the only definition of marriage in the state of California."

Jordan Lorence, who argued for the pro-family ADF, joined Muscat in challenging Newsom’s action and the validity of the 4,000 gay “marriage” licenses issued between February and March.

Homosexuals in California would never be permitted to marry "if the voters have a say in this," Lorence told the court.

Muscat said the city's same-sex “marriage” licenses have “no legal effect whatsoever,” and need to be invalidated.

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

However, the San Francisco Attorney Therese Stewart snorted that tossing the licenses would be a harmful move on the part of the courts.

"If the court invalidates the licenses now," Stewart said, "what it will be doing is signaling to the world and signaling to the couples involved that their rights to have their relationships recognized are not considered weighty enough by this court to outweigh such considerations as inconvenience and confusion."

The Associate Justice Marvin Baxter then immediately responded that the city was responsible for the mess and that her argument had no relevance to the issue at hand.

"But, of course, it's the city that created this mess,” said Baxter. “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 they are now in."

In a second line of arguments, Muscat contended that Newsom and the S.F. officials usurped the power of the courts and the legislature by unilaterally deciding to issue the licenses.

"Under this scenario the legislature is left absolutely powerless," he said. "It's not as if the California legislature can re-enact family code section 300 and say, 'We really mean it this time.' Their core authority has completely been taken away by these local officials in San Francisco."

Stewart, on the other hand, argued that Newsom was convinced, through several legal precedents, that the state’s marriage laws were unconstitutional. She held that if a mayor acts in “good faith” and with legal precedents to bolster his or her case, the mayor can refuse to enforce a law.

"Why couldn't have this gone through the courts?" Justice Joyce Kennard asked in response. “What was the emergency, what was the irreparable harm? "Why not simply do the route of seeking a judicial decision as other litigants have been forced to do?”

Steward rapidly snorted, “"Sometimes the executive in carrying out their function must act. There was sound judicial authority for the mayor."

Justice Janice R. Brown seemed unconvinced however, and said it appeared S.F. had "eliminated the role of both the courts and the Legislature."

Justice Ming W. Chin also posed the question that if the state passed a law permitting gay marriage, "would mayors throughout the state be free to disregard it?"

Stewart’s response was: "There is no such law, and I don't anticipate there will be.”

Other justices skeptically considered the validity of Stewart’s arguments, saying that if officials in other cities followed San Francisco's lead, other laws -- such as gun laws -- could be disobeyed.

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.

After the court hearing, the ADF expressed confidence that the court would rule against Newsom.

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

The two cases are Lockyer v. City and County of San Francisco and Lewis v. Alfaro. A decision is expected within 90 days.