California Supreme Court appears inclined to rule against San Francisco on gay marriage

NC Times ^ | 5/25/04 | David Kravets - AP

[NormsRevenge]

SAN FRANCISCO (AP) -- The California Supreme Court appeared likely to conclude that San Francisco Mayor Gavin Newsom abused his municipal powers by issuing 4,000 marriage licenses to gay couples earlier this year.

While the court hasn't yet ruled, during two hours of oral arguments here Tuesday, several of the seven justices suggested that approving Newsom's actions would foment legal anarchy under which local officials could choose which laws to follow.

"Wouldn't that be setting a problematic precedent?" asked Justice Joyce Kennard. "Presumably, other local officials would be free to say ... I don't like that particular law, be it a ban on guns" or another issue.

That, she worried, would mean "no certainty of the rule of law."

The justices peppered opponents of the licenses, including a lawyer representing California's attorney general, and attorneys for the city with questions over how free elected officials are to interpret state law. Based on their comments, the court appeared inclined to decide that Newsom did not have authority to permit same-sex marriages, which the court halted in March.

A ruling was expected within 90 days.

Deputy Attorney General Timothy Muscat found a receptive court when he described San Francisco's actions as a unilateral rewrite of state law that has "completely taken away" the Legislature's power.

With that as an undercurrent, the court used the hearing to explore whether San Francisco officials had any authority to determine the constitutionality of state family law and issue the licenses.

Chief Deputy City Attorney Therese Stewart ticked off cases dating to 1896 which she said showed local officials have properly refused to enforce a state law after determining it unconstitutional. Among those cases were a municipal auditor who refused to pay a local commissioner's salary and a Golden Gate Bridge District official who refused to issue bonds.

Stewart argued that the constitutional rights of individuals -- in the city's view, the right of same-sex couples to marry -- should trump "situations that are of purely of local power or authority."

California laws clearly define marriage as a union between a man and woman. In 2000, voters also approved a statewide initiative requiring the state to only recognize a marriage between opposite sexes.

The California Supreme Court halted San Francisco's gay marriages in March at the request of Attorney General Bill Lockyer and gay marriage opponents. Gov. Arnold Schwarzenegger worried that Newsom's precedent, if allowed to stand, would encourage other local officials to subvert state law -- for example, permitting assault weapons despite a California law prohibiting them.

That leaves the issue of what to do about the 4,000 gay and lesbian marriages already performed at City Hall if the court rules that San Francisco officials overstepped their authority.

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

Stewart responded that the best course would be to let the couple keep the licenses until lower courts decide the question of their validity.

Lockyer and gay marriage opponents urged the court to take the next step and invalidate the licenses.

The court is unlikely to decide the validity issue. For now, the licenses carry great symbolic value, and virtually no legal weight.

When Newsom sanctioned the marriages for gays and lesbians in February, he cited the California Constitution, which bars discrimination, and claimed he was duty-bound to follow this higher authority rather than the state laws against gay marriage.

The justices, however, said they would only entertain that constitutional challenge if a lawsuit worked its way to them through the lower courts. Gays took that invitation and sued in San Francisco County Superior Court.

That lawsuit -- brought by gay and lesbian couples denied marriage licenses -- is not likely to reach the California Supreme Court for a year or two. It was a challenge by gays denied marriage licenses that prompted Massachusetts' highest court to allow the gay marriages that began there last week.

Justice Kathryn Werdegar suggested that the married couples should have a voice in the case before the California court.

"Why is it not necessary or appropriate for this court to have before it the persons affected by any declaration of invalidity before deciding if (the licenses) are invalid?" she asked Jordan Lorence, a lawyer for the Arizona-based Christian law firm Alliance Defense Fund, who argued against the licenses.

"I want to acknowledge the great emotions expressed by the couples," Lorence responded. "But this was essentially an act of disobedience ... there was the disclaimer that the clerk put onto the applications to the licenses saying 'Hey, everyone, I want you to know, these things are of dubious validity."'

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

[Viking2002]

A thousand microscopic violins weep in my heart for these freaks.

Or not.

[pogo101]

This is at least one good legacy of "liberal Republican" governor Pete Wilson: a largely non-liberal state judiciary. (Not "conservative," mostly. But clearly "non-liberal.")

[45Auto]

That, she worried, would mean "no certainty of the rule of law."

