A HIGH COURT GRILLING FOR SAN FRANCISCO: From the Sacramento Bee

This city encountered a stiff challenge from the California Supreme Court on Tuesday as it made its case for letting same-sex marriage resume here and validating the 4,037 marriages already performed.
The justices threw out mind-bending questions for two hours, but they seemed to reserve their tougher questions for the lawyer representing the city.

Why did San Francisco start marrying gay couples without first getting a ruling on the constitutionality of the state's ban on gay marriage? the justices asked.

And, they asked, why shouldn't gay marriages performed before such a ruling be treated as invalid? The constitutional question will be decided in other cases, all on hold in Superior Court, and not by the Supreme Court at this stage.

Therese Stewart, the chief deputy city attorney, argued that San Francisco had a higher duty--to enforce a fundamental right to marry.

She contended that another basic right, that of due process, should protect the existing gay marriages from being invalidated in the Supreme Court case, in which the couples were not parties with a right to be heard.

"But, of course, it's the city that created this mess," observed Justice Marvin Baxter. He said San Francisco should not have acted without obtaining a ruling.

Chief Justice Ronald George also reminded Stewart that "no such due process" was afforded by city officials when they decided in February that they weren't bound by state laws restricting marriage to a man and woman.

However, George and most of the other justices played devil's advocate to lawyers on both sides of the debate, quizzing them alternately about the implications of letting city officials defy certain laws and the ambiguities of a state constitutional provision that may or may not forbid local defiance.

The court has 90 days to issue its decision.

In March, when the justices accepted two separate cases filed against the city by state Attorney General Bill Lockyer and the Arizona-based Alliance Defense Fund, they ordered a temporary halt to the city's monthlong gay-wedding fest.

The status of the marriages that had taken place seemed to be one of the stickier questions for the justices.

If they rule that the city exceeded its powers, asked Justice Kathryn Mickle Werdegar, "would it not follow that the marriages were invalid?" But, she asked, would they then "spring back to life" if the state restrictions on marriage were held unconstitutional in a later case? ...

The justices questioned, for example, what legal limits could be set if city officials were allowed to defy state statutes.

If a recently shelved bill to legalize gay marriage had been enacted, asked Justice Ming Chin, could disapproving cities defy that? Other justices speculated about local police who might consider gun controls to be unconstitutional or local planning officials who might think property rights include the right to build on a beach.

Justice Carlos Moreno, seemingly wary of restricting local officials too much, asked whether a county clerk could have issued licenses to mixed-race couples before the historic 1948 state Supreme Court decision that cleared the way. The U.S. Supreme Court followed 19 years later.

Stewart said the line should be drawn at the point where the status quo has been "substantially undermined" by judicial decisions--like the U.S. Supreme Court's 2003 decision striking down the Texas sodomy law.

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posted by Eve at 2:14 PM | link

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