Lockyer: SF officials violated separation of powers in gay marriages

Associated Press via North County Times ^ | 25 March 2004 | Lisa Leff

[CounterCounterCulture]

Lockyer: SF officials violated separation of powers in gay marriages

By: LISA LEFF - Associated Press

SAN FRANCISCO -- Attorney General Bill Lockyer told the California Supreme Court Thursday that in issuing marriage licenses to same-sex couples, San Francisco authorities violated the separation of powers doctrine by assuming for themselves "more power than the Governor, or the Supreme Court, or the Legislature."

The seven justices are considering whether San Francisco Mayor Gavin Newsom had the legal authority to direct his administration to sanction marriages of gay and lesbians even though the state's Family Code in at least three places defines marriage as a union between a man and woman.

In a 29-page brief submitted at the court's request, Lockyer rejected the city's argument that local officials were obligated to grant the licenses because the California Constitution forbids discrimination. State law "controls every aspect of marriage, leaving nothing to the discretion of local government" he argued, while under the American system of government, only the judiciary can determine a law's constitutionality.

"The foundation of our constitutional structure consists of a separation of powers and a system of checks and balances," Lockyer's staff wrote. "Respondents purport to be defenders of the Constitution, yet they ignore these most fundamental concepts."

City Attorney Dennis Herrera's staff, in papers submitted to Supreme Court last week, said California case law is replete with examples of public officials, including previous attorneys general, refusing to enforce laws on constitutional grounds.

They also pointed to other state Supreme Courts, most recently the one in Massachusetts, that already have held that denying gay couples the right to wed is unconstitutional.

"San Francisco's officials honored the law; they did not ignore it," Herrera said.

Two weeks ago, justices unanimously ordered city officials to stop granting marriage licenses to same-sex couples until they consider the case.

Thursday was the deadline for the state and a Christian legal group seeking to invalidate the nearly 4,000 same-sex marriages sanctioned in San Francisco to file legal arguments with the Supreme Court, which has said it will hold a hearing as early as May on whether the city overstepped its bounds.

The Arizona-based Alliance Defense Fund argued in the brief it submitted on behalf of three San Francisco residents who opposed the monthlong wedding march that if the court accepts the city's argument, "every local official has unfettered discretion to interpret and apply the state and federal constitutions according to the dictates of his or her own conscience."

Such a situation, the fund's lawyers said, would allow a mayor who opposes abortion to order prosecutors to criminally charge doctors who perform abortions and empower a mayor who doesn't believe in gun control to issue gun permits to every applicant.

"Local officials have no authority to adopt a radical interpretation of the current state of the law promoted by special interest groups," they said.

By the close of business Thursday, the court had granted permission to three more groups to file amicus "friend of the court" briefs in the two parallel cases: Roger Jon Diamond, a Santa Monica First Amendment lawyer who has represented the adult entertainment industry, and Alma Marie Triche-Winston and Charel Winston, a lesbian couple, were allowed to submit briefs in support of San Francisco. A San Diego pastor who calls herself Divine Queen Mariette Do-Nguyen filed a brief backing the attorney general.

Three other parties -- the Colorado-based Christian advocacy organization Focus on the Family; state Sen. William J. "Pete" Knight, author of a 2000 ballot initiative that restricted California marriages to a man and a woman; and another pair of women -- were denied permission to file supporting briefs. Four other applications, all of them in favor of the city, are still pending.

The cases are Lewis v. Alfaro, S122865 and Lockyer v. San Francisco, S122923.

[Coeur de Lion]

Lockyer is making exactly the correct argument. Newsom has violated the "rule of law" by violating the "separation power's" concept imbraced in our constitutionally defined system of laws. This is something that the executive, legislative or judicial branches don't even attempt at their peril. And that's because it can easily upset the whole system. Herrera's argument is absolutly disingenuous because Newsom is usurping the power's of the judiciary itself. What the Massachusetts Supreme Judicial Court did is irrelevant because even though the California Supreme Court can use it's findings with respect to how it may ultimately decide the "gay-marriage" issue, that's left to the California Supreme Court to decide, not Mayor Newsom.

What's ironic is the Massachusett's Supreme Judicial Court decision itself is somewhat suspect because it in itself may be a "separation of powers" violation of Massachusett's Constitution. Not specifically their finding but the remedy they're attempting to impose. Namely the arrogant usurpation of the power's of the legislature by attempting to force them to make a law allowing "gay marriage" within a specific period or they will make the law themselves!

[Grampa Dave]

I guess that we got Lockliar's attention when we promised to do to him what we did his buddy the former governor, Herr Davis, recall his butt if he didn't act like an AG.

He needs his job with another wife and a new baby at his age.

[calcowgirl]

Three other parties -- the Colorado-based Christian advocacy organization Focus on the Family; state Sen. William J. "Pete" Knight, author of a 2000 ballot initiative that restricted California marriages to a man and a woman; and another pair of women -- were denied permission to file supporting briefs.

Do you know what the basis is for allowing or denying supporting briefs?
Why would these have been denied?

[Coeur de Lion]

I don't know. My quess is since the deadline for submitting amicus briefs in support of the appelant's position (i.e. Lockyer's) was yesterday at the latest perhaps they arrive in court after the proceedings began and briefs were called for. The only other reason and the probable one, was that they wouldn't have added to Lockyer's argument. Since the court made the decision that they were going to judge the case "narrowly" specific to the actions of Newsom and the City of San Francisco, and not the constitutionality of "gay marriage;" they may've been rejected because they went straight at the constitutionality of "gay marriage." This was not the issue before the court. The issue before the court is: Can Mayor Newsom and the City of San Francisco choose to interpret the state constitution and attempt to re-write state law according to their interpretation?

[calcowgirl]

Thanks for the info, that helps.
I was not considering which court was addressing which issue, and when.

[EdReform]

Ping

What We Can Do To Help Defeat the "Gay" Agenda

Homosexual Agenda: Categorical Index of Links (Version 1.1)

The Stamp of Normality

[little jeremiah]

Homosexual Agenda Ping - Lockyer is "coming out" on the correct side of the argument, apparently. I wonder why?

Let me know if anyone wants on/off this pinglist.

[mrustow]

Maybe the putz spent some of the six weeks since 2/12 commissioning a poll, which showed that SF is not CA, and that enfocring the law would not cost him his job.

[little jeremiah]

I'm sure his motive was not enlightened beneficence or concern for the well-being of the residents of the great state of California.