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In S.F., a Test Case for Gays

Mayor orders study on legality of same-sex marriages, calling ban unconstitutional.

February 11, 2004|Lee Romney | Times Staff Writer

SAN FRANCISCO — Thrusting this city into the national debate over gay marriage, San Francisco's newly elected mayor directed the county clerk Tuesday to explore changing marriage license forms so they can be issued "without regard to gender or sexual orientation."

Mayor Gavin Newsom stopped short of ordering the clerk to issue marriage licenses to gay couples: He asked her to report on the needed changes. He also asked the city attorney's office to study the legality of the move. But Newsom left no doubt about his intentions, calling limitations on gay marriage unconstitutional.

"A little more than a month ago I took the oath of office ... and swore to uphold California's Constitution, which clearly outlaws all forms of discrimination," Newsom said in a prepared statement. "Denying basic rights to members of our community will not be tolerated."

Backers and detractors of the measure agree that it is likely to prompt litigation if the city follows through. The move could contradict the California civil code of marriage as well as provisions in the family code.

San Francisco has long been a leader in pressing for gay rights, and Newsom's gesture will undoubtedly prove politically popular here. But it comes as the debate over same-sex marriage intensifies nationwide.

Today, hundreds of gay rights activists, conservative leaders and members of the media are expected to gather in the Massachusetts statehouse as legislators take up a state constitutional amendment to ban gay marriage. The historic session follows a 4-3 ruling in November by the Massachusetts Supreme Judicial Court that gays should be guaranteed the benefits of marriage. Legislators contended that civil unions such as those approved in Vermont would suffice. But last week, the Massachusetts high court issued an advisory opinion that only full-fledged gay marriage would pass constitutional muster.

Newsom's attempt to turn San Francisco into a test case on the issue came two days before a scheduled rally in the city by gay marriage advocates and three days before Assemblyman Mark Leno (D-San Francisco) plans to introduce legislation that would legalize gay marriage in California. Gay rights advocates applauded Newsom's directive, which appeared to position San Francisco as the first local government to move forward on the issue without a state mandate.

"This shows tremendous leadership and courage," said Thom Lynch, executive director of the San Francisco Lesbian Gay Bisexual and Transgender Community Center. "When many of our allies are calling for us to accept civil unions, the mayor has shown that he gets it that we are entitled to total equality and not some watered-down compromise."

Opponents of gay marriage called the plan illegal and politically unwise outside the liberal bubble of the Bay Area.

The California code "clearly states that marriage is between a man and a woman," said the Rev. Lou Sheldon of the Traditional Values Coalition. Furthermore, state voters signaled their sentiments in 2000 with the passage of Proposition 22, which prevents California from recognizing the marriages of same-sex couples married outside the state, he said

"Some Democrats just don't get it," said Sheldon, who was preparing to fly to Massachusetts for the legislative session. "America is saying in all of the national polls that marriage is one man and one woman only.... Unless the state Supreme Court does in California what it did in Massachusetts, the city and county of San Francisco can do nothing."

Newsom, a former county supervisor who won a close December runoff election, has long expressed support for gay marriage. But it was only this week that his staff began conferring with gay rights groups on the marriage license plan.

"It is abundantly clear that it is his intention and desire to have San Francisco provide marriage licenses in a nondiscriminatory fashion," said Kate Kendall, an attorney and executive director of the National Center for Lesbian Rights. "This is one huge step, but we are still a step removed from the actual issuance of any marriage licenses."

In Newsom's letter to County Clerk Nancy Alfaro, he noted that California courts have "interpreted the equal protection clause of the California Constitution to apply to lesbians and gay men and have suggested that laws that treat homosexuals differently from heterosexuals are suspect." He also referenced Supreme Court decisions on the issue in other states.

Chief Deputy City Atty. Therese Stewart said her office has been directed to "move as quickly as we can" to help determine whether Newsom can issue the licenses.

She said the legal question centers on whether local officials can and must act in accordance with their interpretation of the state Constitution regardless of other state law.

Last year, San Francisco took the lead on a comparable issue when the city assessor determined that the state Constitution ensures the same rights to domestic partners as those enjoyed by married couples when property is transferred from one partner to another.

Stewart said the city knew it was subjecting itself to potential litigation and a showdown with the state. In that case, the state Board of Equalization changed its own rules to conform to the San Francisco reading of the law.

In this case, however, Steward conceded, a showdown may be inevitable.

Hallye Jordan, a spokeswoman for state Atty. Gen. Bill Lockyer, said her office had not been asked for a legal opinion by Newsom and has not previously "issued any formal opinion on whether a local community can take such action under state law."

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