Sure, like she really cares. It is the judges themselves that create uncertainty in the law, especially when it applies to gun laws, because they are so anti-freedom, so anti-2nd when it comes to that issue that they bend and twist the existing case law and the structure of the Constitution just to make certain that they have the last word. That in turn creates a real disdain for the rule of law among the citizenry, not so dumb are they that they can't read plain English, enough to understand the nature and meaning of the RKBA. If they ever rule that faggot marriage is constitutionally valid, they will have done it again: handed down their personal political bias as a "constitutional decision". It is precisely rotten decisions that are so obviously flawed that creates the "uncertainty in the rule of law."

[45Auto]

I'm not so sure; this court has ruled against every challenge to obviously unconstitutional gun laws that have come their way for the past ten years.

[jim_trent]

> "Wouldn't that be setting a problematic precedent?" asked Justice
> Joyce Kennard. "Presumably, other local officials would be free to say;
> I don't like that particular law, be it a ban on guns" or another issue.

Notice what their greatest fear is; someone allowing the riff-raff to have guns.

[EdReform]

Ping

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

Homosexual Agenda: Categorical Index of Links (Version 1.1)

Myth and Reality about Homosexuality--Sexual Orientation Section, Guide to Family Issues"

Culture of Vice

The Stamp of Normality

[pogo101]

That may be a good point. I am just getting to learn about RKBA issues. In any event, I think it's generally fair to say that the state's judiciary (at the appellate and supreme levels particularly) is NOT trendy-PC liberal. I do NOT see it pulling a Massachusetts here, for example.

[Lancey Howard]

In 2000, voters also approved a statewide initiative requiring the state to only recognize a marriage between opposite sexes.

HAHAhahahaaa....! California is always passing popular referendums by huge margins and they end up not meaning a thing thanks to the liberal activist judges. I don't know why they bother out there.

[little jeremiah]

Homosexual Agenda Ping - back on the job, I'm gone for a few hours and look what happens!

I'll read them all later tonight -

Open for comments!

Let me know if anyone wants on/off this pinglist

[GreatOne]

One can never tell how an appellate court is going to rule based upon oral argument. I just argued a case before my state's Court of Appeals, and my boss, my wife, and myself all thought it was a cakewalk for me. Judges hammered the other attorney. Opinion comes back 3-0 against me.

[mrustow]

Like you, I gained little solace from this article. I'm no lawyer, but I get the impression that some justices give attorneys they agree with a hard time for sake of window-dressing decisions they'd already made long before oral arguments were heard.

[45Auto]

I've been following the RKBA issue in the courts for over 10 years; there is not one Federal Appellate Court that is NOT anti-2nd. Even the famous 5th Circuit's Emerson decision did not strike down the restraining order restriction/gun ban. Over the past 15 years, in California alone there have been at least three cases (two from the infamous 9th Circuit and one from the Cal SC) which challenged the state's unconstitutional AW ban using at least six different Constitutional provisions and the damn ban was upheld every time. The decisions read like a script from HCI, the VPC, and the DNC. Twisted, horrific 'logic' and mangled case law arguments that upon real scrutiny, do not hold up. Yet, the US SC refused the most recent AW ban challenge (Silviera)without comment. In retrospect, I think that was a good thing; the US SC is run by that communist Ginsberg, even though she is only one of eight associate justices.

[45Auto]

The California Supreme Court has a history of "going the wrong way" with key issues important to conservatives. One of the first was the upholding of the West Hollywood city "Saturday Night Special Ban". While this clearly violated California's state pre-emption, the damn court upheld it anyway, paving the way for a decade of municipalities passing ridiculous and unconstitutional gun laws, most of which could not be enforced, but which did serve to screw up the issue of firearms possession/transport. Coupled with the Clinton Adminstration's drive to cancel private FFL holders in Cal, this decision and the local laws resulting from it drove over half of the state's gun shops out of business. BC (Before Clinton) there was nearly 30,000 FFL holders in Cal; now there is a little less than 2500. My opinion is that the Cal SC. like all other AW (@sswipe, not assault weapon)"liberal" courts, simply does not like the idea of a well-armed and otherwise unfettered citzenry. You can rest assured that when the actual issue of faggot marriage comes before the Cal SC, they will go the wrong way once again.

[usadave]

When Newsom sanctioned the marriages for gays and lesbians in February, he cited the California Constitution, which bars discrimination, and claimed he was duty-bound to follow this higher authority rather than the state laws against gay marriage.

Using Newsom's reasoning he would be required to issue marriage licenses to polygamists too because the California Constitution bars discrimination.